Bird v QBE Insurance (Australia) Ltd

DETERMINATION OF REVIEW PANEL
CITATION:	Bird v QBE Insurance (Australia) Ltd [2023] NSWPICMP 324
CLAIMANT:	Sandra Lynne Bird
INSURER:	QBE Insurance (Australia) Ltd
REVIEW Panel
MEMBER:	Principal Member Harris
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Paul Curtin
DATE OF DECISION:	12 July 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 26 February 2021 in a side on collision; the dispute related to the assessment of threshold injury; claimant re-examined; significant chronic pre-existing history of cervical and lumbar spine pain and pathology; prior cervical fusion; prior lumbar spine injections; post-accident symptoms consistent with pre-accident complaints; findings made that pathology on scans was not aggravated by accident; no basis to find the injury to the other body parts (shoulder and hip) were not threshold injuries; Held – assessment of threshold injury confirmed.
DETERMINATIONS MADE:	Review Panel Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 21 July 2022 and certifies that the injury caused by the motor accident is a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Ms Sandra Bird (the claimant) suffered injury in a motor accident on 26 February 2021 when the insured vehicle drove out of the driveway of a petrol station and collided with the claimant’s vehicle. The claimant stated that she had insufficient time to stop and collided with the driver side front guard of the insured vehicle (the motor accident).[1]
[1] Claimant’s bundle, p 17.
The insurer is liable to pay to Ms Bird any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Ms Bird’s injury is classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The claimant asserted that she sustained physical injuries caused by the motor accident to the cervical spine including disc prolapse at C5/6, right shoulder strain, bilateral radicular symptoms in the arms, low back injury including disc prolapse at L2/3 and L3/4 with compression of the L3 and L4 nerve roots and radiculopathy in both legs and right hip injury.[2]
[2] Claimant’s bundle, p 14.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[4] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[5]
[4] Sections 3.11 and 3.28 of the MAI Act.
[5] Section 4.4 of the MAI Act.

MEDICAL ASSESSMENT

The dispute was referred to Medical Assessor Herald who issued a Medical Assessment Certificate dated 21 July 2022 (the medical assessment).[6] Medical Assessor Herald determined that the motor accident aggravated underlying cervical and lumbar spondylosis and caused soft tissue injuries to the right hip and right shoulder.
[6] Insurer's bundle, p 7.
On examination the Medical Assessor found right upper limb pain in the C6 distribution with altered sensation in hypersensitivity in a non-dermatomal pattern. There was a normal neurological examination in the lower limbs with intact tone, power and reflexes but all sensation pain particularly in the right thigh and over the right leg region was in a non-dermatomal pattern. The Medical Assessor noted the condition was consistent with radiculopathic symptoms although there were not sufficient features to satisfy the diagnosis of radiculopathy.
The Medical Assessor concluded that the motor accident caused minor injuries for the purposes of the MAI Act.

AMENDMENT to LEGISLATION

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions were otherwise filed when the term was minor injury. Accordingly, the term “minor injury” is used in these Reasons as it was used by the Medical Assessor and/or the parties.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[7]
[7] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[8] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[9]
[9] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[11]
[11] Section 7.26(6) of the MAI Act.
The parties filed respective bundles of documents for the Panel’s consideration.[12]
[12] The numbering in the claimant’s bundle was either non-existent or partial for some of the pages and that numbering was inconsistent with the bundle.

STATUTORY PROVISIONS

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the 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 psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[13]
[13] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[14]

SUBMISSIONS

Claimant’s submissions dated 10 September 2021[15]

[14] See s 3B(2) of the Civil Liability Act 2002.

[15] Claimant’s bundle, p 14.

The claimant summarised the injuries suffered in the motor accident which are set out earlier in these reasons. The claimant noted that she had undergone continued treatment due to the severity of injuries sustained in the accident and continued to suffer from significant physical and psychological disabilities.
The claimant submitted that it was,
“not appropriate for a solicitor or a claims officer to make submissions upon the diagnosis of injuries, nor to overlook medical evidence which clearly illustrates that the claimant sustained non-minor injurie sin the subject accident. As such we rely upon the medical evidence obtained to date which quite clearly demonstrates the injuries and diagnosis of same.”
This submission is unhelpful. It fails to assist the Medical Assessor and the Panel because it does not articulate the relevant evidence.

Claimant’s submissions dated 16 November 2021[16]

[16] Claimant’s bundle, p 300.

These submissions sought further physiotherapy which had been assisting the claimant with the recovery providing temporary pain relief.

Claimant’s submissions dated 22 August 2022

These submissions were filed seeking leave to review the certificate. The claimant submitted that the Medical Assessor did not provide sufficient reasons why the prolapses at L2/3 and L3/4 with compression of the exiting nerve roots were not caused by the motor accident.
The claimant otherwise referred to the opinion of Associate Professor Seex supporting the causal finding which noted that there were no acute thigh problems prior to the motor accident. It was submitted that the Medical Assessor failed to consider or otherwise engage with the relevant evidence.

Insurer’s internal review[17]

[17] Claimant’s bundle, p 25.

The internal review noted recent clinical notes of the Tindale Family Practice which referred to chronic neck and lower back pain in late 2020 with requests for injections into the lower back.
The insurer reviewed the medical evidence and submitted that it did not indicate two or more clinical signs of radiculopathy as provided by the Guidelines.

Insurer’s submissions undated[18]

[18] Insurer’s bundle, p 1.

The insurer noted that the claimant alleged injuries to the cervical spine, right shoulder, bilateral arm, lower back, right hip, legs and psychological injury.
The application for personal injury benefits referred to a past history of fusion at C6/7, lower back injury, arthritis and protruding discs. The prior fusion is referred to in the Allied Health Recovery Request dated 21 April 2021 and reports to Dr Issa and Associate Professor Seex.
The insurer summarised the past medical history from the Tindale Family Practice. It otherwise noted three previous motor accidents in 1986, 2012 and 2017.
After summarising the post-accident evidence, the insurer submitted that there was no evidence of bony trauma pathology to the cervical and lumbar spine and hips and the symptoms reflected pre-existing conditions. It submitted that the claimant only suffered minor injuries.

Insurer’s submissions undated[19]

[19] Insurer’s bundle, p 4.

These submissions opposed the application to review the Medical Assessment.
The insurer referred to the history recorded by the Medical Assessor of the claimant’s pre-accident medical history.
The insurer also referred to the post-accident lumbar radiology dated 8 March 2021 and
23 June 2021 which did not reveal any prolapse at L2/3 or L3/4.
The insurer otherwise noted that the conclusion expressed by Associate Professor Seex that there was no acute thigh pain prior to the accident was incorrect.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

The claimant underwent a C6/7 anterior cervical discectomy and fusion in October 2013.[20] Subsequent reports from the treating neurosurgeon, Dr Davidson, noted ongoing pain.
[20] Insurer’s bundle, p 41.
In a report dated 30 July 2014 Associate Professor Boesel noted right sided neck pain with C7 and C8 radicular symptoms.[21] In February 2015 the doctor noted radicular symptoms into both arms in the C6 and C7 distribution.[22] In January 2016 the doctor noted right sided neck pain into the shoulder and upper arm with either C4 or C5 nerve root compromise or C3/4 facet joint related referred pain or intrinsic shoulder pathology.[23]
[21] Claimant’s bundle, p 340.
[22] Claimant’s bundle, p 344.
[23] Claimant’s bundle, p 348.
In a report dated 6 February 2015 Dr Davidson noted the fusion was in excellent position. The doctor noted mild degenerative disc disease at C5/6 with mild loss of cervical lordosis and mild to moderate canal stenosis. The doctor note that there was no surgical solution and recommended a pain management program.[24]
[24] Insurer’s bundle, p 35.
The MRI scan of the cervical spine dated 12 November 2014 showed mild to moderate stenosis at C5/6 which was just above the level of the fusion.[25]
[25] Insurer’s bundle, p 52.
An ultrasound of the right shoulder dated 5 February 2016 showed tendinosis of the supraspinatus tendon with bursitis and bursal impingement.[26]
[26] Insurer’s bundle, p 123.
The MRI scan of the cervical spine dated 11 February 2016 noted a clinical history of right C5 pain and showed posterior disc osteophyte complex at C5/6 without cord effacement or stenosis.[27]
[27] Insurer’s bundle, p 125.
In April 2017 Associate Professor Boesel noted new radicular symptoms into the left upper limb at C6, C7, and C8 distribution with some subjective sensory impairment. There was also low back pain radiating into the groins.[28]
[28] Claimant’s bundle, p 356.
In December 2017 Associate Professor Boesel noted chronic cervical radiculopathy with improvement in C6 and C7 radicular pain. There was also mechanical posterior neck pain since the recent motor accident and reports of low back pain with intermittent radiation into the groin and inner thigh consistent with T12 and L1 dermatomes of the left.[29] In February 2018 the doctor noted significant worsening low back pain with radiation into left groin and right knee.[30] The doctor noted in August 2018 that the back and neck pain continued.[31] In November 2018 the doctor noted the claimant reported low back pain which did not respond to the last epidural injection with pain radiating to the buttocks with more distal radiation with bending.[32]
[29] Claimant’s bundle, p 362.
[30] Claimant’s bundle, p 364.
[31] Claimant’s bundle, p 370.
[32] Claimant’s bundle, p 372.
In March 2018 the Western Sydney Pain Centre noted the claimant had recently attended the kickstart program which provided an evidence-based overview of chronic pain.[33]
[33] Claimant’s bundle, p 366.
In June 2018 Dr Giblin, orthopaedic surgeon opined that the previous motor accident caused soft tissue injury to the cervical spine with referred symptoms to the upper extremities and a soft tissue injury to the lumbar spine with referred pain to the lower extremities.[34]
[34] Insurer’s bundle, p 494.
In August 2020 Associate Professor Boesel noted that the claimant had cervicalgia with radiation to the right upper limb, bilateral carpal tunnel and low back pain with right sided sciatica.[35]
[35] Claimant’s bundle, p 382.

Pre-accident clinical notes of general practitioner

The records of Tindale Family Practice referred to prior neck and back pain preceding the motor accident.
In March 2016 the general practitioner (GP) noted chronic neck pain since the 2012 motor accident.[36]
[36] Claimant’s bundle, p 117.
On 2 February 2017 the GP noted chronic neck pain with right radicular nerve pain which was now also on the left.[37]
[37] Claimant’s bundle, p 107.
In February 2017 the GP noted an old wedge compression fracture with loss of height anteriorly and back pain since the motor accident in 2012 which had been worse over the past few months.[38]
[38] Claimant’s bundle, p 106.

The X-ray of the lumbosacral spine dated 16 February 2017 showed an old wedge compression fracture of the first level lumbar vertebral body, significant loss of disc height at L3/4 with spondylitic changes, and diminished disc height at L5/S1.[39]
[39] Claimant’s bundle, p 132.
In March 2017 the GP noted neck pain causing headaches and lower back and abdominal pains.[40]
[40] Claimant’s bundle, p 104.
The MRI scan of the lumber spine dated 11 December 2017 showed a broad-based disc bulging and annular tear at L3/4 with mild canal stenosis and mild bilateral foraminal stenosis without impingement of the exiting nerve roots. Further broad-based bulging was noted at L4/5 and L5/S1.[41]
[41] Insurer’s bundle, p 453.
Consultations with the GP in August 2017 noted the motor accident with resulting neck pain.[42]
[42] Claimant’s bundle, pp 101-102.
On 29 September 2017 the GP noted ongoing pain in the right hand, pins and needles in both hands and the claimant had felt sharp pains in the right/hand fingers since the motor accident.[43]
[43] Claimant’s bundle, p 100.
On 16 October 2017 the GP noted worsening neck/lower back pain since the motor accident.[44]
[44] Claimant’s bundle, p 98.
On 6 April 2018 the GP noted severe back pain.[45]
[45] Claimant’s bundle, p 93.
A physiotherapy assessment in April 2018 referred to neck and bilateral arm pain and low back radiating down both legs.[46]
[46] Insurer’s bundle, p 225.
On 10 September 2018 the GP noted chronic cervical radiculopathy and chronic back pain.[47]
[47] Claimant’s bundle, p 88.
On 6 March 2019 the GP noted chronic cervical radiculopathy.[48]
[48] Claimant’s bundle, p 83.
On 5 August 2019 the GP recorded that the claimant had trouble sleeping with back pain and numbness and tingling affecting mainly the first three fingers.[49]
[49] Claimant’s bundle, p 79.
On 6 April 2020 the GP recorded that the claimant had pain down the right leg following a slip down the ramp at home one week previously.[50]
[50] Claimant’s bundle, p 69.
On 24 September 2020 the GP noted pain in both legs, painful lateral thighs, and requested an ultrasound of the bilateral hips.[51]
[51] Claimant’s bundle, p 66.
On 30 September 2020 the applicant underwent an ultrasound guided right trochanteric bursal steroid injection without any complications.[52]
[52] Claimant’s bundle, p 128.
An ultrasound of the hips dated 30 September 2020 noted similar appearance in both with bony irregularities compatible with underlying osteoarthritis.[53]
[53] Claimant’s bundle, p 129.
On 4 November 2020 the GP noted chronic neck and lower back pain and provided a referral for Associate Professor Boesel.[54]
[54] Claimant’s bundle, p 64.
The clinical notes in November 2020 noted the injections into the back were helpful and required a referral for a L4 perineural steroid injection.[55]
[55] Claimant’s bundle, p 63.
On 19 November 2020 the claimant underwent a CT guided L4/5 epidural steroid injection.[56]
[56] Claimant’s bundle, p 126.
On 24 November 2020 the claimant underwent a left L3 perineural steroid injection.[57]
[57] Claimant’s bundle, p 125.
On 22 January 2021 the claimant underwent a CT guided L4/5 epidural injection.[58]
[58] Claimant’s bundle, p 124.
The clinical notes dated 3 February 2021 noted the claimant required assistance with grooming/showering. The note is ambiguous as they may refer to the need for assistance for family members.[59]
[59] Claimant’s bundle, p 61.

Medical evidence

The ambulance report referred to a low-speed T-bone accident when another car was coming out of the driveway and collided with the claimant’s vehicle. The officer noted complaints of lower back pain which was said to be an exacerbation of normal lower back issues and complaints of left lateral neck and shoulder pain.[60]
[60] Claimant’s bundle, p 32.
The hospital admission noted low-speed motor accident with chronic back pain now exacerbated and lateral neck pain.[61] The X-ray of the right clavicle showed no acute fracture or dislocation. There were degenerative changes in the right shoulder and AC joint.[62]
[61] Claimant’s bundle, p 328.
[62] Claimant’s bundle, p 329.
The hospital discharge note referred to the primary complaint being “increase to her usual lower back pain” and otherwise right lateral neck pain and mild headache with tenderness across the right medial clavicle.[63]
[63] Claimant’s bundle, p 331.
The clinical record of the GP dated 27 February 2021 noted the motor accident the previous day with complaints of neck and lower back pain.[64]
[64] Claimant’s bundle, p 48.
The clinical note of the GP dated 1 March 2021 noted pain in the right shoulder/neck, pins and needles with pain in the fingers, right greater than left, right hip pain, pins and needles in the second and third digits of the right foot and pain into buttocks and groin on the right side.[65]
[65] Claimant’s bundle, p 60.
The MRI scan of the cervical spine dated 22 March 2021 showed the fusion at C6/7 and bilateral spurring and osteophytes complex as at C4/5 resulting in moderately severe left and right foraminal stenosis with impingement of the C5 nerves, bilateral spurring with a right foraminal disc protrusion at C5/6 resulting in moderately severe right in moderately foraminal stenosis with C6 neural impingement.[66]
[66] Claimant’s bundle, p 39.
The X-ray of the right hip dated 22 March 2021 showed mild right hip joint osteoarthritis and degenerative changes at the pubic symphysis with no fracture or destructive illusion.[67]
[67] Claimant’s bundle, p 40.
In a letter dated 24 March 2021, Associate Professor Boesel noted new radicular pain in the right C6 distribution, left cervicalgia radiating to the inter-scapular region and exacerbation of low back pain with radiation to the lower limb.[68] The doctor noted that review of the medical imaging showed a central disc prolapse at C5 immediately adjacent to the fusion.
[68] Claimant’s bundle, p 48.
The certificate of capacity dated 25 March 2021 referred to neck and lower back pain post-accident.[69]
[69] Claimant’s bundle, p 22.
A CT guided right C5 perineural injection was undertaken on 15 April 2021.[70]
[70] Claimant’s bundle, p 489.
A physiotherapy report dated 21 April 2021 noted physiotherapy commenced that day with significant pain in the neck, right hand, low back, right hip and leg. Reported symptoms were to the neck region and lower back with pins and needles and numbness in the right middle and ring fingers.[71]
[71] Claimant’s bundle, p 135.
In May 2021 Associate Professor Boesel noted an unsuccessful injection at C5 and physiotherapy that was not helping.[72]
[72] Claimant’s bundle, p 386.
On 31 May 2021 the claimant underwent a CT guided L4/5 epidural steroid injection without any complications.[73]
[73] Claimant’s bundle, p 120.
A bone scan with SPECT/CT dated 1 June 2021 showed no loosening of the hardware at the cervical fusion and a normal appearance of the lumbosacral spine.[74]
[74] Insurer’s bundle. p 15.
On 8 June 2021 the claimant underwent a CT guided right L3 perineural injection without any complications.[75]
[75] Claimant’s bundle, p 119.
In a report dated 15 June 2021 Associate Professor Seex noted complaints of lower back pain radiating into both limbs especially in the anterior thigh with no urinary or bowel incontinence.[76] Physical examination showed tenderness over the lower back with normal examination of the lower limbs. There were complaints of pain radiating to both upper limbs in a C5/6 distribution bilaterally. Investigation showed the fusion looked satisfactory and the nerve impingement of C5 and C6 did not seem significant.
[76] Claimant’s bundle, p 37.
The doctor recommended a lumbosacral MRI with subsequent review.
The MRI scan of the lumbar spine dated 23 June 2021 showed a small right/central subarticular disc protrusion at L2/3 causing mild narrowing of the canal and moderate to severe narrowing of the right subarticular recess traversing the L3 nerve root. There was a moderate disc protrusion on the central/left at L3/4 traversing the L4 nerve root.[77]
[77] Insurer’s bundle, p 49.
On 25 June 2021 Associate Professor Seex noted that the predominant problem was right thigh pain.[78] The MRI scan noted disc prolapse as on the right at L2/3 consistent with compressing the L3 nerve root and left sided L3/4 disc compressing the left L4 nerve root. The doctor opined that the pains were secondary to the motor accident in February without progress. The doctor noted that the claimant had previously undergone injections with success but wish to proceed with a surgical solution and sought approval for surgery on the right L2/3 and left L3/4 involving posterior decompressions. The doctor otherwise noted subjective sensory loss of the interior right thigh.
[78] Claimant’s bundle, p 38.
On 25 June 2021 Associate Professor Seex requested the insurer’s permission for payment of the decompression of the right L2/3 and left L3/4 segments.[79]
[79] Claimant’s bundle, 42.
An Allied health recovery request dated 12 July 2021 noted reported symptoms in the neck and lumbar spine radiating into the right leg with intermittent left shoulder pain.[80]
[80] Claimant’s bundle, p 141.
The MRI scan of the right shoulder dated 10 February 2022 showed marked acute subacromial bursitis with incisional tendinopathy and tendinitis of the supraspinatus tendon. No acute tendon retraction or tear was present.[81]
[81] Claimant’s bundle, p 514.

Statement

The claim form dated 26 March 2021 alleged pain down the left side of the neck, inside of the shoulder, pain down the right side of the neck down the arm and into the finger and ring finger. There was also reference to lower back pain down the back of the left leg and down the back of the right leg to the second and third toe.[82]
[82] Claimant’s bundle, p 20.
The prior symptoms referenced in the claim form were fusion at C6/7, not painful, lower back injury, arthritis, protruding disc with no pain in the area.

Photographs

Photographs show extensive damage to the front of the claimant’s vehicle.[83]
[83] Claimant’s bundle, p 3 - 4.

RE-EXAMINATION

The Panel determined that Ms Bird be examined by Medical Assessor Cameron on
27 June 2023.
The re-examination report is as follows:
“Mrs Bird was re-examined by Medical Assessor Cameron at Ultimo on 27 June 2023.
Mrs Bird attended unaccompanied. She had travelled by taxi to the appointment with her daughter.
Background
Mrs Bird is living at Shane's Park in Western Sydney. She lives with her daughter and son who have disabilities, and her sister who also has a disability.
Mrs Bird has been in receipt of a carer pension for a considerable time.
Mrs Bird has a significant past history of chronic pain and had a past cervical vertebral fusion in 2013.
History of Injury
On 26 February 2021 Mrs Bird was the driver of a vehicle. Another vehicle exited a petrol station and there was a T-bone type collision.
An ambulance was coincidentally nearby, and they assisted her. There was a hospital admission. No fractures were diagnosed.
Mrs Bird said that she had increased lower back pain as well as greater neck and right shoulder pain as a result of this accident. There have been persisting symptoms.
Current Status
Mrs Bird said that she has problems with her right arm in that she cannot hold things and drops things. She said that there is neck pain and right shoulder pain.
Other symptoms are lower back pain radiating to the legs. In the right leg there is said to be radiation to the right thigh and the big toe. In the left leg there is said to be irritation to the anterior thigh to the left knee with an itchy feeling.
Mrs Bird reported that her sleep is very poor.
Mrs Bird said that mobility is limited, and she needs help with daily life. She has a wheelchair at home.
Mrs Bird has assistance from her daughter. She also has an aged care package. She is able to access it at her age because she is from an indigenous background.
There has been past physiotherapy and input from the psychiatrist. The current general practitioner is Dr Belandran at Tindale Family Practice.
Current medications are Palexia 100 mg twice daily, ketoprofen 200 mg daily, Avapro, Jardiamet, Lipidil, Ezetrol, Lyrica 450 mg daily and Lexam 25 mg daily.
Mrs Bird said that she generally travels by disability taxi. However, she drives to a very limited extent.
Examination
Mrs Bird is right-handed, 163 cm in height and weighs 110 kg.
Mrs Bird was co-operative and provided a clear history. There was no evidence of significant cognitive impairment.
There was a right sided anterior neck scar consistent with the history of cervical fusion.
At the cervical spine there was moderately and symmetrically reduced range of motion to 60% normal with 50% normal in flexion and extension, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
Mrs Bird reported tenderness over the anterior aspect of the right shoulder and the right supraclavicular region.
There was a full range of movement at the left shoulder.
At the right shoulder there was inconsistent movement that Mrs Bird said was due to variable pain. The maximum observed movements at this shoulder were abduction 20 degrees, adduction 20 degrees, flexion 40 degrees, extension 20 degrees, external rotation 40 degrees, internal rotation 40 degrees.
There were sensory symptoms in the radial aspect of the right hand. No definite neurological deficit was detected in the right upper extremity.
Circumferences of the upper extremities were right 27cm and left 26cm.
At the thoracic spine there was markedly and symmetrically reduced range of motion (to 50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.

At the lumbar spine there was markedly and symmetrically reduced range of motion (to 50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both knees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no definite neurological abnormalities in the lower extremities. The knee jerks were difficult to elicit bilaterally.
Circumferences of the lower extremities were right 43cm and left 42cm.

Mrs Bird walked with a nonspecific slow gait.
There were no imaging studies to review.
Diagnosis and Prognosis
In the motor vehicle crash on 26 February 2021 Mrs Bird sustained soft tissue injuries to her cervical spine, lumbar spine and possibly right shoulder. These are threshold injuries. “

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or non-threshold as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[84] and Insurance Australia Ltd v Marsh.[85]
[84] [2021] NSWCA 287 at [40], [41] and [45].
[85] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[86] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[86] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[87] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[87] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Cameron and adds the following reasons.

Low back injury

We accept that the low back was injured in the motor accident based on the claimant’s initial complaints of an exacerbation of symptoms.
The pre-accident clinical records show longstanding chronic low back complaints. Injections were undertaken in late 2020 and early 2021 to the left L3 and L4/5 levels. There are extensive pre-accident complaints of chronic low back pain and radicular symptoms into the lower extremities.
The MRI scan of the lumber spine dated 11 December 2017 showed broad-based disc bulging and annular tear at L3/4 with mild canal stenosis and mild bilateral foraminal stenosis without impingement of the exiting nerve roots. The MRI scan of the lumbar spine dated
23 June 2021 shows further pathology at L3/4 which is explicable by the progression of degenerative changes since the previous scan.
The claimant referred to the opinion of Associate Professor Seex supporting the causal finding which noted that there were no acute thigh problems prior to the motor accident. However, the GP note dated 24 September 2020 referred to pain in both legs and painful lateral thighs.
Right sided sciatica in the lower extremity was noted by Dr Giblin in June 2018 and Associate Professor Boesel in August 2020. The pre-accident back condition was otherwise of such severity that the claimant underwent spinal injections in late 2020 and early 2021 to two levels of the lumbar spine.
In the Panel’s clinical view, the chronicity of the pre-accident symptoms and the multiple levels of pathology suggest that the changes shown in the post-accident scans are degenerative rather than caused or aggravated by the motor accident. We also consider that the lumbar spine is reasonably protected by the seat and trauma by way of aggravation of disc pathology is unlikely.
The Panel’s finding that the post-accident lumbar MRI scan shows degenerative rather than traumatic changes is also based on a detailed review of the clinical records. We do not agree that the thigh symptoms reported by Associate Professor Seex in June 2021 are “new” as these symptoms were recorded by the GP in September 2020.[88] These radicular symptoms are a likely explanation why lumbar spine injections were undertaken by the claimant shortly after reporting these symptoms.
[88] See at [75] herein.
We do not accept that there is traumatic lumbar spine injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The subsequent MRI scan of the lumbar spine shows multi-level degenerative changes.
The notes in July 2021 such as the history in the lumbar spine scan refer to radiculopathy but do not refer to the precise symptoms or the dermatome. Accordingly, it is unclear why that diagnosis was made. Consistent with the principles in David, we are not satisfied that the claimant has established two signs of radiculopathy.
We are not satisfied that there were two signs of radiculopathy at any time as defined in cl 5.8 in the clinical notes. Non-verifiable radicular signs such as pain is not a sign of radiculopathy in cl 5.8.

Cervical spine injury

The claimant has an extensive pre-motor accident history of cervical spine pathology at multiple levels, a fusion at C6/7 and radicular symptoms reported at various times over the years from multiple levels in the cervical spine. The relevant histories of complaints are set out earlier in these reasons.
We accept there was a soft tissue injury to the cervical spine probably involving an aggravation of degenerative changes in keeping with the scans which show degenerative changes at multiple levels. We do not accept that there was traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
We could not identify two recorded observations of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain. These are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome nor do they describe symptoms as required by cl 5.8 of the Guidelines.
Based on the examination findings of Medical Assessor Cameron, Ms Bird did not have cervical spine radiculopathy at the recent examination.

For these reasons we conclude that Ms Bird has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.
We are not satisfied that the cervical spine injury was other than a threshold injury.

Right shoulder injury

The claimant immediately complained to the ambulance officer of shoulder pain which we infer was right shoulder pain. This is because an X-ray at hospital showed degenerative changes in the right AC joint which is consistent with complaint. That X-ray otherwise showed pre-existing pathology.
The MRI scan of the right shoulder dated 10 February 2022 does not show pathology that would establish that the right shoulder injury was not a threshold injury. Further, the ultrasound of the right shoulder dated 5 February 2016, that is five years prior to the motor accident, showed tendinosis of the supraspinatus tendon with bursitis and bursal impingement. That pre-existing pathology is generally consistent with the pathology shown in the right shoulder MRI scan in February 2022.
We accept that the motor accident caused a soft tissue right shoulder injury. However, there is no evidence that there was traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage of the right shoulder.

Right hip injury

The clinical note of the GP dated 1 March 2021 noted right hip pain following the motor accident.
There is no scan evidence showing any right hip pathology caused by the motor accident. The X-ray of the right hip dated 22 March 2021 showed mild right hip joint osteoarthritis and degenerative changes at the pubic symphysis with no fracture or destructive illusion. It is not self-evident to the Panel and not otherwise explained by the claimant or by any medical opinion how there was a right hip injury caused by the motor accident.
The claimant had previously complained of right leg/thigh symptoms in the latter part of 2020 and had undergone a bilateral hip ultrasound hip which showed irregularities consistent with underlying osteoarthritis. On 30 September 2020 the claimant had also undergone an ultrasound guided right trochanteric bursal steroid injection.
The Panel is not satisfied that the motor accident caused right hip injury. Further, there is no examination findings from any medical practitioner or radiological findings which show traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage in the right hip region.
The post-accident X-ray of the right hip dated 22 March 2021 showed mild right hip joint osteoarthritis which is pre-existing pathology as it could not have developed in the period since the motor accident. Even if the motor accident caused an aggravation of that pathology, which is not explicable by the nature of the motor accident, this would still be a threshold injury.

CONCLUSION

For these reasons the Panel concludes that the certificate issued by Medical Assessor Herald is confirmed.

[2023] NSWPICMP 324

12 July 2023