Black v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Black v Allianz Australia Insurance Limited [2023] NSWPICMP 20
CLAIMANT:	Andrew Black
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Cameron Thompson
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	24 January 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant was injured in a motor accident on 11 September 2018 when he drove a truck over a speed hump whilst at work; assessment of minor injury under section 1.6; Medical Assessor (MA) found that annular tears (fissures) identified on radiological imaging were not caused by the accident that a soft tissue injury to the lumbar spine aggravating underlying degenerative change was caused by the accident and is a minor injury; Held – Panel found that the accident caused a soft tissue injury to the lumbar spine but there was no evidence of a specific disc injury as a result of this; Panel was not satisfied that the annular fissures were caused or aggravated by the accident and it was therefore unnecessary to consider the issue as to whether the annular fissure is a non-minor injury for the purposes of the MAI Act; certificate of MA confirmed.
DETERMINATIONS MADE:	Medical Assessment – Minor injury Review Panel Assessment of Minor Injury Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the Certificate of Assessor Assem dated 10 November 2021.

REASONS

BACKGROUND

The Claimant, Andrew Black, suffered injury in a motor accident on 11 September 2018 when he drove a truck over a speed hump whilst at work.
The insurer insured the owner of the truck for liability to pay to the Claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The present issue is whether the Claimant’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, clause 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 minor injury for the purposes of the Act”.
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[1] and, pursuant to s 7.26 of the Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Assem who issued a Medical Assessment Certificate dated 10 November 2021. Medical Assessor Assem concluded that the Claimant sustained a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to ongoing statutory benefits and an entitlement to bring an action for 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 minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.

The review

The application for referral of the medical assessment was lodged on 22 December 2021 by the Claimant and within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
On 7 April 2022, 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 is incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] 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 clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] 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.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[8]
[8] 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.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel issued a direction dated 14 April 2022 requiring the parties to upload to the portal bundles of documents they relied upon in the Review (the First Panel Direction).
The Claimant provided a bundle of documents in response to this direction (CTB) and the Insurer provided a bundle of documents (ITB). In submissions, the Insurer had submitted that the Claimant has extensive pre-existing degenerative changes to the lumbar spine not causally related to the subject motor vehicle accident and in support of this relied upon a CT scan dated 12 September 2018 which is attached to the clinical notes of Pacific Medical Centre (R8) and a Certificate of Fitness/Capacity dated 27 August 2019 (R3).
In a second Review Panel Direction dated 7 June 2022, the Claimant was directed to upload to the portal treating clinical records from general practitioners and specialists whom the Claimant has attended for treatment for the three years prior to the accident on 11 September 2018. In response to that direction the Claimant lodged on the portal documents at AD4 being clinical notes from Pacific Medical Centre.
The Insurer made an Application to Admit Late Documents (AD3) being a document entitled “Insurer’s Submissions for the Review Panel” dated 24 June 2022 (the Insurer’s further submissions). The Panel granted the Insurer leave to rely upon the Insurer’s further submissions subject to the Claimant having the right to lodge submissions in reply, and issued a direction dated 23 December 2022 that on or before 16 January 2023, the Claimant is to serve on the Insurer and upload to the portal any written submissions in reply to the Insurer’s further submissions. Pursuant to that direction, the Claimant uploaded to the portal the Claimant’s Submissions in Reply to the Insurer’s Further Written Submissions dated 24 June 2022 (AD5).

Statutory provisions

A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric 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 minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor 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 Accident 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 minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor 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 minor psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess minor injury.
5.5    A diagnosis for the purpose of a minor 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 minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
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 minor injury. An injury resulting in radiculopathy will not be classified as a minor 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.
Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11]. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely that the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment[12] apply. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.[13]
[11] See s 3B(2) of the Civil Liability Act, 2002.
[12] See clauses 6.5 - 6.7 of the Guidelines.
[13] See clause 6.3 of the Guidelines.

Assessment under review

Medical Assessor Assem certified that the Claimant sustained a minor injury for the purposes of the MAI Act. Medical Assessor Assem stated:
Mr Black sustained a jarring injury to his lumbar spine while driving a semi-trailer over a speed hump on 11 September 2018. He has continued to experience low back discomfort radiating to his sacroiliac joints and both hips. Radiological imaging identified degenerative changes present with annular tears and discosteophyte complex, potentially irritating the existing nerve roots. (CTB p.874-875)
Medical Assessor Assem further stated that:
His current symptoms are predominantly due to aggravation of degenerative pathology in the lumbar spine, facet joint arthropathy and sacroiliac joint dysfunction as he attained more than 40% relief with sacroiliac joint blocks and radiofrequency neurotomies. (CTB p.875)
Medical Assessor Assem made the following determination:
For the above reasons, I have determined that the pathology identified on radiological imagining was most likely not caused by the subject accident but rather representing early stages of disc degeneration. He also did not satisfy two or more of the criteria for radiculopathy listed clause 5.8 of the Motor Accident Guidelines.” (CTB p.875)
Medical Assessor Assem found that the following injuries were caused by the motor accident:
“Lumbar spine – Soft tissue injury, aggravation of degenerative changes with pain referred to hips (redefined).” (CTB p.875)
However, Medical Assessor Assem found that the annular tear identified on radiological imagining was not caused by the subject motor accident and that a soft tissue injury to the lumbar spine aggravating underlying degenerative change is a minor injury per definitions set out in the Act. (CTB p.876)

SUBMISSIONS

Claimant’s submissions dated 12 April 2021 (A12 p.609)

These submissions were lodged in support of the Claimant’s application for review of the decision made by Allianz on 11 February 2021 which determined that the Claimant’s injuries resulting from the motor accident met the definition of a “minor injury” as set out in the legislation. The Claimant submits that the Claimant’s doctors do not report any subsequent injuries between the date of the accident and the MRI scan of the lumbar spine on 9 January 2019 (A11), and as such, in the absence of any record of further injuries in any of the Claimant’s medical records, the allegation by the Insurer that the injury is caused by a subsequent injury is preposterous and cannot be accepted.
The Claimant further submits that clause 5.8 of the Guidelines notes an injury is determined as non-minor should the presence of radiculopathy be identified and that the Claimant’s treating general practitioner, Dr Adriano, consistently reports the presence of lower back pain which radiates down both legs (A5), thus displaying the presence of radiculopathy.
The Claimant submits that the MRI scan of the lumbar spine on 9 January 2019 (A11) found that the Claimant has sustained herniations to the L4/5 and L5/S1 with annular tears contacting exited right L4 nerve root and descending right S1 nerve root and further that pursuant to section 1.6 of the MIA Act an injury to the nerve and partial rupture of a ligament does not constitute a minor injury (paragraphs 15 and 16).

Claimant’s submissions in support of Application for Review dated 22 December 2021 (CTB p.866)

These submissions were relied upon in support of the Claimant’s Application for Review of the Decision of Medical Assessor Assem.
The Claimant submits that Assessor Assem made a material error in finding that the annular tear identified on radiological imaging was not caused by the subject motor accident. Assessor Assem had available and made specific reference to the findings of the MRI scan dated 9 January 2019 which revealed disc herniations at L4/5 and L5/S1 with annular tears contacting the existing right L4 nerve root in descending right S1 nerve root. The Claimant refers to the observation of Assessor Assem that the complete record from Pacific Medical Centre (A4) confirms that there was no previous history of lower back pain until the subject accident and submits that Assessor Assem therefore had no evidence of any prior trauma involving the Claimant’s lower back which might potentially be an explanation for the existence of the radiological findings. It is further submitted that from the time of the subject accident onwards, the Claimant has made consistent ongoing complaints of pain in his lower back and has been in receipt of ongoing treatment, including referral to the neurosurgeon, Dr Di leva, another neurosurgeon, Dr Eftekhar, and to the pain management specialist, Dr Deshpande, and submits that this pattern of treatment is not consistent with a Claimant who has sustained a minor injury.
The Claimant further submits that by definition, annular tears (as proven on the radiology for this Claimant) are not “minor injuries” and that Assessor Assem did not properly consider the likelihood of the cause or contribution from the subject accident trauma to the development of the Claimant’s annular tears when he determines that the pathology identified on radiological imaging was most likely not caused by the subject accident but rather representing early stages of disc degeneration.
The Claimant submits that on the question of causation, Assessor Assem was obliged to have regard to the applicable definitions, relevantly including that the accident trauma does not have to be the sole cause of the symptoms, as long as it is a contributing cause which is more than negligible, and that Assessor Assem had no regard at all to this principle of causation.

Insurer’s PIC submissions – minor injury dispute dated 17 May 2021 (R1)

The Insurer refers in these submissions to the background evidence and chronology relating to the claim. It submits that the Claimant’s lumbar spine injuries were not causally related to the subject motor accident and relies upon the biomechanical report of Road Safety Solutions dated 7 May 2021 (R7) and submits that in the light of this evidence there is no possibility that driving over a speed bump would have caused such traumatic pathology to the lumbar spine, head, bilateral hips, legs and psychological injuries and submits that the subject motor accident was not the cause of such injuries.
The Insurer further submits that the Claimant has injured his lumbar spine since the date of the motor accident. It relies upon the clinical notes of Pacific Medical Centre (R8) and in particular notes in relation to consultations on 15 August 2019, 1 October 2019, 10 October 2019, 15 June 2020 and 17 December 2020 in relation to pain and aggravation of lower back pain, and submits that in light of this evidence the Claimant has sustained further injuries to the lumbar spine not causally related to the subject motor accident.
The Insurer further submits that the Claimant had extensive pre-existing degenerative changes to the lumbar spine not causally related to the subject motor accident. It relies upon the CT scan dated 12 September 2018 attached to the Pacific Medical Centre clinical notes (R8) and the Certificate of Fitness/Capacity dated 27 August 2019 (R3) and submits that this degenerative pathology would not have been attributed to the subject motor vehicle accident. The Insurer notes that the Claimant has not demonstrated a traumatic structural injury but degenerative changes to the lumbar spine, that the mechanisms of the subject accident could not have caused such an injury and that the Claimant reported sustaining further injuries to the lumbar spine after the accident, and submits that the Claimant’s lumbar spine injury is not causally related to the subject motor accident.
The Insurer submits that in the event that there is a determination that the Claimant has sustained a lumbar spine injury causally related to the accident, the Claimant has demonstrated a “minor injury” because:
(a)The CT scan dated 12 September 2018 does not illustrate a fracture, complete or partial rupture or a nerve root injury; and
(b)The reports of Dr Di leva indicate unremarkable neurological examination and no neurological deficits in the lower limbs.
It submits that in light of the evidence confirming the Claimant has not sustained a fracture, complete or partial rupture or a nerve root injury with radiculopathy, the Claimant sustained a “minor injury”.
With regards to the injuries to the bilateral hips and legs, the Insurer submits that the Claimant has not sustained these injuries as a result of the subject motor accident and in so submitting again relies upon the report by Road Safety Solutions (R7).
It submits that because there has been no formal diagnosis made by the Claimant’s treatment providers of a bilateral hip or leg injury and the evidence supporting that no such injuries could have been caused by the motor accident, the Claimant has not sustained a bilateral hip or leg injury causally related to the accident.

Insurer’s submissions dated 18 March 2022 (R9)

These submissions were lodged in reply to the Claimant’s Application for Review of the Certificate issued by Medical Assessor Assem.
The Insurer submits that the question for Assessor Assem to determine was whether the injury to the lumbar spine caused by the subject accident was limited to a soft tissue injury or whether the accident caused the pathology identified on the MRI scan. It submits that Assessor Assem determined that the injury sustained to the Claimant’s lumbar spine in the subject accident was limited to a soft tissue injury including “aggravation of degenerative changes with pain referred to the hips” and that he did not accept that the pathology identified by the MRI scan, including the annular tears, was caused by the subject accident, but was of the view that the pathology identified represented early stages of disc degeneration which was not caused by the subject accident, and that in his opinion the Claimant’s symptoms predominantly related to aggravation of degenerative pathology in the lumbar spine. He also did not find evidence of radiculopathy on examination and concluded that the annular tear on radiological imaging was not caused by the subject accident and that a soft tissue injury to the lumbar spine aggravating degenerative changes is a minor injury as defined by the MAI Act
The Insurer submits that Assessor Assem’s findings were justified, that he gave proper consideration to the issue of a causal contribution from the accident to the annular tears, and that there is no evidence that he did not have regard to the proper test for causation, and further, that the determination of whether the annular tears identified by the MRI scan were caused by the accident was a matter for Assessor Assem’s clinical judgment.
It submits that Assessor Assem provided clear and cogent reasons for his decision, that there was no evidence that he applied the incorrect test for causation and that he was entitled, within his discretion as decision-maker, to find that the Claimant’s injuries were minor injuries as defined by the MAI Act.

Insurer’s further submissions dated 24 June 2022 (AD3)

In these further submissions, the Insurer maintains that the annular tear and any other pathology identified in the radiological scans were not caused by the subject accident and are no more than incidental findings, and that if the Claimant did sustain an injury to his lumbar spine in the subject accident, such injury was limited to a soft tissue injury. In response to the submission from the Claimant that there was no evidence of prior trauma involving the lower back or any history of lower back pain and that therefore the subject accident must have caused the radiological findings, the Insurer relies upon the decision of the Review Panel in David v Allianz Australia Insurance Limited [2021] NSW PIC MP and Muardi v QBE Insurance Australia Limited [2022] NSW PIC MP 59 and submits that these decisions are persuasive and maintains that the Claimant’s radiological findings, including the annular tears, were no more than incidental findings and could not have been caused by the Claimant having driven over a speed bump as described.
The Insurer further submits that there is no evidence of the Claimant having experienced radiculopathy as defined by Clause 5.8 of the Guidelines since the subject accident, and in doing so refers to the examinations of the neurosurgeons, Associate Professor Di Leva and Associate Professor Eftekhar, and also the fact that Medical Assessor Assem did not find evidence of radiculopathy, noting on examination of the lower limbs that there was normal power, tone, sensation and reflex.

Claimant’s submissions in reply dated 16 January 2023 (AD5)

In reply to the Insurer’s further submissions at AD3, the Claimant submits that the Insurer’s reliance upon two previous Review Panel decisions is in effect suggesting that they constitute relevant precedents which should influence the decision-making functions of the present Review Panel, and submits that if this was done it would constitute reviewable error. The Claimant submits that it is the function of this Panel to consider the evidence and findings in relation to the Claimant, and to reach a decision upon that material only (as assisted by the legitimate submissions of the parties).

MATERIAL BEFORE THE REVIEW PANEL

The parties lodged bundles of documents in accordance with the First Panel Direction (AD1 and AD2) and the Claimant lodged further material following the Second Panel Direction dated 7 June 2022 (AD4). There were also the Insurer’s further submissions (AD3) and the Claimant’s submissions in reply (AD5).

Pre-motor accident clinical notes

The clinical notes from Pacific Medical Centre (R8) indicate the following:
(a)In a consultation dated 15 August 2019, the Claimant’s physiotherapist reported “Report Agg his backpain at work a couple of days ago, trailer whilst faulty causing severe jolting under braking, this resulted in Agg of his symptoms of his sx into the right hip/glute and LB region”.
(b)In a consultation dated 1 October 2019, there was a reference to “pain the back was worse with his exs on Thursday due to walking with 7kg dumbbell in each hand”.
(c)In a consultation dated 10 October 2019, the Claimant’s general practitioner reported that “WorkCover – lower back pain – works as truck driver – seat of truck went down suddenly hurting lower back – hurt lower back while doing exercise physio session – has been hurting since.”
(d)In a consultation dated 15 June 2020 the Claimant’s physiotherapist reported, “Back exacerbated highly with a sneeze over the past couple of days and SX ongoing more on the left side Worse with bending and sitting Pain also reported in standing on bilateral sides.”
(e)In a consultation with the Claimant’s physiotherapist dated 17 December 2020, it was reported “back pain was exacerbated with his last IME appointment. Stiffness and pain in the left LSp and Si joint today.”

Radiology

A CT scan of the lumbar spine dated 13 September 2018 (A10) showed a central and right paracentral discosteophyte complex of the L5/S1 level causing mild right neural foraminal narrowing.
A bone scan arranged on 1 May 2019 did not show any specific abnormalities in the lumbar spine, hips or pelvis to explain the Claimant’s symptoms.
The MRI scan of the lumbar spine dated 9 January 2019 (A11) showed disc herniations at L4/5 and L5/S1 with annular tears contacting exited right L4 nerve root and descending right S1 nerve root.
The MRI scan of the lumbosacral spine in January 2020 concluded that there is multilevel degenerative diseases described focally worse L5/S1 with an associated annular fissure without a significant compressive component and further that there is also focally severe facet joint degenerative change at L4/5 (A15).

Treating reports

The reports from the exercise physiologist, Adrian Choy dated 18 March 2019, 21 January 2019, 26 November 2018, note that the Claimant underwent 23 sessions of hydrotherapy designed to rehabilitate his lower back pain (A4).
A psychological assessment and report dated 17 November 2020 from the psychologist Pierre-Loui Lamarque diagnoses that the Claimant meets the criteria for Adjustment Disorder with mixed anxiety and depressed mood and in terms of prognosis the Claimant is likely to continue having difficulties adjusting to his impaired physical condition and levels of pain (A6).
There are numerous WorkCover Medical Certificates from various general practitioners during the period from October 2018 to September 2020 in relation to the Claimant’s fitness for work due to an injury to the Claimant’s lower back on 11 September 2018 (A7 and A25).
The Claimant was reviewed by the neurosurgeon, Dr Eftekhar, on 24 January 2020 who noted that on examination he could not reveal any objective motor deficits or upper motor neuron signs. Dr Eftekhar reviewed the Claimant again on 2 July 2020 noting his symptoms remained unchanged. He believed that facet arthropathy has contributed significantly to his pain and recommended continuing physiotherapy (A9).
Associate Professor Di leva consulted the Claimant on 17 January 2019 and noted that neurological examination was unremarkable with normal stretching manoeuvres and no motor weakness and that his reflexes were normal as well. Dr Di leva concluded that the Claimant is affected by lower back pain caused by discopathy most likely occurring after the accident on 11 September 2018 (A14).

RE-EXAMINATION

The Panel determined that the Claimant be re-examined by Medical Assessor Cameron on 1 July 2022. The re-examination report is as follows:
Mr Black attended unaccompanied.
Background
Mr Black lives at Lalor Park with his wife and two children aged 13 and 10 years.
Prior to the motor vehicle crash Mr Black had been working as a truck driver involving semi-trailers for about 4 years.
Mr Black said that his past health was good and that he was a non-smoker.
History of injury
On 9 September 2018 Mr Black was at work. Because the truck that he normally drove was being serviced he was leaving the yard in another vehicle. He said he drove over a speed hump. He said that as a result of that the seat pushed him upwards so that he hit his head on the ceiling of the cab and then the seat collapsed to its lowest point.
Mr Black said that he had some back pain but he was able to finish work.
The next day at work during the day he said his back became suddenly more painful.
Mr Black said that he saw his general practitioner who arranged imaging and said that he had a "damaged disc".
Symptoms and treatment following the motor accident
Subsequently there has been continuing low back pain. It is intermittently worse.
In October 2018 Mr Black returned to work following suitable duties for limited hours on four days per week. This continued until September 2019. He said that at this time his employer terminated him because he could not perform adequately in the role.
Current status
Mr Black said that there has been continuing low back pain. His ability to lift and carry is limited. He said that he has gained 40 kg in weight.
There have been a range of physical therapies which have been ceased due to lack of effect.
Current medications are Entrip 100 mg daily and Oxycodone about 5 mg daily and Reaptan one tablet daily. Mr Black said that he had developed hypertension following the incident.
Mr Black said there had been six back injections which helped for a few months but did not give long term relief.
Mr Black said that he cannot lie flat, his driving tolerance is limited to about 30 minutes.
Mr Black also described "nerve burning" at multiple levels in his back.
Mr Black said that he had developed right knee problems as a result of his walking differently due to the back injury.
Examination
Mr Black is right handed, 183 cm in height and weighs 135 kg. This is a BMI of 40.
Mr Black was co-operative and provided a clear history.
At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% 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 shoulders. There was pain at extremes of movement.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
No difference in circumferences of the upper extremities was detected.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 60% 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 and specifically at the right knee range of movement was zero to 130 degrees. There was no crepitus or instability.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were right 43.5cm and left 43.5cm.

Mr Black walked slowly with an antalgic gait.
Imaging
Imaging studies were available as follows:
·MRI lumbar spine 13 January 2020 showed degenerative changes.
·MRI right knee 26 April 2022 showed osteoarthritis and meniscal degeneration.

Diagnosis and Prognosis
Mr Black sustained a soft tissue injury to his lumbar spine in the incident. There is no evidence that there is a specific disc injury as a result of this.
FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to whether the injuries sustained in the motor accident were minor or non-minor 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[14] and Insurance Australia Ltd v Marsh.[15]
[14] [2021] NSWCA 287 at [40], [41] and [45].
[15] [2022] NSWCA 31 at [11], [21], [64]
For the reasons expressed in Lynch v AAI Ltd[16] we proceed on the basis that the Claimant bears the onus of proof, and he must establish that he has a non-minor injury.
[16] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Cameron in its reasons.
The Claimant submitted that the two annular “tears” shown on the lumbar spine MRI scan dated 9 January 2019 (A11) were caused by the motor accident and that either of the annular “tears” do not constitute a “minor injury” as defined in s 1.6(2) of the MAI Act. It is noted that the preferred terminology is “annular fissures” and that will be used in this Certificate.
Consideration of that issue involves two distinct questions, that is, whether either of the annular fissures were caused by the motor accident, and if so, does that constitute a minor injury within the meaning of the MAI Act.
For the following reasons, we are not satisfied that the annular fissures identified on the MRI scan were caused by the motor accident. In these circumstances it is unnecessary to consider the subsequent issue of whether an annular fissure caused by the motor accident constitutes a non-minor injury as defined in the MAI Act.
We accept the Claimant’s submissions that there was an absence of back complaints prior to the motor accident and that, shortly after the motor accident, Mr Black complained of back pain with radiation to other body regions.
The Claimant asserted that his body was jolted in the motor accident and this trauma would have resulted in the annular fissures. No medical opinion was cited in support of that submission, and we could not identify any medical support. The medical evidence is varied with Dr Eftekhar suggesting facet arthropathy and Dr Deshpande suggesting lumbar degenerative spinal pain and sacroiliac joint dysfunction. We also note the analysis and opinion of the biomedical/mechanical engineer, Michael Griffiths, of Road Safety Solutions (R7). He refers to the Claimant’s description of the accident in his statement dated 22 October 2021 where he says that “…the impact of travelling over the steel speed hump caused the chair to go up to the maximum height in a jolting manner which caused me to hit my head against the roof of the truck cabin. The seat then came crashing back down, bottoming out and injury [sic] my back” (ITB p.991). Mr Griffiths concludes that the truck travelling over the speed hump at the speed alleged of approximately 5 kilometres per hour could not possibly have resulted in the Claimant being thrown violently upwards so as to have head impact with the roof of the truck cabin or in any violent vertical upward motion of the air suspension seat, and could not have resulted in the seat bottoming out (ITB p.1019).
The findings of Medical Assessor Cameron that the Claimant sustained a soft tissue injury to his lumbar spine in the accident and that there is no evidence that there is a specific disc injury as a result of this, are consistent with the findings of Medical Assessor Assem.
It is broadly accepted that “for nearly all people with low back pain, it is not possible to identify a specific nociceptive [pain provoking] cause” (Ref Hartvigsen J, Hancock MJ, Kongsted A, Louw Q, Ferreira ML, Genevay S, Hoy D, Karppinen J, Pransky G, Sieper J, Smeets RJ, Underwood M; Lancet Low Back Pain Series Working Group. What low back pain is and why we need to pay attention. Lancet. 2018 Jun 9;391(10137):2356-2367. doi: 10.1016/S0140-6736(18)30480-X. Epub 2018 Mar 21. PMID: 29573870.)
The treating professionals, and Medical Assessor Assem, note the back pain and provide a variety of diagnoses which is consistent with the difficulty in identifying a specific cause.
The predominance of the medical opinion excludes the classification of radiculopathy (as defined by the Guidelines). This has been made on the negative result of a neurological examination undertaken by several medical professionals.
The main reason for identifying the concept of non-specific low back pain is due to the lack of evidence to provide a patho-anatomical diagnosis in lumbar spine injuries. There is essentially and broadly no relationship between imaging observations in the intervertebral disc such as annular fissures or disc bulges and symptoms in people with low back pain. Further there is no relationship between these findings and prognosis or outcome.
In the absence of the ability to provide a reason for ongoing back pain based on imaging, other factors become relevant. One consideration is that other musculoskeletal structures are capable of causing pain and these include, but are not limited to muscles, joints, ligaments, nerves and/or dura. Currently there are no diagnostic tests capable of accurately determining the cause of back pain – radiologically or clinically.
Secondly, there are other more common factors associated with ongoing back pain. It is accepted the back pain is a complex condition with multiple contributors to both the pain and associated disability, including psychological factors, social factors, biophysical factors, comorbidities, and pain-processing mechanisms.
It is conceivable that a motor accident of this nature could cause an annular fissure. However, we are not satisfied that the motor accident did cause either of the annular fissures because:
(a)   annular fissures seen on imaging are not necessarily associated with back pain;
(b)   annular fissures seen on imaging are as common in asymptomatic 40 to 50-year-olds as symptomatic 40 to 50-year-olds; and
(c)   it is more likely that other factors listed above are contributing to the ongoing pain.
The Panel is not satisfied that the motor accident either caused or aggravated the fissures described in the MRI scan of the lumbar spine. For the reasons provided, we are not satisfied that the pathology was caused by the motor accident.
In the circumstances, it is unnecessary to consider the second issue, that is whether an annular fissure caused by the motor accident constitutes a non-minor injury.

CONCLUSION

For the above reasons we confirm the Certificate issued by Medical Assessor Assem.

[2023] NSWPICMP 20

24 January 2023