Balhas v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Balhas v Allianz Australia Insurance Limited [2023] NSWPICMP 380
CLAIMANT:	Ibrahim Balhas
INSURER:	Allianz Australia Insurance Limited
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	9 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of minor (now threshold) injury by Medical Assessor (MA) Menogue and claimant’s review under section 7.26; claimant alleged injury to right shoulder, neck and back following March 2018 intersection collision; issue of causation due to previous significant neck injury in 2014 and lower back treatment one month before the accident; issues about radiculopathy at time of assessment or any time thereafter and pathology on scans; Held – claimant conceded right shoulder was a threshold injury; Panel found claimant injured his neck, thoracic and lower back in the accident but Panel not satisfied current presentation caused by the accident due to the absence of clinical complaints after the first few months and treating specialist’s history of a new neck injury three years after the accident; history in records supported a finding thoracic and lumbar injury recovered and that the claimant sustained a new injury while overseas or on return; in any event no evidence of two of the five signs of radiculopathy in neck or back at any time since the accident; expert evidence showed no change in pre and post-accident thoracic or lumbar pathology on MRI scans; certificate of MA confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Menogue dated 30 June 2022. 2. Certifies that the injuries sustained by Mr Balhas are threshold injuries for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Ibrahim Balhas was involved in a motor accident on 28 March 2018 at an intersection in Greenacre. Mr Balhas was travelling into an intersection with a green light and says another driver drove through a red light causing a collision.
Mr Balhas says he injured his right shoulder, cervical, thoracic and lumbar spine in the accident and sustained a psychological or psychiatric injury. On 5 April 2018 he made a claim for statutory benefits with Allianz, the third-party insurer of the vehicle that Mr Balhas says caused the accident and his injuries.

Mr Balhas has also made a claim for lump sum damages for the losses he sustained due to the negligence of Allianz’s insured.
Two medical assessment matters have arisen in the claims:
(a) a dispute about whether any of Mr Balhas’ injuries are not minor (now threshold) injuries,[1] and
(b) a dispute about the degree of the claimant’s whole person impairment (WPI) resulting from the injuries sustained in the accident.
[1] The terminology of the dispute at the time was whether or not the claimant’s injuries were “minor” injuries. For ease of reference, the Panel adopts the new terminology even though the application, submissions from the parties and the decision of the Medical Assessor refer to “minor” injuries.
Mr Balhas referred those medical assessment matters to the Personal Injury Commission (the Commission) for assessment. An officer of the Commission determined that only the claimant’s threshold injury dispute would be assessed, and that dispute was referred to the following Medical Assessors for assessment:
(a) Medical Assessor Menogue who determined on 30 June 2022 that Mr Balhas’ physical injuries were all threshold injuries within the meaning of the legislation, and
(b) Medical Assessor Fukui who, on 4 April 2023, determined that the claimant had sustained as a result of the accident non-threshold injuries namely a post-traumatic stress disorder and a major depressive disorder.
The claimant has lodged an application with the Commission seeking a review of Medical Assessor Menogue’s decision. On 20 January 2023, based on the particulars set out in the application, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review to proceed. On 25 January 2023, the President’s delegate convened this Panel to conduct the Review.
The Panel understands there is an application for review pending before the President’s delegate in respect of Medical Assessor Fukui’s decision. As there is no final decision as to whether any of the claimant’s psychological injuries are not threshold injuries it is therefore appropriate for the review of Medical Assessor Menogues’ assessment to proceed.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Balhas’ claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
Entitlement to both statutory benefits and damages under the MAI Act is not unlimited. Under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 or 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[2] In a common law damages claim, no damages may be awarded if the claimant’s only injuries are “threshold” injuries.[3]
[2] The availability of statutory benefits was amended in 2022 to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023.
[3] Section 4.4 of the MAI Act.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding part of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 and while they may make a damages claim, they cannot recover any damages for it.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is not a threshold injury.
In other words, an injury to a nerve is not a soft tissue injury in accordance with s 1.6(2) of the MAI Act. However, cl 4 of the Regulation provided that an injury to a spinal nerve root is a soft tissue injury unless the injury manifests in radiculopathy. In other words, if Mr Ibrahim has cervical radiculopathy present, the injury to the spinal nerve root causing that radiculopathy will be a non-threshold injury.

Radiculopathy

Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.8 provides a definition of radiculopathy as follows:
“… 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’”
The five clinical signs are:
(a)    loss or asymmetry of reflexes;
(b)    positive sciatic nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act.[4] In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
[4] The current version of the Guidelines I version 8.2 effective 8 April 2022.
The method of assessment in Part 5 would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).

ASSESSMENT UNDER REVIEW

Medical Assessor Menogue examined the claimant on 30 June 2022 and issued his certificate on the same day. He was asked to assess the following injuries:
(a)    cervical spine - strain and soft tissue injury;
(b)    thoracic spine - strain and soft tissue injury;
(c)    lumbar spine - strain and soft tissue injury, and
(d)    right shoulder - restriction of movement, positive impingement syndrome with possible secondary adhesive capsulitis.
Medical Assessor Menogue took the following history from the claimant:
(a)    the claimant worked as a carpenter without formal qualifications;
(b)    he is married with no children. His wife attends to the domestic duties;
(c)    he pays someone to come once a month to care for the lawns and garden;
(d)    in 2014 he sustained an injury to his right ankle while playing soccer but was otherwise well;
(e)    Medical Assessor Menogue notes complaints of back pain in the GP notes and that the claimant had a CT scan of his lumbar spine on 1 March 2018, four weeks before the car accident. The claimant did not recall this previous back pain but said he had “intermittent back pain after work”;
(f)    his car was struck on the driver’s side, spun around and hit a pole and his airbag deployed. He was taken to Bankstown Hospital but discharged later in the day;
(g)    he went to his general practitioner (GP), Dr Khoury at the Yagoona Medical Centre the day after the accident complaining of lower neck pain, right shoulder and lower back pain, was referred for physiotherapy and prescribed analgesics;
(h)    due to worsening back pain, he was referred for an MRI and then to neurosurgeon Dr McKechnie;
(i)    the claimant had physiotherapy and exercise physiology and further attendances on his GP, and
(j)    the claimant travelled to Lebanon in 2019 to get married.
Medical Assessor Menogue records current symptoms as follows:
(a)    cervical spine – pain, including an ache which spreads to the right shoulder and into the right limb, pins and needles in the forearm and his middle ring and little finger of the right hand;
(b)    right shoulder – no isolated right shoulder or arm pain but pain coming from the neck;
(c)    thoracic spine pain – mid-thoracic back pain spreading to the chest and with numbness, and
(d)    lumbar spine – pain – constant towards the right sided ache that spreads to the right buttock, right lateral thigh and back of the calf and right instep.
On examination:
(a)    the claimant limped favouring his right leg;
(b)    there was no guarding or spasm in the neck, there was dysmetria in lateral rotation, but the other movements revealed a loss of motion which was symmetrical;
(c)    there were no neurological signs or symptoms on the upper limbs;
(d)    shoulder motion was near normal on the left but restricted on the right, and
(e)    the thoracic and lumbar spines had reduced motion, which was symmetrical, there was no guarding or spasm and no neurological signs or symptoms in the lower limbs.
Medical Assessor Menogue reviewed the documentation and the radiology.
His diagnosis and reasons at [21] say:
(a)    the clinical picture after the accident was of an injury to the neck and the thoracolumbar spine;
(b)    three weeks before the accident he presented to his GP, was investigated, and a preliminary diagnosis of sciatica was made;
(c)    there were no signs of radiculopathy at the hospital after the accident;
(d)    the pre-accident neck imaging revealed degenerative changes including annular tears at C5/6 and C6/7;
(e)    the claimant sustained a soft tissue injury in the accident to the cervical spine but there was no radiculopathy;
(f)    there was no evidence of a frank injury to the shoulder – the imaging of the shoulder on the day of the accident related to the neck, and
(g)    the claimant had an evolving low back disorder with its genesis on 1 March 2018. There was insufficient evidence of lower limb radiculopathy.
Medical Assessor Menogue found the cervical spine injury was a threshold injury, a musculoligamentous strain, as was the thoracolumbar and lumbar spine injury.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant refers at [4] to “clear breaches of the Guides for Assessment of Permanent Impairment published on 1 October 2007” including:
(a)    references to historical records;
(b)    a focus on verifiable radiculopathy with no regard to non-verifiable radiculopathy;
(c)    the evaluation is to consider impairment as it is at the time of assessment, and
(d)    impairment should not be denied on historical evidence.
Medical Assessor Menogue utilised the wrong test for causation by “discontinued [sic] non-verifiable radiculopathy” [5].
Page 24 of the Guidelines distinguishes between verifiable radiculopathy and non-verifiable radiculopathy and by looking for “loss of diminished reflexes, loss of diminished power or loss or diminished sensation” he has committed an error.
In terms of the cervical spine the claimant says:
(a)    the assessment of the restriction of neck movements did not accord with the Guidelines [10] – [12];
(b)    the principles of the case of Nguyen[5] applies [13] and [16];
(c)    assessment of the cervical spine and right shoulder has not been undertaken in accordance with the AMA 4 [15];
(d)    the Medical Assessor has taken into account previous assessments which are immaterial [17], and
(e) the Medical Assessor has not questioned the claimant enough to ascertain no-verifiable radiculopathy [20].
[5] This is a reference to the case of Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351.
The claimant addresses the Medical Assessor’s assessment of the lumbar and thoracic spine and says at [23]:
(a)    there is no recording of actual range of motion through all planes of motion has been done which is a material error;
(b)    he has not had regard to the DRE differentiators, and
(c)    the Medical Assessor made no attempt to ascertain non-verifiable radicular complaints in the legs and feet.
In relation to the right shoulder injury, the claimant says at [25] that the Medical Assessor has failed to give reasons on causation and at [26] that he failed to consider the Nguyen principle.

Insurer’s submissions

The insurer objected to the review on the grounds it was lodged late. The insurer says that it was lodged at 5.05pm on the last day for the review and rule 26(1) of the PIC Rules provides any document received after 5.00pm is taken to be received on the following business day.
The President’s delegate determined there were exceptional circumstances to warrant the acceptance of the late review application.
The insurer asserts the Medical Assessor did explain his reasons for right shoulder causation. The remainder of the insurer’s submissions engage with the claimant’s WPI submissions (for example, range of motion and use of a goniometer).
In relation to the thoracic and lumbar spine, the insurer noted the assessment concerned a threshold injury dispute not a WPI dispute and therefore there was no obligation to refer to every single DRE category. The insurer refers to cls 5.6 and 5.7 of the Guidelines and that a determination of radiculopathy is required for a finding of non-threshold injury. The insurer refers to the definition of radiculopathy in cl 5.8.
With regards to the cervical spine, again the insurer refers to the distinction between the assessment of threshold injury and the assessment of permanent impairment. The insurer says range of motion model is not required and Nguyen is not relevant in a dispute about threshold injury.
The insurer says at [60] “The claimant’s submissions are focussed on a permanent impairment assessment rather than a minor injury assessment and therefore do not highlight any material error associated with the minor injury assessment”.

Procedural matters

The Panel met on 28 February 2023 and reported to the parties as follows:
(a)    the original application for assessment referred two disputes for assessment (minor now threshold injury and WPI);
(b)    the insurer’s reply to that application objected to the WPI dispute proceeding on the basis no internal review had been requested;
(c)    the Commission’s referral only referred the threshold injury dispute to Medical Assessor Menogue for assessment;
(d)    Medical Assessor Menogue issued one certificate and that related to the threshold injury dispute, and
(e)    the President’s delegate determined the application for review in relation to the decision about threshold injury.
The Panel advised the parties that the Panel obtained its power to undertake a review of Medical Assessor Menogue’s decision from the President’s delegate’s decision. As the only medical assessment matter referred to the Panel was the threshold injury matter, the Panel would not, and could not, consider the dispute about WPI.
The Panel advised the parties that having considered the submissions of both parties and the documentation generally, the issues involved in Mr Balhas’ threshold injury assessment appeared to be:
(a)    causation generally in the light of what the insurer alleges is the claimant’s pre-accident history and the pre-existing conditions in the claimant’s neck, back and right shoulder;
(b)    in the cervical spine, what was the injury caused by the accident for example a cervical disc injury or a nerve root injury manifesting in cervical radiculopathy and is that accident-related injury a “threshold injury”?;
(c)    in the thoracic and lumbar spine what was the injury caused by the accident a thoracolumbar disc injury or nerve root injury manifesting in lumbar radiculopathy and is that accident-related injury a “threshold injury”?, and
(d)    in the right shoulder the Panel notes the hospital records indicate a right shoulder seat belt type injury did occur and therefore is that injury a soft tissue injury or “a complete or partial rupture of tendons, ligaments, menisci or cartilage”?
The Panel requested submissions from the claimant addressing only the medical assessment matter about threshold injury by 28 March 2023 and submissions in response from the insurer by 14 April 2023.

Claimant’s further submissions

The claimant’s further submissions were dated 28 March 2023.

In relation to the issue of causation the claimant accepts at [2] he had pre-accident back complaints but says it was limited to only one GP attendance and a CT scan [3] and [4]. The claimant says, commencing at [6] that he has had complaints of back pain since the date of the accident.
In terms of lumbar radiculopathy, the claimant says:
(a)    at [11] he developed radicular symptoms two weeks after the accident as documented by the physiotherapist on 16 April 2018;
(b)    an examination by Ms Kokal physiotherapist revealed positive sciatic nerve root tension signs, muscle weakness and sensory loss [14];
(c)    the claimant’s GP refers to lower limb neuropathy [17], [18] and [20];
(d)    a physiotherapist Ms Hart, on 15 January 2020 found positive sciatic nerve root tension signs and muscle weakness [22];
(e)    Ms Hart found positive sciatic nerve root tension signs, muscle weakness and reproducible sensory loss on 12 February and 15 April 2020 [25] and [26];
(f)    Dr Al-Khawaja found positive sciatic nerve root tension signs, muscle weakness and sensory loss on 13 February 2020 [27], and
(g) Mr Ramachandran found muscle atrophy on 19 November 2020 [35].
With regards to the lumbar discs, the claimant says at [15] his GP reported to Allianz on

29 June 2018 that the claimant had an L4/5 tear and L5/S1 bulge.
The claimant also points to an anterior compression fracture of T6 through to T8 found on an MRI of 28 February 2020 which is a non-threshold injury [29].
The claimant says at [41]:
“The claimant submits, considering the history provided above, the Review Panel having examined the claimant would be satisfied that the subject accident was causative of nerve root injury at the thoracic and lumbar level. There has been a demonstrable presence of radiculopathy at various times since the accident, as referred to above. From time to time on examination, the claimant has exhibited positive sciatic nerve root tension signs, muscle atrophy, muscle weakness anatomically localised to an appropriate spinal nerve root distribution and/or reproducible sensory loss that is anatomically localised to an appropriate nerve root distribution. Therefore, the claimant submits that more than two of the five indicia of radiculopathy in cl 5.8 of the Guidelines have been present. The injury at the lumbar spine and thoracic spine must be non-minor.”
The claimant also acknowledges at [43] a prior history of neck pain which he explains resulted from a fall from a trampoline in 2014. Imaging revealed annular tears at C6/7 which were treated at that time and on discharge the claimant had no neurological symptoms [44]. There was one physiotherapy visit in August 2016 [45]. The claimant says Dr Herald found radiating pain and a positive Spurling’s test which confirms a nerve root compression which has given rise to radiculopathy. The claimant does not address the five signs required by

cl 5.8.
The claimant confirms there is no evidence of a complete or partial rupture of tendons, ligaments, menisci or cartilage in his right shoulder and acknowledged two previous records of complaint in the right shoulder (October 2014 and August 2016) but intends to further investigate this.

Insurer’s further submissions

The insurer refers to the fall from the trampoline and the neck injury, the complaints of back pain in March 2015 and February 2016 and the history given to the GP on 1 March 2018 that the claimant had been experiencing back pain for a year. The insurer disputes causation of the alleged injuries at all levels of the spine.
In respect of the neck the insurer refers to the Bankstown Hospital discharge summary which stated there was no cervical tenderness. The insurer also says that while Dr Herald found a positive Spurling’s test he found no signs of radiculopathy only non-verifiable radicular complaints. The insurer says this is a threshold injury.
The insurer says the L1 wedge fracture is old and not caused by the accident and that again Dr Herald found none of the five signs of radiculopathy.
In relation to the thoracic spine, the insurer says the alleged three compression fractures were reported to be possibly due to Scheuermann’s disease which is not evidence of a traumatic injury. In addition, the insurer relies on Dr Herald’s report and opinions. Dr Herald found radicular symptoms but no signs of radiculopathy.
The insurer notes the claimant’s concession concerning the right shoulder being a minor injury and notes the history given to his GP on 29 October 2014 that the claimant heard a snap in his right shoulder when lifting at work.

REVIEW OF THE EVIDENCE

General remarks about the evidence

The claimant and the insurer have each provided a bundle of documents.
There is duplication between the bundles, for example both parties have provided a copy of the discharge summary from Bankstown Hospital on the day of the accident and both parties have provided copies of Dr Al Khawaja’s records.
There is also duplication within the bundles, for example the emergency department discharge summary has been included at page 23 of the claimant’s bundle and also at pages 90, 94, 279 and 284. There are four copies of the GP notes and third-party documents at pages 36, 174, 344 and 399 of the claimant’s bundle.
The claimant’s bundle comprises more than 1,000 pages and the insurer’s over 400 pages. Basten JA in Rahman v Insurance Australia Ltd t/as NRMA Insurance[6] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[6] [2022] NSWSC 1079.
The Panel does not intend to refer to all the documents provided by the parties but only those the Panel considers significant to the medical assessment matter we are considering.

Claim form and claim documents

The claimant’s application for personal injury benefits was declared by the claimant to be true and correct and is dated 5 April 2018. He described his injuries as follows:
“At the time of impact I have felt that I’m passing out as the whole impact went through my body. My head hit the side airbag. My whole body jolted so hard. As a result I am suffering from severe back pain which have impacted my ability to work and presented me from doing my other daily activity.”
The Panel notes the reference to “back pain” generally would not expect a lay person completing a claim form to distinguish between lower / lumbar and mid / thoracic pain.
The claimant says he was taken to Bankstown Hospital by ambulance and discharged the same day.
The first certificate of fitness signed by Dr Tommalieh and dated 5 April 2018[7] refers to “MVA – lower back – mid back pain with radiculopathy”. The second certificate of fitness completed after the MRI on 10 April 2018[8] refers to “disc bulging at L4/5, L5/S1 and L4/5 annular tear”. The claimant was said to have been referred to Dr McKechnie, neurosurgeon and for physiotherapy at Pro-fit.
[7] Page 97 of the insurer’s bundle.
[8] Page 102 of the insurer’s bundle.
The Panel notes that in neither medical certificate is there a mention of neck pain or cervical injury or shoulder injury.

Pre-accident records

Dutton Street GP practice

The Dutton Street Medical and Dental Centre have provided their records.[9] These show:
[9] The version referred to commences at page 136 in the insurer’s bundle.
(a)    on 11 April 2014, while the claimant was being considered for neutropenia (a blood disorder) he developed ankle pain and was referred to Dr Frank Machart and then sought referral to another orthopaedic surgeon, Dr Mourad;
(b)    on 15 April 2014 the claimant was not working. The note refers to a knee injury and Mr Balhas denied knee, hip or low back pain. On examination, neurologically he was normal;
(c)    on 7 May 2014 the claimant attended with joint pains and rheumatoid arthritis was considered as a possible diagnosis;
(d)    on 29 October 2014 the claimant attended after a work injury where it is said he, “was trying to lift board, felt a pop in right shoulder. On exam, decreased abduction, internal rotation”. An ultrasound was requested;
(e)    the claimant attended on 2 May 2015 with lower back pain which was to be monitored;
(f)    Dr Islam wrote a medical certificate for the claimant on 25 August 2015 saying he was unfit for the gym;
(g)    on 3 February 2016 the claimant complained of back pain after heavy lifting but with no radiculopathy. It was noted he will try non-steroidal anti-inflammatories (NSAIDS) and will need physiotherapy. A GP medical plan was completed for “chronic back pain”;
(h)    in 2017 there were issues of stress and anxiety (and panic attacks) associated with relationship issues, the loss of his driver license and three cousins dying. Mr Balhas was prescribed Valium and was referred to Mrs Moussa for treatment of “recurrent panic attacks”;
(i)    on 18 May 2017, the claimant also reported “had illicit drugs last few weeks while partying. Getting (brain zaps) numbness”, and
(j)    on 1 March 2018 the claimant attended with back and leg pain and a diagnosis of “?sciatca” was suggested and a CT scan requested. The full note reads as follows:
“back pain since last year
works in construction, lifting heavy object
pain getting worse
no pain killers
shooting pain in left leg and numbness
cutting down on smoking now smokes 10 cig day
examination bp 110/80
cannot walk on heels and toes, cannot squat
SLR test positive bilaterally, more in right leg
sacral spine tenderness”
Mobic was prescribed and a CT scan requested[10].
[10] The CT scan is referred to under the heading “radiology’.

Revesby Family Clinic

The claimant also attended this clinic where he was seen by doctors including Dr Elhafi.
On 29 August 2016 the claimant attended with “acute pain of the R upper neck associated with R scapula’s pain”. The claimant was given a referral to Pro-Fit for physiotherapy.
The claimant saw the doctors here twice before and once after the accident (23 May 2018) with no mention of musculoskeletal issues.

Neck injury - 2014

The discharge summary from Royal Prince Alfred Hospital dated 22 June 2014 includes the emergency department’s case history notes[11]:
“19.30 tonight he was jumping up and down on a trompoline. Tried to do a backflip to land on his back instead he landed directly onto his head onto the trmpoline. Felt a shooting pain travel all the way down his neck and back and felt about 7 clicks in his back also. Denies any LOC. Nil hedaches since. Nil vomits. Instantly after the event for 10 – 15 seconds he was concerned that he coudn’t move his arms and legs after 10 seconds he tried and was able to. He then felt pins and needles in his hands and feet which have since gone. Now he has some pain in between his shoulder blades has a little bit of pain in his neck only when he was having his upper limbs tested for power in the neuro exam.”
[11] Page 961 of the claimant’s review bundle.
The remainder of the notes include similar references to the fall, hearing cracks or clicks in his back and a period of lack of movement and pain.
An X-ray, CT scan and MRI scan were undertaken with the MRI showing C5/6 and C6/7 traumatic annular tears but no associated disc herniation and no evidence of any spinal cord injury.
On 15 August 2014 the claimant’s neurosurgeon discharged the claimant from his care noting the C6/7 annular tear following the fall from the trampoline and remarked that the claimant was recovering with stiffness in his neck. The claimant reported no radicular pain, and said he had a full range of neck movements on examination.[12]
[12] Page 85 and 199 of the insurer’s bundle.

Treating medical records and reports

The claimant attended the Bankstown-Lidcombe Hospital on the day of the accident. The discharge summary[13] notes:
(a)    a prior history of “anxiety”;
(b)    an intersection T-bone collision, the car being spun around “a few times” and hitting a pole, the airbag deploying and the claimant hitting his face;
(c)    while the claimant got himself out of the car, he was shocked;
(d)    ambulance and police attended and claimant complained of pain in his lower back and right shoulder;
(e)    on examination there was no neck tenderness and the neck was moving in all directions;
(f)    there were seatbelt marks on the right shoulder with pain on abducting the right shoulder and on external rotation of the right shoulder;
(g)    there was also lower lumbar spine pain, and
(h)    neurologically there was no deficit.
[13] Page 29 of the claimant’s review bundle, page 11, 89, 93 of the insurer’s bundle.
The claimant attended Dutton Street on the day after the accident and the note records that he had been getting lower neck, right shoulder and lower back pain. While he was known to have back pain he said, “it was OK lately”. On 4 April 2018, the claimant attended with “worsening lower back pain”.
Dr Tommalieh referred the claimant to Dr McKechnie on 20 April 2018 for lower back pain following a car accident.
The claimant attended upon Dr Tommalieh on 15 May 2018 “still in pain” and was given Lyrica and Naprosyn. Mr Balhas had not yet seen Dr McKechnie as he was waiting for approval. Further attendances occurred on 22 May and 14 June 2018.
Mr Omeros, exercise physiologist with Pinnacle Rehab completed a report on 29 May 2018.[14] The claimant said he had no previous major injuries other than “muscle soreness and muscle tears”. The claimant reported symptoms in his lower and mid back and his “glutes”.

Mr Omeros noted the following psychosocial yellow flags, “Mr Balhas reported that he is feeling anxious as to whether he will improve as he is still in a lot of pain which is impacting his functional capacity. When discussing his work duties, Mr Balhas advised he did not have capacity for any of his work tasks due to current lower back pain symptoms”.
[14] Page 660 of the claimant’s review bundle.
Ms Kokal, physiotherapist from Pro-fit wrote a letter to Dr Tommalieh dated 7 June 2018.[15] Mr Balhas had attended on that day with a one-week history of lower back pain radiating into the right buttock which was aggravated by lifting, carrying, sitting, driving, prolonged positioning and bending. She noted an adequate range of movement but some pain.
[15] Page 108 of the insurer’s bundle.
Ms Kokal’s records[16] include:
(a)    an allied health recovery request (AHRR) dated 19 April 2018 requesting the insurer approve treatment to the lower back for pain;
(b)    AHRR number 2 dated 14 May 2018 for further back treatment;
(c)    AHRR number 3 dated 7 June 2018 for further back treatment. At that time 12 sessions of physiotherapy had been provided and a request was made for gym membership so the claimant could undertake his own exercises;
(d)    17 sessions in total;
(e)    a patient form which includes a pain chart which was completed by the claimant on 19 April 2018, and which shades the back below the scapular and down to the buttocks, tingling and numbness in a patch on the left outer thigh, and
(f)    a pain diagram completed by the physiotherapist in the notes which shades and area of the lower back on both sides at about the belt line which is noted as 8 out of 10 with a “deep ache and burning”. Also noted is “Nil p + n [pins and needles], Nil numbness”. The claimant did report some pain radiating down the right leg.
[16] Page 675 of the claimant’s review bundle.
Dr Tommalieh completed a handwritten questionnaire for Allianz on 29 June 2018.[17] He estimated it would be 3 – 6 months before the claimant returned to work and that he required neurosurgical review and a referral to a psychologist. The only injury mentioned was the lower back injury.
[17] Page 109 of the insurer’s bundle.
The claimant attended the Revesby Family Practice and saw Dr Anwar on 8 September 2018 with palpitations and “known anxiety” and on 3 October 2018 he attended on Dr Elhafi reporting a panic attack. He was said to have been taking Valium for two years and there is no mention of the accident.
On 15 and 18 October 2018 Mr Balhas attended for what appears to be a further panic attack (with no mention of the car accident) but the latter attendance included a reference to the police raiding his home. Referrals to Dr Apler, psychiatrist and a cardiologist were provided on 26 October 2018.
Dr Jacobson, psychiatrist wrote to Dr Elhafi on 5 November 2018.[18] She had a “two-year history of severe anxiety, Panic Disorder and episodic Major Depression”. The claimant reported daily panic attacks, difficulty going out, broken sleep, loss of appetite and struggles going to work. Dr Jacobson refers to a police raid on the claimant’s home where a false international driver’s license and prescription medication was found. She refers to the motor accident and the claimant’s physical injuries but there was no complaint of a psychiatric nature arising from the accident in this report.
[18] Page 367 of the insurer’s bundle.
In Dr Jacobson’s notes is a 22 November 2018 handwritten entry dealing primarily with medication. The note says, “off pain killers now”.
On 8 November 2018 the claimant attended Dr Elhafi and for the first time told him about the motor accident saying “MVA 5/12 [five months ago] low back pain ? disc lesions reaggravation last night pulling injury needs to chase up records, in pain. Antalgic gait. Radiation to left upper limb intermittent neuropathy”. Endone was prescribed.
On 19 November 2018 due to continuing back pain the claimant was referred by Dr Elhafi to Dr Manohar and a prescription for Endone was refused.
Further attendances occurred with Dr Elhafi in 2019 primarily for mental health issues and scripts.
On 14 and 23 December 2019, the claimant saw Dr Elhafi with lower back pain, an updated MRI was requested but no neurological deficits were noted.
Dr Al Khawaja saw the claimant at the request of Dr Elhafi of Revesby.[19]
[19] His notes begin on page 388 of the insurer’s bundle.
At the first consultation on 13 February 2020, Dr Al Khawaja took a history of the car accident and the claimant’s treatment and that, “After 6 months, he was back to normal function”. Dr Al Khafaji had no history from before the car accident or, for example, the CT scan from 1 March 2018. He says:
“Today he presents with an exacerbation of lower back pain and lower thoracic pain since 27 November 2019 return from a trip to Lebanon.”
This pain was described as being in the thoracic and lower back with bilateral paraesthesia and numbness in the thighs but no pain or paraesthesia below the knees and was said to be quite debilitating. The claimant said he had been taking Endone, Tramadol and Panadeine Forte without any effect and was having physiotherapy and hydrotherapy.
The claimant was examined and was quite stiff. Straight leg raised was positive at 40 degrees mainly on the left and there was weakness in the hip flexion on the left side. There were no sensory changes and reflexes were normal.
Dr Al Khawaja advised the claimant to have a thoracolumbar MRI and return for review.
Dr Al Khawaja[20] wrote to Dr Elhafi again on 23 April 2020 after the MRIs and says he explained to the claimant there were no radiological abnormalities to explain his symptoms and there was no need for surgery. The claimant was referred to Dr Ramachandran for pain management.
[20] Page 590 of the claimant’s bundle, page 391 of the insurer’s bundle.

Dr Ramachandran saw the claimant on 13 May 2020 and wrote to Dr Al Khawaja. He has a history of “longstanding” spinal pain “precipitated” by the car accident. He has a history of the claimant improving and that the claimant’s symptoms worsened after a trip to Lebanon with a “significant flare up in October 2019”. Pain was said to be in the thoracic and lumbar regions. Dr Ramachandran made a number of recommendations for treatment.
On 17 June 2020 the claimant reported minimal benefit from diagnostic injections and on that basis, he was not a candidate for radiofrequency neurotomy. He recommended physiotherapy and a trial of Cymbalta.
Dr Ramachandran wrote to Dr Elhafi on 6 August 2020 after the claimant’s MRI scan of the whole of the spine.[21] The claimant was reassured that there was no need for surgery and was advised to take analgesia regularly with Oxycodone while he was having physiotherapy. He also suggested epidural injections.
[21] Page 560 of the claimant’s bundle.
In a letter to Dr Elhafi dated 19 November 2020 Dr Ramachandran noted the claimant still had significant pain in the lumbo-sacral area, limiting his psychological functioning and he considered the claimant had an adjustment disorder and pain disorder with multiple stressors. He recommended Mr Balhas participate in a multidisciplinary pain management program.
Dr Ramachandran wrote again to Dr Elhafi on 14 December 2020 after the claimant’s epidural injection. The claimant reported this gave him short term benefit and advice was given to alter the regime of medication.
Dr Ramachandran wrote to the claimant’s solicitor on 17 December 2020[22] providing details of his treatment. He says, “there is a direct relationship between the accident and the injuries suffered.” He says the claimant had no mental health issues, exercised regularly and was quite fit before the accident.
[22] Page 976 of the claimant’s bundle.
The claimant commenced the pain management program in February 2021 and was attending regularly. Pain medication was adjusted accordingly.
On 28 April 2021 the claimant attended for further pain management and Dr Ramachandran records “a new onset of cervical axial spinal pain and right upper limb pain which has neuropathic symptoms”.
The last report from Dr Ramachandran is dated 21 May 2021 following “his more recent onset cervical spinal pain and right radicular symptoms without radiculopathy”.
The claimant attended the Hills Private Hospital for pain management and psychiatric treatment by Dr Manamrakkat in March 2021 at the referral of Dr Ramachandran.[23]
[23] Page 411 of the claimant’s bundle.
There are handwritten notes from 1 March 2021. The claimant reported he felt immediate pain in his head, shoulder and back and was admitted to hospital. He advised he had tried to return to work but the pain and psychological issues affected his ability to work. He reported pain down his whole spine.
The claimant was said to have worked for the family business with no formal carpentry qualifications.
The claimant attended again on 14 April 2021 with panic attacks being slightly better but with post-traumatic symptoms of nightmares and flashbacks, hypervigilance when driving and being easily startled. The claimant’s medication was reviewed.
There was a third consultation on 24 May 2021 focussed on the claimant’s physical injuries and ability to sleep.

Radiology

A lumbar spine CT report dated 1 March 2018[24] was addressed to Dr Ahmed of Dutton Street. At L4/5 there is minor disc bulge extending to the L4 neural exits but not impinging either nerve root. At L5/S1 there is a minor disc bulge with subtle contact with the left S1 nerve root. It was reported to be an essentially normal study with no clear cause for the claimant’s sciatica (pain anterior aspect left thigh, and in the back).
[24] Page 88 of the insurer’s bundle.
The claimant had a further lumbar spine MRI on 10 April 2018.[25] The report, addressed to

Dr Tommalieh of Dutton Street showed a loss of lordosis due to muscle spasm. There was a minor disc bulge at L4/5 “which may indicate an annular tear”. There was also a minor broad based disc bulge at L5/S1. No neural compression or exit foraminal narrowing was seen.
[25] Page 100 of the insurer’s bundle.
Mr Balhas had a further lumbar spine MRI on 20 December 2019[26] at the request of Dr Elhafi due to disc lesion low back, pain radiating to the lower limbs revealed straightened lumbar lordosis denoting back muscle spasm spondylitic changes with T11/T12. Disc protrusion at L5/S1 no neural compromise.
[26] Page 393 and 396 of the insurer’s bundle.
21 January 2020[27] – bone scan report to Dr Rothonis at Kogarah due to “severe thoracic and lumbar pain” was reported to show “no [BG1] fractures, active arthritis or significant bone or joint abnormality throughout the spine. Incidental Schmorl noes found at L1 and L2.
[27] Page 398 and 408 of the insurer’s bundle.
An MRI of the thoracic spine dated 27 February 2020[28] showed anterior compression fractures from T6 to T8 with disc herniations throughout the thoracic spine but the report says, “these changes may be due to Scheuermann’s disease”. The Panel notes this is a childhood disorder where the vertebrae grow unevenly. There were posterior bulges at various levels but no high-grade cord compression and no root impingement.”[BG2]
[28] The report is dated 28 February 2020 and is found at page 399 of the insurer’s bundle.
On 30 July 2020 the claimant had a whole of spine MRI [BG3] at the request of Dr Ramachandran[29] which noted:
(a)    previous Scheurmann’s disease with, “anterior wedge fractures of T6 through to L1 with intravertebral disc herniations” and loss of up to 10% in height;
(b)    low grade posterior thoracic disc lesions with minimal cord flattening but no high-grade cord compression. Tears at T6-7 and T9-10 and a low grade bulge at T11-12;
(c)    cervical spondylosis without cord compression or nerve root impingement – minimal disc bulge at C3-4, low grade disc bulge at C4-5 and tear and disc protrusion at C5/6 and disc bulge at C6-7, and
(d)    no intrinsic cord signal.
[29] Page 658 of the claimant’s bundle.
On 3 May 2021 an MRI of the cervical spine was undertaken at the request of

Dr Ramachandran which reported “multilevel degenerative changes”.
The insurer relies on a report from Dr Korber radiologist dated 11 May 2022.[30] Dr Korber had the report of the lumbar spine CT scan dated 1 March 2018 and the actual MRI films of

10 April 2018 and 19 December 2019.
[30] Page 401 of the insurer’s bundle.
In his opinion the April 2018 scan did not show an annular tear and his comment on the December 2019 scan was that “the study has been overreported”. There was no alteration between the two scans, and he says there is no evidence of focal disc herniation or protrusion at L4/5 or L5/S1. He explains that a visual abnormality was reported at L4/5 in the axial plane (parallel to the ground) whereas it was not seen on the sagittal plane (perpendicular to the ground).
Dr Korber was not asked to comment on the thoracic spine compression fracture and did not provide an opinion. It would appear he was not given them.

Medico-legal reports

Dr Matthew Giblin provided a report to iCare (in relation to a workers compensation claim) dated 31 March 2021.[31] Dr Giblin has a history of the claimant having neck pain with radiation into the right upper limb and low back pain with radiation in the right lower limb and thoracic pain. Dr Giblin has a record of the claimant seeing Dr Darwish, and treatment at a pain clinic, physiotherapy and medication. The Panel notes there are no records or reports from Dr Darwish, neurosurgeon but does note that Dr Al Khawaja’s first name is Darweesh and that this is likely to be a reference to him. The pain (including the radiating pain) was said to be constant and associated with paraesthesia (in a non-dermatomal pattern). There were no neurological signs in the upper or lower limbs.
[31] Page 974 of the claimant’s bundle.
Dr Giblin considered the pain was likely to be discogenic and arising from the neck, but that Mr Balhas should follow conservative treatment. Dr Giblin had the post-accident MRIs but none of the pre-accident radiology.
Dr Machart provided a report for the insurer 9 July 2021.[32] He noted the claimant attended with his wife, was suffering from depression and had a poor recollection of dates.
[32] Page 379 of the insurer’s bundle.
The claimant gave Dr Machart a history of neck pain, right shoulder pain, lower back pain and right leg and right arm pain.
The claimant outlined his treatment including a referral to Dr McKechnie, physiotherapy and three cortisone injections. The claimant had not worked for six months then returned to work part time before ceasing completely in 2019.
The claimant complained to Dr Machart of pain in his neck, midback, lower back, right shoulder and radiating pain in the right arm and thumb and right leg. He said this was constant.
On examination of the cervical spine there was no guarding, symmetrical loss of motion but muscle wasting on the right and a reduced right biceps reflex with diminished sensation.
There was no neurological deficit in the lower limbs and a normal lumbar spine examination. Shoulder motion in the right shoulder was restricted.
Dr Machart considered there were some psychological features and diagnoses soft tissue injury in the lumbar spine. He noted degeneration in the cervical spine but no clinical evidence of radiculopathy. He assessed WPI at 4%.
Dr Herald provided a report to the claimant’s solicitors dated 5 November 2021.[33] He has a history of headaches, neck pain and lower back and right shoulder pain after the accident. The claimant said X-rays were done of the right shoulder and cervical spine at hospital and after discharge, his GP arranged a lumbar spine MRI.
[33] Page 985 of the claimant’s bundle.
The claimant gave a history of the pain worsening in October 2019 and he changed GPs and was referred to Dr Ramachandran. The claimant was reported to be seeing a psychiatrist and psychologist and pain medication had been stopped due to gastrointestinal problems.
Dr Herald had some history of previous problems but did not have the records from

Dr Ahmed.
On examination of the neck there was dysmetria and a positive Spurling’s test but normal sensation, power and reflexes in the upper limb. In the thoracic spine there were limited movements. In the lumbar spine there was also restricted range of motion, the claimant was limping although there were neurologically normal lower limbs. There were significantly reduced right shoulder movements.
He diagnosed aggravation of lumbar back pain, thoracic back pain with spasm and soft tissue injuries and right shoulder impingement syndrome.
Dr Herald assessed WPI at 16% on the basis of 5% for the neck, 5% for the thoracic spine and 0% for the lumbar spine along with 7% for the right shoulder.
There is a report from Dr Richa Rastogi psychiatrist to the claimant’s solicitors dated

19 August 2022[34] diagnosing post-traumatic stress disorder and a major depressive disorder.
[34] Page 1007 and 1010 of the claimant’s bundle.

Other assessments

Medical Assessor Fukui examined the claimant on 7 December 2022 and issued her certificate on 4 April 2023. The related impairment assessment was stated to be 22%.
Medical Assessor Fukui diagnosed the claimant with a post-traumatic stress disorder and major depressive disorder both of which are not threshold injuries. The Panel understands her decision is the subject of an application for review lodged by the insurer and that the application has been successful. No Review Panel has been convened at this stage.

RE-EXAMINATION FINDINGS

Mr Balhas was examined by Medical Assessor Assem on 18 July 2023 in the Commission’s medical suites.
Mr Balhas did not bring any radiological investigations with him, stating that he was not instructed to do so.

Pre-accident medical history and relevant personal details

Mr Balhas is a 28-year-old left hand dominant man who was born in Lebanon and migrated to Australia at the age of six. After completing his Year 12 education, he took up work as a carpenter, although he did not enter an apprenticeship. He was employed full-time by Unique Building Corporate (family-owned business) as a carpenter at the time of the accident. After the accident, he attempted to return to work managing job sites, delivering items and visiting clients from 2018 until mid-2019 when he ceased working altogether. He has remained off work since 2019.
He lives with his wife in a property at Revesby Heights. He is capable of driving short distances. His wife carries out most of the household chores, and he employs a gardener to maintain their garden.

Past history

Based on the medical records obtained from Dutton Street Medical and Dental Centre and Revesby Family Clinic, Mr Balhas had several pre-existing health issues before the motor vehicle accident which were read out to him including:
(a)    11 April 2014 - ankle pain and was being evaluated for neutropenia;
(b)    15 April 2014 - knee injury but did not report any pain in the knee, hip, or lower back. Neurologically, he was found to be normal;
(c)    7 May 2014 - joint pains, and rheumatoid arthritis was considered as a possible diagnosis;
(d)    29 October 2014 - a work-related injury involving his right shoulder;
(e)    2 May 2015 - lower back pain, which was to be monitored;
(f)    3 February 2016 - back pain after engaging in heavy lifting, but there was no evidence of radiculopathy;
(g)    2017 - issues related to stress, anxiety, panic attacks, and trouble with the police, and
(h)    1 March 2018 – reports of back and leg pain, and a possible diagnosis of sciatica was suggested.
In response to this information, Mr Balhas stated that he worked in construction, which involved heavy lifting. As a result, he has experienced episodes of lower back discomfort from time to time that eventually resolved. He attributed the episode of lower back discomfort on 1 March 2018 to wearing a heavy (8-9 kg) tool belt throughout the day. According to him, the tool belt may have been too tight. He sought advice from his local doctor, who recommended using suspenders to distribute the weight and alleviate the strain on his back. He said the pain radiated down the lateral aspect of his right thigh. He was prescribed analgesia and received physiotherapy treatment, which successfully resolved his symptoms. He said that he did not take any time off work and continued his regular activities, including attending the gym and playing soccer.
In 2014, Mr Balhas had a neck injury while jumping on a trampoline at Skyzone. He was hospitalized for one week at Royal Prince Alfred Hospital (RPAH) and was required to wear a hard cervical orthosis as a precaution during his hospital stay, followed by a soft collar. There was a subsequent flare-up in 2016, which Mr Balhas said resolved following a course of physiotherapy treatment.

History of the motor accident

On 23 March 2018, at approximately 12:30 pm, Mr Balhas was in his vehicle heading towards a job site. He was wearing his seat belt and driving in Greenacre. While proceeding through a green traffic signal, a vehicle approaching from his right did not stop at its red light and collided into the driver's side door of his car. The impact activated the airbag, which struck the right side of Mr Balhas’ head. The impact also caused his vehicle to spin and ultimately collide with a pole.
Despite feeling stunned by the incident, he remained conscious. An ambulance attended the scene and took Mr Balhas to Bankstown Hospital, where he underwent imaging. He was documented to have lower back pain, shoulder pain and a headache that resolved. There was no tenderness over the cervical spine and no limitation in cervical motion. After observation, he was discharged on the same day.

History of symptoms and treatment following the motor accident

The following day Mr Balhas said he visited his GP, Dr Khoury, at Yagoona Medical Centre. According to the clinical records, the initial consultation following the accident was on

29 March 2018. It was documented that the claimant had been managing his lower back pain before the incident, but that it had become more problematic recently. He presented with symptoms of lower neck pain, discomfort in his right shoulder, and persistent lower back pain. As a result, he was referred for physiotherapy and prescribed analgesia.
Mr Balhas expressed concerns about his upper back, which he felt were not adequately addressed by his doctor. Despite several attempts, his return to work was unsuccessful.
On 4 April 2018, his lower back pain had worsened, prompting Dr Tommalieh to recommend MRI scans of the lumbar spine which was done on 10 April 2018.
Mr Balhas said he received physiotherapy treatment without any long-term benefit. The Panel notes according to AHRR 1,2,3, the only injury mentioned was his lower back discomfort and treatment was provided from April to July 2018. He subsequently consulted Mr Omeros, exercise physiologist with a rehabilitation company retained by the insurer.
Throughout mid-July 2018, while attending unrelated GP visits, it was noted that Mr Balhas had requested an upgrade in his WorkCover duties, allowing him to work three hours, two days per week. However, due to the severity of his pain, Mr Balhas said he found it unbearable to perform tasks even on the reduced schedule.
From July 2018 until 2019, Mr Balhas stated that he was unable to afford physiotherapy treatment and the insurance companies were not paying for it. He mentioned relying on his savings as he was unable to work during this period. In late 2019, he travelled to Lebanon to visit his uncle who was suffering from cancer and he returned to Lebanon in a second trip, for his marriage. While he was there, on that second trip, Mr Balhas said he experienced an exacerbation of low back pain that spread to both legs and progressively increased in intensity. Mr Balhas did not identify a cause when asked. He states that he ceased working at that time and reopened his workers' compensation claim in order to receive further treatment.
On 13 February 2020, he consulted Dr Khawaja, who arranged an MRI of the thoracolumbar spine and a bone scan. The results showed pre-existing Scheuermann's disease, no evidence of an acute fracture and mild degenerative changes. Mr Balhas was referred to

Dr Ramachandran, pain management specialist for further treatment. He was also diagnosed with depression and post-traumatic stress by psychiatrist Dr Manamrakkat. His current medications include Palexia and Seroquel.
The claimant was referred for further physiotherapy in 2020 with iMove Physiotherapy.

Current symptoms

Mr Balhas is experiencing the following symptoms:
(a)    right-sided neck pain radiating to the right shoulder and arm, accompanied by numbness and an electric shock-like sensation. He also reports a pins and needles sensation in the first, second and third right digits;
(b)    he has constant pain in the front of his right shoulder, which he rates as 7-8/10 on the pain scale;
(c)    he experiences pain in the lower thoracic region that spreads across his chest wall. This pain is described as tingling, burning, and sharp in nature, and
(d)    the lower back pain radiates down the outer side of his right thigh, shin, and inner aspect of the right foot, reaching the big toe.
For pain management, Mr Balhas is currently taking Palexia, Panadol, and Nurofen. In addition to his pain medications, he also takes Mitrazapine, prazosin, and Seroquel to manage his depression.

Examination
General presentation

Mr Balhas had a depressed affect and appeared to be in some discomfort. He maintained his right arm in a protected position and walked with a slight limp. His height was 173 cm and he weighed 75 kg. He was instructed not to engage in any manoeuvres that exceeded his tolerance or could cause harm.

Cervical spine (cervicothoracic) examination

The neck showed a normal posture with no evidence of torticollis. Tenderness was present over the C6 spinous process and the right paravertebral muscles, extending to the upper right trapezius muscle. There was no associated muscle guarding or trapezius spasm observed.

Cervical flexion was three quarters of normal range compared to half normal range in extension. Cervical rotation was symmetrically reduced to three quarters of normal range. Lateral flexion to the right was half normal range compared to three quarters of normal range on the left.[35]
[35] This suggests the presence of dysmetria which would qualify the claimant for a DRE category II WPi of 5%.
The neurological examination of the cervical spine and upper limbs was as follows:
(a)    upper limb reflexes were brisk and symmetrical;
(b)    neural tension signs were negative;
(c)    there was no measurable difference in circumference of his forearms or upper arms;
(d)    right arm strength was globally reduced and did not relate to any dermatomal pattern. His hands with smooth with no evidence of callus formation, and
(e)    testing showed that sensation in the right arm was globally reduced and not corresponding to any specific dermatomal pattern.

Thoracolumbar spine examination

No skeletal deformity or abnormality was detected in the thoracic and lumbar spine. Maximum tenderness was noted over the T7/8 and L4/5 regions. There was an associated band of sensory loss extending across the chest wall at about the T7/8 level. There was no associated muscle guarding or spasm in either the thoracic or lumbar spine.
In forward flexion, Mr Balhas was only able to reach his knees. Extension was reduced to one quarter of normal range. Lateral flexion to the right was half normal range compared to three quarters of normal range on the left. Rotation was half normal range on the right compared to three quarters of normal range on the left with pain reported in his upper back.[36]
[36] This too suggests the presence of dysmetria and would attract a 5% WPI.
The neurological examination was as follows:
(a)    his knee and ankle jerk reflexes were brisk and symmetrical. The hamstring jerk reflex was normal bilaterally;
(b)    he had slight difficulty climbing on and off the examination couch. Active straight leg raising in the supine position was 60° bilaterally with pain reported down the lateral aspect of his right thigh;
(c)    there was 1 cm reduction in circumference of the left calf compared to the right however the thighs were equal in circumference;
(d)    strength was globally reduced to his right leg, and
(e)    testing showed that sensation was reduced in the L5 dermatomal distribution over his right foot, but this extended to the medial and lateral aspect of his right lower leg.

Upper extremity examination

Mr Balhas had normal shoulder contours there was no wasting of shoulder musculature on either side. Shoulder movements were restricted as follows:

Shoulder Movements

Active ROM Measured RIGHT

Active ROM Measured LEFT

Flexion

100°

180°

Extension

30°

50°

Adduction

30°

50°

Abduction

90°

180°

Internal Rotation

70°

80°

External Rotation

60°

60°

Comments on consistency

Mr Balhas demonstrated some pain behaviour and there was global weakness reported involving his right upper and lower extremities.

WHAT WERE THE INJURIES CAUSED BY THE ACCIDENT?

Did the claimant injure his right shoulder in the accident?

The Panel notes that the claimant complained of right shoulder pain at the hospital on the day of the accident (see paragraph 71) and to the Dutton Street medica practice the day after the accident (see paragraph 72). The right shoulder does not appear again in treatment records until April – May 2021 nearly three years after the accident, and in the context of a new neck complaint.
The Panel is satisfied, on the basis of the contemporaneous records, that the claimant did sustain a right shoulder injury in the accident and experienced symptoms including pain and restriction of movement as a result. The Panel is doubtful that the current shoulder symptoms are accident related.

Is there a non-threshold injury in the shoulder?

The claimant clearly has restricted right shoulder motion (when compared to the left) however without radiology, the Panel could not have made a finding other than of a soft tissue and therefore threshold injury has causation been satisfied.
As noted in paragraph 47 above, the claimant concedes there is no evidence of a complete or partial rupture of tendons, ligaments, menisci or cartilage in his right shoulder. While the claimant’s further submissions said this injury would be investigated further, no further documents or submissions have been received.
On the information currently before the Panel, the panel is satisfied that the right shoulder injury is a threshold injury.

Did the claimant injure his cervical spine in the accident?

The claimant had a significant cervical spine injury in a trampoline accident in 2014.
The Bankstown Hospital attendance notes no neck tenderness and a full range of motion however the Dutton Street noes record neck pain the day after the accident. Mr Balhas’ claim form does not list a neck injury and it is not mentioned in the medical certificate which accompanied the claim form. The physiotherapy records mention only back pain from April 2018. Dr Ramachandran on 28 April 2021 refers to the “new onset of cervical axial spinal pain and right upper limb pain which has the neuropathic symptoms”.
While the Panel is satisfied the claimant injured his neck in the accident, the Panel is not satisfied that any neck symptoms which developed after mid 2018 are related to the accident.

Is there cervical radiculopathy present?

The distinction between signs of radiculopathy and non-verifiable radicular symptoms is important for the assessment of WPI as the former provides for a finding of DRE category III and a WPI of 15% in the neck while the latter allows for a finding of DRE category II and a WPI of 5%.
For the purposes of determining a non-threshold spinal nerve or nerve root injury, radiculopathy must be present. That requires, in accordance with cl 5.8 of the Guidelines two of the following five signs of radiculopathy:
(a)    loss or asymmetry of reflexes – there was no loss of reflexes found by Medical Assessor Assem;
(b)    positive sciatic nerve root tension signs – these were not found at the examination by Medical Assessor Assem;
(c)    muscle atrophy and/or decreased limb circumference – there was no measurable difference recorded by Medical Assessor Assem;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution. While Medical Assessor Assem found some weakness in the right arm, the weakness was global and did not conform to a dermatomal pattern, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. The claimant reported a variety of symptoms in the right upper limb including numbness, a feeling of electric shocks and tingling in three of his fingers. Objective testing of sensation by medical Assessor Assem revealed a loss of sensation which was global and which did not follow a dermatomal distribution.
On the basis of the examination of his cervical spine and testing administered by Medical Assessor Assem, the claimant did not demonstrate objective evidence of any of the five signs of radiculopathy as required by the Guidelines.

Has the claimant had cervical radiculopathy at any time since the accident?

There is nothing in the GP or physiotherapy records to suggest any of the five signs of radiculopathy.
Dr Giblin, in March 2021 had a history from the claimant of radiating neck pain and paraesthesia in the right arm but found no signs of radiculopathy on examination.
Dr Machart, in July 2021 found muscle wasting, reduced biceps reflex and diminished sensation in the right arm however he went on to find no evidence of cervical radiculopathy. Dr Machart’s clinical findings are different to the findings of Dr Giblin, Herald and Medical Assessor Assem). The Panel cannot correlate Dr Machart’s clinical findings which support a diagnosis of radiculopathy with his conclusion that there was no radiculopathy.
The claimant says Dr Herald in November 2021 found radiating pain and a positive Spurling’s test which the claimant says confirms a nerve root compression which has given rise to radiculopathy. While the Panel accepts a positive Spurling’s test can suggest a nerve root compression, that is only one sign of radiculopathy. Radiating pain is not one of the five signs required by cl 5.8. Dr Herald found no other signs of radiculopathy.
Medical Assessor Menogue did not find any of the five signs of radiculopathy in June 2022.
Dr Ramachandran on 28 April 2021 referred to the “new onset of cervical axial spinal pain” with right sided neuropathic symptoms.
While the claimant may have had signs of radiculopathy when examined by Dr Machart in July 2021, and right sided radicular symptoms, the Panel does not accept that three years after the accident these signs or symptoms were caused by the accident. The medical members of the Panel are of the view it is medically implausible for a cervical nerve root injury to have occurred in March 2018 but for the symptoms of that injury to not emerge until April 2021.
The Panel is not therefore satisfied that that the accident caused or materially contributed to a cervical nerve root or nerve injury manifesting in radiculopathy at any time since the accident.

Is there the complete or partial rupture of soft tissues in the neck?

Radiology of the cervical spine from 30 July 2020 identified cervical spondylosis without cord compression or nerve root impingement and disc bulges at C3-4, C4-5 C5/6 (including protrusion) and C6-7. An MRI dated 3 May 2021 confirmed multilevel degenerative changes.
The Panel notes the significant injury to the claimant’s neck requiring one week of hospitalisation in 2014 with the claimant in a brace and with radiology reporting C5-6 and C6-7 traumatic annular tears.
It is the clinical judgment of the medical members of the Panel that when considering the pre-accident and post-accident imaging reports that there is no motor accident related “complete or partial rupture of tendons, ligaments, menisci or cartilage” in the claimant’s cervical spine.

Neck injury conclusion

The Panel is not therefore satisfied that the claimant has radiculopathy or has had radiculopathy or has a complete or partial rupture of any soft tissue in his cervical spine as a result of this accident.
The claimant’s accident-related neck injury is therefore a soft tissue threshold injury.

Did the claimant injure his thoracic and lumbar spine in the accident?

The documentation before the accident shows that Mr Balhas presented with back pain radiating down his right leg several weeks before the accident. The claimant gave a history to his treating practitioner that he had back problems for a year leading up to this. The claimant was referred for an MRI and had it and he was referred for physiotherapy which he may not have had before the car accident.[37]
[37] Pre-accident records from the physiotherapist are not available.
The claimant then reported lower back pain after the car accident.
The claimant told Medical Assessor Assem that he had mid back or thoracic spine pain after the accident. While he does mention back pain in his claim form, he does not distinguish between lower and mid back pain which is understandable, Lay persons will not often distinguish between the regions of the spine. Mr Balhas’s doctor does state in the medical certificate the claimant had pain in his lower and mid back.
The Panel accepts that the claimant sustained a lower back injury in the accident and an upper or thoracic back injury in the accident.
The GP and other records suggest the claimant had recovered from his back injury after six months. The physiotherapist for example recorded no pins and needles or numbness when treatment concluded (see paragraph 77), there are no attendances on a GP for back pain in August, September or October and Dr Jacobsen records that the claimant was off his pain killers in November 2018 (see page 82). Dr Al Khawaja had a history of the accident-related injuries resolving (paragraph 88) and Dr Ramachandran has a history of the back pain improving (paragraph 93).
There is then a history of back pain being aggravated in November 2018 and a referral given to Dr Manohar (page 83) and both Dr Al-Khafaji and Dr Ramachandran have a clear and reported history of an aggravation of back symptoms after two trips to Lebanon and that
Mr Balhas’ symptoms have been increasing since then. The documentation suggests that before that trip, Mr Balhas was stable, receiving minimal treatment, and was working.
The Panel also notes the claimant first reported back pain to Dutton Street in May 2015. In February 2016 it was diagnosed or described by the GP as “chronic” and that in the month before the accident the claimant attended his GP and had back pain investigated. The Panel does not accept the claimant’s evidence that his pre-accident back complaints were minimal.
It is the Panel’s view that the nature of the lumbar and thoracic spine injury was that of a soft tissue injury aggravating pre-existing lumbar degenerative changes and pre-existing thoracic changes caused by Scheuermann’s disease.

Is there thoracolumbar radiculopathy present?

The claimant reported to Medical Assessor Assem lower back pain radiating down the outside of his right thigh, shin and inner aspect of the right foot to the big toe.
The Panel notes the 1 March 2018 pre-accident complaints of back pain shooting in the left leg with right leg tenderness. The pain chart in the physiotherapist records from April and May 2018 had pain over the left outer thigh marked by the claimant but complaints of right leg radiating pain in the physiotherapist’s notes.
As with the neck, if there is a nerve or nerve root injury in the thoracolumbar area, it will be a non-threshold injury if there are two signs of radiculopathy in accordance with cl 5.8 of the Guidelines as follows:
(a)    loss or asymmetry of reflexes – there was no loss of reflexes found by Medical Assessor Assem. Knee, hamstring and ankle jerk reflexes were normal on both sides;
(b)    positive sciatic nerve root tension signs – the straight leg raising (SLR) test by Medical Assessor Assem elicited pain on the outside of the right thigh but there were no other neural signs. The Panel notes table 6.8 of the Guidelines (which applies to this matter) provides that “back pain on SLR is not a positive test”;
(c)    muscle atrophy and/or decreased limb circumference – there was a 1 cm difference recorded by Medical Assessor Assem in the left (but not the right) calf (indicating a possible L5 issue);
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution. While Medical Assessor Assem found some weakness in the right leg, the weakness was diffuse and global over the whole limb and did not conform to a dermatomal pattern, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. Objective testing of sensation by medical Assessor Assem revealed a loss of sensation in an L5 distribution over the right (but not the left) foot and leg and a band of loss of sensation in the chest (corresponding with a T6 – 8 distribution).
On the basis of the examination of Mr Balhas’ lumbar spine and testing administered by Medical Assessor Assem, Mr Balhas has one potential sign indicating a left sided nerve root injury (decreased left calf circumference) and another potential sign indicating a right sided nerve root injury (sensory loss over the right foot and in the right leg).
The Panel is of the view that two clinical signs must be present at the same examination and must indicate an injury to the same nerve or nerve root for a finding of radiculopathy to be made in respect of an injury to that particular or specific nerve root. A finding at a medical examination on one day of a loss of weakness in the left foot and a finding at another examination on another day of a loss of sensation in the left foot would not satisfy the requirements of the Guidelines. Similarly, a finding of a loss of sensation over the left foot and a finding of a diminished right ankle jerk is not likely to satisfy the requirements of the Guidelines either. Finally, the Panel is of the view that there must be a correlation between the symptoms and the radiology evidencing an injury to a specific nerve root. Therefore, if a claimant had left sided impairment sensation and diminished reflexes in a L5/S1 dermatome but radiology suggesting a right sided nerve root compression at L2/3, there may not necessarily be a finding of a nerve root injury at L2/3.
In the case of Mr Balhas there is no clear objective evidence of a particular or specific nerve or nerve root injury manifesting in two of the five signs of radiculopathy at any level and in particular not at the left side of L5 or the right side of L5.

Has the claimant had lumbar radiculopathy at any time since the accident?

The claimant says Ms Kokal on 7 June 2018 (p 109), Ms Hart (p 890) and Dr Al-Khawaja found positive sciatic nerve root tension signs, muscle weakness and sensory loss. The claimant also says that Dr Elhafi records intermittent neuropathy in November 2018 and

30 December 2019 and that Dr Ramachandran has also found neuropathy.
The Panel repeats the previous observation that there is a distinction between signs of radiculopathy and non-verifiable radicular symptoms. The legislative scheme in place requires there to be two of five objective clinical signs for a finding of radiculopathy to be made.
The Panel also notes that there is an important difference between the claimant reporting or giving a history of symptoms that might fulfil the criteria for radiculopathy and the finding of the signs of radiculopathy on examination.
Clause 5.6 of the Guidelines requires there to be an examination that includes a comprehensive history, a review of all records, a comprehensive description of symptoms, a careful and thorough examination and diagnostic tests. There is no suggestion that any of the treating doctors or medical examiners have not obtained a description from the claimant of his symptoms and a thorough examination. However, the Panel has concerns that not all of those who have treated the claimant or provided opinions have the comprehensive history of the 1 March 2018 attendance at the GP and the history given to him of a one-year history of symptoms. It is also unclear what tests have been administered by the various practitioners.
Ms Kokal in her report of 7 June 2018 suggests she administered two tests a straight leg raise and a slump test (which apparently aggravated his pain) and she undertook passive accessory mobilisation which also aggravated the pain. This may indicate an issue with the L5/S1 nerve root. There was tightness in the piriformis muscle. Tightness in a muscle is not a sign of radiculopathy. While Ms Kokal indicated she would be providing treatment to improve “neural mobility, muscle strength and balance”, the Panel is not prepared to accept that this indicates any of the signs of radiculopathy were present.
The references in the GP notes to “intermittent neuropathy” or “neuropathy” does not provide sufficient detail for the Panel to make a finding that any of the five signs of radiculopathy were present.
The claimant refers to the report of Ms Hart, physiotherapist who noted a positive straight leg raise and advised that treatment was aimed at improving mobility, core strength, pain and range of motion. The claimant suggests this is evidence of positive sciatic nerve root tension signs and muscle weakness. The Panel again notes that table 6.8 discounts a positive straight leg raise and again the Panel does not accept that the references to the type of treatment to be provided is evidence of a nerve root injury causing radiculopathy. For example, the claimant may require core strengthening because of abdominal muscle weakness rather than any neurological injury.

A later report of Ms Hart is relied on because she had a history of paraesthesia, insufficiency in the gluteus medius muscles and a positive straight leg raise. There is no evidence that

Ms Hart found clinical signs of loss of sensation and the Panel notes that according to cl 5.8 of the Guidelines, “to be valid, the sensory findings must be in a strict anatomic distribution”. Ms Hart makes no finding as to the anatomic or dermatomal distribution of the loss of sensation. Insufficiency of gluteus muscles is vague and not a specific sign of radiculopathy.
The claimant also relies on the report of Dr Al Khawaja who the Panel notes, on 13 February 2020 wrote that after six months the claimant’s back was “back to normal function” and that the claimant exacerbated his lower back and lower thoracic pain after a trip to Lebanon. On examination the claimant had a positive straight leg raise test mainly on the left leg and weakness on the left side. There were no other neurological signs found. Dr Al Khawaja reviewed the MRI scan noting there was no injury of nerve impingement or foraminal stenosis. The Panel notes the claimant’s findings in the left side whereas previous findings and complaints had been on the right side. Dr Al Khawaja does not appear to have had the pre-accident history, the pre-accident MRI or all of the relevant documentation. Again, the Panel is not satisfied that his findings can be relied on to support a finding of radiculopathy at that time.
The claimant relies on Dr Ramachandran who refers to neuropathic pain and neuropathic features in the right lateral aspect of the thigh. The former (pain) is not a sign of radiculopathy. In terms of the latter (neuropathic feature in the thigh) the claimant says this is an indication of muscle atrophy. The Panel does not accept this as there is no record of any measurements taken and no specific mention of muscle atrophy in any event.
When all of the records and reports pointed to by the claimant are considered, the Panel is not satisfied that that the accident caused a lumbar nerve root or nerve injury manifesting in radiculopathy at any time since the accident.

Is there the complete or partial rupture of soft tissues in the lumbar spine?

With regards to the lumbar discs, the claimant relies on his GP’s report to Allianz on 29 June 2018 that the claimant had an L4/5 tear and L5/S1 disc bulge.
The Panel notes there are three MRI scans of the claimant’s lumbar spine, one undertaken on 1 March 2018 before the accident, one on 10 April 2018 after the accident and another on 20 December 2019 after the claimant returned from Lebanon.
The pre-accident MRI showed a minor disc bulge at L4/5 and another at L5/S1 contacting the left S1 nerve root. The second scan reported a minor disc bulge at L4/5 which may possibly “indicate an annular tear”. The third scan did not mention the L4/5 feature at all.
The Panel notes that specialist radiologist Dr Korber has provided a report concerning the lumbar spine scans and expressed the opinion there is no disc herniation or protrusion at L4/5 or L5/S1. The claimant has not presented any report challenging that opinion.
It is the clinical judgment of the medical members of the Panel that when considering the pre-accident and post-accident imaging reports that there is no “complete or partial rupture of tendons, ligaments, menisci or cartilage” in the lumbar spine.

Lower back injury conclusion

The panel is not satisfied that the claimant has radiculopathy or has had radiculopathy or has a complete or partial rupture of any soft tissue in his lumbar spine as a result of this accident.
The claimant’s lumbar spine injury is therefore a threshold soft tissue injury.

Thoracic spine injury

The claimant says that the anterior compression fractures at T6 through to T8 found on an MRI of 28 February 2020 were caused by the accident and are a non-threshold injury. The insurer says that the alleged three compression fractures were reported to be possibly due to Scheuermann’s disease which is not evidence of a traumatic injury.
The presence of pre-existing Scheuermann's disease in the thoracic spine should be taken into account. The MRI findings indicate compression fractures, annular tears and disc herniation, which may be related to the pre-existing condition rather than solely caused by the accident. While the bone scan did not show increased uptake as would be expected after a fracture, the scan was performed nearly two years after the accident and therefore the results are not reliable.
The Panel would have been assisted by an expert radiological opinion such as from
Dr Korber concerning the thoracic MRI scans however none has been forthcoming. The Panel notes that Dr Herald (the claimant’s expert) did not relate the thoracic fractures to the accident finding a soft tissue injury only and he has not commented on the alleged tears, fissures and bulges at various levels of the thoracic spine and their relationship to the accident.
On the information currently before the Panel, the Panel therefore is not satisfied that the thoracic fractures and disc herniations were injuries caused by the accident and therefore the Panel is not satisfied that the claimant sustained a non-threshold thoracic spine injury in this accident.

CONCLUSION

The Panel has been asked to conduct a review of Medical Assessor Menogue’s assessment of minor (now threshold) injury and that the Panel was asked to assess the following injuries referred to him for assessment:
(a)    cervical spine - strain and soft tissue injury;
(b)    thoracic spine - strain and soft tissue injury;
(c)    lumbar spine - strain and soft tissue injury, and
(d)    right shoulder - restriction of movement, positive impingement syndrome with possible secondary adhesive capsulitis.
The claimant conceded his right shoulder injury was a threshold injury.
The Panel found the claimant sustained a cervical spine injury which recovered by mid-2018, a thoracic and lumbar spine injury which resolved within six months. The Panel is not satisfied that the claimant’s current thoracic and lumbar spine symptoms are a result of the injury caused by the accident.
The Panel finds that the claimant’s cervical, thoracic and lumbar spine injuries are soft tissue threshold injuries.
As the Panel has come to the same conclusion as Medical Assessor Menogue, it therefore follows that his certificate should be confirmed.

[BG1]Add close "

[BG2]No open "check

[BG3]check

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	100°	180°
Extension	30°	50°
Adduction	30°	50°
Abduction	90°	180°
Internal Rotation	70°	80°
External Rotation	60°	60°

[2023] NSWPICMP 380

9 August 2023