Cahill v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Cahill v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 875
CLAIMANT:	James Cahill
INSURER:	NRMA
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Thomas Rosenthal
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	19 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); medical assessment of whole person impairment (WPI); claimant injured in motor vehicle accident of 9 July 2020; issue of whether the injuries are classified as threshold injuries under MAI Act; review of medical assessment; Held – Medical Review Panel revoked certificate of Medical Assessor; substituted determination of 5% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the Certificate of Medical Assessor Mohammed Assem and substitutes the determination to certify that the injuries referred for assessment to the lumbar spine and cervical spine were caused by the motor vehicle accident and the lumbar spine was a non-threshold injury. The Panel further determines that injuries caused by the accident gave rise to a whole person impairment of 5%.

STATEMENT OF REASONS

INTRODUCTION

James Cahill (Mr Cahill), the claimant, was born in June 1981.
Mr Cahill was injured in a motor vehicle accident (the accident) on 9 July 2020.
The insurer, NRMA, is liable to pay to Mr Cahill any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The following injuries were referred in the medical dispute:
(a)    lumbar spine injury;
(b)    cervical spine injury;
(c)    right leg injury;
(d)    right arm injury – right upper arm extending from right shoulder to right thumb, and
(e)    right shoulder injury.
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 and pursuant to s 7.26 of the MAI Act, on review by a review panel.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.

STATUTORY AMENDMENT

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident was a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim was a threshold injury. Diagnostic imaging was not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident was a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment was a medical assessment matter under clause 2(a) of Schedule 2 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 was related to the accident in question was 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.
6.6 Causation was 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 was necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

WHOLE PERSON IMPAIRMENT LEGISLATIVE FRAMEWORK

General provisions
16.Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

Mr Cahill’s claim and entitlement to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 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:
a.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
b.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.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ORIGINAL MEDICAL ASSESSMENT

The medical dispute was referred to Medical Assessor Mohammed Assem who issued a Medical Assessment Certificate dated 18 October 2023 (the medical assessment certificate).
Medical Assessor Assem took a history of the accident at [10]:
“On 9 July 2020, Mr. Cahill was stationary in a BMW X3 SUV at a set of traffic lights on Ross St, Forest Lodge, when his vehicle was rear-ended by a Ford Focus. Initially, he was in a state of shock and struggled to comprehend the situation. It was only after a moment that he realised he had been hit from behind. Mr. Cahill described the impact as a ‘strong thud.’
I pointed out to him that the photographs of his vehicle showed only minor damage, which seemed inconsistent with his description of the event. Additionally, I presented him with a statement from the driver of the Ford Focus, who claimed the collision was merely a ‘tap.’ While Mr. Cahill couldn't reconcile these discrepancies, he did note that he had never previously experienced issues with his neck or back. He found it puzzling that he was facing such issues now.
After exchanging details, he noticed some tenderness in his neck and lower back accompanied by weird sensations in his right leg, dizziness and a headache. Following the accident, he was driving home then decided to present to Royal Prince Alfred Hospital with complaints of central neck pain, lower back pain, and paraesthesia. He was placed in a temporary neck brace and referred for radiological imaging.”
Medical Assessor Assem took note of the current symptoms at [12]:
“He reports constant neck discomfort accompanied by occipital headaches. He stated that he is pain free at the present time but has difficulty and pain with cervical rotation to the left. The pain radiates to the right shoulder (pointing at the right upper trapezius), he also has tenderness or numbness in the radial border his right hand, but he is not sure if it is related to his MS. The right arm feels weaker than the left.
His back is also tender intermittently. He has difficulty sitting or standing for more than 30 minutes. He has difficulty climbing in and out of his vehicle. He has numbness intermittently in his right foot that is worse at night.”
He undertook a clinical examination and reported the results at [14] to [18] of his Certificate.
At [18], Medical Assessor Assem commented on consistency:
“I found it difficult to reconcile Mr. Cahill's reported injuries-specifically, cervical spine issues with
referred pain to his right upper limb and lumbar spine injury with numbness in his right leg-with the minimal damage observed to his vehicle. The account from the driver of the offending vehicle,
describing the incident as a mere 'tap,' seems more congruent with the evidence than Mr. Cahill's
description of a 'strong thud.'
Upon thorough review of all medical evidence and expert biomechanical reports, I have concluded that it is highly unlikely Mr. Cahill sustained any physical injuries from this accident. His current symptoms align more closely with a pre-existing condition of relapsing-remitting multiple sclerosis, which has previously manifested similar neurological symptoms in both his right upper and lower extremities.”
At ‘diagnosis, causation and reasons’, Medical Assessor Assem opined that:
“The photographic evidence of Mr. Cahill's vehicle , along with the account provided by Ms. Ryan,
strongly suggests that the collision was of low speed and resulted in minimal damage. The damage is described as a minor mark on the bumper bar, likely caused by a screw from the other vehicle's number plate. Upon closely examining the magnified images, I concur with this assessment. Given the negligible extent of the damage, it is highly improbable that the collision transmitted sufficient force to cause any significant physical injuries or permanent impairment to Mr. Cahill.”
Medical Assessor Assem concluded that the following injuries were not caused by the accident:
(a)    lumbar spine injury;
(b)    cervical spine injury;
(c)    right leg injury;
(d)    right arm injury – right upper arm extending from right shoulder to right thumb, and
(e)    right shoulder injury – including brachialgia.

CLAIMANT’S SUBMISSIONS IN SUPPORT OF APPLICATION FOR REVIEW, DATED 9 MAY 2024

The Panel summarises the claimant’s submissions.

Part A: Path of reasoning

Mr Cahill submits that the Medical Assessor has failed to provide an actual path of reasoning as to how he reached his conclusions and the assessment and refers to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
The Medical Assessor is required (as stated by the High Court in Wingfoot) to “explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.
Mr Cahill further references the decision in AAI v Fitzpatrick (2015) NSWCA 1108,
“(30) The conclusions expressed in the certificate issued must be explained by the assessor in the accompanying statement of reasons. While the reasons given need not be elaborate they must disclose the actual path of reasoning by which the Assessor arrived at the options formed on each of their issues which had to be resolved.”

Part B: Failing to engage intellectually with the claimant’s submissions

The Medical Assessor has failed to assess the claimant’s submission in regard to causation which needed to be determined in regard to each of the assessments of (a) threshold injury and (b) permanent impairment.
The claimant’s submissions to the Medical Assessor addressed:
(a)    the temporal relationship between the accident and injury. (Mr Cahill sought medical attention on the day of the accident – including subjecting himself to undergo a CT scan);
(b)    the claimant’s pre-existing condition, and
(c)    lumbar spine and MRI evidence of injury.
The Medical Assessor did not engage with the opinions and reasonings expressed by:
(a)    Dr Keller;
(b)    Dr McIntosh, and
(c)    Dr Mellick.

Part C: Associate Professor Hardy

Mr Cahill submitted that the Medical Assessor did not address the opinion of A/Prof Hardy who opined that the L5 radiculopathy was triggered by the subject accident.

Part D: Insurer’s internal review

The Medical Assessor did not address the assessment of Dr Dixon who determined that the accident gave rise to a 10% permanent impairment.

Part E: Dr McIntosh

The Medical Assessor failed to undertake any intellectual engagement with the report by
Mr McIntosh regarding the effects of the accident.

Part F: Medical Assessor failed to mention the claimant’s submissions in connection with the threshold injury dispute

The Medical Assessor did not give consideration to the claimant’s submissions concerning the threshold.

Those submissions also included an additional analysis of Dr McIntosh’s report that was not included in the permanent impairment submissions. The Medical Assessor made no mention of those additional matters. They too included important matters that needed to be addressed by the Medical Assessor.

Part G: Neck, right shoulder and back

Mr Cahill submits that the Medical Assessor failed to address the neck and back injuries and refers to paragraph [19] “Comments on consistency” (which appears on page 7 of his Certificate), the Medical Assessor stated that Mr Cahill’s “current symptoms align more closely with a pre-existing condition of relapsing – remitting multiple sclerosis, which has previously manifested similar neurological symptoms in both his right upper and lower extremities.”

Part H: Aggravation of pre-existing asymptomatic condition

The Medical Assessor also has failed to address whether the accident has caused an aggravation of the claimant’s pre-existing asymptomatic condition, as was opined by the claimant’s pre-accident and post-accident treating specialist, Professor Hardy.

Part I: Incorrect test for causation

Mr Cahill submits that Mr Cahill was a “high risk individual”. Hence, he was susceptible to sustaining a severe injury even in what otherwise might be considered to have been a minor accident.
Mr Cahill’s actions following the accident are consistent with him having been injured. He sought treatment and submitted himself to a CT and MRI scan. He was placed in a cervical neck brace.
The CT and MRI scans revealed an underlying degenerative condition which, like the “eggshell skull” case, rendered Mr Cahill more likely to sustain a significant injury than the general population.

Part J: Present circumstances

The Medical Assessor was incorrect at law in determining causation solely based upon the damage to the vehicle and failing to note that “high improbability” does not exclude a “possibility” of an injury occurring.

Part K: Failing to properly conduct examination of claimant

It is submitted that the Medical Assessor’s method of investigating the ankle jerk reflex was not properly conducted without requiring removal of the claimant’s leather boots.

Part L: Assessment not undertaken in accordance with the Guidelines

The Medical Assessor has failed to explain the actual path of reasoning in sufficient detail in order that a reader of the report can ascertain whether or not each available “means of evaluation” has been considered and applied to each injury.

Part M: Failure to consider or address the claimant’s further submissions dated
22 February 2024

It is submitted that the Medical Assessor failed to intellectually engage with or even consider the claimant’s “Further Submissions”. The Medical Assessor’s failure to consider the “compelling submissions” of Mr Cahill gives rise to a reasonable cause to suspect that the assessment is incorrect in a material respect.

Part N: Multiple failures by medical assessor to issue a complete medical assessment

The Medical Assessor took in excess of six months from the claimant’s physical assessment to provide a completed Assessment Certificate. The Medical Assessor’s failure (and substantial delay) in providing a completed Certificate raises the suspicion that the assessments may be adversely affected by that delay.
The Medical Assessor’s failure to promptly provide a duly completed Assessment Certificate and his failure to again do so on 18 April 2024 (after being directed to do so by the Commission on 22 February 2024) also gives rise to a suspicion that the assessment is incorrect in a material respect.

Part O: Incomprehensible sentences within the certificate

Mr Cahill submits that there are a number of “incomprehensible sentences” included within the Certificate. The Medical Assessor’s failure to correct these errors gives rise to a reasonable cause to suspect that the assessment is incorrect in a material respect, which goes beyond a mere typographical or grammatical error.
The Medical Assessor’s failure to correct that error also is evidence of the Medical Assessor’s failure to consider (or even read) the claimant’s further submissions. It is submitted that this provides reasonable cause to suspect that the assessment is incorrect in a material respect.

Insurer’s reply submissions, dated 14 May 2024

The Panel summarises NRMA’s submissions by reference to paragraph number:
Part A: Path of reasoning
[9]     Having addressed the material, the history of the subject accident and conducted an examination, the Medical Assessor addresses and provides his path of reasoning on pages 7 through to 10. In summary, he addresses:
(a)    The reported injuries to the cervical spine, with referred pain to the right upper limb and the lumbar spine with numbness in the right leg.
(b)    The minimal damage to the vehicle and the account of the driver, compared to the account of the claimant.
(c)    That, having reviewed the medical and expert biomechanical reports, his conclusion was that Mr Cahill was highly unlikely to have sustained any physical injuries from the accident.
(d)    That, having reviewed the medical and expert biomechanical reports, his conclusion was that the claimant’s current symptoms more closely align with a pre-existing condition of relapsing-remitting multiple sclerosis (which had previously manifested similar neurological symptoms in the right upper and lower extremities).
(e)    On page 9, that he regarded the photographic evidence of the vehicle, the account of the insured driver, and the minor damage to the vehicle.
(f)    That, having regard to the negligible extent of the damage, it was highly improbable that the collision transmitted sufficient force to cause any significant physical injurie or permanent impairment to the claimant.
(g)    Therefore, concluding that the injuries to the lumbar spine, cervical spine, right leg, right arm, and right shoulder were not caused by the subject assessed.
[14] NRMA submits that the Medical Assessor has quite clearly engaged with the evidence and the thrust of the claimant’s submissions in respect to the minor nature of the impact.
[15] Importantly, the Medical Assessor did not find that the minor nature of the impact necessarily meant that injuries could not have been caused by the accident. Nor did he find that because it was highly improbable that the accident would have caused any significant physical injuries, this was the end of the matter. Rather, he went through the process – as was required of him and appropriate – of examining the claimant, reviewing the evidence and material (including submissions), and then exercising his clinical judgment in determining that the injuries were not caused by the subject accident and that, on balance, they represented the manifestation of the claimant’s pre-existing multiple sclerosis.
[17] NRMA submits that it is abundantly clear from the Medical Assessor’s certificate that he was aware of the general nature of the issues that Mr Cahill has raised in his submissions as listed at paragraph 38 of his review submissions, namely:
(a)    The temporal relationship between the accident and the injury, Mr Cahill noting that he sought medical attention on the day of the accident.
The Medical Assessor was clearly aware of this. See for example under section 10 on page 4 of the certificate where the assessor noted that Mr Cahill presented to the Royal Prince Alfred Hospital with complaints of pain and was referred for radiological imaging.
(b)    The claimant’s pre-existing condition.
The Medical Assessor was clearly aware of this. See for example under s 9 from page 3 of this certificate and under section 19 on page 7.
(c)    Lumbar spine and MRI evidence of the injury.
The Medical Assessor was clearly aware of this. See for example on page 8 of the certificate where the radiological findings are summarised. In respect to this issue, the radiological findings are evidence of injury but not of causation. This is addressed further below in response to the claimant’s submission on the radiology.
Part B: Lumbar spine and MRI evidence of injury
[23] The insurer submits that Mr Cahill has simply pointed to the fact that there was the discovery of pathology on radiological imaging taken after the subject accident. NRMA submits that this merely establishes correlation but does not imply causation.
[25] NRMA reiterates again that the Medical Assessor was not obliged to address and respond to each and every of the claimant’s submissions. In any event, it is apparent throughout the certificate that the assessor was alive to the critical issues of this particular case and turned his mind to them.
Part C: Associate Professor Hardy
[27] Mr Cahill has asserted that it was A/Prof Hardy who was best placed of all the practitioners to reach the conclusion that the accident had caused the injuries.
[28] This complaint does not form a proper basis for review. The Medical Assessor specifically referred to the findings of A/Prof Hardy on page 4 of his certificate, wherein he took note of A/Prof Hardy’s opinion. He was not obliged to accept A/Prof Hardy’s opinion.
[29] Associate Professor Hardy has provided his opinion/s for the purpose of treatment of the claimant’s medical condition, and not for the purpose of the subject claim. The question as to whether the claimant’s injury/ies were caused by the subject accident are of less consequence to A/Prof Hardy and it is not a criticism to say that he would not have turned his mind to that issue with any particularity, other than from a treatment perspective.
[30] NRMA makes the further point that A/Prof Hardy was in fact not necessarily best placed to make the observations that he made because:
(a)     his observation/s potentially relied on incorrect information about the circumstances of the accident, or an absence of information (namely the speed and force); and
(b)     he did not have the benefit of all the relevant material such as the photographs of the damage to the vehicle or the report of Dr McIntosh.
[31] In support of this, NRMA refers to the circumstances of the accident as described by Mr Cahill at the Prince of Wales hospital. It is critical to note that the Prince of Wales hospital record of the accident was of a ‘very low speed’ accident however, during the course of his admission, Mr Cahill estimated that the speed was approximately 50kmph.
[32] NRMA submits that if the claimant’s estimate of the speed of the accident as evidenced above, which is considerably inconsistent with the photographs of the damage to his vehicle and the findings of Dr McIntosh, was similarly given to his treating practitioners, it would have the very real potential of having impacted their impression, such that their opinions (including Associate Professor Hardy’s) in respect to the cause of claimant’s injury would not be reliable.
[33] The description recorded by Associate Professor Hardy, and Dr Dixon, was that Mr Cahill was ‘rear-ended’. Even if Mr Cahill did not estimate a speed to those doctors, it is significant that they may not be aware of just how low speed the accident was.
[34]   NRMA makes the further observation that the claimant’s submission that A/Prof Hardy ‘had specifically opined that the L5 radiculopathy was triggered by the subject accident’ is not an accurate representation of his opinion. In fact, A/Prof Hardy reported on 14 August 2020 that ‘I suspect he has an L5 radiculopathy triggered by the MVA’ (emphasis added).
[35] That suspicion would, in NRMA’s submission, be unlikely to be maintained if A/Prof Hardy had the benefit of an accurate description of speed at which the accident occurred, as well as the photographs of the damage and the report of Dr McIntosh.
Part D: Insurer’s internal review
[39] NRMA’s internal review decision of 4 December 2020 to which Mr Cahill refers does not accept the lumbar spine decision. It refers to and discusses Dr Dixon’s report but does not accept the injury or permanent impairment.
Part E: Dr McIntosh
[41] Mr Cahill asserts that the assessor has failed to take account of its important submission that while there exists the conclusion of Dr McIntosh that the accident was incapable of causing an injury, the evidence that Dr McIntosh relied upon only established that such an accident was unlikely to have caused injury.
[42] NRMA submits that whilst assessor may not have addressed that particular paragraph of the claimant’s submissions by reference to the number and precise wording, he has nevertheless clearly turned his mind to the issue raised and has addressed it.
[43] In any event, the Medical Assessor has not concluded that the accident was incapable of causing the injury. Under s 19, on page 7, the assessor has concluded that it was ‘highly unlikely’ that Mr Cahill sustained any physical injuries. He has not concluded that it was not possible. Having so found that it was highly unlikely, and then later having found in s 22 and 23 on page 9 that it was ‘highly improbable that the collision transmitted sufficient force to cause’ the injuries, the assessor then made the finding that the injuries were not caused by the subject accident.
[46] Mr Cahill has not supplied evidence from any medical or other expert who has considered the photographs of the damage to the claimant’s vehicle and / or the report of Dr McIntosh and the estimated speed and force of the collision. In so far as Mr Cahill has relied upon the medicolegal opinion of Dr Dixon and the treating report of A/Prof Hardy, their opinions may not be reliable because they have not had the benefit reviewing that evidence.
Part F: Assessor failed to mention, let alone address, the claimant’s submissions in connection with the threshold injury dispute
[48] NRMA notes that the Medical Assessor has clearly contemplated that he was required to assess both a threshold injury dispute and a permanent impairment dispute as evidenced in section 1 on page 2 of the certificate.
[49] The submissions summarised by the assessor on page 2 and 3 of his report are a summary only and the assessor was not obliged to detail every one of the claimant’s submission.
[50]   Mr Cahill submits that the assessor has erred in stating that the claimant’s:
‘… current symptoms align more closely with a pre-existing condition of relapsing – remitting multiple sclerosis, which has previously manifested similar neurological symptoms in both his right upper and lower extremities.’
[52] NRMA submits that Mr Cahill misunderstands the assessor’s findings. The assessor has not found that the multiple sclerosis was associated with symptoms in the neck or back prior to the subject accident. Rather it was his opinion that Mr Cahill symptoms / injuries, which had previously manifested in symptoms in the right upper and lower extremities, are associated with the multiple sclerosis condition and not with the subject accident.
[53] It was not a requirement of the assessor in finding that the accident did not cause the claimant’s injuries to identify any alternative cause.
Part G: Aggravation of pre-existing asymptomatic condition
[58] NRMA submits that the assessor was required to determine whether the accident could have caused the injuries and, if so, whether it did. The assessor has quite clearly answered these questions. The principles of causation encompass aggravation of an underlying asymptomatic condition, but it was not incumbent upon the assessor to expressly articulate that he had considered this when he set out his findings as to causation. NRMA submits that this is particularly so when the finding that Mr Cahill suggests ought to have been considered was not supported by the evidence of the claimant’s own medicolegal expert.
Part H: Incorrect test for causation
[59] Mr Cahill submits that the assessor has erred because he concluded that:
‘given the negligible extent of the damage [to Mr Cahill’s vehicle], it is highly improbable the collision transmitted sufficient force to the cause any significant physical injuries or permanent impairment to Mr Cahill.’
[60] NRMA submits that the above quotation is not the assessor’s conclusion, but rather part of the pathway of reasoning to reaching his conclusion. His conclusion was that the injuries were not caused by the subject accident.
[64] NRMA submits that although as a general proposition a minor impact may have serious consequences, noting the claimant’s reference to Murphy v Turner-Jones & Anor [2022] QSC 40, Mr Cahill must still establish by reference to some biomechanical, anatomical, orthopaedic/medical or scientific evidence an explanation for how the injury could have in this instance been caused, or exacerbated as the case may be.
[65] NRMA submits that it is not sufficient for Mr Cahill to rely on the fact that a minor accident may nevertheless cause major injuries, Mr Cahill bears the onus of establishing how it could have done so in this case by reference to the evidence. NRMA refers to the decision of the NSW Supreme Court in QBE Insurance (Australia) Limited v Shah [2021] NSWSC288 in this regard.
[66] At paragraph 86 of the claimant’s submissions, Mr Cahill says he is a credible witness and asserts that to suggest he was not injured in the accident would be tantamount to alleging fraud.
[67] NRMA rejects this submission. The assessor has not made a finding that Mr Cahill does not suffer from any injury, rather he has made a finding that the injury was not the result of the subject accident.
[68] NRMA submits that the assessor’s findings are not tantamount to an allegation of fraud as suggested. The assessor has based his findings on his medical experience and expertise.
Part H: Present circumstances
[71] NRMA refers to and relies upon its submissions above in answering the other similar submissions but essentially submits that:
(a)    The assessor’s finding about the improbability was only part of the assessor’s pathway of reasoning to his ultimate conclusion that the accident did not cause the injuries.
(b)    The assessor did not find that because it was improbable it was not possible that the accident caused the injuries.
(c)    The assessor did not find that because it was improbable it therefore meant that it did not cause the injuries.
(d)    The assessor clearly had regard to all the evidence beyond just the damage to the vehicles. After considering all the evidence, the assessor found that the accident did not cause the injuries.
(e)    That finding was available to the assessor on the evidence before him.
Part I: Failing to properly conduct an assessment of Mr Cahill
[72] Mr Cahill relies upon a failure to conduct the examination correctly in that the assessor allegedly attempted to measure his ankle jerk while he was wearing a boot.
[74] NRMA submits that this error could not be material in the circumstances because the measurement of the claimant’s ankle jerk on examination would have no bearing on the assessor’s findings as to causation of the claimant’s injury.
Part J: Assessment not undertaken in accordance with the Guidelines
[76] NRMA submits that there is no basis for this complaint.
Part K: Failure to address the claimant’s further submissions of
22 February 2024
[79] As such, the assessment could not be in error by failing to consider those submissions as it had already been conducted.
[80] In any event, the President’s delegate rejected the late documents in the determination issued on 26 April 2024.
Part L: Multiple failures by assessor to issue a complete medical assessment
[81] NRMA submits that this is not a ground for review. The ability for a certificate to be corrected when there is an obvious error, such as the original date being used, is precisely to avoid the necessity for the matter to be referred to a review panel to correct something of such nature. It is something which happens on a not irregular basis in the Commission and does not form a proper basis for review.
Part M: Incomprehensible sentences within the certificate
[82] In NRMA’s submission that error, such as it is, is neither significant nor is it material. It has no bearing on any of the findings of the Medical Assessor.

MEDICAL EVIDENCE
Application for personal injury benefits

Mr Cahill described the motor vehicle accident as follows:
“I was in my car stationary with foot on break awaiting to turn left near traffic lights on Bridge Road. Another driver (REGOBCB81 F) rear ended my vehicle (AKA drove straight into the back of my car).”
He described the following injuries as a result of the accident:
“Pain to neck and right shoulder
Pain to lower back
Pain and loss of feeling to right leg - shooting pains in right leg, pins and needles and numbness.”

Police report

The following crash summary details were recorded in the police report:
“About 05:15pm on Thursday the 9th of July 2020 a grey BMW station wagon was stopped on Ross Street in Forest Lodge. The driver of the grey BMW station wagon was locking to the left when a silver Ford Focus collided with the rear of the grey BMW station wagon. The drivers of both vehicles have then driven around the corner and exchanged details. The driver of the grey BMW station wagon has felt pain along his back and h i s neck and taken himself to hospital to have his injuries assessed. On Friday the 24/7/2020 the driver of the BMW has reported the matter to Police as he is now getting medical treatment for injuries from this accident.”

Report of Dr Andrew Keller, occupational physician, dated 7 December 2022

Dr Keller took a history of the accident:
“Mr Cahill reports that on 9 July 2020, he was the driver of a car wearing a seatbelt
travelling in a 50 or 60kmh traffic zone. He states whilst stationary his vehicle was hit
from behind by a following vehicle. Airbags were present but not deployed and the
car was later repaired. He reports no loss of consciousness and was able to stand
and walk at the scene of the accident. He reports immediate symptoms of pain in his
neck and back and a headache.
Following the accident, Mr Cahill drove the car to the Royal Prince Alfred Hospital.
Here he was assessed for symptoms of lower back pain radiating to the right lower
limb. He had a CT scan of the brain showing no trauma and no multiple sclerosis. He
had a CT scan of the lumbar spine showing no acute injury and mild degenerative
changes. He went home on the same day.
Mr Cahill reports that he rested for one day after the accident and then returned to
work full-time without restrictions. He commenced physiotherapy to his neck and
back.
On 21 July 2020, an MRI of the lumbar spine showed an L4/5 bulge affecting the L5
nerve roots. He was noted to have plaques in the cervical spine. He was referred to
specialist, Dr Hardy in September 2020. He diagnosed him with relapsing multiple
sclerosis affecting the right eye and right hand. He attributed numbness in the right
shoulder and radiculopathy in the right lower limb to the accident of July 2020.
In late 2020, he underwent a lumbar spine injection without reported benefit. He was
referred to specialist Dr Brennan in 2021. On 11 October 2021, an MRI of the lumbar
spine showed a tiny L4/5 bulge with facet joint arthritis and mild foraminal narrowing.
Dr Brennan noted that the MRI revealed a small bulge at L5/S1 without nerve
compression and a small bulge at L4/5 affecting the right L5 nerve root, he felt that
there was no benefit from the past injection, but decompression surgery might be
helpful in the future, no surgery has proceeded after this date.
In 2021, Mr Cahill saw a psychologist for 4 or 5 sessions due to fatigue related to his
multiple sclerosis. He states, he managed his symptoms with ongoing physiotherapy
once per week and takes Paracetamol. His other medications are Kesimpta that he
takes for multiple sclerosis.
He continues to work full-time as a real estate sales manager without certified restriction.”
Dr Keller opined that:
“The force involved in the crash of 9 July 2020 appears to be at the lower end of the
spectrum, airbags were not deployed and the car was repaired. He was able to drive
himself in the car to the hospital afterwards.
He reports immediate neck and back pain. He appears to have reported lower back
pain going to the right lower limb to the hospital on the day of the accident associated
with headaches.
His investigative evidence suggests cervical spine evidence of multiple sclerosis
plaques without evidence of bone or disc injuries attributable to the accident. He has
CT and MRI evidence of degenerative changes at the L4 and L5 discs associated
with foraminal narrowing and potential contact with the right L5 nerve root. I note
Professor Hardy in September 2020 associated the right lower limb symptoms with
the affects of the accident and not the affects of the multiple sclerosis.
In my opinion, it is reasonable that the accident exacerbated degenerative changes
in the lumbar spine, it is not clear to me that it has caused the neck or the right upper
limb injury.”

Clinical A/Prof Hardy, consultant neurologist, dated 14 August 2020

A/Prof Hardy reviewed Mr Caill on 14 August 2024, and reported:
“DIAGNOSES:
I. Relapsing-remitting multiple sclerosis with index symptoms of right-hand numbness
August 2018 and optic neuritis 30/06/2019.
3. Last MRI brain 14/02/2020 - interval lesions while on Tecfidera; incidental OVA and
capillary telangiectasia; MRI spine 16/12/2019 demyelinating lesions at C2 and C5.
4. JC polyomavirus POSITNE with JCV index of 3.64.
5. Anxiety.
6. Ex-smoker.
…
His main reason for making appointment today was because he had a motor vehicle accident a month ago, in which his stationary car was struck from behind by another vehicle. He
immediately noticed neck and lower back pain, including a shooting pain down his right leg.
Ever since then he has had ongoing right neck pain, a feeling of numbness around the right
shoulder and radicular pain in the right leg which radiates from his lower back down his lateral thigh into the foot. The pain in the neck is mechanical in that it worsens if he turns his neck from side to side. The pain in the lower back is exacerbated by sneezing or coughing.
…
In summary, I have discussed with Mr Cahill that I suspect he has an L5 radiculopathy triggered by the MV A. First line therapy is ongoing physiotherapy, but I will give him a script for amitriptyline to take at night to help with neuropathic pain and sleep. I offered him a radicular nerve root injection under CT guidance but he wants to hold off and see if things improve with more conservative measures.
I am little bit more puzzled as to the cause of his neck pain as there was no clear cervical
problem on his MRI and his sensory loss covers multiple dermatomes. He has demyelinating
lesions in the cord that could be responsible, but these don't appear to have changed, and he is certain the numbness is new. Hopefully, this will settle with physiotherapy and amitriptyline.
He is due for another MRI of the brain for his MS anyway and so I will aim to catch up with
him to check on his progress next month.”

Report of Dr Jeffrey Brennan, dated 4 November 2021

Dr Brennan provided the following in his report:
“James has had a MVA coming up to eighteen months ago where he was rear-ended. Ever since in a slightly evolving way he has been left with pain that has gradually declared itself as a possible right L5 claudicant radiculopathy. He is aware of pain in the buttock that does tend to spread down the right leg particularly on the outer aspect of the right leg to the region of the knee. When severe it can also go down the side of the calf but never really into the foot. Amongst the symptoms there does seem to be a claudicant component in that the longer he stands and certainly the more he tries to do the worse the symptoms get. If he stops and rests they tend to settle. This has meant that the previous activities have had to be curtailed quite significantly. Prior to the onset of the symptoms he was quite fit and enjoyed running, where as now he has a great deal of difficulty standing or walking any distance.”

Report of Dr McIntosh dated 20 February 2023

In his report of 20 February 2023, Dr McIntosh assessed the crash severity and opined:
“[32] Based on the statement, Incident descriptions and property damage, a
collision with the following characteristics occurred:
1. Rear end.
2. Large overlap and in-line. The front of vehicle 1 collided with
the rear of vehicle 2.
3. Vehicle 1 was travelling at a low speed when the collision
occurred and braking.
4. Vehicle 2 was stationary when the collision occurred.
5. Minimal damage to both vehicles.”
He continues:
“[39] In my opinion, based on the observed and described vehicle damage, the closing speed was most likely less than approximately 10 km/h with a change in velocity of the Claimant’s vehicle less than approximately 6 km/h. This accounts for the damage to both vehicles. This is consistent with the Insured driver’s statement.
[40] It is improbable that the closing speed was 50 km/h. Airbags in vehicle 1 would have deployed. Vehicle collision damage would have been extensive with a closing speed of 50 km/h.”

Report of Dr Mellick, neurologist, dated 27 April 2023

Dr Mellick assessed Mr Cahill on 27 April 2023, and took a history of the accident:
“I learned that Mr Cahill had been involved in a motor vehicle accident that occurred
on 9 July 2020. He has a clear recollection of the accident. He was stationary at
traffic lights and was wearing a seatbelt when his vehicle was struck from behind by
another car. He can remember feeling shocked. He said he “hopped” out of the car,
spoke to the driver of the other car and suggested they drive their vehicles further
down the road where they exchanged details.
He said he was aware of soreness of the neck and tingling in his lower back, in
addition to headache which was situated in the right occipital region. The headache
was reported to be “splitting” but there was no associated nausea, vomiting or visual
disturbance.
He reported that he had the next day, Friday, off work and visited Royal Prince Alfred
Hospital. He was put in a neck brace and, to the best of his recollection, he wore it
for only a few days. He returned to his pre-injury work as a Sales Manager for Bell
Property and continues in that work without restriction.”
After examining Mr Cahill, Dr Mellick diagnosed:
“There is a deal of radiological evidence relating to the MS. However, that information
is not relevant to the motor vehicle accident in question.
The details regarding the accident indicate it to have been a minor traumatic event
producing muscular and ligamentous symptoms and not inducing any deeply sited
intracranial or spinal pathology.
The physical examination identifies no definite abnormal physical signs and no
impairment of function aetiologically connected to the motor vehicle accident
in question.
There is some impairment of Mr Cahill’s physical activity but that should not be
regarded to be caused by the physical consequences of the motor vehicle accident.”

THE PANEL’S EXAMINATION

Mr Cahill attended for re-examination by Medical Assessor Thomas Rosenthal on
30 October 2024.
Medical Assessor Assem had found injuries to the lumbar spine, cervical spine, right leg, right arm and right shoulder were not caused by the motor accident and dismissed the threshold injury dispute and the permanent impairment dispute.

HISTORY

Mr Cahill was a 42-year-old male who was involved in a motor vehicle accident on
9 July 2020. He was driving a BMW X3 SUV. He was stopped at a set of traffic lights when his vehicle was hit from behind by a Ford Focus. He reported a substantial jolt occurred and he initially was in shock. No airbags went off. No police or ambulance attended. After the accident, he immediately noticed neck pain and soon after low back pain. He subsequently developed right leg pain and attended Royal Prince Alfred Hospital.
Royal Prince Alfred Hospital performed CT scans, initially put him in a neck brace and then discharged him after a few hours.
Mr Cahill had a history of multiple sclerosis (MS) diagnosed in 2019 and he had been under the care of Dr Hardy, a neurologist. At the time of the accident, he was on medication for the symptoms of his MS. The symptoms were intermittent paraesthesiae in his upper limbs as well as visual disturbance. As part of the investigation for his MS done prior to the subject accident, he had had various spinal scans performed. He was taking Tecfidera (MS medication) at the time of the subject accident.
Mr Cahill stated that the symptoms in his lower back and right leg as well as his neck were new symptoms which came on immediately after the subject accident. It was his view that these symptoms were not related to his MS.
He did have an MRI of lumbar spine performed about two weeks after the accident ordered by his general practitioner who recorded right leg radiculopathy as the symptom. The radiologist’s report noted that there had been a previous scan performed in 2019 and findings essentially were unchanged.
A/Prof Hardy, his neurologist, did review him a few months after the motor vehicle accident and opined that he had developed a disc protrusion in his lumbar spine causing lumbar radiculopathy which, in his view, was most likely due to the motor vehicle accident.
He had treatment with physiotherapy for both his neck and back symptoms including exercise physiology and he ended up requiring a nerve root injection into his right L5 region.
He was reviewed by Dr Brennan, a neurosurgeon. Dr Brennan also deemed that he had a disc injury which resulted in right lumbar radiculopathy.
In terms of the listed injuries, Mr Cahill could not specifically recall a separate injury to his right leg. The right leg symptoms were symptoms that emanated from his back. There was no separate injury to his right arm. The symptoms in his right arm were radiating from his neck. He did not recall a specific right shoulder injury with symptoms also radiating from his neck towards his right shoulder.
The injection he had into his lumbar spine in 2021 was of no help and he continued conservative treatment whilst he continued to work as a real estate agent.
He has been given Panadeine Forte which he is now taking rarely. He has been having some intermittent physiotherapy ongoing for his neck and back. The last physiotherapy treatment was about two weeks ago. He has remedial massages. He is taking Panadol daily.

CURRENT SYMPTOMS

Low back pain is constant. He rates it as 8 on a scale of 0-10, with 10 being maximal pain. He needs to sit a lot. He has intermittent right leg radicular pain traveling down the side of his leg radiating down to his calf. He said he cannot run.
He reports neck pain which is intermittent with headaches radiating to the back of his right shoulder.
There have been no further injuries since the subject accident.
He has managed to continue working as a real estate agent which he has been doing for 21 years, currently working in Glebe selling residential properties. The job does have some physical requirements with lots of driving, getting in and out of cars, climbing steps, etc. He did have some sick leave, taking odd days off since the accident, but has had no extended leave from his work.
His standing and walking appear to be somewhat restricted to about 20 minutes before he needs to have a rest.
He used to play various sports which have all stopped.
He had a motor vehicle accident in 2017 but there was no injury from this.

SOCIAL HISTORY

He is married. His wife is a nuclear medicine technologist. There are two children aged 7 and 4. He lives in Ashbury in a single level house currently with his father who has dementia. His father does the lawns. He gets a cleaner in fortnightly. He can do a little bit of gardening. He does do stretches but no sport.

INVESTIGATIONS

He did not present any radiology films.
MRI reports from 9 December 2019, 22 July 2021 and 11 October 2021 were noted.

PHYSICAL EXAMINATION

On examination, Mr Cahill walked with very slight antalgia.
He weighed 54kg. He was 177cm tall.
He managed to remove his clothing without difficulty.
He initially showed me restricted neck rotation to the left but on repeated neck movements rotation was symmetrical and of normal range although he complained of pain. Flexion, extension and lateral flexion of the neck were marginally restricted at the extremes but were symmetrical. There was no spasm or guarding. There was mild right-sided cervical tenderness. Normal cervical lordosis was present.
He appeared to sit reasonably comfortably during the interview prior to the formal examination.
The shoulders exhibited a full range of motion. He complained of pain and discomfort, particularly on right shoulder movements. However, repeated testing exhibited a normal range. Impingement signs in the shoulders were negative. There was no evidence of crepitus or instability of either shoulder joint.
Upper arm measurements were 27.5cm on both sides, 10cm above the olecranon. Forearm measurements were 24cm on the right and 23cm on the left, 10cm below the olecranon.
Muscle, power, tone and reflexes in his upper limbs were normal and there were no sensory changes.
There was no evidence of any ongoing injury to his right arm or right shoulder.
At the lumbar spine he had a normal lumbar lordosis and tenderness over the right of L5 and his right sacroiliac joint. There was no spasm or guarding.
Forward flexion was reduced by approximately one-quarter, extension was reduced at the extreme and lateral flexion was reduced by a quarter to each side
He could get up on his heels and toes and squat. Straight leg raise was 60°. Lasegue’s signs were negative.
There was reported reduction in sensation over most of the right leg including the right thigh laterally which was in a non-dermatomal distribution.
There was weakness in big toe extension but no other evidence of anatomically localized muscle weakness.
His lower limb reflexes were brisk and normal.
Thigh measurements were equal at 40cm on both sides, 10cm above the superior patellar pole. Calf measurements were 31.5cm on both sides, 10cm below the inferior patellar pole.
He had a full range of hip, knee and ankle movements.
There were no inconsistencies.

FINDINGS OF THE REVIEW PANEL

Mr Cahill was involved in a rear-end motor vehicle accident on 9 July 2020. The impact of the accident has been reported as minimal and unlikely to cause injuries, as noted in the report of A S McIntosh (PhD) of 20 February 2023. This is a report of an expert in biomechanics and ergonomics as against that of a medical practitioner and although obviously relevant, is not determinative.
Mr Cahill disputes the minor impact and believes it was a significant jolt. However, the severity of the impact should not be a factor in determining whether Mr Cahill sustained injuries in the accident. His car was repaired.
It is clear from the documents and from Mr Cahill’s history that he developed back pain and right leg pain as well as neck pain immediately following the accident. The neck pain would be consistent with a soft tissue injury to the cervical spine and the back pain appears to have resulted in right sided radiculopathy which was reported to be present by Dr Brennan and
A/Prof Hardy.
The Panel notes Mr Cahill’s submission that the Medical Assessor did not address the opinion of A/Prof Hardy who opined that the L5 radiculopathy was triggered by the subject accident.
If the Panel confirms that radiculopathy was present and meets the Motor Accident Guidelines, this injury would be a non-threshold injury. Based on his current presentation, however, the Panel considers that Mr Cahill has only one criterion for radiculopathy and does not meet the Guidelines.
The Panel determined on the balance of probabilities that there was a tear in the lumbar disc cartilage, and it was this tear which led to the radicular symptoms, and as result this was a non-threshold injury.
The Panel considered on the balance of probabilities that the finding by Medical Assessor Assem, that the cervical lumbar spine injuries were not caused by the accident, was wrong and against the weight of evidence.
The Panel noted the history in the police report that Mr Cahill told the police that he had felt along his back and his neck and had taken himself to hospital to have his injuries assessed.

The Panel finds that it is unlikely that if it was a trivial tap, it is unlikely that Mr Cahill would have gone to the trouble of taking himself to the emergency department of the Royal Prince Alfred hospital where there was likely to be significant delays and inconvenience before he was assessed.
At Royal Prince Alfred Hospital, Mr Cahill made consistent complaints and he was assessed for symptoms of lower-back pain radiating to the right-lower limb. Again consistent with his complaints, he did have a CT scan of the lumbar spine.
It appeared to the Panel that Medical Assessor Assem may have placed too much weight on the opinion of the Biomechanical Engineer as to the triviality of the accident.
The Panel was satisfied on the balance of probabilities that the injuries to the lumbar spine were caused by the accident.
Mr Cahill had also made an earlier complaint to the police of pain in his neck at the time of the accident, and similarly he made consistent and early reports of pain in his neck.
The Panel concluded that the injury to his cervical spine had also been caused in the accident.
The Panel was of the opinion that the other list of injuries to the arms and legs represented symptoms and not separate injuries.
In regard to his MS, it is clear that there were some neurological symptoms present more so in his upper limbs prior to the accident. The back pain and right leg pain are not the result of his MS as deemed by his treating neurologist. The new symptoms which were reported immediately following the accident appear to be related to the trauma from the subject accident.

IMPAIRMENT ASSESSMENT

The cervical spine is assessed under cervicothoracic spine Table 73, page 110. He is DRE category I, having no muscle spasm or guarding, no asymmetry of motion, no non-verifiable radicular complaints, no structural inclusions and no radiculopathy. He gets 0% whole person impairment.
There is no ratable impairment at either shoulder joint.
The lumbar spine is assessed under lumbosacral spine Table 72, page 110. He has non-verifiable radicular complaints, asymmetry of lumbar movements and one clinical sign of radiculopathy. This classifies him as DRE category II and he gets 5% whole person impairment. This was a non-threshold injury.

CONCLUSION

In terms of Medical Assessor Assem’s assessment, his certificate should be overturned based on these clinical findings.

DETERMINATION

The Review Panel revokes the Certificate of Medical Assessor Mohammed Assem and substitutes the determination to certify that the injuries referred for assessment to the lumbar spine and cervical spine were caused by the motor vehicle accident and the lumbar spine was a non-threshold injury.
The Panel further determines that injuries caused by the accident gave rise to a whole person impairment of 5%.

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Citations

Cahill v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 875

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Ainsworth v Criminal Justice Commission [1992] HCA 10

[2024] NSWPICMP 875

19 December 2024