Czajka v Allianz Australia Insurance Limited

[2025] NSWPICMP 59

DETERMINATION OF REVIEW PANEL

CITATION:

Czajka v Allianz Australia Insurance Limited [2025] NSWPICMP 59

CLAIMANT:

Maciej Stanislaw Czajka

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Jeremy Lum

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Sophia Lahz

DATE OF DECISION:

4 February 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment certificate; threshold injury; Review Panel examination revealed no radiculopathy in lumbar spine; David v Allianz considered and applied to documentation referring to disc bulge and foraminal stenosis; Review Panel found no radiculopathy from the time of the motor accident to date; Held – Medical Assessor’s determination of threshold injury affirmed; Medical Assessment Certificate confirmed.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017.

The Review Panel:

1.     Confirms the certificate issued by Medical Assessor Cameron dated 26 June 2024.

2.     Confirms that the following injuries caused by the motor accident:

·        head – soft tissue injury;

·        cervical spine – soft tissue injury;

·        lumbar spine – soft tissue injury;

·        left shoulder – soft tissue injury;

·        left arm – soft tissue injury, and

·        left hand – soft tissue injury,

are THRESHOLD INJURIES for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

1. Mr Czajka (the claimant) was involved in a motor accident on 16 October 2023. He was the driver of a vehicle in the middle of a three laned road when a vehicle travelling in the opposite direction turned right and collided with the claimant.

2. Mr Czajka says he suffered injuries to his head, neck, back, left shoulder, left arm and left hand. He made a claim for statutory benefits with Allianz, the third-party insurer of the vehicle that he says caused the motor accident.

3. A medical dispute arose about whether Mr Czajka’s injuries were threshold or non-threshold injuries and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.

4. On 26 June 2024, Medical Assessor Ian Cameron issued a certificate of assessment which found Mr Czajka’s injuries to be caused by the motor accident and that they were threshold injuries.

THE REVIEW

1. Mr Czajka lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s delegate and this Panel was convened to conduct the review.[1]

   [1] Section 7.26(5) of the MAI Act.

2. The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[2]

   [2] Section 7.26(6) of the MAI Act.

3. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[3]

   [3] Section 7.26(7) of the MAI Act.

4. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]

   [4] Rule 128 of the Personal Injury Commission Rules 2021.

5. Directions were issued requiring the parties to lodge with the Commission indexed and paginated bundles of all documents relied upon. Both parties duly responded with the claimant’s bundle comprising of pages 1-218 and the insurer’s 1-36.

RELEVANT STATUTORY PROVISIONS

Threshold injury

1. Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.

2. For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[5]

   [5] The terminology for accidents that occurred before 1 April 2023 was “minor” injury and statutory benefits were only paid for up to 26 weeks.

3. For physical injuries, a threshold injury is defined as a “soft tissue injury”.[6]

   [6] Section 1.6(1) of the MAI Act.

4. A “soft tissue injury” is defined as:

   “An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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.”[7]

   [7] Section 1.6(2) of the MAI Act.

5. A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[8]

   [8] Section 4(1) of the Motor Accident Injuries Regulation 2017.

6. The Motor Accident Guidelines (the Guidelines)[9] defines radiculopathy as:

   “Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent Impairment’.

   (a)    loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (b)    positive sciatic nerve root tension signs (see the

   (c)    muscle atrophy and/or decreased limb circumference

   (d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

   (e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”[10]

   Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.[11]

   [9] For motor accidents that occurred from 1 April 2023, the applicable version of the Guidelines is version 9.3.

   [10] Clause 5.8 of the Guidelines.

   [11] Clause 5.9 of the Guidelines.

7. Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.

8. Diagnostic imaging is not considered necessary to assess threshold injury.[12] 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 of the insurer.[13]

   [12] Clause 5.4 of the Guidelines.

   [13] Clause 5.5 of the Guidelines.

Causation

1. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes.[14]

   [14] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].

2. Clauses 6.6 and 6.7 state:

   “6.6 Causation means that a physical, chemical or biological 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 the 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.

   6.7 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.”

ASSESSMENT UNDER REVIEW

1. Medical Assessor Cameron was referred the following injuries for assessment:

   ·        head injury – cervicogenic headaches, light headedness;

   ·        cervical spine injury – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes;

   ·        lumbar spine injury – radiculopathy, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes;

   ·        left shoulder injury – left orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement derived from cervical spine injury;

   ·        left arm injury – left soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, and

   ·        left hand injury – left soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes.

2. Medical Assessor Cameron’s clinical examination was documented as relevantly as follows:

   “There was no evidence of cognitive impairment. He scored 28/30 on Mini Mental State Examination.

   At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal and to 60% on rotation to the left), with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.

   There was full range of motion at both shoulders

   There was a full range of motion at other upper extremity joints.

   There were no neurological abnormalities in the upper extremities.

   Circumferences of the upper extremities were right 29cm and left 29cm.

   At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.

   At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.

   There was a full range of motion at both knees. The was no crepitus or instability.

   There was a full range of motion at other lower extremity joints.

   There were no neurological abnormalities in the lower extremities.

   Circumferences of the lower extremities were right 41cm and left 41cm.

   Mr Czajka walked with a normal gait.”

3. Medical Assessor Cameron noted there were no imaging studies to review but summarised the radiological reports as follows:

   “CT of the brain on 18 October 2023 showed no abnormality.

   CT of the cervical spine on the same day reported no acute injury and minimal degenerative disease.

   CT of the lumbar spine on the same day is reported as showing mild degenerative spondylosis.

   MRI of the brain on 14 December 2023 showed no abnormalities.

   MRI of the lumbar spine on the same day showed minor degenerative changes.”

4. Medical Assessor Cameron found all the above injuries were causally related to the motor accident and diagnosed as soft tissue (threshold) injuries with no evidence of traumatic brain injury or radiculopathy.

SUBMISSIONS

Claimant’s original submissions dated 11 March 2024

1. The claimant submits that the injury is not a threshold injury and requests that the matter be referred for medical assessment at the Commission.

Claimant’s review submissions dated 19 July 2024

1. The claimant provided three grounds on why Medical Assessor Cameron’s medical assessment is incorrect in a material respect.

Failure to conduct assessment in accordance with the Guidelines

1. With respect to the definition of radiculopathy as contained in cl 5.8 of the Guidelines, the claimant says while there are references to (b) and (c) of the definition, there was no reference to whether the claimant has loss or asymmetry of reflexes (a), muscle weakness (d) or any reproducible sensory loss (e).

2. The claimant submits it is not enough for the Medical Assessor to simply state that the injuries fit the definition of “threshold injury”, without any reference to the radiculopathy criteria.

Failure to engage with the evidence

1. The claimant submits that in circumstances where the Medical Assessor has not assessed the claimant in accordance with the Guidelines, some explanation should have been given as to why the Medical Assessor has reached a conclusion which differs from the claimant’s treating doctor.

2. The claimant notes his treating doctor repeatedly refers to “altered distal sensation” in the Certificate of Capacity.  As sensory loss is a sign for radiculopathy, it is submitted further discussion was warranted regarding these complaints recorded in the evidence.

3. Specifically, the claimant notes the following:

   (a)    Certificate of Capacity dated 24 October 2023 reports “non-specific altered distal sensation”;

   (b)    Certificate of Capacity dated 7 November 2023 reports “non-specific sensory disturbance”;

   (c)    Certificate of Capacity dated 29 November 2023 reports “lumbosacral pain w/radiculopathy, possible C3 root disturbance”;

   (d)    MRI lumbar spine dated 14 December 2023 records the claimant’s complaint of “radiculopathy and bilateral toe numbness”, and

   (e)    Certificate of Capacity dated 26 February 2024 reports “lumbosacral pain w/radiculopathy, possible C3 root disturbance.

4. The claimant further notes Medical Assessor Cameron’s following reference to the MRI of the lumbar spine dated 14 December 2023:

   “MRI of the lumbar spine…showed minor degenerative changes.”

5. The claimant says the Medical Assessor was incorrect in his reading of the above MRI which in fact concludes:

   “Minor posterior disc bulge at multiple levels. There is mild to moderate stenosis of the right foramen at L4/5 level with possible mild contact of the existing right L4 nerve root.”

6. It is asserted that for the Medical Assessor to conclude that what was in fact reported in the MRI of the lumbar spine is synonymous with “minor degenerative changes” is a clear failure to engage with the evidence.

Failure to provide adequate reasons

1. Having failed to address the full criteria for radiculopathy but stating that the criteria was not satisfied elsewhere in the certificate, it is submitted the parties cannot be certain the requisite tests were performed to allow the Medical Assessor to come to this conclusion. It is submitted this is a denial of procedural fairness.

Insurer’s original submissions dated 27 March 2024

1. The insurer refers to the police report which states:

   “NSW ambulance inspector informed police the injuries appeared to be soft tissue and insignificant”, that later, the hospital stated that the claimant’s “CT scan results stated there was nil injury to his neck” and that the claimant “was discharged from Royal North Shore Hospital with nil injuries and given only painkillers as medication.”

2. Based on the police report, the insurer submits that only the alleged injury to the lumbar spine is capable of satisfying the definition of a non-threshold injury.  For completeness, however, the insurer will address all injuries referred for assessment in the submissions below.

Head

1. The insurer acknowledges that the claimant sustained an unspecified head injury as listed on the claim form, however submits that the evidence establishes that this was soft tissue in nature.

2. The ambulance report states that the claimant was alert on arrival, speaking in full sentences, denied a head strike or light headedness, did not lose consciousness, had a normal Glasgow Coma Scale (GCS) (15/15) and normal recall.

3. There was no head injury listed in the initial certificate of capacity or the subsequent certificate dated 31 October 2023.

4. There was no cause for the claimant’s light headedness or headaches on review in the emergency department on 7 November 2023.

5. The evidence includes the brain CT scans dated 16 October 2023, 18 October 2023,

   
   

   30 November 2023 and an MRI of the brain dated 14 December 2023.  It is submitted the radiology reported normal findings and did not show any pathology that explained the claimant’s symptoms.

Cervical spine and left upper limb

1. The insurer addresses both these injuries together.

2. The insurer says the early documentation in the ambulance report, hospital discharge summary, medical certificates, physiotherapy and the imaging all point to these injuries being soft tissue in nature.

3. The insurer notes that it was not until the subsequent unrelated fall on 31 October 2023 where the claimant injured his left hip, left wrist and lower back that there was an onset of muscle spasm, pins and needles and low back pain.

4. It is contended that the claimant was responding well to physical therapy and was on his way to a full unrestricted work duties until the subsequent unrelated fall which resulted in the severity of symptoms now reported.

5. Dr Larach advised Greenlight rehabilitation on 7 November 2023 that the claimant required a left wrist X-ray to rule out a scaphoid fracture, but that “this was separate to the claim”.  It is submitted that not only would this injury not be related to the accident, but both the absence of radiological evidence and the lack of ongoing wrist complaints supports that no fracture was sustained.

6. Also occurring after the subsequent unrelated fall was the general practitioner’s (GP) diagnosis of a “possible C3 root disturbance”.  It is submitted this diagnosis of injury is not related to the motor accident and, in any event, does not satisfy the criteria for verifiable radiculopathy in the Regulation of the Guidelines.

Lumbar spine

1. The insurer says the early documentation in the ambulance report, hospital discharge summary, physiotherapy and the imaging all point to these injuries being soft tissue in nature.

2. CT scan on 18 October 2023 and repeat scan on 30 November 2023 showed spondylitic, degenerative changes but no fracture or disc injury from the motor accident. 

3. The insurer acknowledges that the MRI taken on 14 December 2023 raises a possible diagnosis of L4 nerve root contact but also lists multilevel disc bulging. The insurer submits that this could only qualify a nerve root injury per the Regulation 4(1), if that.

4. The insurer acknowledges the claimant’s GP diagnoses lumbar radiculopathy in certificates dated 29 November 2023 and 26 February 2024, however this diagnosis has not been made with any reference to the Guidelines.  In any event, it is submitted that the diagnosis of radiculopathy was made after the claimant’s subsequent fall, which was not caused or materially contributed by the motor accident.

Insurer’s review submissions dated 1 August 2024

1. The insurer’s review reply submissions adopt the headings used by the claimant.

Failure to conduct assessment in accordance with the Guidelines

1. The insurer says there is no suggestion in the treating evidence that the claimant had loss or asymmetry of reflexes or muscle weakness after the motor accident and so it is not logical to suggest that he could have had those clinical signs at the time of Medical Assessor Cameron’s assessment.

2. The Medical Assessor is not required to refer to every clinical sign of radiculopathy listed in

   
   

   cl 6.138 or Table 6.8 of the Guidelines.  It is enough for Medical Assessor Cameron to confirm that there is no evidence of radiculopathy “as defined in the Guidelines” following a comprehensive examination.

Failure to engage with the evidence

1. The insurer says there is no obligation on a Medical Assessor to address each and every opinion proffered by treating practitioners. 

2. The Medical Assessor’s findings with respect to “altered distal sensation” and “sensory disturbance” were described as non-specific and therefore would not satisfy the radiculopathy sign “anatomically localised to an appropriate spinal nerve root distribution”.

3. The Medical Assessor has in fact addressed the evidence which all points to soft tissue injuries only.  The claimant’s disagreement with the Medical Assessor’s interpretation of the MRI scan as “minor degenerative changes” is reflective of the claimant disagreement only and not a failure by the Medical Assessor to engage with the available evidence.

1. The Medical Assessor has complied with his obligations under cls 5.6, 6.120 and 6.121 of the Guidelines which refer to the review of documentation (including radiology) and the reporting of the Medical Assessor’s clinical examination findings.

2. Importantly, it is submitted that the Medical Assessor has not based his conclusions on radiculopathy based on the results of a scan, but rather based on his clinical examination as required under cl 6.121 of the Guidelines.

Failure to provide adequate reasons

1. The insurer says if it were found that the Medical Assessor failed to address the criteria for radiculopathy then this would be indicative of a failure to provide adequate reasons. 

2. The insurer, however, does not submit this is the case as the Medical Assessor has reviewed the relevant evidence, interviewed the claimant and conducted an examination.  The Medical Assessor then undertook an assessment in accordance with the Act and the Guidelines and his reasons for decision allow the parties to understand the assessment made.

DOCUMENTATION

1. The Panel has read all material provided by the parties in their document bundles.  The Panel will only specifically refer to material relevant to the assessment of the threshold injury dispute. A summary is set out in the Appendix.

RE-EXAMINATION FINDINGS

1. At the preliminary conference on 4 November 2024, the Panel determined that a re-examination of the claimant was required. Below is the Panel re-examination report of Medical Assessor Margaret Gibson.

   “PRE-ACCIDENT MEDICAL HISTORY

   Mr Czajka is a 41-year-old man and denied having suffered with any pre-existing medical or surgical issues. There were no prior accidents or injuries. He said that is past health was good, which was why he was able to work in a physically demanding role as a motor vehicle mechanic.

   RELEVANT PERSONAL DETAILS

   Mr Czajka lives with his wife and two children, a daughter aged 3 years and a son aged 2 years, in a rented house in Dundas. His wife works on a full-time basis. The house is single storey, but there are 10 steps to the front door. Their landlord takes care of the yard. Mr Czajka said that he finds he has difficulty lifting anything heavy, including his children. He drives an automatic vehicle, and reported no restrictions with driving. He said he had driven in today for the assessment.

   At the time of the subject accident, he was employed as a full-time car mechanic with Northside Autohaus. He had been in the job for 12 months but he had been a mechanic for many years.

   He said he had been totally off work for several weeks after the subject accident. However, he had to return to work on a full-time basis as he had little choice. He said he had had to supply his employer with a letter from his physiotherapist to confirm he was sufficiently fit to resume work. Nevertheless, when he did return to work, he was mainly involved in doing documentation and checking vehicles. But, after a few months, he was asked to do more physical tasks which he found problematic due to his subject accident related injuries. He said he had eventually left the job 4-5 months after the accident as he was not coping with the physical demands of the role.

   He had then found another full-time job, this time as a subcontractor in a motor workshop, G&F Motor Repairs, in Lane Cove. He said there he does conducting oil services and brake checks. He avoids the heavier jobs such as repairing transmissions and engines. He has been in this role about three months ago.

   HISTORY OF THE SUBJECT ACCIDENT

   On 16 October 2023, Mr Czajka was the seat belted driver of a Ford Focus sedan. He was returning home from work with no passengers in the car. He was travelling along the Pacific Highway in Chatswood. He said there were three lanes in the approach to the Lane Cove Tunnel and he was in the middle lane. Another vehicle had crossed over three lanes of traffic, and in the process hit the front of Mr Czajka’s car. His airbags deployed and he hit the back of his head on the headrest. And although he hadn’t lost consciousness there had been some signs of injury over the back of his head. He remembered there had been immediate pain in his neck and over his left clavicle. His eyes were irritated due to dust emanating from the airbags. He had a massive headache. He said there were no facial injuries.

   His car (he thinks it was an older model) was towed and later written off for insurance purposes.

   He was trapped in the car until emergency personnel arrived. He was then conveyed via ambulance to Royal North Shore Hospital. He said he was discharged home about 8pm that evening.

   The discharge summary from Royal North Shore Hospital had recorded that he had sustained a head injury, but there had been no loss of consciousness or neurological deficits. He had been extracted his car by the fire service. He had experienced neck pain on arrival at ED and was sent for a CT trauma scan which had shown no abnormalities, and nothing was identified on tertiary survey.

   The following day he visited his general practitioner, Dr Larach at the Midway Family Medical Centre in Ryde. The progress consultation notes from the doctor had recorded there had been ‘nil injuries but has whiplash ++’ and there had been ‘mild bruises in arm. Noticed some tinnitus in left ear (coming and going).’ On examination, the doctor had noted left-sided neck pain +++, unable to move left/right, mild lower C spine pain, left shoulder pain plus – minus reduced range of motion. He was prescribed Endone tablets for pain and a Certificate of Capacity/Fitness was completed.

   Mr Czajka volunteered that he had contacted a lawyer soon after the accident as he didn’t feel confident navigating the process.

   He returned to the general practitioner on the 18th of October with worsening neck pain, and what Dr Larach and described as mild concussion symptoms. At that stage there was also tingling sensations in his feet and the general practitioner had discussed his case with Dr Gergis and it was decided he should have scans of his cervical and lumbosacral spine.

   Mr Czajka was referred to a physiotherapist. He said he had attended several sessions but the insurer would not continue funding the treatment, and instead had organised for a rehabilitation provider to provide the therapy.

   He had continued to take paracetamol for pain, and the Endone was ceased. He was also prescribed an anti-inflammatory medication, meloxicam together with pantoprazole tablets to guard against gastric irritation.

   Mr Czajka said there was no other treatment and he feels he has been abandoned by the insurer.

   RELEVANT INJURIES OR CONDITIONS SUSTAINED SINCE THE ACCIDENT

   Mr Czajka was reviewed at Royal North Shore Hospital on 7 November 2023 due to ongoing light-headedness and headaches together with chest pain last night. He said he was under a lot of stress at the time due to financial pressures due to being off work. He was discharged home following normal ECG and investigations.

   He said that he had experienced some right knee discomfort a few months after the accident. This had occurred whilst he was participating in the exercise program which was organised by the rehabilitation provider. He said that after over 10 repetitions of some squatting exercises there was ‘massive’ pain in his right knee, deep in the joint. He said now, as long as he does not put a lot of extra weight on the knee, the knee is okay.

   He had also sprained his left wrist. This was around the 31st October 2023. He explained that he had been holding up his son for a photo and had slipped and then attempted to catch him, and in the process sprained his left wrist. The general practitioner, Dr Larach had noted in the clinical notes on 31 October 2023 that Mr Czajka had ‘lifted son too quickly, felt pain ++ and fell.’ Mr Czajka said his wrist has now recovered.

   CURRENT COMPLAINTS

   Mr Czajka said that he ‘feels like a 70-year-old,’ meaning he suffers generalised joint stiffness. In particular his neck is stiff and feels ‘locked’ and the muscles ‘swollen’ rather than any specific pain. He finds his symptoms are worse on waking and then reduce as the day goes on.

   He denied having any upper limb pain or sensory symptoms.

   He said he has ‘random’ headaches which start at the back of his head and spread to the crown. These occur every few weeks, can last about a day and he takes paracetamol.

   Both shoulders are stiff in the morning and then he has difficulty even picking up his kids. He indicated there was discomfort over the left side of his neck and extending into the left trapezius region.

   Both wrists feel stiff and tight at times but this also tends to settle as he moves about during the day.

   He said his arm is now okay.

   He said his low back feels tight and the pain increases if he squats to lift something up. I asked him to indicate the location of the pain and he pointed to the left lower lateral thoracic region.

   He said when he is sitting and relaxing there is a tingling sensation felt in a circumferential distribution around both ankles and over the soles of both feet.

   CURRENT TREATMENT

   Mr Czajka takes paracetamol tablets as required, and estimated about 5 tablets every 2 weeks. There was no other medication.

   He does do some stretching exercises at home in the morning.

   IMAGING

   No imaging studies brought with him today for the assessment.

   The following reports were on file:

   ·    CT scan brain performed 18 October 2023 showed no abnormality.

   ·    CT scan cervical spine performed 18 October 2023 showed degenerative disease but no fractures.

   ·    CT scan lumbar spine performed 18 October 2023 showed ‘No evidence of an acute fracture of any of the cervical vertebrae. 2. Minimal degenerative disc disease of the cervical spine.’

   ·    CT scan brain and angiogram performed 7 November 2023 showed no abnormality.

   ·    MRI of the brain performed 14 December 2023 showed ‘No significant abnormality is seen to explain patient's symptoms.’

   ·    MRI lumbar spine performed 14 December 2023 showed ‘Minor posterior disc bulge at multiple levels. There is mild to moderate stenosis of the right foramen at L4/L5 level

   ·    with possible mild contact of the exiting right L4 nerve root.’

   PHYSICAL EXAMINATION

   Mr Czajka was right handed. He was 183cm tall and weighed 88kg. He was tearful at times when discussing his history and current circumstances. He had a normal gait. He was able to walk on heels and toes. He could squat almost fully, but with complaints of deep seated right knee pain on full squat.

   On examination of the neck, there was mild midline tenderness over the lower cervical spine. Flexion and extension were half normal, lateral flexion three-quarters normal, rotation three-quarters normal. There was no asymmetry, muscle spasm or guarding.

   On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, arms measuring 32cm (10cm above the olecranon) on the right and 31.5cm on the left. Forearms measured on the right 30cm (10cm below the olecranon) and 29.5cm on the left. Upper limb power, sensation and reflexes were present, normal and bilaterally equal.

   On examination of both shoulders, movements were normal apart from minor bilateral decrease in abduction to 170° bilaterally.

   There was normal range of movement in both elbows and both wrists.

   On examination of the lumbar spine, there was no tenderness. Lumbar flexion and extension were half normal, lateral flexion was to three-quarters normal, rotation was to normal range bilaterally. There was slight tenderness just lateral to the T12 vertebrae on the left side. Rotation was more uncomfortable than other movements and again he indicated the tender region as being over the lower thoracic spine. Straight leg raise was 70° bilaterally. Neurotension signs were negative bilaterally.

   On examination of the lower limbs, circumferential measurements were equal, measuring 45cm bilaterally (measured 10cm above the upper pole of the patella) and maximum girth of the calves was 41cm bilaterally. Lower limb reflexes, power and sensation was normal and equal bilaterally.

   On examination of both knees, there was no local tenderness. Flexion was 120° bilaterally and extension was full. There was no crepitus, there was no instability.

   SUMMARY AND OPINION

   Mr Czajka is a 41-year-old man who was involved in the subject accident on 16 October 2023. Based on the available documentation, he had sustained a soft tissue injury to his head (now recovered), soft tissue injury to the cervical spine and lumbar spine. There had been some pain referral to the left shoulder and into the left upper limb. There had been a subsequent left wrist injury which was unrelated to the subject accident.”

CONSIDERATION – THRESHOLD INJURY

1. The Panel notes the criteria set out in paragraph 6.164 of the Guidelines pertaining to the assessment of cerebral impairment:

   “For an assessment of mental status impairment and emotional and behavioural impairment there should be:

   (a) evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity vehicle impact, and

   (b) one or more significant, medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or posttraumatic amnesia, or brain imaging abnormality.”

2. At the Panel examination, it was determined based on the contemporaneous clinical documentation that the claimant did not satisfy the abovementioned criteria and therefore had not sustained any injury to the brain. Given there was no injury to the brain, he had not sustained any injury to nerves. The claimant had at most sustained a head soft tissue injury, since resolved, consistent with a threshold injury.

3. In respect of the lumbar spine, the claimant, at the time of the Panel’s examination, did not have any of the clinical signs in his lumbar spine required for a diagnosis of radiculopathy to be made under cl 5.8 of the Guidelines. 

4. The Panel noted that the cervical spine injury was referred for medical assessment as a soft tissue injury and this is what the Panel found on examination.

5. The investigations showed the presence of degenerative disease in both the cervical spine and lumbar spine. The Panel was of the view that the soft tissue injuries from the motor accident may have aggravated the previously asymptomatic degenerative disease but not to the extent that there were any fractures or radiculopathy.

6. There was generalised stiffness in the upper extremity joints and some minor bilateral decrease in abduction (170° bilaterally) to the shoulders however there was no evidence to suggest there was an injury to nerves or a rupture of tendons or ligaments. The Panel notes that there was no radiological evidence of the left shoulder.

7. The Panel was cognisant of the reasoning in David v Allianz Australia Ltd,[15] that radiculopathy can be present at any time to establish that an injury is not a threshold injury for the purposes of the MAI Act.

   [15] (2021) NSWPICMP 227 at (84-104).

8. The Panel notes the various references to sensory changes in the various certificates of capacity. However, there was no evidence identified of the required two objective criteria for a diagnosis of radiculopathy as specified in the Guidelines.[16]

   [16] See paragraph 15 above reproducing clause 5.8 of the Guidelines.

9. The Panel also considered the findings of the MRI of the lumbar spine dated

   
   

   14 December 2023 which stated:

   “Minor posterior disc bulge at multiple levels. There is mild to moderate stenosis of the right foramen at L4/5 level with possible mild contact of the existing right L4 nerve root.”

10. In the Panel’s view, a disc bulge does not constitute an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage, as there is no disruption of the disc. The foraminal changes are degenerative. The “mild contact” of the L4 nerve root has not caused any objective signs of radiculopathy. Both disc bulges and foraminal stenosis are common degenerative changes identified on imaging.

11. Furthermore, the presence of disc bulge(s) associated with mild to moderate (canal/foraminal) stenosis on a radiological investigation such as CT or else MRI, is not an injury. It is merely a description of radiological findings, requiring correlation with the patient’s clinical symptoms to determine the clinical relevance or not of the specific radiological findings. Many radiological findings of the spine such as canal/foraminal “narrowing”, “stenosis” and “nerve root abutment/impingement/mild nerve root contact” are incidental and asymptomatic, without clinical relevance. A non-threshold injury cannot be inferred from radiological findings. There must be clinical correlation of the radiological findings with the patient’s symptomatic complaints and clinical signs on examination.[17]

    [17] See paragraph 17 above re cls 5.4 and 5.5 of the Guidelines.

CONCLUSION

1. The Panel concludes that the claimant’s injury caused by the motor accident is a threshold injury. The certificate issued by Medical Assessor Cameron dated 26 June 2024 is therefore confirmed.

APPENDIX

Application for personal injury benefits

The electronic claim form dated 19 October 2023 completed by the claimant described his injuries as “whiplash, neck pain, Lt shoulder pain, Lt arm pain, limited neck motion, head injury, headache”.  He was transported to Sydney Royal North Shore Hospital by ambulance and was discharged on 16 October 2023.

Ambulance report dated 16 October 2023

MVA. Pt sitting in driver’s seat, alert, speaking in full sentences. Pt remembers all events, denies head strike. Tenderness to c-spine. Able to move all limbs, denies sensory deficits, neurovascularly intact.

Police report dated 23 October 2023

Claimant extracted from vehicle. Complained of pain to his neck and treated by NSW Ambulance on scene.  NSW Ambulance Inspector informed police the injuries appeared to be soft tissue and insignificant.

Certificate of capacity / GP report

Certificate of capacity dated 18 October 2023 completed by Dr Jonathan Larach diagnosed “Severe whiplash and potential shoulder injury – pending imaging and reviews.

Certificate of capacity dated 24 October 2023 and 31 October 2023, completed by Dr Jonathan Larach diagnosed the claimant’s injuries as: “Severe whiplash, non-specific altered distal sensation”.

Certificate of capacity dated 7 November 2023 completed by Dr Jonathan Larach diagnosed: “Severe whiplash, cervicogenic headaches, lumbosacral pain, non-specific sensory disturbance, tinnitus, LEFT shoulder pain/injury, flashbacks and anxiety”.

Certificate of capacity dated 29 November 2023 completed by Dr Jonathan Larach diagnosed: “Severe whiplash, cervicogenic headaches, lumbosacral pain w/radiculopathy, possible C3 root disturbance”.

Certificate of capacity dated 26 February 2024 completed by Dr Dirk Arentz diagnosed the claimant’s injuries as: “Severe whiplash, cervicogenic headaches, lumbosacral pain w/radiculopathy, possible C3 root disturbance”.

Report of GP Dr Larach dated 7 November 2023.  Ongoing light-headedness/headaches and crushing central chest pain.  Referred to RNSH.

Hospital records

RNSH Medical Records. Airbags deployed on impact. Head strike to steering wheel on impact. Full recall no LOC, no neuro deficit. Neck pain and head injury. GCS 15 PERLA upper and lower limbs normal tone power coordination sensation reflexes with downgoing plantars bilaterally. Log roll: no posterior trunk wounds/ecchymosis, normal spinal exam nil midline or paraspinal tenderness or step deformity. DRE with verbal consent normal tone and sensation. No evidence of spinal injury.

ED Progress note dated 16 October 2023. GCS 15, PEARL, normal eye movements. No long bone pain. No chest wall tenderness. No spinal pain. Patient walked around dept.

Discharge summary of RNSH dated 16 October 2023. MVA. Sustained head injury with some neck pain on arrival to ED.  No LOC, no neurological deficits.  CTs normal.  Nothing found on tertiary survey and was discharged home.

RNSH ED Assessment dated 7 November 2023.  Since leaving has been having worsening neck pain.  On looking up and down gets lightheaded. Now also getting rotational dizziness – does not seem to be related to particular position or movement.  Power 5/5 throughout all 4 limbs. Sensation to soft touch intact. Unable to complete HINTs exam due to neck pain. Cranial nerves 2-12 intact.

Discharge summary of RNSH dated 7 November 2023.  Presented to ED with light-headedness and dizziness with crushing chest pain.  Examination revealed muscular neck stiffness but nil else.

Treating documentation

Report of Shannon Murray, physiotherapist, dated 18 October 2023.  Presented with 2-day history of neck and left shoulder pain following MVA. Diagnosed acute whiplash, left shoulder pain and low back pain.

Objective Assessment

·     Observation:

-Hesitation and guarding of neck in all movements (sit to stand, walking and turning)

-Protective cradling of left arm

·     Range of Motion

-Cervical spine:

oFlexion – ¼ range with 8/10 pain

oExtension – ½ range with 5/10 VAS

oLateral flexion – nil to left with 9/10 pain, reduced to right.

oRotation – Reduced to Left>Right

-Shoulder:

oReduced left abduction and flexion to 70 degrees, left sided neck pain limited

-Lumbar Spine:

oFull range of motion in all directions, neck pain experienced throughout movement

·     Strength:

-Unable to assess due to pain

·     Palpation:

-Tenderness through cervical erector spinae, left trapezius, left rhomboid and rotator cuff

·     Neurological:

-SLR and slump test negative for radicular pain and exacerbation of neural symptoms in feet

-Nil upper limb neurological changes

Progress report of Shannon Murray, physiotherapist, dated 18 October 2023. 

Objective Assessment

·     Observation:

-Hesitation and guarding of neck in all movements (sit to stand, walking and turning)

-Protective of left arm

-Wrist brace in-situ

-Antalgic gait and reduced ability to weight bear through left hip

·     Range of Motion: Active

-Cervical spine:

oFlexion – ½ range with 4/10 pain

oExtension – ¾ range with 4/10 VAS

oLateral flexion – nil to left with 5/10 pain, reduced to right.

oRotation – ¾ range left and right

-Shoulder:

oReduced left abduction and flexion to 80 degrees, left sided neck pain limited and tension experienced

-Lumbar Spine:

oSignificantly reduced all ranges, worst in flexion due to left side hp/low back pain

·     Range of Motion: Passive

-Passive range of motion has improved over the last week. Remains 5-6/10 VAS in low back

-Hesitant with all movement

·     Strength:

-Unable to assess due to pain

·     Palpation:

-Tenderness through cervical erector spinae, left trapezius, left rhomboid and rotator cuff

-Severe tenderness and involuntary muscle spasms on light touch of erector spinae and gluteals

·     Neurological:

-SLR and slump test negative for radicular pain and exacerbation of neural symptoms in feet

-Nil upper limb neurological changes

Greenlight return to work & recovery assessment report dated 13 November 2023. Case conference summary:

·     Mr Czajka reported pain in his neck with a VAS of 8/10 accompanied by pins and needles.

·     Mr Czajka reported pain in his left shoulder with a VAS of 7/10 accompanied by mild pins and needles into the hand.

·     Mr Czajka reported back pain that was more significant on the left and middle sides accompanied by pins and needles into bilateral legs.

·     Mr Czajka stated that he experienced an unexpected fall when he tried to lift his son, resulting in both of them falling down.

·     Mr Czajka stated that this was due to his ongoing pain and caused him to fall on his outstretched arm, supporting himself at the wrist.

·     Dr Larach stated that Mr Czajka requires further examination of his left wrist to rule out a scaphoid fracture, which would be separate to the motor vehicle claim. Mr Czajka stated that he does not think he has fractured his wrist and will undergo an xray, if his pain gets worse.

·     Dr Larach confirmed that Mr Czajka reported low back pain, left shoulder pain, cervical pain, pins and needles down his legs, during his initial consult.

·     Mr Czajka also reported excruciating cervicogenic headaches and nausea.

Radiology

CT Brain dated 16 October 2023. No CT evidence of vertebral artery dissection. Both vertebral arteries are smooth in calibre with no vessel irregularity or regions of stenosis. The right vertebral artery tapers smoothly in the intradural portion, likely within normal limits.

CT Brain Spine Whole and Chest Abdomen Pelvis dated 16 October 2023:

·     Brain

No acute intracranial haemorrhage or extra-axial collection.

No midline shift, mass effect or other herniation.

The ventricles and sulcal spaces are within normal limits

The mastoid air spaces and visualised paranasal sinuses are well aerated.

No acute calvarial fracture.

·     Cervical spine

No acute cervical spinal fracture or prevertebral soft tissue thickening.

CT Brain, C-spine and Lumbar spine dated 18 October 2023:

·     CT Brain

1.No acute intracranial pathology is identified.

2.No evidence of an intracranial injury.

·     CT Cervical spine

1.No evidence of an acute fracture of any of the cervical vertebrae.

2.Minimal degenerative disc disease of the cervical spine.

·     CT Lumbar spine

1.Mild degenerative spondylosis of the lumbar spine.

2.No evidence of a fracture of any of the lumbar vertebrae.

MRI Brain dated 14 December 2023. Comment: No significant abnormality seen to explain patient’s symptoms.

MRI Lumbar spine dated 14 December 2023. Comment: Minor posterior disc bulge at multiple levels. There is mild to moderate stenosis of the right foramen at L4/L5 level with possible mild contact of the exiting right L4 nerve root.