Bchai v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Bchai v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 442
CLAIMANT:	Magdi Bchai
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	7 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether the claimant suffered a threshold injury (which was previously called a minor injury) in a motor accident on 4 January 2019; claimant applied for review of Medical Assessor (MA) McGrath’s certificate dated 5 July 2022; MA certified the evidence did not indicate that the 2019 accident caused an injury to nerves or a partial rupture of tendons or ligaments; lumbar spine surgery was for spinal stenosis which existed before the 2019 accident; 2019 accident caused a soft tissue lumbar spine injury; Panel did not re-examine; treating neurologist’s reports demonstrated although there was evidence of lumbar spine changes before the accident the 2019 accident caused permanent progression of lumbar spine stenosis causing radiculopathy and making surgery necessary; Held – the Panel was satisfied that the accident caused the lumbar spine injury that was not a threshold injury as defined by  section 1.6; MA certificate revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review panel assessment of threshold injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The following injury caused by the motor accident: · injury to the lumbar spine - lumbar spine spondylosis with spinal canal stenosis and radiculopathy injury is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

Background

On 4 January 2019, during the course of employment, the claimant sustained injuries in the subject motor vehicle accident (2019 accident) when the insured vehicle collided with the rear of the claimant's vehicle. The claimant sustained injuries to his shoulders, back, neck and head.
The insurer insured the owner and/or driver of the vehicle at fault for liability to pay to the claimant any statutory compensation and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant’s employer’s workers compensation insurer assumed liability for all treatment associated with the accident.

Claim

On 22 May 2019, the insurer issued a Liability Notice – Benefits After 26 Weeks advising that liability for the payment of statutory benefits would cease on 5 July 2019. Its decision was based on the claimant having sustained what was then referred to in the MAI Act at s 1.6 as a ‘minor injury’ in the accident. The insurer’s explanation in the letter said only that it was based on his general practitioner’s (GP) Dr Assem Malek’s diagnosis.
The claimant sought an internal review, but the time to respond to the request ran out before an internal review decision was made.
On 24 June 2019, the claimant lodged an application with the Dispute Resolution Service ((DRS) as it then was) and provided submissions seeking an assessment of the following in respect to a minor injury dispute:
(a)   lumbar spine;
(b)   thoracic spine;
(c)   cervical spine, and
(d)   bilateral shoulders.
Medical Assessor Faithful’s certificate dated 13 November 2019 did not assess the lumbar spine. It appears that the claimant applied for a review of that certificate rather than a replacement certificate. A Panel confirmed Medical Assessor Faithful’s certificate.
The Personal Injury Commission (Commission) referred the lumbar spine minor injury dispute to Medical Assessor David McGrath.
Medical Assessor McGrath issued a certificate dated 5 July 2022, which assessed the claimant’s lumbar spine injury as minor.
The claimant applied for review of that certificate, but the initial application was dismissed when Principal Member Harris determined the original certificate was incomplete and returned it to Medical Assessor McGrath to complete.
The portal issued an amended certificate to the parties on 14 October 2022, with the earlier date still in place.
The claimant applied to the Commission to refer Medical Assessor McGrath’s amended certificate to a Review Panel (the Panel) more than 28 days after the parties were issued with the original certificate.[1]
[1] Section 7.26(10) of the MAI Act.
On 6 February 2023, the President’s delegate extended leave extending time to lodge the application for review.
She also referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]
[2] Section 7.26(5) of the MAI Act.
The President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor McGrath’s certificate (the Review).

Legislative framework

Statutory provisions

The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act so that from
1 April 2023 the term “threshold injury” substitutes for “minor injury”. The terms are interchangeable. This decision will retain the former term when talking about Medical Assessor McGrath’s decision and the insurer’s earlier decision, but the current term will be used when addressing this Panel’s certificate.
At the time this dispute became apparent s 1.6 of the MAI Act defined a threshold injury to include a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess the threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in clause 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(e) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury is to be assessed as a threshold injury.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a Medical Assessor.[3]
[3] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were threshold or satisfying the threshold as defined under the MAI Act.
The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[5] and Insurance Australia Ltd v Marsh.[6]
[5] [2021] NSWCA 287 at [40], [41] and [45].
[6] [2022] NSWCA 31 at [11], [21] and [64].
The Review Panel adopts the reasoning in David v Allianz Australia Ltd[7] that radiculopathy can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.
[7] [2021] NSWPICMP 227 at [84]-[104].
We also adopt the reasoning in Lynch v AAI Ltd[8] that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
[8] [2022] NSWPICMP 6 at [44]-[62].
The rules of evidence do not apply to this Review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.

Review

On 21 April 2023, the Panel met via telephone.
The Panel decided to consider afresh all aspects of the lumbar spine assessment under review as to the threshold injury status.
The Panel noted there were no certificates asserting that Mr Bchai’s other physical and psychological injuries were non-threshold as the MAI Act defines.
The Panel considered the need for re-examination in the light of the Court of Appeal’s decision in Sydney Trains v Batshon,[9] which prescribes a presumption favouring re-examining claimants in reviews.
[9] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
The Panel considers re-examining the claimant in person would not assist the panellists to decide the facts in issue because there is no question Mr Bchai has verifiable radiculopathy and changes to his spine after surgery.
The question to resolve is whether the 2019 accident made a material contribution to the state of Mr Bchai’s lumbar spine. In order to assess that issue the Panel resolved to review Mr Bchai’s medical condition before the 2019 accident.
The Panel sought the parties’ views on re-examination. Both agreed that the re-examination would not be necessary to resolve the dispute.
The insurer submitted the Panel may need to review pre and post-accident imaging scans, particularly with respect to the cervical and lumbar spine to assess the possibility of any traumatic changes in the subject accident or the progression of degenerative findings over time.
The Panel met again on 1 September 2023 to clarify the discussion about the earlier Medical Assessor's findings.

Assessment under review

The Commission referred the following dispute to Medical Assessor McGrath for assessment:
“lumbar Spine: Whether the lumbar spine spondylosis with spinal canal stenosis and radiculopathy injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.”
Medical Assessor McGrath considered the claimant’s history in respect of the lumbar spine.
Before the 2019 accident Mr Bchai was dragging his right leg and also had a functional right foot drop. That remained so after the 2019 accident when he received a lumbar spinal decompression on 24 April 2021.
Following, his lumbar spinal surgery his gait improved but not sufficiently to remove the need for a walking stick held in the right hand.
Medical Assessor McGrath decided the medical evidence supported the conclusion that the 2019 accident aggravated Mr Bchai’s pre-existing cervical and lumbar spinal pathology. After the accident, the decompressive surgery in both regions had good results.
For Medical Assessor McGrath the evidence did not indicate that the 2019 accident caused an injury to nerves or a partial rupture of tendons or ligaments. The lumbar spine surgery was for spinal stenosis which existed before the 2019 accident.
The Medical Assessor decided the 2019 accident caused a soft tissue lumbar spine injury.

Disputes and issues identified for review

The claimant submitted to the Presidential delegate that Medical Assessor McGrath’s amended certificate dated 5 July 2022 contained material errors and accordingly the dispute should be referred to a Review Panel for determination. The claimant submits such material errors include:
(a)   Medical Assessor McGrath failed to provide sufficient reasons nor show a clear path of reasoning to support his determination that the motor accident did not cause an injury which is not a minor injury;
(b)   Medical Assessor McGrath failed to engage with the material before him including medical evidence and the submissions provided related to the claimant's pre and post-accident symptomology, capacity and pathology, and
(c)   application of incorrect test of minor injury in circumstances of minor injury dispute.
The insurer opposed the application.

Documentation

The Panel considered the following documentation:
·        Medical Assessor McGrath’s certificate dated 14 October 2022;
·        the insurer’s application for review and attached documents identified as A1;
·        Reply and attached documents identified as R1;
·        the President’s delegate’s reasons dated 6 February 2023 referring this matter to a Panel, and
·        all the documents which were provided to Medical Assessor McGrath before the assessment under review.
The claimant submitted a report from Dr Yuk Kai Lee dated 8 January 2023 as a late document.

SUBMISSIONS

Claimant’s submissions

The claimant provided initial submissions to the Commission dated 21 October 2021 and additional submissions. The submissions relevant to this Panel’s considerations are summarised below.
Before the 2019 accident, the claimant submits he experienced minor, intermittent and occasional back pain after a fall at work on or about 2 July 2018. However the claimant continued to work in a full time capacity as a carer with the aged and disabled.
The claimant reported his lower back pain significantly worsened and deteriorated after the 2019 accident. He was not a candidate for lumbar spine surgery before the 2019 accident.
Regardless of any pre-existing lumbar spine pathology, the claimant was continuing in his employment and personal life without restriction.
After the 2019 accident the lumbar spine condition became severe enough so that his neurosurgeon, Dr Damodaran recommended lumber spine surgical intervention.
A lumbar spine MRI was taken on 6 February 2019, approximately one month after the subject accident.
On 24 April 2019 Dr Damodaran noted that the claimant presented with lumbar canal stenosis and associated radiculopathy.
The claimant submits this is evidence of an injury that is not a threshold injury because there was no evidence of radiculopathy before the 2019 accident. The claimant says his lower back complaints before that were relatively minor and infrequent.
Dr Bodel examined Mr Bchai on 27 September 2019 and found:
· lower back and bilateral leg pain, the right worse than the left, and
· hyporeflexia in the lower part of the limbs and is experiencing increasing limb pain when walking.
Dr Bodel supported future lumbar spine surgical intervention. The claimant postponed that surgery and persevered with conservative treatment until Dr Damodaran eventually operated on Mr Bchai’s lumbar spine injury on 29 April 2021.
After the surgery, the claimant was admitted to Waratah Hospital in Hurstville for rehabilitation.
The workers compensation insurer accepts the 2019 accident caused the lumbar spine condition to require surgery and paid for all Mr Bchai’s treatment.
Dr Damodaran and Dr Malek still treat the claimant on that basis.
Dr Damodaran’s report dated 16 September 2021 specifically addresses the lumbar spine.
Dr Damodaran is in the best position to comment on the lumbar spine having treated
Mr Bchai before and after this accident.
Dr Damodaran opined that the 2019 accident aggravated a pre-existing degenerative condition.
Based on Dr Damodaran's report, there was no evidence of radiculopathy before the 2019 accident. He also opines that before the 2021 surgery there were clinical features of radiculopathy including positive sciatic nerve tension sign, loss of ankle reflex, weakness and sensory loss.
In respect of errors the claimant says are in both of Medical Assessor McGrath’s assessments, the claimant refers to Medical Assessor McGrath noting in his reasons that "I again reviewed Mr Bchai on 28 March 2018". The claimant says that is a typographical error, because Dr Damodoran refers in the same report to seeing him on 28 March 2019.
However, the Panel noted that Dr WG Patrick’s report dated 3 April 2018 corroborates Medical Assessor McGrath’s timing, because he also refers to Mr Bchai seeing
Dr Damodoran just before Dr Patrick examined him on 2 April 2018 in respect of the 2015 accident.
The Panel notes though that the insurer does not include an attendance on that day in 2018 or 2019 with Dr Damodoran in its detailed chronology.[10]
[10] AD2 insurers submissions page 20.
This Panel notes that there is some confusion about dates of events. Dr Damodoran refers in his notes shortly after the 2019 accident to a fall at work being on 4 January 2019 and this accident before that. It is in later material in the multiple bundles provided that the timeline is established to show there was a 2015 motor accident, followed by a fall at work in July 2018 and then this accident in 2019.
Relevantly to Mr Bchai’s case in respect to the 2019 accident, the Panel notes Dr Patrick’s report refers briefly to the lumbar spine symptoms, but his physical examination and report do not address that body part.

Presence of radiculopathy

The Commission has previously determined threshold injury disputes, that radiculopathy does not have to be present at the time of a Medical Assessor’s examination. It is sufficient if a practitioner independent of the insurer makes that assessment after a neurological examination (David v Allianz Australia Insurance Limited [2021] NSWPIC MP).
In Arhawi v QBE Insurance (Australia) Limited [2022] NSWPIC MP 297; 20 July 2022 the Review Panel considered a degenerative condition to the injured person's shoulder, and whether or not the motor accident caused or aggravated a previous tear. In considering this the Panel considered the entirety of the medical evidence and taking into account an analysis of the impact of the motor accident, found that the injury was not a threshold injury.
In AAI Limited trading as AAMI v Shamsirad [2022] NSWPIC MP 284, 12 July 2022, the Review Panel found that sensory loss formed part of the opinion of the claimant's surgeon justifying a C5/6 fusion. It was found that the fact the surgery resolved the sensory loss symptoms, did not change a non-threshold injury to a threshold injury.
In this case that Review Panel determined that in relation to the cervical spine, radiculopathy had occurred at some point before the fusion and accepted this was not a threshold injury. The Panel also determined in relation to a pre-existing right shoulder tear that forces from the accident would have increased the pathology and therefore this was not a threshold injury either.
In the case of Reed v Allianz Australia Insurance Limited [2022] NSWPIC 287; 14 July 2022 that Review Panel considered a situation where the motor accident aggravated a pre-existing spinal injury resulting in spinal surgery. The Review Panel noted that Mr Reed continued to work before the accident in an active job which was consistent with his condition being asymptomatic. In this case, the Panel was unable to establish evidence of radiculopathy in the lumbar spine after Mr Reed’s subject accident.
That Panel accepted that the onset of lower back pain following Mr Reed’s subject accident, in the absence of an intervening event was plausibly related to the subject accident. Furthermore, the Review Panel found that the underlying pre-accident degenerative changes were reasonably severe and thus made Mr Reed more susceptible to aggravation by the accident.
The Review Panel ultimately accepted that Mr Reed’s accident sufficiently aggravated his pre-existing lumbar spine condition to cause an onset of severe pain rendering it symptomatic and ultimately leading to lumbar spine surgery.
That Review Panel noted that the spinal surgery involved the cutting of skin, tendons, ligaments and cartilage which took the lumbar spine injury outside of the threshold injury definition.
In light of the above cases including Reed, the claimant submits there is more than one way in which Mr Bchai’s lumbar spine injury in this matter can be found to fall outside the definition.
If it is accepted that Mr Bchai would more likely than not have presented with radiculopathy at any time since the 2019 accident, it would follow that the lumbar spine injury is not a threshold injury even if the motor accident only aggravated the condition from before the 2019 accident.
If this Panel accepts that the accident materially contributed to the need for Dr Damodoran’s lumbar spine surgery, it follows that the lumbar spine injury is not a threshold injury.
Mr Bchai submits in the present case–where Mr Bchai underwent lumbar surgery and had a good result–it cannot be assumed that radiculopathy as defined in the MAI Act was not found at the time of Medical Assessor McGrath’s assessment and was never present at all.
This Panel must adequately address the presence of radiculopathy either at the assessment certified 5 July 2022, or at any time from the date of accident up until the date of assessment based on a careful review of the available material.
The Panel must properly explain its findings in light of Mr Bchai's symptoms after the accident and the fact that Mr Bchai worked at his full capacity in physical employment as a Personal Carer up until the date of the motor accident.
There are complex issues of causation including aggravation of pre-existing pathology. The circumstances of the case warrant a substantial explanation of the Panel’s path of reasoning.

Causation

Once the presence of radiculopathy is accepted, the issue remaining is whether or not the motor accident materially contributed to the symptomology.
Mr Bchai does not dispute that he had lumbar spine pathology before the subject accident. Mr Bchai's position is that there is no evidence that he had clinical radiculopathy within the requirements of Paragraph 5.8 of the Guidelines before the 2019 accident.
Relevantly to the Panel, Medical Assessor McGrath's comments in relation to this are:
"From around 2016, Mr Bchai has been experiencing sensory and motor symptoms in both the upper and lower limbs" (Page 3)
"Prior to the operation, he was dragging the right leg and also had a functional right foot drop. these symptoms were present prior to the index accident" (Page 3)
"There was a record of radiculopathy pain and numbness prior to the MVA by his treating surgeon.”
By contrast this Panel must take note of Dr Damodaran’s report dated 15 September 2021 which was provided at A4 of Mr Bchai's application. This report specifically addresses the question of the lumbar spine injury, radiculopathy and the need for surgery.
In response to Question 7 in the report, Dr Damodaran states:
“Prior to the accident, I have reviewed Magdi first in 2016. When I first reviewed Magdi in 2016, Magdi complained of bilateral lower limb numbness and paraesthesis. He did not complain of any back pain. Also his examination did not demonstrate any weakness or neurological signs confirming radiculopathy. I subsequently reviewed Magdi again in 2018 and his main complaint was deterioration and walking and some upper limb weakness and incoordination. He did not complaint [sic] of any lower radicular pain, radiculopathy or weakness. I feel that the [sic] Magdi's lumbar spine became symptomatic in 2019 following the accident.”
Dr Damodaran reported that the 2019 accident brought the lumbar spine surgery forward by 5 to 10 years. He also clearly states in relation to the lumbar spine 'The accident has led to an exacerbation of this degenerative condition'.
The Panel needs to engage with this opinion in its reasons.
Dr Richard Powell examined Mr Bchai for another insurer in relation to the 2015 motor accident. In his report dated 23 May 2018 (R26 of the insurer's Reply) there is again a focus on cervical spine complaints and little focus on lumbar spine complaints. Dr Powell notes an unsteady gait and right leg dysmetria on toe walking. He noted that power in the lower limbs was essentially symmetric. He also states that Mr Bchai had difficulties of mobilisation and balance in the lower limbs and episodes of diskinesia (sic) possibly associated with muscle spasm in the thigh muscle. He notes developed sensory alteration in both lower limbs, principally the thigh region. He notes that Mr Bchai did not appear to have developed autonomic dysfunction.
The medicolegal evidence, which was created before the 2019 accident, refers to lumbar spine complaints a little. Mr Bchai submits that the extent of those complaints would not justify finding Mr Bchai had an injury that would have included radiculopathy as defined in the Guidelines.
Dr Bodel's report dated 27 September 2019 included an opinion that the 2019 accident caused a 'significant aggravation, acceleration, exacerbation and deterioration of an underlying, previously symptomatic degenerative condition in the neck and back...'.
Dr Ron Muratore for the workers compensation insurer (in relation to the same 2019 accident) reported in his report dated 10 September 2020:
“Mr Bchai has recurrent back pain, with recurrent numbness in the soles of both feet although when this occurs it is not on both feet simultaneously. It tends to migrate from side to side. The numbness is always worse if he walks for longer than 15 minutes. He cannot walk up hills.
The back pain and leg symptoms are aggravated by walking, standing for longer than minutes, and by coughing, sneezing or straining at stool. He has developed urge incontinence and has difficulty starting the stream first thing in the morning.”
The circumstances are that acceptance of radiculopathy at any time since the accident and/or an aggravation leading to surgery would have taken Mr Bchai outside the threshold injury definition.
The evidence does not support the insurer's assertion that the 2019 accident could have temporarily aggravated the pre-existing condition, and that this temporary aggravation would have subsided within a few months with his symptoms returning to the previous level.
The 2019 accident caused a significant injury or in the alternative, significantly aggravated underlying pathology. The aggravation was permanent and brought on the need for lumbar spine surgery.

Insurer’s submissions

The insurer also made numerous submissions in respect to the lumbar spine beginning
13 December 2021, which are summarised below.
The insurer’s reasoning for declining to pay statutory benefits was because the claimant sustained a soft tissue injury to the lumbar spine in the 2019 accident.
Based upon a review of the claimant’s past medical records the insurer said the injury occurred against a background of underlying degenerative changes in the lumbar region, which did not cause additional damage. An MRI performed four weeks after the accident demonstrated underlying degenerative changes at multiple levels. These findings are consistent with longstanding degenerative changes.
There was no evidence of injury to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The insurer says the accident aggravated the claimant’s pre-existing lumbar spinal impairment. The significant degenerate lumbar spine changes were most likely due to osteoarthritis that was unrelated to the 2019 accident, as these changes take years to develop. The subject accident could have temporarily aggravated the pre-existing conditions. However, this temporary aggravation would have subsided in a few months after the subject accident with his symptoms returning to the previous level.
In the application for personal injury benefits (claim form) executed on 15 January 2019 Mr Bchai outlined the injuries sustained in the 2019 accident as:
·        bilateral shoulders;
·        thoracic spine;
·        cervical spine (aggravation), and
·        head.
Mr Bchai attended on his GP, Dr Malek, on 5 April 2019. The GP noted the presenting symptoms were:
·        headache;
·        cervical spine pain;
·        right upper limb weakness and numbness;
·        weakness of right hand power;
·        weakness of left hand power;
·        thoracic spine pain;
·        bilateral shoulder pain, and
·        hip pain.
Dr Malek noted that the 2015 car accident injured Mr Bchai’s cervical spine and his
2 July 2018 fall involved landing on his lower back. The 2019 accident aggravated the cervical spine injury and lumbar spine injury.
The GP certified Mr Bchai had no capacity for work from 4 January 2019 to 3 February 2019.
Mr Bchai’s clinical signs after the 2019 accident were tenderness over the cervical and thoracic spine. Cervical spine flexion was reduced to 20 degrees, in extension reduced to nil and reduced lateral flexion and rotation. Shoulder examination indicated reduced movements in all directions specifically abduction and internal rotation on both sides, worse at the right side, tenderness at the lumbar spine, reduced flexion movements, with the hand down to 20cm from the floor level. Extension was curtailed to 10 degrees. There was reduced lateral flexion and rotation. Muscle power was intact, and reflexes were normal.
The GP diagnosed that the 2019 accident Mr Bchai injured his cervical spine, thoracic spine and both shoulders.
Mr Bchai underwent physiotherapy after 4 January 2019 and it was noted he had an “…altered gait: limp on R side, uses walking stick at all times now…”
An MRI of Mr Bchai’s lumbar spine was taken on 6 February 2019. This study indicated widespread degenerative changes from L1/2 to L5/S1 with disc bulges at all levels with spinal canal stenosis from L2/3 and L5 / S1. There were facet joint changes from L2/3 to L5/S1. There was significant spinal canal stenosis most marked at L3/4 and L4/5 levels.
Dr Damodaran’s report on 28 March 2019 noted that Mr Bchai’s unsteady gait was a longstanding issue. His examination at this time demonstrated right sided biceps, triceps and brachioradialis reflexes suggesting a spinal cord pathology. The initial MRI study performed before the 2019 accident demonstrated spinal cord compression from C2-C6 due to multiple disc prolapses.
Dr Damodaran recorded Mr Bchai’s cervical myelopathy and central cord syndrome presentation (C3 to C7 cervical cord compression) and lumbar canal stenosis and associated radiculopathy on a background of previous cervical myelopathy, and that since the accident his fine motor control and walking had significantly deteriorated. Dr Damodaran opined this was due to a combination of significant cervical spine stenosis which needed to be addressed with cervical laminectomy and lateral mass fusion by way of C3-C7 laminectomy and fusion.
This report details an earlier injury sustained in 2018 when Mr Bchai sustained a fall at work when he slipped on wet floor. Since then, Mr Bchai’s symptoms had significantly worsened. His upper limb coordination, and his lower limb gait had deteriorated, with Mr Bchai now using a walking stick. Mr Bchai complained of bilateral leg numbness and also intermittent radicular pain, particularly on the right side. Before the fall at work, Mr Bchai had an earlier motor accident in 2015 which Dr Damodaran opined could have exacerbated some of his symptoms. Dr Damodaran noted that Mr Bchai’s grip strength was particularity weak compared to the left.
Mr Bchai advised Dr Damodaran in April 2019 that he had noticed some improvement in his walking and his upper limb coordination.
On 30 March 2020 Mr Bchai underwent C3-C7 laminoplasty and decompression. Mr Bchai reported lower back pain being exacerbated after surgery with right hand weakness and numbness post-surgery but that gradually improved.
On 24 April 2021 Mr Bchai underwent L4/5 and L5/S1 decompression surgery.

Previous injuries

Mr Bchai was involved in an earlier motor vehicle accident on 8 December 2015 following which he complained of headache, neck pain, bilateral shoulder pain worse on the right side, lower back pain and right iliac area pain.
His GP, Dr Malek examined Mr Bchai on 12 January 2016. Mr Bchai reported tenderness over the cervical spine, right shoulder and lumbosacral spine.
Mr Bchai continued to complain of recurrent headaches, cervical spine pain with radiating pain over both upper limbs and lumbar spine pain, with limitation of movements.
Mr Bchai reported his body moved to the right when walking. Dr Malek noted that Mr Bchai walked with a right foot drop, mild stamp gait and his upper spine leaning forward to compensate for poor balance. Mr Bchai’s cervical spine was tender with limited flexion, extension and rotation movements. Shoulder examination indicated reduced movements in all directions, specifically abduction and internal rotation and reduced flexion movements and sensation in the right thumb and left foot drop.
In Dr Malek’s’ view Mr Bchai’s involvement in the 2015 motor accident resulted in marked cervical spine injury, multiple disc pathology and canal stenosis, radiculopathy to the upper limbs, more pronounced on the right and foot drop. Dr Malek opined Mr Bchai’s prognosis to be poor with Mr Bchai being vulnerable to his condition worsening with minimal trauma as a result of which, surgical intervention was required stating that ‘he may end up in a wheelchair and may need fulltime carer if he deteriorates’. (Refer to Dr Malek’s report dated
19 September 2017).
Dr Malek referred Mr Bchai to neurologist Dr Bassel Hassan. Dr Hassan advised Dr Malek that Mr Bchai exhibited signs of cervical canal stenosis and severe cervical spondylosis with multilevel cord compression and recommended referral to Dr Damodaran. Dr Damodaran suggested neck surgery, which did not happen until after the 2019 accident.
Dr James Powell report dated 23 May 2018, details how Mr Bchai’s felt unsteady in his gait and required a walking stick particularly when out and about. Mr Bchai reported feeling weakness in the upper limbs particularly the right from shoulder and hand. Mr Bchai continued to feel weak in the legs particularly at night and continued to have intermittent muscle spasm. Mr Bchai took oral analgesics on a regular basis principally for his neck.
Mr Bchai’s function had deteriorated and Dr Powell was of the view that this was likely to continue and would become permanent and could start to involve other body systems.
As recently as 18 October 2018 Mr Bchai was complaining of lower back pain for which he was undergoing physiotherapy (refer page 37 of Dr Malek’s clinical records).
Dr Malek noted on 5 January 2019 the following:
“The Ambulance and police were not called to the scene.
He complained of dizzy attacks, shock, headache, neck pain, bilateral shoulder pain, dorsal spine pain, as well as lumbar spine pain (related to the previous 2 injuries).”
Based upon the medical evidence relating to the 2019 accident Mr Bchai sustained a soft tissue lumbar spine injury. The injury occurred against a background of underlying degenerative changes in the lumbar region, but did not cause additional damage, with an MRI performed four weeks after the 2019 accident demonstrating underlying degenerative changes at multiple levels, which was longstanding.
There is no evidence of injury to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The 2019 accident could have temporarily aggravated the pre-existing conditions. However, this temporary aggravation would have subsided in a few months after the subject accident with his symptoms returning to the previous level. The soft tissue injury to his lumbar spine is a threshold injury.
The medical evidence, including the records of Dr Damodaran support Medical Assessor McGrath’s findings that Mr Bchai had pre-existing pathology in the cervical and lumbar spine.

Radiculopathy

The insurer submits Medical Assessor McGrath’s examination appropriately considered the various factors of radiculopathy as required under Clause 5.8 of the Guidelines:
Reflexes: “reflexes were obtained in both upper and lower limbs.”
Sciatic nerve root tension: “He has restriction of movement in both the neck and lumbar spine consistent with his surgeries. He does not have radiating pain into either the upper or lower limbs.”
Muscle atrophy: “There is no observable atrophy within the hand itself”
Muscle weakness: “He has neurological radiculopathy into the right arm and right leg. There is combined motor weakness and sensory deficit in both the arm and leg […] He has a global weakness at the elbow and shoulder also without atrophy […] in the right leg, there is weakness of hip flexion and dorsiflexion of the foot.”
Sensory loss: “He has neurological radiculopathy into the right arm and right leg. There is combined motor weakness and sensory deficit in both the arm and leg.”
Medical Assessor McGrath’s examination findings above did not verify radiculopathy as required by Clause 5.8 of the Guidelines, because there is no evidence of two or more clinical signs of dysfunction of a spinal nerve root.
The insurer noted the claimant’s request for inclusion of additional documents AD5. It consented to including Dr Yuk Kai Lee’s report date with the following submissions:
·        the whole person impairment calculation methodology utilises impermissible AMA 5 workers compensation methodology which includes impermissible additions to impairment in relation to ADLs and surgery;
·        Dr Yuk Kai Lee lacked the extensive imaging reports from the claimant, and
·        Dr Yuk Kai Lee stated Mr Bchai cervical and lumbar spine was asymptomatic and appears largely unaware that the cervical and lumbar regions had been symptomatic leading up to the subject accident.

With respect to Mr Bchai’s cervical and lumbar spine surgeries, the insurer still disputes the 2019 accident made these procedures necessary.
The test in AAI t/as AAMI v Phillips [2018] NSWSC 1710 at [28]-[33] requires a two-fold determination regarding causation:
· would the subject accident have made at least a material contribution to the need for the surgical procedure, and
· whether the need for the surgical procedure conducted would not have arisen but for the occurrence of the subject accident.

The panel in Johnston v QBE [2023] NSWPICMP 21 accepted the Phillips approach on causation.
The insurer submits the 2019 accident did not cause the injuries which required surgery, as expressed in the Insurer’s Internal Review, Submissions, and Medical Assessor McGrath’s reasons.

Panel considerations

Clinical assessment of Mr Bchai’s clinical records

Medical Assessor Moloney reviewed the clinical records and previous Medical Assessor certificates.

Pre-accident history

There was an initial motor vehicle accident on 8 December 2015. His GP, Dr Malek initially diagnosed neck and shoulder pain and on 18 August 2016 added low back pain. On
15 September 2016, Dr Malek recorded numbness in the legs and on 14 February 2017 documented persistent low back pain with right sciatic pain and weakness in the right leg. This was also reported on 1 December 2017.
On 11 January 2018, the treating GP noted that Mr Bchai was using a walking stick and had bilateral sciatic pain with decreased sensation in the legs and weak lower limb reflexes. On 10 May 2018, Dr Malek recorded persistent sciatic pain bilaterally with decreased range of movement and straight leg raise of 30° on the right and 3° on the left. Another consultation on 3 July 2018 recorded a fall at work with an aggravation of low back pain. Further consultations in 2018 recorded persistent low back pain and decreased range of movement.
There was a consultation with Dr Damodaran on 2 December 2016. The doctor in a report written in 2019 recorded bilateral lower limb numbness and intermittent paraesthesia. He stated that his unsteady gait had been a long-standing issue and this was associated with cervical spinal cord compression.
There was a consultation with the treating GP on 5 January 2019. This recorded pain in the neck with headaches radiating to the shoulders and low back pain with the comment that this was related to two previous injuries. On 7 January 2019 Dr Malek noted increased bilateral sciatic pain and numbness in the legs.
In a report written by the treating GP dated 28 March 2019, presenting symptoms were listed as cervical spine pain, right upper limb weakness with numbness thoracic spine pain, bilateral shoulder pain and hip pain. On examination at that time, he recorded tenderness at the lumbar spine with reduced range of movement with normal reflexes and no sensory changes. The initial certificate of capacity recorded the diagnosis as an injury to the cervical spine, thoracic spine and bilateral shoulders.
Dr Damodaran, the treating neurosurgeon examined Mr Bchai on 18 March 2019.[11] At that time, the main presenting problem was cervical myelopathy and central cord syndrome. He wrote that there was a background history of cervical myelopathy and a recent fall and motor vehicle accident had led to central cord syndrome which required surgery. He also diagnosed severe lumbar canal stenosis particularly at L4/5 and to a lesser extent at L3/4. In a further consultation on 24 April 2019, he recorded some improvement in his walking and his upper limb incoordination.
[11] AD7 page 991.

Comments

The injury that was referred for review was: whether the lumbar spine spondylosis with spinal canal stenosis and radiculopathy injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.

There was obvious documentation of pre-existing lumbar spine spondylosis with spinal canal stenosis and radicular symptoms in two years before the accident. There was persistent sciatic pain in both legs with fluctuating decrease in sensation and reflex changes and eight months before the accident, he had a significant decrease in the straight leg raising test. The treating neurosurgeon had recorded bilateral lower limb numbness and intermittent paraesthesia before the accident.
An MRI dated 6 February 2019 records multilevel disc bulges and facet joint degenerative changes causing moderate canal stenosis particularly L4/5 with no significant foraminal narrowing and no vertebral fracture or ligamentous injury. There was narrowing of the lateral recess of both these levels and possible descending L4 and descending L5 nerve root impingement, respectively. Medical Assessor Moloney agreed with the radiology report.
Medical Assessor Moloney noted Mr Bchai had fluctuating similar signs and symptoms before the 2019 accident.

Panel deliberations

The Panel must satisfy itself there is sufficient evidence that would allow the Panel to feel actual persuasion that the injury occurred in the subject accident, which goes beyond conflicting inferences of equal degrees of probability that the claimant had, inter alia, sustained injury.
In Briggs Wright J reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty.[12] His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. Herron CJ stated the relevant principles, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
[12] Briggs [2022] NSWSC 372.
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
The Panel discussed Mr Bchai’s history. It was apparent in some notes that there was a confusion between the timing of the 2019 car accident and the fall at work. Initially the treating specialist Dr Damodoran noted the car accident as happening before the work fall. That was clarified to be a fall on 2 July 2018 with the accident on 4 January 2019.
The Panel agreed that a degenerative lumbar spine condition was established before the 2019 accident. However, the 2019 accident had accelerated the deterioration to the condition arising from the lumbar spine canal stenosis.
The Panel can find on the balance of probabilities that the accident caused verifiable radiculopathy. The reasons for that conclusion are as follows:
(a)   the 2018 GP’s examinations confirmed that Mr Bchai already had fluctuating radiculopathy before the 2019 accident;
(b)   however, it was apparent that the 2019 accident intensified and accelerated the changes in Mr Bchai’s lumbar spine because up to the 2019 accident he had been managing to work and carry out his usual daily activities;
(c)   the 2019 accident caused permanent changes, not temporary aggravation from soft tissue injury;
(d)   the claimant underwent lengthy conservative treatment but the state of his lumbar spine did not return to the state it was in 2018, when he could manage full time work;
(e)   he persevered with the conservative treatment until 2021 when Dr Damodoran operated;
(f)    the subject accident made at least a material contribution to the need for the surgical procedure, which became urgent only after the 2019 accident;
(g)   while the need for the surgical procedure may have arisen without 2019 accident the claimant’s treating surgeon is adamant the 2019 accident accelerated the need for lumbar spine surgery by five to ten years;
(h)   the Panel agrees with Dr Damodoran’s opinion, and
(i)    Drs Powell and Patrick’s 2018 reports confirms that the claimant’s lumbar issues were minor at that time, were not stopping him from working, and provided a contrast with his current state.

Panel decision

The Review Panel’s conclusions on the parties’ issues

Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a threshold injury, it is unclear and unlikely the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment apply to assessing causation in threshold injury disputes. This is because Part 6 is specified as applying only to the assessment of permanent impairment.
In order to promote consistency and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in clauses 6.6 and 6.7 of the Guidelines.
The decision in Peet v NRMA Insurance Ltd[13] provides guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW[14] who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
[13] [2015] NSWSC 558.
[14] [2012] NSWSC 560.
Further, in the recent case of Hunter v Insurance Australia Ltd[15] the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation”.
[15] [2021] NSWSC 623.

Presence of radiculopathy

In this case radiculopathy is not disputed. The GP’s notes show it was present during 2018 but the 2019 accident made those symptoms more intense.

Causation

The subject motor accident caused a non-threshold injury for the reasons set out above.

Summary of injuries referred by the parties

The Panel’s findings in relation to the threshold injury are that the lumbar spine spondylosis with spinal canal stenosis and radiculopathy injury caused by the motor accident is not a threshold injury for the purposes of the MAI Act.

CONCLUSION

The claimant has established the accident caused him to suffer a non-threshold injury. The Panel will issue a new certificate to replace Medical Assessor McGrath’s certificate.
Member O’Riain, Medical Assessor Moloney and Medical Assessor Berry have viewed this certificate and confirmed they agree with the outcome.

[2023] NSWPICMP 442

7 September 2023