Brown v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Brown v AAI Limited t/as GIO [2025] NSWPICMP 7
CLAIMANT:	Graham Sidney Brown
INSURER:	GIO
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Lahz
MEDICAL ASSESSOR:	Kenna
DATE OF DECISION:	7 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; physical injuries; review of Medical Assessment Certificate under section 63(4); whether the degree of permanent impairment exceeded 10%; claimant involved in a motor vehicle accident and alleged soft tissue injuries to the cervical spine and lumbar spine; Review Panel considered extensive pre-existing degenerative changes in both regions; no evidence of acute trauma or worsening of pre-existing conditions caused by the accident; whether post-accident symptoms and treatments were attributable to the accident; Held – cervical spine and lumbar spine injuries caused by the motor accident were limited to mild soft tissue injuries; no permanent impairment attributable to the accident; claimant’s whole person impairment assessed at 0%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS: 1. The Review Panel revokes the certificate of Medical Assessor Truskett dated 7 September 2023 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is not greater than 10% (0%): (a) cervical spine – soft tissue injury – 0%, and (b) lumbar spine – soft issue injury – 0%.

STATEMENT OF REASONS

INTRODUCTION

Graham Brown (the claimant) was injured in a motor accident on 18 January 2015.
In his Personal Injury Claim Form, the claimant sets out the accident details. He stated that he was traveling as a passenger in a vehicle when a vehicle traveling in front of him indicated it was turning left but instead made an illegal U-turn, resulting in a head-on collision with the vehicle in which the claimant was a passenger. The claimant states that he attended the police station on 18 January 2015. The claimant claims he sustained the following injuries:
(a)    whiplash injuries to his head;
(b)    left shoulder;
(c)    left elbow;
(d)    left hip;
(e)    left knee;
(f)    neck;
(g)    back;
(h)    left jaw; and
(i)    a broken left rib.
Dr Dobler in a medical certificate dated 1 June 2015 in support of the claimant’s personal injury claim form refers to an examination undertaken on the 25 March 2015. He diagnosed the claimant as having suffered a cervical spine injury, chest pain and right hip soft tissue injury. He certified the claimant fit for light part time non-physical pre-injury duties and referred him for an MRI scan.
In a statement dated 18 September 2018, the claimant outlined his employment history, stating that he worked in physically demanding roles, including welding and fabrication, for approximately 30 years. He described sustaining multiple injuries over this time, including knee injuries in 1996 and 1998 while working in fabrication and engineering roles. These incidents required surgeries and caused him to cease working for extended periods. He also referred to a quadbike accident in 2005, which resulted in a fractured clavicle but did not require surgery.
He explained his family responsibilities, including acting as the primary carer for his disabled son, who suffers from severe psychiatric conditions. Prior to the accident, he managed all household tasks, provided care for his son, and participated actively in recreational activities such as boating and fishing. Six months before the accident, his son moved out, and the claimant lived independently, managing all domestic and personal care tasks.
Regarding the subject motor vehicle accident in 2015, the claimant recounted being a passenger in a car that was struck during an illegal U-turn. He reported immediate pain in his neck, back, and various other areas, which worsened over time. He sought treatment at the hospital on the same day and subsequently consulted his general practitioner, who issued medical certificates for injuries to his cervical spine, chest wall, and hip. Over the months following the accident, he reported severe and constant pain, which disrupted his sleep and daily activities.
The claimant stated that his condition deteriorated significantly after the accident, resulting in his reliance on his eldest son for increasing levels of assistance. He required help with household tasks, personal care, and mobility due to ongoing pain and physical limitations. By 2017, his symptoms had become debilitating, requiring emergency visits and consultations with specialists. He reported chronic pain in his neck, back, shoulders, and hip, along with difficulty walking and standing for extended periods. He noted that his level of physical activity, including boating and outdoor recreation, had diminished entirely. Despite consultations regarding surgical options for his cervical spine, surgery was deemed too risky, and he was advised to pursue pain management instead.

MEDICAL DISPUTE

A dispute arose between the claimant and GIO (insurer) regarding whether the degree of permanent impairment of the claimant as a result of the injury caused by the accident was greater than 10% in accordance with s 58(1)(d) of the Motor Accident Compensation Act 1999 (Act). The parties referred the dispute to the then Medical Assessment Service to be determined by a Medical Assessor.
The claimant was initially assessed by Medical Assessor Best and Medical Assessor Nichols, who determined in 2017 that the claimant had a degree of permanent impairment as a result of the injury caused by the accident of not greater than 10%.
In September 2018, the claimant lodged an application for referral of the matter for further medical assessment in accordance with s 62 of the Act. That application was accepted, and the claimant was assessed by Medical Assessor Harrington, who determined in 2019 that the claimant had a degree of permanent impairment of 10% as a result of the injury caused by the accident.
In November 2020, the claimant lodged an application for assessment of a medical assessment matter in respect of his psychological injuries. The claimant was assessed by Medical Assessor Samuels in 2022, who found no psychological impairment.
In November 2022, the claimant lodged a second application for referral of the matter for further medical assessment in respect of his physical injuries. The application was accepted.
On 7 September 2023, the claimant was assessed by Medical Assessor Truskett, who issued an assessment outcome (medical assessment) in a certificate dated 14 September 2023. The Medical Assessor found that the following injuries caused by the accident gave rise to a permanent impairment of 8%, which was not greater than 10%:
(a) cervical spine exacerbation of pre-existing degenerative disease; and
(b) lumbar spine exacerbation of pre-existing degenerative disease.
The Medical Assessor found that the medical evidence showed the claimant had significant pre-existing neck and back pain and degenerative changes as early as 2013. His neck pathology and symptoms relate to foraminal stenosis of the C5/6 foramen, which led to spinal surgery in 2020. These foraminal stenoses were entirely degenerative and symptomatic before the accident.
In essence, the Medical Assessor found that the claimant has significant pre-existing degenerative disease in his neck, which was symptomatic before the motor vehicle accident. The Medical Assessor found that the accident may have caused a minor exacerbation of this condition, but it was not a major contributing factor – its impact is considered slightly more than negligible.
The claimant made an application under s 63 of the Act for referral of the medical assessment to a Review Panel on the grounds that the medical assessment was incorrect in a material respect, which application was accepted and referred to the Review Panel, presently constituted (Panel).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of ss 57 and 58 of the Act.
Section 44(1)(c) of the Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4) (the Guides). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive: see cl 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the Act. This means that the matter is determined at first instance by a Medical Assessor (see s 60 of the Act) and, pursuant to s 63 of the Act, on review by a review panel.

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 certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Panel as, pursuant to s 63(2B) of the Act, 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.
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.
Section 41(2) of the PIC Act provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application: r 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.

STATUTORY PROVISIONS/GUIDELINES

Section 57 of the Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the Act applies.
Section 58 of the Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the Act. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 at [65], Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the Act.

EVIDENCE

The parties filed an extensive joint bundle of documents in accordance with the Panel’s Interim Direction dated 6 December 2023. It is too large to set out a detailed summary of it here. The Panel has read and considered the material and has referred to the relevant material at length in the context of its re-examination findings, summary, diagnosis and conclusions below.
The following is a brief summary of the relevant imaging, treatment and medico legal evidence.

Imaging

The X-ray report, dated 3 December 2010, noted C6 and C7 vertebral bodies were not fully visualised on the lateral image, but no cervical vertebral fracture was identified. Vertebral alignment was maintained, and disc spaces appeared preserved. There was no abnormal prevertebral soft tissue swelling or significant degenerative changes. No lumbar vertebral fracture was identified. Disc spaces were preserved, and vertebral alignment was normal. In summary, no significant abnormalities or fractures were observed in the cervical or lumbar spine.
The X-ray report dated 17 February 2012 noted that the lateral view of the cervical spine showed alignment was anatomical, with no fractures detected. There was evidence of degenerative changes affecting the facet and intervertebral discs. No significant prevertebral soft tissue swelling or other abnormalities were observed. No fractures or dislocations were found in the lumbar spine. Alignment was anatomical, and no foraminal narrowing was present. A linear radiodensity was noted lateral to the L4 transverse process, likely a projected abnormality visible only on the frontal view. In summary, the report identified degenerative changes in the cervical spine and a minor projected abnormality near L4 but no fractures or significant abnormalities in either region.
A CT scan dated 29 August 2013 identified significant findings in the cervical spine. At C3/4, there was moderately severe right facet arthropathy with minor disc bulging but no canal or foraminal narrowing. At C4/5, there was severe hypertrophic facet arthropathy on the left, with osteophytic encroachment into the left neuroforamen causing a mild mass effect on the exiting left nerve root. At C5/6, the vertebra showed degenerative changes and marginal osteophytes that encroached on the spinal canal and neuroforamina, causing mild mass effects on the left nerve root. C6/7 displayed mild to moderate hypertrophic facet arthropathy without bony encroachment. In the upper thoracic spine, mild facet arthropathy at C7/T1 bilaterally caused mild mass effects on the left neuroforamen.
The thoracolumbar spine showed straightening of lumbar lordosis but no evidence of congenital stenosis or vertebral anomaly. The impression noted moderately severe to severe facet arthropathy at C3/4 and C4/5, severe disc degenerative changes, and left foraminal narrowing due to osteophytic encroachment, which caused mild mass effects on the left exiting nerve root. The findings suggested degenerative changes that likely contributed to the claimant’s symptoms.
The imaging report went on to describe findings in the lower thoracic and lumbar spine. At L2/3, there was facet hypertrophy and bilateral degenerative changes without encroachment into the neuroforamina or canal stenosis. At L3/4, there was a loss of disc height with mild annular protrusion, severe hypertrophic facet arthropathy, and mild ligamentum flavum thickening, resulting in mild to moderate canal stenosis but no nerve root compression. At L4/5, minimal disc bulging and moderate hypertrophic facet arthropathy were observed without canal or foraminal narrowing. At L5/S1, disc contours were normal, with mild to moderate facet arthropathy. The sacroiliac joints demonstrated degenerative changes, including subcortical sclerosis and anterior bridging osteophytes.
The impression noted no evidence of canal stenosis or nerve root compromise. Multilevel facet arthropathy was more pronounced at L3/4 bilaterally, along with mild disc bulges. In the left hip, joint spaces and bony contours were normal, with minimal anteroinferior osteophytic spurring and minor subcortical sclerosis and cystic changes along the acetabulum. The degenerative changes in the sacroiliac joints were again noted. The impression for the left hip highlighted minimal bony degenerative changes at the anterosuperior acetabulum with preserved joint space and overall normal bony contours.
A CT scan of the cervical spine dated 5 September 2014 reported that alignment was maintained throughout the cervical spine. At C2/3, there was no significant disc protrusion, canal stenosis, or foraminal stenosis. At C3/4, a small posterior disc bulge with minor effacement of the CSF space and endplate degenerative changes was noted, accompanied by advanced right-sided facet arthropathy but no significant foraminal stenosis. At C4/5, a small posterior disc bulge with slight anterior cerebrospinal fluid (CSF) effacement and advanced left-sided facet degenerative changes associated with foraminal stenosis were observed, but there was no right-sided foraminal stenosis. At C5/6, degenerative changes with disc height reduction and endplate osteophytic spurring were identified, along with a broad-based posterior disc-osteophyte complex causing mild to moderate canal stenosis and mild bilateral facet arthropathy. Foraminal stenosis was present bilaterally. At C6/7 and C7/T1, no significant disc protrusion, canal stenosis, or foraminal stenosis was found. The conclusion highlighted degenerative changes throughout the cervical spine, most pronounced at C5/6.

A bone scan dated 8 April 2015 showed that blood flow and blood pool images centred over the pelvis and lumbar spine were normal. Delayed imaging revealed increased uptake in the superior aspect of the right hip joint, with no other focal abnormalities detected in the pelvis or hips. SPECT/co-registered CT indicated increased uptake in the superior aspect of the head of the right femur, with minor increased uptake in the left hip associated with degenerative changes.
Whole-body imaging identified focal increased uptake in the mid-right clavicle, the posterior left 7th rib, and the posterior mid-cervical spine on the right. The increased uptake in the right hip corresponded to the head of the right femur, suggesting bone bruise or avascular necrosis (AVN), and further evaluation with MRI was recommended. The uptake in the right clavicle and left rib was suggestive of fractures. Uptake in the mid-cervical spine was consistent with facet joint arthropathy.
A MRI of the cervical spine dated 16 June 2015 described straightening of the cervical lordosis without acute vertebral abnormalities. There was loss of signal in the intervertebral disc with height reduction at C5/6, along with marked reactive changes in the endplates. At C3/4, a central disc bulge mildly compressed the theca, and facet joint arthropathy with uncovertebral spurring on the right compromised the neuroforamen, with milder changes on the left.
At C4/5, bilateral facet joint arthropathy, particularly on the left side, combined with uncovertebral spurring, severely compromised the left neuroforamen, while the right side remained patent with no canal stenosis. At C5/6, a broad-based posterior osteophytic disc bar effaced the cord, and uncovertebral spurring with facet joint changes caused bilateral foraminal compromise but no canal stenosis. At C6/7 and C7/T1, no focal disc protrusion was observed, and the canal and foramina remained patent, despite bilateral facet joint changes.
The conclusion highlighted that cervical spondylosis was most pronounced at C5/6, with no significant canal stenosis but bilateral foraminal compromise. Facet joint arthropathy was most marked at C3/4 on the right and C4/5 on the left, severely compromising the neuroforamina.
A MRI of the cervical spine performed on 13 April 2018, which covered from the posterior cranial fossa to T4, revealed several findings. There was straightening of the normal cervical lordosis without evidence of congenital anomaly or canal stenosis. The craniocervical and atlantoaxial articulations were normal. At C2/3, disc degenerative changes were noted with normal disc height and contour, and nerve roots exited normally.
At C3/4, disc desiccation with relatively preserved disc height and contour was observed. Bilateral uncovertebral joint osteophytic encroachment caused significant foraminal narrowing, more pronounced on the right, with associated bilateral facet arthropathy. At C4/5, disc height and contour were relatively preserved, with severe hypertrophic facet arthropathy on the left and mild foraminal narrowing. The right nerve root exited normally. At C5/6, a severely narrowed degenerative disc with associated endplate changes was noted. Uncovertebral joint osteophytic spurring caused significant bilateral foraminal narrowing and minor canal stenosis. At C6/7, disc height and contour were normal, with no evidence of canal stenosis or nerve root compression.
The study was incomplete due to the claimant’s claustrophobia. The available images suggested multilevel foraminal narrowing, most pronounced at C5/6, with associated severe disc narrowing and vertebral endplate degenerative changes.

Treatment evidence

Dr Spittaler, consultant neurosurgeon in a report dated 27 August 2019, stated that the provided records indicated that the claimant was first seen in the outpatient clinic on 2 March 2016 following his referral by Dr Ken Dobler. Dr Samuel Hall, a neurosurgical registrar, reported that the claimant had been experiencing right-sided C6 radiculopathy for 18 months, which presented as arm pain predominantly in the biceps, along with some left-sided symptoms. He had been treated with Panadeine Forte and occasionally Diazepam and had undergone physiotherapy but no advanced treatments such as CT-guided injections. On examination, stiffness was observed in his shoulder, particularly during abduction, but no neurological findings were noted. Pregabalin was prescribed, and ultrasound of the shoulder along with physiotherapy was recommended.
The claimant was seen again on 28 March 2018 by Dr Simon Haron, who reviewed an MRI performed in 2015 showing C5/6 foraminal stenosis. The claimant reported persistent right arm pain and paraesthesia, despite stronger analgesics like Endone and additional physiotherapy. A follow-up MRI in April 2018 confirmed ongoing C5/6 foraminal stenosis, and a right C5/6 transforaminal steroid injection was recommended, though the claimant did not attend follow-up. Subsequent visits in 2019 and 2020 highlighted persisting symptoms of right brachialgia due to C6 nerve root compression caused by C5/6 foraminal stenosis. Surgery was ultimately recommended, as non-surgical treatments were deemed insufficient to relieve symptoms. The doctor opined that the records indicated that while the motor vehicle accident may have exacerbated pre-existing conditions, it was unlikely to have been the direct cause of spondylosis.

Medico-legal evidence

Dr Conrad in a report dated 11 February 2016 opined that in the subject motor accident, the claimant sustaining a whiplash injury to the neck, a fractured rib, and injuries to the left shoulder and lower back, with MRI findings indicating discal injury. He stated experienced ongoing pain in his neck, left shoulder, and back, radiating to his left hip and down his left leg. Further MRIs of the lumbar spine and left shoulder were recommended to evaluate potential discal impairment and rotator cuff injuries. Conservative treatment, including medication, medical supervision, and physiotherapy, was advised at an estimated cost of $2,000 per year. As a carer for his disabled son and now on a pension due to his injuries, it was considered unlikely that the claimant will re-enter the workforce. His prognosis was guarded. He assessed the claimant as having sustained 13% whole person impairment.
In a further report dated 22 July 2020, Dr Conrad opined that the claimant experienced ongoing pain and restricted movement in his neck and both shoulders, with the right shoulder being more affected than the left. His symptoms worsened when standing, sitting, or lifting heavy objects. He has not worked since his last assessment and remains on a pension. He lives with his two sons, including a 24-year-old disabled son for whom he is a carer, while his older son, aged 28, also assists.
Dr Conrad opined that in the subject motor accident the claimant sustaining a severe whiplash injury to his neck, with MRI scans confirming damage to the C5/6 disc. Due to the severity of his symptoms, he opined that the claimant required an urgent cervical fusion operation. He also experienced ongoing pain and restricted movement in his cervical spine, both shoulders (with ultrasound showing a rotator cuff injury), and lumbar spine, which necessitates further MRI scans to assess potential discal injuries. His prognosis for recovery was considered poor. He assessed the claimant as suffering from 17% whole person impairment.
In a final report dated 17 November 2022, Dr Conrad opined that the claimant sustained a severe whiplash injury to his neck with damage to the C5/6 disc, confirmed by MRI scans in 2015 and 2018. He underwent a C5/6 discectomy and spinal fusion at John Hunter Hospital, which provided only temporary relief. He continues to experience ongoing neck pain, restricted movement in both shoulders, non-verifiable radiculopathy in his left arm, and persistent back pain. An updated MRI scan of his lumbar spine is recommended. His prognosis for recovery was considered very poor.
In a report dated 16 April 2018, Dr Bentevoglio noted that the physical examination revealed no abnormal objective findings. The claimant was diagnosed with a musculo-ligamentous strain of the lumbar spine, based on his history, physical examination, and pre-accident

X-rays, which showed no evidence of pre-existing degenerative changes. He was also diagnosed with an aggravation of pre-existing degenerative changes in the cervical spine, supported by his history, physical examination, and MRI findings. Additionally, a soft tissue injury to the left hip was identified, based on the claimant's history and physical examination.
The prognosis for the claimant’s neck was described as somewhat guarded due to pre-existing degenerative changes, suggesting permanent weakness in the cervical spine prior to the motor vehicle accident, which would likely continue to cause problems. The prognosis for his back was deemed reasonable, with the expectation that symptoms would settle in the absence of any indications of discal damage. The prognosis for the left hip was assessed as good. He assessed the claimant as having suffered 5% whole person impairment.
In a further report dated 31 December 2021, Dr Bentivoglio reported that the claimant's neck and shoulders troubled him the most. He consistently experienced some degree of neck pain that radiated down both upper limbs to the mid-forearm region, with symptoms equally present in both limbs. The claimant felt a decrease in movement in his neck, with all movements being equally diminished. He noticed crepitation when moving his neck, but this did not worsen his symptoms. While he believed he had regained full movement in his shoulders, his neck and upper limb symptoms fluctuated in severity and worsened with activity. He did not perceive any improvement in his neck and shoulder symptoms over time.
Regarding his back, the claimant consistently experienced low back pain, radiating down his right lower limb to his knee region. His back symptoms troubled him more than his lower limb symptoms. Standing was more uncomfortable than sitting, and there was no specific time when his back symptoms were at their worst. The symptoms fluctuated in severity and worsened with activity, particularly after walking for 10-15 minutes. He did not report any symptoms suggestive of saddle anaesthesia but noted awareness of bladder sensation. He did not feel any improvement in his back symptoms.
He still occasionally has discomfort present in his left hip. He finds it uncomfortable to sleep on his left hip at night. His symptoms have not altered in recent times.
Following a review of the imaging and an examination of the claimant, the doctor opined that the claimant had aggravated pre-existing abnormalities in his cervical and lumbar spine as a result of the motor vehicle accident. The claimant had a long history of ongoing neck and back complaints, supported by multiple investigations dating back to 2010. He also sustained a significant back injury at work in the 1980s, which required him to take over a year off work. The claimant eventually underwent cervical spine surgery, which the doctor attributed primarily to his long-standing neck complaints rather than to the motor vehicle accident.
On physical examination, there was no evidence of nerve root irritation or compression originating from the cervical or lumbar spine. The claimant exhibited a full range of movement in his shoulders, with no abnormalities identified in his left hip region.

RE-EXAMINATION

The Panel (Medical Assessor Lahz) undertook a re-examination of the claimant at the Commission Suites (in person) with Member Nolan in virtual attendance during the history taking.

History

The claimant attended punctually with his carer whom he introduced as Garry. They had taken a hire car from home in Cessnock this morning for the Sydney Central Business District (CBD) appointment.
The claimant who is aged 57 and right-handed lives with his son at Cessnock. He has a close friend/carer Garry who assists him with transportation, chores, personal care, cooking and shopping depending on the “kind of day” he is having with respect to neck and low back pain.
The claimant reported that he last worked as a fabricator/welder approximately one month before the subject motor accident. He said he ceased work because none was available. (He was not entirely sure of the timeframe.) However, he has not worked since the 2015 motor accident due to incapacitating neck pain.
The Panel commenced the interview by asking him about his past medical history. He informed the Panel that he had undergone various surgeries on the right knee. He sustained a fracture of the right clavicle many years ago. Over 25 years ago, he injured the lower back whilst working at BHP and required two years off work on this account. He said the lower back symptoms eventually improved and he could resume work.
Regarding prior history of neck pain, he originally responded in the negative although when the contents of extensive medical general practitioner (GP) records predating the motor accident were discussed with him, he acknowledged that he did experience intermittent neck pain for which he had received periodic chiropractic treatment. He said the chiropractor typically treated both his neck and lower back.
He said that the neck had been sore at times due to falls from quad bikes.
The Panel put to him that on 30 April 2013, the GP records of Dr Weerabaddana note that he told the doctor there was so much neck and low back pain, he felt unable to work.
On 25 July 2013, he was complaining of pain to Dr Weerabaddana in all three spinal regions (cervical, thoracic and lumbar) requiring treatment with Mobic (an anti-inflammatory medication) and Prednisone. Imaging requests CT lumbar and cervical spine were completed. The GP records further indicate that he underwent CT scans of the neck and lower back during August 2013.
A CT scan of the cervical spine of 20 August 2013 showed moderately severe right C34 facet osteoarthritis without canal or foraminal narrowing. At C4/5 there was severe left facet osteoarthritis. At C5/6 there was disc narrowing with degenerative gas formation. There was osteophytic encroachment of the left foramen with mild mass effect on the exiting nerve root. The right nerve root exited normally.
In September 2013, the claimant was referred to Dr Christie, a neurosurgeon by Dr Weerabaddana due to neck and back pain affecting daily activities. In November 2013, he was referred to a rheumatologist due to a painful arthritic flare up.
On 4 September 2014, the claimant reported neck pain and cracking sounds. He received analgesia with Endone and referred for CT of the cervical spine by Dr Weerabaddana. He was advised to start fish oil and Glucosamine.
A CT scan of the cervical spine performed on 5 September 2014 indicated degenerative changes most marked at C5/6 with broad based posterior disc osteophyte complex with mild to moderate canal stenosis. There was foraminal stenosis bilaterally with mild bilateral facet arthropathy.
On 8 September 2014, an MRI of the neck and lower back is ordered by Dr Weerabaddana.
On 9 October 2014, there was an entry in Dr Weerabaddana’s records referring to flare up of arthritis with excessive physical activity. He received analgesia with non-steroidal anti-inflammatory drugs (NSAID) and Endone.
Unfortunately, the claimant could not shed any light on the abovementioned GP consultations. He was an extremely vague historian. He reported intermittent neck pain before the accident and could not clearly recall if there were any symptoms, either pain or else upper limb “pins and needles” at that time.
He said that the intermittent neck pain before the 2015 motor accident did not interfere with work or home activity levels whereas afterwards neck pain was much more intense. The Panel asked him when symptoms started to involve the right arm after the 2015 motor accident. He said these symptoms were not immediate and took a while to develop although he could not hazard a guess with respect to exact timeframe.
The claimant acknowledged that he took medications such as Endone and Panadeine Forte before the 2015 motor accident for pain. The only treatment for spinal pain besides pain medication was chiropractic therapy. He said that episodic neck pain preceding the motor accident would typically be relieved by rest/lying down and/or painkillers.
Next, the Panel confirmed the history of the motor accident with the claimant. He reported that he was the restrained front seat passenger of a small SUV when a larger vehicle (Ford Falcon) travelling ahead started making a left hand turn before suddenly executing a U-turn with resultant collision versus the passenger door of the vehicle in which the claimant was travelling.
The claimant reported that his head struck the windscreen and the left upper leg as well as left shoulder hit the passenger side door.
The ambulance and police did not attend the scene of the accident.
The claimant’s immediate concern was regarding the baby in its rear seat restraint. He reported that he turned around to check the baby, being immediately aware of a “crack” felt in the neck.
On specific enquiry, he confirmed that he also broke four teeth in the accident due to impact with the windscreen and he now has a full set of dentures, bar one (remaining) native tooth. He said he unsuccessfully used some foil at the accident scene, attempting to “re-set” his teeth.
Immediately after the accident, he reported feeling a bit “ginger”. A friend collected him from the scene, and he went home to rest in bed.
However, due to aches and pains, later the same day, he asked a friend to convey him to hospital where he was briefly assessed and permitted home after a few hours.
On being asked what his complaints were to the hospital staff, The claimant could not specifically recall, except to say there were multiple unspecific aches and pains. The Panel discussed with him that the acute post motor accident hospital records refer to presence of symptoms in the hip and elbow, whereas there is no documentation made of any neck symptoms. Examination of the neck at hospital reportedly indicated a satisfactory range of motion. Hospital records also indicate that no spinal x-rays were undertaken although there were x-rays done of the hip.
On being asked when he initially consulted his GP about the injuries from the motor accident, he replied that he thought this had occurred within the first few days. However, GP records indicate that he did not see a doctor until 30 January 2015 (Dr Weerabaddana at Hunter Valley Medical) with only brief records referring to “infection and pain in the neck and lower back” for which MRI requests for cervical and lumbar spine were completed. However, the latter entry makes no reference to the motor accident. The claimant did not have a clear recollection of the consultations/complaints made/tests ordered and could not account for the brevity of the clinical information on 30 January 2015.
Medical records indicate that he did not consult his usual GP (Dr Dobler) until March 2015. When this was put to the claimant, he accepted it although commented that he thought it had been earlier. He could not remember any advice from Dr Dobler besides that “he would not be going back to work”. Not long afterwards, he said the doctor completed an application form for the pension on his behalf. He also recalled being on a Newstart Allowance for three months, along with a medical certificate.
On 17 June 2015 (six months post the subject motor accident), the claimant underwent an MRI scan of the cervical spine indicating long-standing marked C5/6 spondylosis without canal stenosis, no different from the findings on cervical spine scans predating the motor accident.
The Panel asked the claimant the reasons for the six-month delay in arranging/undergoing the MRI scan of cervical spine, in view of the complaints he was making in relation to severe, incapacitating neck pain. Records indicate that requests for these scans were completed already on 30 January 2015. He said that he did not know the reasons for the delay.

In March 2015, Dr Dobler referred the claimant to Dr Spittaler, a neurosurgeon, although he did not consult with Dr Spittaler’s team until March 2016, one year later, presumably due at least in part, to a lengthy public hospital waiting list.
The claimant reported that neck symptoms after the motor accident gradually worsened. He became aware of stiffness around the shoulders, neck back and chest, but could not say when. There was also more low back pain although “grabbing” neck pain was the main issue. He said there was a strong sensation of his head simply being “too heavy and difficult to hold up” after the 2015 motor accident.
At some stage after the 2015 motor accident, (he could not recall when), the claimant developed numbness affecting the right-sided index, middle and ring fingers as well as weakness of the right upper limb, particularly of the hand. There was also some pain in the right arm (he pointed to the triceps region and axilla (armpit)). The clinical records provide no real assistance as to when these symptoms worsened. He had upper limb symptoms by 2016, a year later they were in a C8 pattern. Emergence of the symptoms a year later speaks against the conclusion that they were accident related.
The claimant did not receive any treatment such as physiotherapy early on after the 2015 accident.
The claimant had to give up hobbies after the 2015 accident such as boating and he soon sold his boat. He also struggled to go on fishing trips.
The claimant was vague about the treatment provided through Dr Spittaler’s neurosurgery clinic in early 2016.
Dr Hall (neurosurgery registrar) on 2 March 2016 refers to right upper limb paraesthesia in a C6 distribution with limited shoulder movements, and diagnosed C6 radiculopathy although his letter does not detail other examination findings such as reflexes and muscle strength.
He recalled receiving at least two injections to the cervical spine, only one of which was helpful for approximately 2.5 months.
Of note, Dr Spittaler’s records and the medical report he later prepared on 27 August 2019 made no reference to the motor accident. Dr Spittaler in his report concluded that the claimant’s neck and upper limb symptoms are due to long-standing degenerative changes particularly at the C5/6 level.
The claimant said that neck symptoms continued to worsen, so much so, that there were bouts of severe neck pain with spread to the right arm, anterior chest and upper back, rendering him unable to rise from the floor as well as at other times causing him to start “shaking”. At some stage, the claimant also developed numbness about the right upper chest and upper back although he could not recall exactly when this occurred. He was unsure of whether this was before or else after the cervical fusion procedure of 2020. During 2017, there were multiple hospital presentations with flare ups of neck pain, compounded by frequently running out of S8 pain medications.
The claimant also explained that his treating doctors became concerned about the number of Oxynorm he was taking in single day (up to 9 x 5mg).
He was lost to follow up at Dr Spittaler’s clinic during late 2016 and 2017 despite the reported severe ongoing neck complaints with frequent hospital presentations. When the Panel asked him the reasons for this, the claimant could not provide any reason.
The Panel asked the claimant about his activities during 2016 and 2017. Specifically, there was a neck injury with flare-up, reported whilst fishing noted in records (2017). The claimant did remember this. There was also an episode of right shoulder pain/neck pain during 2017 induced by lifting a welder.
The Panel asked the claimant about the usual intensity of neck symptoms, bearing in mind that there were some days on which he could go fishing and/or engage in activities requiring his lifting of a welder. Again, he could not provide a satisfactory response to explain these anomalies except to say the pain gradually worsened, with the passage of time, from the time of the subject 2015 motor accident.
The claimant eventually returned to Dr Spittaler’s neurosurgery clinic in 2018 for reassessment of severe neck pain. He said at this stage, that options for neck surgery were discussed such as operation via the “front” or else the “back”.
Correspondence from the neurosurgery clinic by Dr Haron dated 18 July 2018 referred to several years of right upper limb pain, now in a C8 pattern involving the medial forearm and IV and V fingers. Examination noted good power and normal sensation in the upper limbs as well as normal reflexes. MRI from April 2018 showed severe bilateral C56 stenosis without evidence of either canal or else foraminal stenosis to explain the C8 distribution pain. A C56 transforaminal injection was arranged.
In the end, the surgeon and claimant opted for the anterior (front) approach. The claimant said there was a long wait until surgery could be undertaken and ultimately, another surgeon, not Dr Spittaler performed the operation in November 2020. Whilst waiting for neck surgery, he thought he may have attended a single course of physiotherapy.
The Panel asked the claimant how he managed the severe neck symptoms whilst waiting for surgery. He said that all he could do was to continue taking strong prescription painkillers such as Oxynorm. He was eventually able to wean the Oxynorm (after the 2020 C5/6 fusion) and ongoing, his pain medication intake has been much more moderate, just 10mg (2 x 5mg) of Endone daily.
The claimant described the 2020 cervical fusion as successful. He reported overall reduction of pre-existing “grabbing” neck pain intensity by more than 50%. The surgery also resolved the right upper limb numbness and pain although he does report mild, ongoing weakness in this location.
Nonetheless, despite the reportedly successful neck surgery, he continued complaining of significant neck pain ranging from 7/10-9/10 intensity. Neck pain is made worse by prolonged sitting, standing and walking. He perceives bilateral trapezial muscles as “hard”. There is no longer any right upper limb pain and there are only occasional “pins and needles” in the right index, middle and ring fingers. He does not report any left upper limb symptoms unless he lies directly on that side.
Unfortunately, levels of neck pain are gradually creeping up again.
There is no reported dysfunction of either bowel or bladder.
He is no longer in regular follow up with the neurosurgeon.
The Panel then asked the claimant about lower back problems, before and after the subject motor accident. There is ongoing (mostly) non-radiating pain at the belt line with occasional spread of symptoms to the buttocks. He does not report any neurological symptoms such as either numbness or else “pins and needles” in the lower limbs. He reported that whilst the low back is “sorer” now than before the motor accident, he ascribes this to steady weight gain during the last decade. He reported that his pre-injury weight was 86 kg, whereas now his weight is around 120kg. Overall pain intensity at the lower back, he rated 3/10 compared with (as noted above) 7-9/10 at the neck.
On specific enquiry, the claimant was not claiming that the lower back has been made worse by any injury from the subject motor accident. He said that he is not taking any other prescribed medications aside from Endone (10mg daily).
He smokes seven to eight cigarettes daily and consumes six stubbies twice weekly.
His carer (Garry) assists him via rubbing his painful neck, providing transport, help with car maintenance, chores, cooking, yard work and personal care. It was reported that the claimant does as much as he can although he has “good” and “bad” days with the level of required assistance, fluctuating in accordance. He reported to have not needed any help with home-based tasks before the subject motor accident.
He will cook, wash up, do chores and complete his personal care, symptoms permitting. He still drives short distances when feeling up to it.
The claimant has few hobbies now. Sometimes, he goes fishing. More often, he watches TV during the day. Sometimes, he doses up with Endone in order to do injudicious activities that involve lifting.
Since the 2020 neck operation (cervical fusion), he has not presented to hospital with acute pain flare ups.

Physical examination

On examination, the Panel observed that the claimant was a tall man with marked central adiposity. Height was 185cm and weight 117.2kg.
The Panel asked the claimant at the outset to do the best he could with the requested movements but to indicate onset of unduly severe pain.
There were frequent pain behaviours throughout the examination with grimacing, wincing, flinching and grabbing/massaging of the painful body part.
Gait was unremarkable. He could walk on heels and toes, albeit somewhat unsteadily due to markedly overweight body habitus.
There was a difficult to see surgical scar at the right side of the anterior neck. There were no trophic changes, pigmentation, contour defects nor visible suture marks, with the scar being non-tender and asymptomatic. The scar was barely visible, does not interfere with activities of daily living and is not requiring any treatment. The claimant is aware of the scar and able to localise it.
Active neck movements were as follows: flexion ½ normal range, extension ¼ normal range, rotation 1/3 normal range to either side and lateral flexion ½ normal range to either side. Dysmetria in the flexion/extension plane was observed.
There was a normal neck posture associated with tenderness of the mid cervical spine. There was no muscle guarding or else spasm.
There were no upper limb non-verifiable radicular complaints (sporadic pins and needles in the II, III and IV are not within the specific distribution of a single dermatome).
Upper limb reflexes were generally depressed but symmetrical.
Hoffman’s signs were negative bilaterally.
There was normal sensation to both light touch and pinprick over the upper limbs.
The arms 10cm above the elbow crease measured symmetrically 34cm, as did the forearms 5cm below the elbow crease 32cm.
Upper limb strength was normal aside from pain-related weakness at both shoulders (again, this is not a non-verifiable radicular complaint).
Upper limb neural tension signs were negative bilaterally.
There was mild wasting of the right shoulder girdle compared with the left, consistent with known long standing complete supraspinatus tear in this location (since at least 2016).
Both shoulders demonstrated gross restriction of active movement as follows, associated with considerable verbal complaints of pain about the deltoid region, shoulder joints and (to lesser degree) the trapezial regions toward the neck. Movements decreased with repetition due to pain. The initial (best) movements were measured with a goniometer.

Right

Left

Abduction

60

60

Adduction

20

20

Flexion

80

80

Extension

30

30

Internal rotation

80

80

External rotation

50 (arm at side)

50 (arm at side)

There was tenderness about the subacromial bursal regions R>L with positive impingement signs bilaterally. (He is known to have bilateral rotator cuff pathology R>L) confirmed on shoulder imaging.
On examination of the lumbar spine, there was flattening of the lordosis.
There was no localised tenderness at the lumbar spine and there was no muscle spasm or else guarding.
There was no non-verifiable lower limb symptoms reported.
Flexion and extension of the lumbar spine were symmetrically reduced being cautiously executed with ½ normal range. Lateral flexion was 2/3 normal range to either side, carefully performed with rotation being also ½ normal range, hesitantly performed to either side.
Straight leg raising (SLR) was the equivalent of 60 degrees bilaterally without sciatic (lower limb) complaint. Thus, lower limb neural tension signs were negative bilaterally.
The quadriceps measured symmetrically 10cm above the superior patellar border (51cm) with calf girths also measuring symmetrically 41cm at maximum mid-calf.
Lower limb reflexes were depressed but symmetrical. Plantar responses were flexor (normal) bilaterally.
There was normal sensation to light touch and pinprick at the lower limbs aside from the feet. The latter reduction of sensation at the feet is not a non-verifiable radicular complaint because it is not within the distribution of a single dermatome. The finding is more in keeping with a peripheral neuropathy of unknown (metabolic/toxic) cause.
There was bilateral generalised lower limb weakness due to pain, again not in the distribution of a single nerve root.

DIAGNOSES, SUMMARIES AND CONCLUSIONS

The Panel concludes that the claimant suffers from severe chronic mechanical neck pain with symptomatic referral to the right upper limb culminating in C56 fusion (November 2020).
A large volume of documentation has been served in this matter. Extensive records indicate presence of neck pain back to at least 2010 with complaints of neck pain regularly made during 2011, 2012, 2013 and late 2014 (within four months of the subject accident occurring 11 January 2015). In September 2014, a MRI of the cervical spine was requested.
Cervical spine: Prior to the accident, imaging from December 2010 revealed no significant abnormalities in the cervical spine, with neck pain attributed to osteoarthritis and eased by Voltaren. By February 2012, X-rays showed degenerative changes following a quad bike injury, leading to restricted movement. A CT scan in August 2013 identified moderate to severe facet arthropathy at C3/4 and C4/5 and severe degenerative disc changes with foraminal narrowing at C5/6. In September 2014, another CT scan noted pronounced degenerative changes at C5/6, including disc height reduction, an osteophyte complex causing bilateral foraminal stenosis, and facet joint arthritis. Post-accident, in March 2015, the claimant reported neck pain and paraesthesia, with an MRI confirming spondylosis at C5/6. By June 2015, imaging noted foraminal compromise and an osteophyte bar at C5/6, without canal stenosis. Persistent neck pain, radiculopathy, and restricted movement continued between 2016 and 2020, prompting referrals for imaging and surgical consultations. In November 2020, the claimant underwent a C5/6 anterior cervical discectomy and fusion, with degenerative foraminal stenosis identified as the primary cause.
Lumbar spine: Pre-accident imaging in December 2010 showed no significant abnormalities in the lumbar spine, though mild degenerative disc bulges and multilevel facet arthropathy were noted in February 2012, particularly at L3/4. A bone scan in August 2013 revealed moderate arthritis at L2/3 and mild to moderate arthritis at L3/4. Imaging in 2014 confirmed stable degenerative changes with no canal stenosis or nerve root compression. Post-accident, the claimant reported lumbar pain in March 2015, but radiological findings remained stable. Mild lumbar pain persisted between 2016 and 2017, attributed to pre-existing degenerative changes, with no significant post-accident impact on the lumbar spine.
Observations and comments: Pre-accident records consistently highlighted severe degenerative changes in the cervical spine, particularly at C5/6. Post-accident, there was no evidence of acute trauma to the spine, though symptom exacerbation was noted. The lumbar spine exhibited stable degenerative changes that were not significantly affected by the accident.
Summary: The Panel accepts that there was a soft tissue injury to the cervical spine in the subject motor accident, given the complaint of neck pain on 30 January 2015 to the doctor (with attendant request for MRI scan of the cervical spine, same day).
The Panel notes that the motor accident was not a severe one. The police and ambulance did not attend, and the claimant went initially directly home. Later, the same day, the claimant attended hospital to complain of pain in the elbow and hip whilst making no complaints about the neck or else the lower back.
There are no changes with respect to cervical spine scan findings before the motor accident versus after the motor accident June 2015. Pre and post-accident scans of the cervical spine demonstrate severe degenerative changes, maximal at C5-6, and no acute/traumatic findings were made on the post-accident scans.
Of note, the first post-motor vehicle accident cervical spine scan was not done until some five months after the motor accident despite the claimant’s assertions of constant, very intense neck pain from the time of the motor accident. He was unable to provide an explanation (for the delay) in arrangement of the neck scans, notwithstanding his complaints of severe neck pain.
At clinical examination by the Panel on 30 April 2024, the claimant did not demonstrate the necessary clinical signs to confirm the presence of cervical radiculopathy.

PANEL’S CONCLUSIONS

In summary, the claimant complained of mechanical neck pain both before and after the motor accident.
At some stage, during the initial 12 months of the subject motor accident, (indeterminate), the claimant developed right upper limb symptoms (pain, weakness and paraesthesia) which the treating neurosurgeons ascribed to chronic degenerative changes at the C5/6 level.
The initial (post motor vehicle accident) GP records are spartan with respect to the reported symptoms. Neck pain but no upper limb pain is reported two to three weeks after the motor accident (entry Hunter Valley Medical 30 January 2015). This is consistent with the natural history of fluctuating complaints of pain that the clinical records reveal regarding the claimant’s pre-existing degenerative cervical condition.
Subsequently, the claimant did not reconvene with a doctor, until 25 March 2015, this time his usual GP, Dr Dobler at which stage there is reference to radiculopathy symptoms, without further description yet no documentation of any clinical examination findings.
Hunter Valley Records (Dr Weerabaddana) indicate that the claimant had already received an MRI request for the cervical spine during the consultation on 30 January 2015 although even so, he did not proceed with this investigation, despite the alleged severe neck symptoms, for another three months on 15 June 2015.
Notwithstanding, reported delays in obtaining GP appointments, there should have been no or else minimal delay in obtaining an MRI in the presence of such reportedly severe neck symptoms.
The Panel finds that there are inconsistencies between the reportedly severe neck symptoms versus the content of the GP records and then long delays between doctor’s visits and (finally) the arrangement of investigations (some five months later) in the case of the cervical spine MRI.
General practice (GP) records of Dr Dobler for the remainder of 2015 make relatively little reference to neck pain. On 3 September 2015 there was reference to low back pain (but not neck pain) and on 13 November 2015 there is mention of pain in the neck, hip and lower back but no reference to any upper limb pain spreading from the neck. On 7 January 2016, Dr Dobler refers to presence of bilateral arm pain requiring Panadeine Forte and Mobic. Subsequently there are consultations during 2016-17 noting problems with asthma, pain (sites not specified), excessive alcohol consumption, shoulder problems, neck and back problems.
The GP records do not confirm a trajectory of increasing neck pain from the time of the motor accident. There are large gaps early on between GP consultations, associated with the delays in undergoing requested investigations, as mentioned above.
The GP records indicate that complaints of neck pain occurred frequently before the accident, persisting after the motor accident but gathering momentum from late 2016 and throughout 2017 when the claimant’s chronic pain state becomes complicated by opioid dependency, culminating in frequent hospital presentations due to pain flare-ups/running out of (opioid) pain medication.

The claimant received cervical spine injections (early 2016), having variable success with (later) a surgical recommendation for cervical decompression and fusion (C56).
At no stage, since the motor accident, has any medical examination documented the necessary neurological findings in the upper limbs per the Guidelines to confirm the presence of a cervical (C6) radiculopathy. Whilst records sometimes refer to “radiculopathy symptoms”, there is no documentation to confirm presence of the necessary/specific clinical signs of radiculopathy, as required by the Guidelines.
In early 2016, the neurosurgical diagnosis is C6 radiculopathy whereas by 2018, the claimant was reporting symptoms in a C8 distribution. Nonetheless, due to the presence of most marked degenerative findings at C5/6, a C5/6 transforaminal injection was ordered.
The claimant reports that the 2020 cervical fusion has served to improve neck symptoms and nearly resolve the right upper limb weakness, pain and sensory symptoms.
The Panel concludes that at most the claimant sustained a mild soft tissue injury of the cervical spine in the motor accident, the effects of which should have settled within a few weeks. Much later (early 2016) neck symptoms began to spontaneously increase due to the presence of long-standing degenerative changes at C5/6 culminating in spinal injections and other treatment recommendations such as cervical spine surgery. However, none of these interventions were due to the mild soft tissue neck injury caused by the motor accident, given the well-established chronic neck symptoms predating the motor accident, that just a few months before the motor accident were so severe that he told the treating GP he felt unable to work.
Ongoing chronic low back pain with no material change in symptoms compared with pre-injury condition (aside from brief exacerbation) after the subject motor accident.
On 30 January 2015 (two to three weeks post the subject motor accident), the claimant complained of low back pain to the GP at Hunter Valley Medical who requested an MRI scan of the lumbar spine.
The claimant reports that his lower back symptoms have since settled, with ongoing mildly increased symptoms ascribed to significant weight gain, as opposed lower back injury from the subject motor accident.
The claimant complained of low back pain both before and after the motor accident, no change in symptoms resulting from the motor accident.
The Panel has determined that there is no impairment of the lumbar spine due to the 2015 motor accident.
There were also no findings on clinical examination of the lumbar spine to indicate diagnosis-related estimate (DRE) category exceeding DRE I. There were no muscle spasm/guarding, no non-verifiable radicular complaints, and no (two) signs present to confirm a lower limb radiculopathy (as required by instructions in the Guidelines).
In summary, the claimant sustained a soft tissue injury to the lumbar spine, the effects of which have resolved.

Right	Left
Abduction	60	60
Adduction	20	20
Flexion	80	80
Extension	30	30
Internal rotation	80	80
External rotation	50 (arm at side)	50 (arm at side)

[2025] NSWPICMP 7

7 January 2025