Deo v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 118

DETERMINATION OF REVIEW PANEL

CITATION:

Deo v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 118

CLAIMANT:

Areshma Deo

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Belinda Cassidy

MEDICAL ASSESSOR:

Ian Cameron

MEDICAL ASSESSOR:

David Gorman

DATE OF DECISION:

25 February 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury and treatment disputes by Medical Assessor (MA) who found claimant’s injuries threshold and all treatment not related and not reasonable and necessary; claimant’s application for review under section 7.26; claim form alleged injuries to neck, back, and shoulders; before accident claimant diagnosed with multiple sclerosis (MS) and functional neurological disorder (FND); claimant had some pre-existing neck and left shoulder symptoms but contemporaneous GP notes record neck and left shoulder then left arm complaints after accident; back symptoms not reported to GP for four months; claimant re-examined by MA; Review Panel satisfied claimant could have injured neck, shoulders, and back in the accident; claimant denied right shoulder injury and no contemporaneous medical record; Review Panel found no injury but if there was it was threshold; claimant alleged only back symptoms were pins and needles in whole of left side of her body including her upper and lower back; Review Panel not satisfied upper or lower back injured and symptoms not medically plausible; Review Panel satisfied claimant sustained left shoulder injury or left shoulder symptoms from neck injury; no evidence of bony injury to shoulder or complete or partial rupture of tendons in left shoulder; shoulder injury in left shoulder is a threshold injury; neck injury was caused; Review Panel not satisfied annular tear and disc bulge caused by accident; Review Panel satisfied claimant may have sustained an injury to soft tissues in neck exacerbating or aggravating degenerative changes in her spine including causing some nerve root irritation; Review Panel not satisfied claimant has radiculopathy and has not had radiculopathy at any time since the accident; David v Allianz Australia Insurance Ltd, Lynch v AAI Limited t/as AAMI, and Allianz Australia Insurance Limited v Susak referred to and followed; evidence relied on by claimant considered by Review Panel and discounted for reasons many of which related to the pre-accident diagnosis of FND; in the treatment disputes the Review Panel had found no lower back injury so lumbar spine imaging requested was not allowed; cervical spine surgery (C5/6 foraminotomy and rhizolysis) not allowed primarily due to treating neurologist’s concerns that in light of the FND the surgery may not be successful; Held – all injuries sustained are threshold injuries and all treatment claimed is not allowed; Medical Assessment Certificate confirmed.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under Division 7.5 of the Motor Accident Injuries Act 2017

The Review Panel:

1.     Confirms the certificate of Medical Assessor Wallace dated 11 July 2024.

2.     Certifies that in relation to a motor accident on 8 May 2022:

(a)    the claimant’s injuries are threshold injuries for the purposes of the Act;

(b)    surgery recommended by Dr Abrazsko on 29 March 2023 is not reasonable and necessary and is not related to the injuries caused by the accident, and

(c)    an MRI requested on 30 March 2023 and a bone scan and MRI requested on 28 July 2023 are not reasonable and necessary and are not related to the injuries caused by the accident.

A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

1. Areshma Deo was involved in a motor accident on 8 May 2022. She was a passenger in a car driven by her husband that was hit by a car merging into their lane to avoid a broken-down car in front of them.

2. Ms Deo says she injured her shoulders, neck and back in the accident and made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle that she says caused the accident and her injuries

3. A medical dispute about whether Ms Deo’s injuries are threshold injuries or not arose in connection with that claim along with a dispute about treatment (including surgery). Ms Deo referred that dispute to the Personal Injury Commission (the Commission) for assessment.

4. On 11 July 2024, Medical Assessor Wallace determined:

   (a)    the claimant’s injuries were threshold injuries, and

   (b)    the treatment is dispute was not related to the injuries resulting from the accident and was not reasonable and necessary in the circumstances.

5. On or about 1 August 2024, Ms Deo lodged an application with the Commission seeking a review of the Medical Assessor’s decision.

6. On 27 September 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment on the basis of a report from Dr Bodel and the apparent failure on the part of the Medical Assessor to address radiculopathy in the past. The delegate allowed the Review and on the same day, the President’s delegate convened this Review Panel (Panel) to conduct the Review.

LEGISLATIVE FRAMEWORK

General provisions

1. Ms Deo’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.

2. While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident (for injuries before 1 April 2023) and cannot recover damages.

Threshold injury provisions

What is a threshold injury?

1. A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:

   “[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

2. If a person injured in a car accident sustains soft tissue injuries only, then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 9 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.

3. Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.

4. Clause 5.8 of the Motor Accident Guidelines (Guidelines) defines radiculopathy and cl 5.9 then provides:

   “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”.

5. In summary, if a person injured in a car accident sustains a spinal nerve injury this is a threshold injury unless the particular nerve injury manifests in two of the five signs of radiculopathy.

What is radiculopathy?

1. Clause 5.8 states that radiculopathy is:

   “… 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’.”

2. The five signs of radiculopathy are identified in the clause as follows

   (a)    loss or asymmetry of reflexes (see Table 6.8 of Guidelines);

   (b)    positive sciatic nerve root tension signs (see Table 6.8 of Guidelines);

   (c)    muscle atrophy and/or decreased limb circumference (see Table 6.8 of Guidelines);

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

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

Treatment and care provisions

1. Statutory benefits payable by the “relevant insurer”[1] in accordance with Part 3 of the MAI Act include:

   (a)    weekly loss of income benefits for “earners” under Division 3.3, and

   (b)    treatment and care benefits under Division 3.4.

   [1] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.

2. Section 3.24 provides as follows:

   “(1)    An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -

   (a)the reasonable cost of treatment and care …

   (2)    No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

3. Sections 3.25 and 3.26 concern certain claims for care, s 3.27 requires treatment and care expenses to be verified and as mentioned above, s 3.28 terminates statutory benefits for treatment and care for those at fault and for those with threshold injuries.

Dispute resolution

1. If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[2]

   [2] Schedule2, cl 2(e) in the MAI Act.

2. If there is a dispute about whether treatment and care is reasonable and necessary in the circumstances or related to the injuries caused by the accident, that too is a declared medical assessment matter which can be referred to the Commission.[3]

   [3] Schedule 2, cl 2(a) of the MAI Act.

3. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Wallace’s, further medical assessments and the Review of medical assessments by this Panel.[4]

   [4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Wallace issued his certificate on 11 July 2024 after having examined the claimant on 9 July 2024. He confirms at [2][5] that he was asked to assess the following injuries as either threshold or non-threshold injuries:

   (a)    cervical spine;

   (b)    left shoulder;

   (c)    right shoulder;

   (d)    thoracic spine, and

   (e)    lumbar spine.

   [5] A number in square brackets in these reasons indicates the section of a decision or the paragraph of submissions.

2. Medical Assessor Wallace confirms at [3] he was asked to assess whether the following treatments are related to the injury sustained in the accident and are reasonable and necessary in the circumstances:

   (a)    a C5/6 foraminotomy and rhizolysis;

   (b)    an MRI of the lumbar spine, and

   (c)    a bone scan.

3. At [9] Medical Assessor Wallace records the claimant reports no pre-accident history of pain in her spine or in her shoulders although he has a history the claimant was diagnosed with multiple sclerosis (MS) in 2010.

4. The claimant was a passenger in a vehicle driven by her husband travelling in the middle lane of the M5 when a car in the right-hand lane merged suddenly to avoid a vehicle which had broken down ahead of it. The merging car hit the right rear of the claimant’s husband’s vehicle. Mr Deo managed to stop with no further collision.

5. Police and ambulance did not attend, and the claimant was driven home. five days later it is reported she attended her general practitioner (GP), Dr Hoque. He referred her for a left C6 injection in January 2023 and then a corticosteroid inaction in the left shoulder. The claimant had physiotherapy and medication. The claimant was referred to Dr Abraszko who recommended surgery at the left C6 level of her spine. Four months after the accident in September 2022 the claimant was reviewed by her GP due to complaints of radiating pain into her left leg.

6. The claimant’s current complaints were set out at [13]. She reported aching in the left paracervical regions from C5/C7 radiating to the left scapula, shoulder and left arm to the wrist. The claimant complained of paraesthesia globally about her left arm and weakness in the left arm. She also complained of constant aching from T1/L5 with no radiation and intermittent paraesthesia at her left leg radiating to the left foot and weakness and a feeling of giving way. She also reported stiffness in the lumbar spine.

7. On examination there were no reflexes in the upper or lower limbs. Sensation and power were intact and there was no significant wasting.

8. Medical Assessor Wallace found the lumbar spine injury not related to the accident due to the delay in reporting symptoms. He also found a strain of the cervical spine resolved and aggravation of pre-existing cervical spondylosis resolved.

9. He found no evidence of radiculopathy and determined that the cervical spine injury was a threshold injury. He found non-organic symptoms and considered the lumbar spine MRI not related to the injuries caused by the accident and the bone scan similarly not related. He considered the surgery not reasonable and necessary because of the absence of a relationship to the accident and the presence of non-organic symptoms which would mean she would be a poor surgical candidate.

ISSUES FOR DETERMINATION

Insurer decision-making[6]

[6] The insurer’s letters are found from pages 52-72 in the claimant’s bundle.

1. In a letter dated 23 September 2022, NRMA denied liability to pay ongoing statutory benefits to the claimant on the basis she had a “minor injury” as there was no evidence of radiculopathy or fractures or the complete or partial rupture of tendons, ligaments, menisci or cartilage.

2. On 12 April 2023, NRMA declined to pay for the surgery recommended by Dr Abraszko in a request for treatment dated 6 April 2023. The insurer noted the operation proposed to remove osteophytes which the insurer said were degenerative and not caused by the accident. Again, the insurer noted there was no clinical diagnosis of cervical radiculopathy within the meaning of cl 5.8 of the Guidelines and no evidence of radiculopathy on MRI or as part of a clinical examination.

3. Another letter, also dated 12 April 2023, refused the request for an MRI requested by the claimant’s GP on 30 March 2023.

4. On 22 August 2023 NRMA wrote to the claimant declining the request for an MRI and bone scan dated 28 July 2023 made by MRINow. The primary reason for declining the treatment is that the 26-week statutory benefits entitlement period had passed.

5. On 4 May 2023 NRMA conducted an internal review of the minor (now threshold) injury decision. The insurer says:

   (a)    an ultrasound and MRI of the left shoulder indicated no tear but the possibility of bursitis;

   (b)    scans of the Neck showed no fractures;

   (c)    the clinical examinations by Dr Hoque and Dr Abraszko did not indicate the presence of radiculopathy within the meaning of the Guidelines, and

   (d)    the first complaint of lower back pain is recorded in the claimant’s GP’s notes six months after the accident and that there were pre-existing scans and records suggesting pre-existing lower back complaints.

6. On 4 May 2023 the insurer conducted an internal review of the request for surgery noting limited documentation from Dr Abraszko and that the insurer was not satisfied the claimant had a radiculopathy with there being no abnormal neurological examination or evidence of left C6 nerve root dysfunction. Also, on that day the insurer conducted a review into the MRI request dated 29 March 2023.

7. On 12 October 2023 NRMA completed an internal review of the declinature of the MRI lumbar spine and bone scan requested by Dr Hassan on 28 July 2023.

Claimant’s submissions

1. The claimant submits at [5] that while the claimant had no previous spine or shoulder problems Medical Assessor Wallace has not recorded the history that she was asymptomatic and had sustained no previous injuries in her cervical spine.

2. The claimant submits at [6] that her car seat was in “a complete recline position” which contributed to the “intensity of the impact”.

3. The claimant says at [7] that Dr Hoque had correct details of the mechanism of the injury noting the speed of the car driven by the claimant’s husband and that she had a whiplash injury as a result.

4. It is submitted at [8] that Dr Bodel has a history of a “jolting motion.”

5. The claimant says at [9] while it is true she did not see a doctor for five days that is because she hoped she would get better.

6. The claimant takes issue with the clinical examination of the cervical spine and says the Medical Assessor did not explain what was “exaggerated” but recorded pain radiating from her neck to the left shoulder and arm. He found her reflexes were not present [11] and [12] which the claimant says at [13] is a “significant radicular symptom.” The claimant says the finding that there was no evidence of upper limb radiculopathy is inconsistent with the symptoms recorded.

7. The claimant says at [14] that the Medical Assessor did not address the finding of radiculopathy by other examiners as follows:

   (a)    Dr Bodel on 9 November 2023 found clinical signs of radiculopathy in the left upper limb;

   (b)    Dr Abraszko on 29 March 2023 found left C6 radiculopathy due to asymmetry of reflexes and reproducible sensory lost in a C6 dermatome;

   (c)    Dr Abraszko on 21 February 2024 records radiating neck pain to the left arm with pins and needles in the left arm;

   (d)    Dr Hassan on 28 July 2023 recorded left sided neck pain with radicular pain in the head and left hand, and

   (e)    Dr Hoque GP confirms radiculopathy due to decreased left biceps and triceps reflex and decreased sensation in a C6 nerve root distribution.

8. The claimant says at [15] there is evidence of acute traumatic pathology at the C5/6 level with degenerative changes on the left side.

9. The claimant submits the Medical Assessor has failed to engage with the previous examinations and findings and has focussed on the time of his examination.

Insurer’s submissions

1. The insurer submits at [2] that the Medical Assessor records no previous history of injury or pain in the claimant’s spine or shoulders and that it would be redundant to state she was asymptomatic [4] as it is implied.

2. The insurer says at [6] that the Medical Assessor records where the claimant was sitting but it is not an error to fail to record that the seat was reclined.

3. The insurer submits at [7] and [8] that the Medical Assessor recorded a correct history that five days after the accident she attended her GP complaining of neck and left shoulder pain and that at [10] he has found she injured her neck so the absence of any reference to earlier symptoms is moot.

4. The insurer documents the Medical Assessor’s findings and says due to the presence of non-organic exaggerated pain behaviours he was entitled to use his clinical skill and judgment to determine the issue.

5. The insurer says at [21]-[24] that the Medical Assessor has addressed the left and right shoulder issue finding no evidence of direct injury but symptoms in the left shoulder due to referred pain. The insurer submits the Medical Assessor has documented his findings and given reason for causation of the lower back (the temporal gap) [25] and a pre-existing condition requiring investigation of the lower back at [26].

1. The insurer says at [28] and [29] there are adequate reasons for the finding regarding treatment.

Procedural matters

1. On 30 September 2024, the Panel issued directions to the parties seeking bundles of documents from each party and noting that in the light of the MS diagnosis and the issue of causation it would be essential for the Panel to have a complete set of pre-accident records from her GP and specialist.

2. On 3 October 2024 NRMA uploaded a bundle of 362 pages including close to 150 pages from Dr Hoque and about 50 pages from Dr Abraszko.

3. On 4 October 2024 the claimant appears to have uploaded six separate applications to admit a variety of additional documents to the matter. On 28 October 2024 the claimant lodged a bundle comprising 462 pages comprising all of the documents the claimant seeks to rely on.

4. The Panel met on 10 December 2024 and reported to the parties on 12 December 2024.

5. The claimant was asked to advise if any of the disputed treatments had been provided and if so, who had paid for them. The Panel also requested an up-to-date bundle of the treating neurologist’s records in relation to the claimant’s MS.

6. The parties were advised of the re-examination date.

7. The claimant provided some additional documents on 17 January 2025. The claimant confirmed the MRI had been done and paid for under Medicare. The bone scan was not done “as per the instructions from the claimant”. The claimant was said to be on the wait list for surgery at Liverpool Hospital.

8. The insurer advised it had no further documents or submissions to put before the Panel.

REVIEW OF THE EVIDENCE  

Claim form and claim documents

1. The claim form was signed as true and correct and dated 21 June 2022.[7] The claimant describes the accident noting a car had broken down in the left lane and the claimant and her husband were in the middle lane. A car behind the broken-down car suddenly pulled out to the right and hit the vehicle the claimant was in, “causing our car to suddenly swerve to the left and then hard breaking.”

   [7] Page 14 of the claimant’s bundle.

2. The claimant listed her injured as “neck, shoulders, back (upper and lower back).”

3. The claimant mentions her MS diagnosis, says she had not been taken to hospital and that she was unemployed and on a disability support pension at the time of the accident.

4. The police report[8] suggests a report was made on 21 June 2022.

   [8] Page 19 of the claimant’s bundle.

5. The first five Certificates of Fitness cite only two injuries “left sided neck pain, left shoulder pain” and assert the claimant is unfit for work from 13 May 2022 to 25 November 2022. The sixth Medical Certificate dated 24 November 2022 cites left sided neck pain, left shoulder pain, upper and lower back pain.

6. The insured driver completed an accident report form.[9] She says she was in the right lane of three when she noticed a broken-down vehicle ahead of her and a man gesturing her to move into the left lane. She says she looked and indicated before moving left but a collision occurred. She is not sure where the claimant’s husband’s vehicle came from and considered they may both have moved at the same time.

Treating medical records and reports

[9] Page 79 of the insurer’s bundle.

GP notes – Rosemeadow

1. These notes commence in 2014. There are references to her MS, feelings of weakness and falls in in September 2018 migraines but no musculo skeletal issues before July 2020. On 30 July 2020 the claimant reported to Dr Ely that she had pain on the left side of her neck and left arm for a week. Voltaren was prescribed.

2. On 28 July 2021 Dr Ely wrote a letter supporting the claimant having an increased amount of support to eight hours a day five days a week due to a flare up of her MS.[10]

   [10] Page 196 of the claimant’s bundle.

3. On 1 September 2021 the claimant had woken up with back pain and bladder symptoms. On 20 October 2021 the claimant attended Dr Ely about a CT lumbar spine which had been done two weeks before but there was no report.

4. On 29 November 2021 the claimant attended for neuropathic pain and repeats of her scripts (Lyrica).

5. The claimant had shingles in March 2022 and on 25 March 2022 had pain in the left side of neck and shoulder from shingles. On 4 April 2022 she complained of neck and shoulder pains and asked for Endone (which was not given).

6. On 12 May 2022 she had a telehealth appointment with Dr Hoque concerning a shingles vaccination but there is no mention of the accident. She had seen Dr O’Neill and was advised to have the vaccine.

7. On 13 May 2022 she attended Dr Hoque with her husband. Dr Hoque took a report of the mechanism of injury with a car coming from the right side onto her car wheel and she had hyperflexion and extension and lateral rotation in the neck. She and her husband were both wearing seat belts but the air bags did not inflate. She is reported to have seen her neurologist the day before (the Panel cannot find any reference to this). All neck movements were severely restricted, and left shoulder was unable to abduct above 90 degrees but the right shoulder was normal.

8. The claimant saw Dr Hoque on 19 and 23 May 2022 regarding a shingles vaccination. There is no mention of the car accident or her injuries on these occasions.

9. The claimant returned to see Dr Hoque on 27 May 2022 with him noting C2/3 facet joint arthrosis and mild tendinosis and bursitis of the left shoulder. She was having physiotherapy through National Disability Insurance Scheme (NDIS). On 31 May 2022 the claimant was seen for a possible reaction to the shingles vaccine.

10. The claimant attended again on 7 June 2022 firstly in relation to a cough and in a second note there is reference to her seeking to pursue the claim and requesting a NSW Certificate of fitness. There is no mention in this attendance, or the previous attendances of the seat being reclined. The claimant complained of the left side of her neck and shoulder hurting. All neck movements were severely restricted, and the left shoulder could not abduct. The right shoulder was normal.

11. On 28 June 2022 the claimant attended upon Dr Hoque for non-accident-related matters and regarding the accident and an MRI referral for the left shoulder was provided.

12. On 8 September 2022 the claimant attended Dr Hoque requesting clearance to undergo hydrotherapy. She had seen her neurologist and said her left whole leg was in pain radiating to the back of the left buttock and into the left foot. Range of motion was slightly restricted by pain, but no neurological deficits were noted. The claimant returned on 20 September 2022 to discuss the scans. She was seeing a physiotherapist but “doesn’t want anything done for back now … will wait.” In a separate consultation on the same date the claimant wanted to extend her “WCC” which the Panel assumes means extend her claim reporting that “since had the MVA, pain in left side of neck worse, radiating to stated neck pain going to left shoulder.”

13. On 11 October 2022 the claimant reported that “she was getting pins and needles left leg before MVA stated after accident she feels it’s worse.” She reported neck pain into the left shoulder “sometimes not too much pain, pain at night.” Dr Hoque requested all previous MRIs and CT scans from the neurologist so he can compare them. On 15 October 2022 the claimant was still complaining of pain in the neck radiating to the left shoulder and shooting into the back of her head. There is no back or right shoulder problem recorded.

14. The claimant took her scans to Dr Hoque who reviewed them with her on 18 October 2022.

15. On 28 October 2022 the claimant attended with left sided neck and left shoulder pain.

16. Further attendances in November 2022 and January 2023 mention left shoulder and neck pain only. On 9 January 2023, she reported that Panadeine Forte was not helping. On 20 January 2023 the claimant again complained of severe left sided neck and left shoulder pain with headaches back again. All range of motion was limited, and the right shoulder was restricted. There is a suggestion that the MS had flared up and the claimant wanted painkillers. The claimant and Panadeine Forte was prescribed. On 11 February 2023 the claimant was crying with pain sought Endone and was given it.

17. On 16 March 2023 the claimant was in a lot of pain and reported a lot of pain and that she was having lower back pain radiating to the whole of the left leg with numbness on the left side. On examination the claimant was tender in the thoracic and lumbar spine.

18. In April and May 2023 the claimant appears to have had some cardiac issues with chest pain reported. On 23 May 2023 the claimant saw Dr Hoque complaining of pain in the neck and shoulder and she was taking Endone and Lyrica. The notes end in June 2023.

19. Dr Hoque provided a handwritten report to the claimant’s solicitor[11] answering a series of questions. It is undated, unsigned and is not on letterhead, but the insurer has not disputed that it is a report from Dr Hoque.

    [11] Page 73 of the claimant’s bundle.

20. He says he examined the claimant on 8 August 2023.

21. He documents the claimant’s neck pain, which was mostly left sided, limited back range of motion. He records complaints of left sided neck pain radiating to the left shoulder and whole of the left arm, hands and fingers, lower back pain mostly left sided radiating to the whole of the left leg.

22. Dr Hoque noted there was:

    (a)    reduced sensation in the left arm and left leg compared to the right;

    (b)    power and tone of the left arm and left leg are normal;

    (c)    reduced sensation in C6 nerve root distribution and reduced left leg biceps and triceps reflex;

    (d)    psychologically she was distressed because she cannot function and do her daily activities such as cooking food, cleaning her home, helping her children and she had sleep problems. She was walking with pain;

    (e)    he considered she had a “non-minor injury which is damage to the spinal nerve root and meets the criteria for radiculopathy” to neck and spine;

    (f)    he identifies a “decreased left leg biceps and triceps reflex” and decreased sensation in C6 nerve root distribution as his reasons for this, and

    (g)    he says the proposed surgery is reasonable and necessary as is the MRI.

Other treating evidence and radiology

1. A CT of the whole spine due to “limited range of neck movement” was reported on 23 May 2022 stating there was no central canal or neural exit foraminal narrowing at any vertebral level, no fractures and no traumatic spondylolisthesis.

2. A CT of the thoracic and lumbar spine was performed due to “radiating pain down whole left lower leg”. The report dated 10 September 2022[12] compared a previous CT of the lower back done on 14 September 2021 and noted:

   (a)    a normal thoracic spine (other than an incidental small bone island in T6);

   (b)    a small left sided paracentral disc protrusion potentially impinging the descending left L5 nerve root;

   (c)    mild bilateral facet joint osteoarthritis at the L4/5 and L5/S1 level, and

   (d)    no significant central or foraminal narrowing other than a small bulge of the central canal and right lateral recess at L5.

   [12] Page 82 of the claimant’s bundle.

3. On 9 November 2022 the claimant had an MRI of her left shoulder due to left shoulder pain.[13] There was mild acromial sloping reported with an unremarkable AC joint, some tendinosis but no tear and mild subacromial bursal effusion.

   [13] Page 85 of the claimant’s bundle.

4. Also on 9 November 2022 the claimant had an MRI of her cervical spine[14] due to left sided neck pain to rule out canal stenosis. The report indicated a left C5/6 paracentral disc osteophyte complex mildly narrowing the left side of the central canal flattening the anterior margin of the spinal cord and associated contact and possible impingement of the left anterior C6 nerve root. On 24 January 2023 the claimant had a guided steroid injection into the left C6 nerve root area.

   [14] Page 88 of the claimant’s bundle.

5. Dr Abraszko’s request dated 7 March 2023 sought approval for C5/C6 posterior foraminotomy on the left side and rhizolysis.[15]

   [15] Page 91 of the claimant’s bundle.

6. Dr Hassan, pain specialist wrote to Dr Hoque on 28 July 2023.[16] He has a history of the claimant’s MS and notes “chronic left sided neck and lower back pain.”

   [16] Page 94 of the claimant’s bundle.

7. He has a history of the accident with an impact from the drivers (right side) with the claimant experiencing twisting and turning as well as jolting of her neck and lower back.

8. The claimant reported pain within two days of the accident of neck and in the lower back totally different from her MS pain. The claimant said her pain worsened with activity and she had ceased physiotherapy, hydrotherapy and massage therapy. He notes the injection organised by Dr Abraszko gave no benefit. The claimant reported her MS was getting worse due to stress.

9. The claimant reported pain related sleep and mood disorder, depressed and emotionally broken. She required assistance from her husband and depended on NDIS workers.

10. He says:

    “Areshma exhibits high pain catastrophisation, low self efficacy and significant fear avoidant behaviours. She has passive coping skills and mostly remains lying in bed during a pain flare. In her expectations she wants to manage her pain and improve her quality of life.”

11. On physical examination the claimant was limping to the left, had a stiff neck and restricted lower back muscles. She was tender “over almost her entire spine with some hyperpathic reactions.” She had loss of muscle power in both upper and lower limbs (four out of five) and reduced sensation from C2 to C3 and C5 to T1. He notes these symptoms of radiculopathy but refers to “left sided hemi body pain.”

12. While he has a history of the MS, he does not appear to have a history of the claimant’s functional neurological disorder. He requested six medical reviews, 12 physiotherapy sessions and an MRI of the lumbar spine and bone scan.

13. An MRI of the lumbar spine was undertaken on 25 August 2023 with a history noted of lumbar pain in the left leg. The report suggests there was epidural lipomatosis, a minimal disc bulge at L3/4, L4/5 and facet joint arthropathy at L4/5 and mild canal narrowing without neural impingement at L3/4 and L4/5.

14. An MRI of the claimant’s cervical spine was performed on 23 November 2023 and reported the next day.[17] The report says “C5-6 left paracentral annulus tear and disc bulge with flattening of the left hemicord but no definite nerve root impingement.”

    [17] Page 420 of the claimant’s bundle.

15. Dr Hoque has provided a report dated 22 August 2024 in support of the claimant’s urgent surgery.[18] He noted the claimant’s current complaints as:

    (a)    pain and stiffness in the cervical spine (radiculopathy down left arm to fingers);

    (b)    pain and stiffness in the thoracic spine;

    (c)    pain and stiffness in both shoulders, left worse than right;

    (d)    struggles reaching above elbow height and lifting;

    (e)    pain and stiffness in lumbar spine – radiculopathy down left leg to foot;

    (f)    difficulty bending and twisting, and

    (g)    walks with a slight limp.

    [18] Page 461 of the claimant’s bundle.

16. He says he sees the claimant roughly weekly in relation to this and that he has prescribed “numerous medications”. He records her medications including fluoxetine, mirtazapine, oxycodone (Endone) and Lyrica. He notes her difficulties with household maintenance and cleaning activities and difficulties with fine motor tasks and that she has difficulties with self-care tasks.

Liverpool Hospital neurology department

1. The claimant has attended the neurological department at Liverpool Hospital. Records have been provided from 2019 and while the first letter says “she is well known to this clinic” the Panel notes there are no previous letters or reports. The Panel also notes the documents were provided by Associate Professor Suzanne Hodgkinson on 11 June 2024.

2. On 14 November 2019, Dr O’Neill wrote to Dr Susino confirming the claimant’s attendance. The claimant’s blackouts and collapses had almost completely abated but she had episodes of dysphasia, left eyelid drooping, a heavy head feeling and irritability. She was having falls but they were different and she had a vague warning. Her headaches were worse in the hot weather. She had left facial twitching and pulling.

3. The claimant reported significant fatigue and lack of energy and significant cognitive impairment. She had carers coming in daily. In summary he said there had been mild improvement in symptoms with medication but no change in her functional state.

4. The claimant returned on 28 October 2020 she was looking better and her medication was successful. She had episodes of neurological dysfunction with periods of left sided weakness and left eye closure. She was having two falls per week. Headaches were improved.

5. The claimant was receiving support from NDIS.

6. In summary he said some of the claimant’s signs and symptoms were functional but “that is not to say that they aren’t real.”

7. The claimant next saw Dr O’Neill on 25 March 2021 and it was reported that Ms Deo “had a remarkable response to treatment in the last 18 months.” Headaches were better, she was having blackouts rarely, and her facial twitching and grimacing has improved. The claimant was asked to have an MRI and blood tests and she was to be reviewed in six months.

8. A telehealth consultation occurred on 22 July 2021 with Dr O’Neill. Some of the claimant’s symptoms had returned, facial pulling, blackouts (two per week) and there was a new symptom “mild dysphasia and … getting her words tangled.” She was struggling due to Covid and the fact that carers were not coming, and she had to manage her four children alone.

9. Another teleconsultation occurred on 15 November 2021. The claimant’s symptoms had increased, and the claimant was taking Augmentin and Panadeine Forte having recently been diagnosed with gall stones and following gall bladder surgery. She had left hemifacial weakness, falls and blackouts, ongoing facial twitching, left hemisensory loss and mild left hemiplegia.

10. A brain MRI dated 22 April 2022 reported no new lesions and stable findings.[19]

    [19] Page 79 of the claimant’s bundle.

11. Dr O’Neill spoke with the claimant on 22 August 2022 who reported “a wearing off phenomenon at the end of each treatment year” of oral cladribine. The claimant had increasing turns but no serious injury. Headaches had improved and no new symptoms or relapses were reported.

12. Dr O’Neill reports the family recently returned from a two-week hotel holiday and heat had been a problem “however it was mostly enjoyable.” The claimant was receiving support from NDIS and wished it to continue. There is no mention of the car accident at this consultation.

13. On 11 May 2023 the claimant had what appears to be a thorough review of her multiple sclerosis. The claimant was noted as having experienced her first symptoms of MS in 2010 and been diagnosed by Dr Hodgkinson in 2012. The claimant reported worsening problems of non-epileptic turns and facial pulling. This was noted as being due to a functional neurological disorder. The claimant attended in a wheelchair “because she is having difficulty walking” and her mobility was “getting worse and worse.” Dr O’Neill reports:

    “We had a discussion today about the difference between the symptoms caused by a funcitonal neurological disorder and those which migh be caused by MS. Those symptoms which are secondary to functional neurological disorder are most likely to be those that are episodic and represent dysfuction rather than damage to the brain. Software rather than hardware problems as it were.”

14. Dr O’Neill advised the functional neurological disorder (FND) needed to be treated very aggressively with psychological and physical therapy. He recommended a graded exercise programme with someone like NeuroMoves, mindfulness techniques and attendance at a psychologist who was also familiar with functional neurological disorders. The Panel notes there is no reference in this report to the car accident or any symptoms arising from the car accident.

15. On 4 August 2023, Dr O’Neill wrote to Dr Abraszko confirming receipt of a 15 February 2023 letter from her about the proposed surgery. He said:

    “Areshma has multiple sclerosis but she also has a functional neurological disorder. From the mulstiple sclerosis perspective, I do not think there is a contraindication to surgery or anaesthessia. The management of a fucntional neurological disorder needs to be taken into account and a high level of certainly of any structural pathology causing symptoms should be ascertained.”

1. The claimant attended the neurological clinic on 14 December 2023 in a wheelchair with her husband due to worsening symptoms. The claimant complained of extreme fatigue, overall weakness, involuntary closing of the left eye the day before and inability to open the eye at all on the day. Her whole body was said to ache and cause pain and worse paraesthesia on the right side of her body.

2. She reported neck, upper limb and shoulder pain on the left side which she says is different to her MS Symptoms. She was extremely depressed, highly anxious and her pain was getting worse and progressing. There is a reference to Dr Abraszko’s opinion and recommendation for surgery.

3. The impression stated by Ms Sharma, nurse practitioner in the clinic, was of worsening neurological symptoms compounded with hot weather and mixed motor accident symptoms. She records a change in medication and a discussion with Dr O’Neill who said “if evidence of structural pathology …is amendable to surgery, this treatment should be considered I line with Dr Abraszko’s suggestion.”

Dr Abraszko

1. In the patient information sheet, the claimant described the accident as “car hit on right passenger’s side causing our car to quickly swerve left and right with hard breaking. My neck, shoulders and back was injured as a result from this impact.”

2. The claimant says she first saw a doctor on 12 May 2022 in relation to the injury. The claimant denied any previous injury or pain in the area before. The pain chart[20] dictates pain across the top of the shoulders, the back of the neck and head, the whole of the left arm, the whole of the left leg, the lower back, upper back and back of the right leg.

   [20] Page 302 of the claimant’s bundle.

3. The form does not mention the claimant’s MS or FND.

4. The claimant was first seen by Dr Abraszko on 15 February 2023. She has a history of the claimant’s multiple sclerosis but not her FND. She has a record of a “quite significant whiplash injury” with neck pain radiating down to the left arm. She noted the MRI and the findings of a C5/6 disc bulge but that the perineural injection at C6 had given no relief.

5. On examination there was painful movement of the neck to the left. Power and tone was reported as normal. There was decreased sensation in a C6 nerve root distribution and “decreased left leg biceps and triceps reflex.” The Panel notes the biceps and triceps reflexes are in the arm not the leg.

6. Dr Abraszko requested an X-ray of the cervical spine in flexion and extension and asked Dr O’Neill whether there were risks of the MS deteriorating.

7. There is a handwritten letter from Dr O’Neill which reads:

   “Over the last couple of years Areshma’s MS has been well controlled. She has had organic disease and there has always been a functional overlay. I think I would not be surprised if the outcome were not as good as the patient had hoped.

   There is no contraindication from an MS perspective for surgery and she should have it if tha’s what she needs.”

8. Dr Abraszko wrote to Dr Hoque on 1 March 2023 after reviewing the claimant. The claimant complained of arm pain, neck pain radiating to her left arm down to the thumb. The requested X-ray showed no instability, and she recommended a simple decompression. She refers to a letter from Dr O’Neill and says “I certainly passed that message to her.”

9. On 7 March 2023 she asked the insurer to fund the surgery.

10. Dr Abraszko wrote a further letter to Dr Hoque on 29 March 2023 confirming the claimant’s pain “radiated down her left arm and to her scapula which might be in the C6 nerve but also into the lower back distribution.” Dr Abraszko also took a history of the left sided L4/5 disc bulge and requested a new MRI of the lumbar spine as the claimant’s pain was much worse.

11. Dr Abraszko says, “her neurological examination of the upper and lower limbs are normal.” She referred the claimant to a pain specialist.

12. In a separate report dated 1 September 2023[21] Dr Abraszko notes she has seen the claimant three times (15 February, 1 March and 29 March 2023). She lists the claimant’s current complaints of:

    (a)    pain down the left arm and radiating to the scapula;

    (b)    pins and needles in the left C6 dermatome;

    (c)    numbness in the thumb of her left hand;

    (d)    a feeling that her left hand is getting weaker;

    (e)    constant back pain radiating to the left side of the lumbar spine;

    (f)    power and tone of the upper limbs was normal, and

    (g)    decreased left biceps and triceps reflex.

    [21] Page 354 of the claimant’s bundle.

13. No neurological signs were reported in the lower limbs.

14. Dr Abraszko diagnoses a soft tissue lower back injury causing back pain and a left C6 radiculopathy within the definition in the guidelines because of “asymmetry of reflexes … and reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root.”

15. Dr Abraszko says the claimant requires help with home duties for four hours per fortnight, her social life has been significantly restricted, and her pain is unlikely to have any significant improvement without surgery.

16. Dr Abraszko wrote to Dr Hoque on 21 February 2024 after reviewing the claimant. Ms Deo complained of neck pain radiating to the left arm with pins and needle in her left arm radiating to her thumb. There had been no change. She had seen a psychologist and had seen Dr O’Neil who apparently said that “her symptoms [are] not related to her already stable Multiple Sclerosis.”

Medico-legal reports

1. The claimant’s solicitors obtained a report from Dr Bodel, orthopaedic surgeon dated 9 November 2023.

2. He has a history of the accident that is not consistent with the claim form. He has a history that the claimant was in her husband’s vehicle in the middle lane with a car in the right hand lane broken down and car behind it swerved in front of their car. The claimant’s husband then swerved right then left and braked but their car was struck from the rear on the passenger side. She said he was jolted.

3. The claimant said the vehicle was fitted with head restraints and she was wearing a seat belt.

4. The claimant reports immediate pain in her neck, shoulders and upper back, lower back pain with shooting pain down the leg. She says she saw Dr Hoque on 12 May 2022 being her spine and shoulder pain was worse.

5. Dr Bodel has a history of the claimant’s MS but not her FND and she denied any neck, back or shoulder pain before 8 May 2022.

6. Dr Bodel has a history of her struggling to cope with her home duties and a report she has assistance form her husband and a support worker.

7. Dr Bodel reports normal grip strength, sensory loss to the thumb index finger of the left hand and a diminished left sided biceps reflex. On the basis of these two signs he expressed the view the claimant had a non-threshold injury.

8. Dr Bodel reviewed the MRI of the cervical spine dated 9 March 2022 and found two signs of radiculopathy. He supported the need for surgery and the lumbar spine MRI.

OTHER ASSESSMENTS

1. Medical Assessor Fukui examined the claimant on 3 April 2024. The claimant was assessed in person accompanied by her husband.

2. She notes at [8] the claimant worked until 2007 then stopped work (as a nurse) to look after her children. Medical Assessor Fukui has the history of the diagnosis of MS in 2012 with symptoms first emerging in 2010. Medical Assessor Fukui reports “despite her multiple sclerosis she cared for her family and attended to childcare, activities and all housework.”

3. Medical Assessor Fukui has a history at [10] of the onset of anxiety a month after the accident and that Ms Deo’s sleep was disturbed and she felt overwhelmed due to her pain. The claimant felt anxious in a car but did not avoid the car.

4. The claimant was taking medication for depression and was referred to a psychologist because her pain was stopping her from doing anything. The claimant is reported at [12] to have had no improvement in her pain, pins and needles down her left arm and poor sleep due to this pain. The Medical Assessor records at [13] the claimant is taking Endone and Lyrica for pain management.

5. On examination the claimant is recorded at [14] as being forgetful due to her MS, she was distressed but sat throughout the assessment looking uncomfortable.

6. Medical Assessor Fukui summarised at [17] the documents from Ms Adams, psychologist. The Medical Assessor noted the reference to depression, anxiety and post-traumatic stress disorder but no justification for any diagnosis according to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM 5). She also noted the length of time between the date of the accident and the referral.

7. The Medical Assessor found an adjustment disorder with mixed anxiety and depression emerging from a background of a chronic pain condition. This is a threshold injury.

8. On 25 June 2024 a delegate of the President determined an application for review in respect of the Medical Assessor’s decision finding no reasonable cause to suspect a material error in the assessment.

RE-EXAMINATION FINDINGS

Preliminary matters

1. Medical Assessor Gorman conducted the re-examination on 7 February 2025 in the Commission’s medical suites. The claimant attended with her husband.

2. The claimant’s husband did not take an active part in the history taking but helpfully confirmed some history provided by the claimant when she was not sure of an answer.

3. The following is the Medical Assessor’s record of the re-examination.

History provided by the claimant

Pre-accident medical history and relevant personal details

1. Ms Deo is 40 years of age. She was born in Fiji and came to Australia in 2004. She currently lives in Campbelltown with her husband and children aged 9, 13, 16 and 19 years.

2. She was not working at the time of the accident. She last worked in the past as an Assistant-in-Nursing but ceased when she was diagnosed with MS.

3. She was diagnosed with MS in 2010. She presented to her treating doctor with speech difficulties and weakness on the left side. It was “like a stroke” she said. It is a “relapsing remitting kind of multiple sclerosis”. She has been treated with Kesimpta (ofatumumab) given by injection.

4. She has “flares” of her MS, the last being two weeks ago. During these flare ups, her left eye can close, her left arm and left leg can be weak. She denied having pain in these areas during the flares and but then said her pain before the accident was unlike the pain in the neck and left arm, she says she has following the subject accident.

5. She was first under the care of Dr Hodgkinson, neurologist and Head of Department, at Liverpool Hospital as Dr Hodgkinson has special expertise in MS. Ms Deo says she has more recently has been seen by Dr O’Neill, also a neurologist at Liverpool Hospital.

6. Ms Deo was very open and aware that Dr O’Neill had questioned whether her current symptoms are due to MS or due to a FND. Ms Deo says her treating team at Liverpool Hospital have given varying support of the surgery on the cervical spine because many of her ongoing symptoms from her MS before the motor vehicle accident were in the left side of her body including her neck and left arm and that is where she is currently experiencing symptoms including pain since the accident.

7. She gets help from the NDIS which started before the subject accident. Carers attend her home three to five days per week. They provide personal care to her, and her husband assists with showering on the days that they are not there. She needs to use a shower chair. She gets help from NDIS carers with the house cleaning and laundry as well.

History of the motor accident

1. Ms Deo was involved in a motor vehicle accident on 8 May 2022. At that time, she was a front seat passenger in a Kia Carnival sedan being driven by her husband on the M5 Motorway. She said she had the seat partially (but not fully) reclined because she was resting. She was wearing a seatbelt. Her four children were in the car in the rear seats in the “people mover”.

2. They had been travelling at 100kmph in the middle lane of the M5. As they were about to exit at Camden Valley Way, they came upon a car which had broken down in the right-hand lane of the exit (which was their lane).

3. The car travelling immediately behind the broken-down vehicle merged left to avoid the broken-down car. It collided with the driver’s side, right rear wheel of the Deo family vehicle while Mr Deo was also merging towards his left. Mr Deo was able to brake and come to a safe stop with no secondary collision.

4. When the claim form was considered, Mr Deo confirmed the correct history was, that their vehicle was hit from the right side in the rear on the driver’s side, not the left side.

History of symptoms and treatment following the motor accident

1. Police and ambulance did not attend the scene, and Ms Deo was driven home by her husband in the same vehicle.

2. Ms Deo says she felt immediate pain in her neck and left shoulder and took Nurofen when she got home. She says the pain in her neck and left shoulder gradually became worse and some five days later on 13 May 2022, she was reviewed by Dr Hoque and complained of pain in her neck and left shoulder.

3. She was reviewed by Dr O’Neill, on 22 August 2022 about her MS treatment and the accident was not documented. Ms Deo says she does not recall whether she has ever spoken to Dr O’Neill about the accident and her symptoms.

4. On 8 September 2022, Mrs Deo was again reviewed by Dr Hoque and at that review she complained of pain radiating from her lumbar spine to her left leg. She said that this back pain and the left leg symptoms came on slowly in the months after the accident.

5. Ms Deo was referred for physiotherapy and prescribed Lyrica, Endone and Fluoxetine.

6. Due to ongoing pain, she said Dr Hoque referred her for a CT guided left C6 perineural corticosteroid injection which was carried out on 24 January 2023. She said this gave her no benefit at all. She also later underwent a corticosteroid injection at the left shoulder which also gave her no benefit.

7. She was referred for a specialist review with Dr Abraszko, neurosurgeon who first saw her on 15 February 2023. Dr Abraszko diagnosed left C6 radiculopathy and recommended operative intervention in the form of left C5/6 foraminotomy and rhizolysis.

8. When the surgery was disputed by the insurer, Ms Deo was placed on the public hospital waiting list by Dr Abraszko. Her treating neurology team have discussed the surgery with her and, while there was some hesitation, Ms Deo stated they have all supported the surgery despite the fact that the symptoms were on her left side as were her MS symptoms. Ms Deo wants to have the surgery.

9. Ms Deo says she has suffered no relevant injuries or conditions since the motor vehicle accident.

Current state

Current symptoms

1. At her cervical spine, she notes intermittent aching pain at the left paracervical region at C5, C6 and C7 radiating to the left scapula, left trapezius and shoulder as well as to her left arm to the level of the wrist. She describes the pain as an intermittent daily ache.

2. She reports “pins and needles” in her left arm. She said these pins and needles radiate down the whole left side of her body from her neck into her left arm and to her upper and lower back.

3. She gets headaches.

4. She reports that she can differentiate these symptoms from a “flare” in her MS. She says that she “knows the difference”.

5. She reports the pain is worse on showering, doing her hair, overhead tasks or doing housework and is relieved by analgesic medication. She complains of paraesthesia globally over the whole of her left arm. She complains of a generalised feeling of weakness in the whole of her left arm. She notes stiffness of her cervical spine.

6. I drew to Ms Deo’s attention that she had not at this stage mentioned a right shoulder injury. She confirmed she had not injured her right shoulder in the accident. I also drew to her attention that she had only told me about current symptoms in her neck and left shoulder and arm. She confirmed she had no back complaints other than pain which radiated down through the left side of her body from the left side of her neck to her upper and lower back.

Current and proposed treatment

1. Mrs Deo is currently attending physiotherapy once a week.

2. Her medications are Endone 10mg twice daily, Lyrica 150mg twice daily, Nurofen and Fluoxetine for anxiety.

Clinical examination

1. Ms Deo is 158cm tall and weighs 72.7kg. She is right hand dominant.

Cervical spine

1. She had an active range of movement in the following planes:

   (a)    flexion1/2 normal, extension ½ normal;

   (b)    left rotation ¼ normal, right rotation ½ normal, and

   (c)    left lateral flexion ¼ normal and right lateral flexion ½ normal.

2. There was tenderness over the left side of the neck.

3. Neurological examination of her upper limbs showed her reflexes were present but reduced and equal on both sides.

4. The claimant had complained about a feeling of weakness in her left arm but on testing, power on both sides was five out of five. There was therefore no loss or reduction in power.

5. Ms Deo complained of reduced sensation over the whole of her left arm. On testing, sensation was reduced to pin prick and soft touch over the radial side of the forearm and thumb on the left side only. There was no loss of sensation in the right arm or hand.

6. The claimant confirmed that she did have a loss of sensation in her upper limb before the accident but reiterated that her pain there was different and worse after the accident.

7. There was no visible muscle atrophy in either upper limb. Ms Deo’s upper arm circumference measured 32.5cm on both the right and left measured 10cm above the lateral epicondyle. Forearm circumference was also equal at 26cm measured 5cm below the lateral epicondyle.

8. The abduction test and upper limb tension test were administered to test for nerve root tension and both were negative.

Upper extremities

1. There was general tenderness to palpation in her left shoulder. There was no visual muscle atrophy in the left shoulder or right shoulder regions.

2. The claimant’s active range of motion was measured on both sides and the measurements recorded below.

3. When I asked her about why her right shoulder movements were also restricted (as she had confirmed it was not injured her right shoulder) Ms Deo said that the pain in the left side of her neck stopped both her shoulders moving normally.

SHOULDER MOVEMENT (normal motion)	RIGHT (degrees)	LEFT (degrees)
Flexion (180 degrees)	160	70
Extension (50 degrees)	30	20
Adduction (180 degrees)	120	70
Abduction (50 degrees)	30	20
Internal rotation (90 degrees)	40	40
External rotation (90 degrees)	70	60

Lumbar spine

1. The lumbar spine was not tender and there was no deformity.

2. Ms Deo had minimal active range of movement in flexion, extension, rotation and lateral tilt at her thoracic and lumbar spine. However, all movements were symmetrically restricted. Ms Deo said that the restriction of thoracic and lower back movement was caused by the left sided neck pain.

3. Neurological examination of Ms Deo’s lower limbs shows her reflexes were reduced on both sides, but power was equal on both sides and sensation was intact on both sides.

4. There was no sign of muscle atrophy in the lower limbs and thigh circumference and calf circumference were equal on both sides.

Investigations

1. The claimant attended without any scans and X-rays.

2. The claimant has had the following radiological imaging studies performed, and the reports were reviewed at the time of the re-examination:

   (a)    23 May 2022: ultrasound of the left shoulder shows mild supraspinatus tendinosis without evidence of a tear;

   (b)    23 May 2022: CT examination of the cervical spine shows mild bilateral facet joint osteoarthritis at C2/3 but no abnormality elsewhere in the spine;

   (c)    23 May 2022: CT examination of the thoracolumbar spine shows no evidence of lateral recess or neural exit foraminal narrowing at any level;

   (d)    10 September 2022: CT examination of the thoracic spine shows no significant abnormality;

   (e)    10 September 2022: CT examination of the lumbar spine shows a small left disc protrusion at L4/5 potentially impinging the left L5 nerve root. There is mild bilateral facet joint osteoarthritis at L4/5 and L5/S1;

   (f)    9 November 2022: MRI investigation of the cervical spine shows left paracentral disc osteophyte complexes (degenerative bony spurs) at C5/6 mildly narrowing the left central canal. There is contact and possible impinging upon the left anterior C6 nerve root. It is reported: “No significant posterior disc herniation, central canal or neural exit foraminal stenosis at the other cervical levels.”;

   (g)    9 November 2022: MRI investigation of the left shoulder shows mild rotator cuff tendinopathy but no evidence of tear;

   (h)    24 January 2023: CT-guided left C6 perineural injection has been performed.

   (i)    15 February 2023: X-ray examination of the cervical spine shows degenerative cervical spondylosis at C5/6;

   (j)    24 August 2023: MRI Investigation of the lumbar spine shows minimal posterior disc bulge at L3/4. There is no evidence of canal stenosis or nerve root compression. There is mild facet joint arthropathy at L4/5 with low grade disc bulge. There is no evidence of nerve root compression, and

   (k)    23 November 2023: MRI investigation of the cervical spine shows a tiny bulge at C3/4, minimal disc bulge at C4/5, left paracervical annular tear at C5/6 with a disc bulge and flattening of the left hemicord. There is also a tiny posterior disc bulge at C6/7.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence consistent?

1. When asked why her right shoulder movements and lower back movements were reduced when she says they were not injured, Ms Deo said she had left sided neck pain which limited most movements during the examination, including the right shoulder and lumbar spine.

2. There were inconsistencies in the histories given by Ms Deo as to the mechanism of accident. While she had said in her claim form that the broken car was in the left lane and the collision came from the left. She was said elsewhere including at the re-examination that the broken down, car was in the right lane and the collision came from the right. Mr Deo, who was present confirmed the accident involved a collision from the right side.

3. Submissions drawn up by her solicitor (presumably on instructions) suggested the claimant’s seat was, at the time of the accident, fully reclined. This history does not appear anywhere else in the medical reports and records. The claimant told Medical Assessor Gorman that her seat was partially and not fully reclined.

4. Ms Deo could not remember whether she had discussed the car accident with Dr O’Neill.

5. Ms Deo could not remember when exactly her lower back pain started.

6. The Panel notes Ms Deo complained to Dr O’Neill of poor memory before the accident, and it is reasonable in those circumstances to accept that inconsistencies in history were attributable to this poor member rather than any deliberate effort to mislead the Panel.

What injuries were caused by the accident?

1. The test of causation of injury is essentially whether the mechanism of the accident could have caused an injury (which is a medical question) and whether the accident did cause the injury (which is a factual question).

2. While there the claimant has said in her claim form the impact came from the left to the passenger side rear of the car, the bulk of the evidence is that the impact came from the right to the driver’s side rear of the car.

3. The medical members of the Panel are not of the view that this makes any material difference to the mechanism of the accident. The Panel notes that emergency services did not attend, the claimant’s husband’s vehicle was driven from the scene, and it was subsequently repaired. The claimant did not attend the doctor until five days after the accident and did not mention the accident to her doctor until six days after the accident.

4. The above evidence suggests to the medical members of the Panel that the accident was not a major accident and that the forces involved were not significant forces.

5. The medical members of the Panel are of the view that the accident could have caused minor injuries to soft tissues in the claimant’s neck, back and shoulders.

6. The question remains whether the accident did cause these injuries and each of the alleged injuries will be considered in detail below.

Did the claimant injure her neck in the accident?

1. The claimant told Medical Assessor Gorman she felt immediate pain in her neck and left shoulder. She reported neck and left shoulder pain only to Dr Hoque six days after the accident. She included neck and pain in her shoulders (plural) in the claim form dated 21 June 2022 and Dr Hoque has included in the first five certificates of fitness “left sided neck pain, left shoulder pain.” The medical records of Dr Hoque consistently thereafter refer to left sided neck and left shoulder pain.

2. The Panel is satisfied that the claimant did injure her neck in the accident. The Panel will deal with the specific injury type later in these reasons.

Did the claimant injure her left shoulder in the accident?

1. On the basis of the evidence outlined in paragraph 212 above, the Panel accepts that the claimant sustained a left shoulder injury or developed left shoulder symptoms as a result of a neck injury sustained in the accident.

2. The ultrasound performed on 23 May 2022 indicated mild degenerative changes in the supraspinatus tendon without evidence of a tear. A 9 November 2022 MRI confirmed mild rotator cuff pathology with no tear.

3. It is the clinical judgment of the Medical Assessors that the diagnosis is an injury to the soft tissues of the left shoulder superimposed on degenerative changes of the left shoulder joint.

Did the claimant injure her right shoulder in the accident?

1. The claimant said she did not injure her right shoulder in the accident. She does complain of a restriction in motion of the right shoulder, but she was clear in her history to Medical Assessor Gorman that this restriction was caused by her neck injury. Although shoulders (plural) were mentioned in the claim form, the right shoulder is not specifically mentioned in the clinical notes.

2. The Panel is not therefore satisfied that there was any injury to the right shoulder caused by the accident. The Panel also notes there is no right shoulder imaging study and no evidence therefore of any tears in any of the tissues in the right shoulder.

Did the claimant injure her thoracic or lumbar spine in the accident?

1. The claimant stated in her claim form (21 June 2022) that she had upper and lower back injuries. Dr Hoque does not record symptoms in the back until 8 September 2022 (symptoms in the back of the left buttock), then 20 September 2022 (with no treatment for back wanted) and 11 October 2022 (report of pins and needles down the left leg).

2. At the re-examination Ms Deo told Medical Assessor Gorman that her back pains came on slowly well after the accident but that the only symptoms she currently has in the back (upper and lower) is pins and needles which radiate from her neck down the whole left side of her body to her left foot. The significantly restricted upper and lower back movement recorded by Medical Assessor Gorman was, according to the claimant, said to be due to her neck injury. She restricted her upper and lower back movement to avoid pain in her neck.

3. On the basis of the claimant’s history and the evidence in the GP notes, it is the clinical judgment of the Medical Assessors that the claimant did not sustain a frank or specific injury to her thoracic or lumbar spine in the accident. The claimant’s current symptoms are not medically plausible, in the clinical judgment of the Medical Assessors, on the basis of the available radiological imaging.

1. If the claimant did sustain an injury to her thoracic or lumbar spine, it is the clinical judgment of the medical members of the Panel that, based on the clinical findings of Medical Assessor Gorman, the claimant sustained an injury to the soft tissues of her upper and lower back with no complete or partial rupture of tissue and no nerve or nerve root injury.

What is the nature of the cervical spine injury?

Does the claimant have the complete or partial rupture of tissue?

1. The claimant had a CT scan of her cervical spine on 23 May 2022 showing mild bilateral facet joint osteoarthritis at C2/3 – these are degenerative findings which the Medical Assessors note in their clinical judgment is a common finding in many people of the claimant’s age.

2. On 9 November 2022 an MRI showed a left paracentral disc osteophyte complex at C5/6 which was mildly narrowing the left central canal and possibly impinging the left anterior C6 nerve root.

3. The claimant had a CT guided left C6 perineural injection on 24 January 2023 which the claimant has reported as giving no benefit at all. The medical members of the Panel would, in their clinical expertise, have expected some pain relief from that procedure even, if only, for a short time.

4. The 23 November 2023 MRI reported tiny or minimal disc bulges at C3/4, C4/5 and C6/7 with a left sided annulus tear and disc bulge at C5/6. It is the clinical judgment of the Medical Assessors that disc findings at four levels suggests either major trauma or degenerative changes. It is the Medical Assessor’s view that the mechanism of the current accident excludes a traumatic cause.

5. An MRI is generally more accurate for imaging soft tissues which would explain the difference in the findings between the May 2022 CT scan and the November 2022 MRI. The November 2022 MRI however does not report any disc bulge or disc tear or fissure at any level and in particular C5/6 and no findings at any other level. This is, in the clinical judgment of the Medical Assessors, is suggestive of the progression of the underlying degenerative disease.

6. When the totality of the radiology reports are considered, it is the clinical judgment of the medical members of the Panel that the annular tear and disc bulge reported in November 2023 was not caused by the accident.

Has the claimant sustained a nerve or nerve root injury?

1. The claimant alleges a nerve root injury at the left C6 nerve root causing compression and manifesting in radiculopathy. Before the accident there were complaints of left sided neck and left arm pain for a week on 30 July 2020 and on 4 April 2022 for neck and shoulder pains which were so severe the claimant requested Endone. The claimant denied to Medical Assessor Gorman any previous neck or shoulder pain and then said that any pain she may have had was different to anything she had before. The claimant has complained of left sided neck and left shoulder symptoms consistently since the accident.

2. The Panel is of the view the claimant may have sustained an injury to soft tissues of her neck which have exacerbated or aggravated pre-existing degenerative changes in her spine such as the bony spurs at C5/6. This exacerbation or aggravation may have caused some nerve root irritation after the accident.

Does the claimant have radiculopathy?

1. The definition of radiculopathy in cl 5.8 of the Guidelines requires the claimant to have two of five signs (relevant to the same nerve or nerve root) which are:

   (a)    loss or asymmetry of reflexes;

   (b)    positive nerve root tension signs;

   (c)    muscle atrophy and / or decreased limb circumference;

   (d)    muscle weakness in a dermatomal patters, and

   (e)    reproducible sensory loss in a dermatomal pattern.

2. The claimant complains of intermittent left sided neck and left shoulder pain. Pain including radiating pain is not one of the five signs of radiculopathy.

3. At the re-examination with Medical Assessor Gorman:

   (a)    there were no positive nerve root tension signs;

   (b)    there was no muscle atrophy or difference in limb circumference between the left or right side, and

   (c)    there was no muscle weakness on the left or right side.

4. In terms of reflexes – all reflexes were present on the left and right sides and all reflexes were equally diminished on both sides. A sign of a left sided C6 radiculopathy would be the presence of biceps and triceps reflexes on the right side but none on the left or a smaller diminution on the right side and a lager diminution on the left side. It is the clinical judgment of the Medical Assessors that the equal diminution in reflexes on both sides cannot be explained by or interpreted as a sign of a left sided C6 radiculopathy.

5. In terms of reproducible sensory loss, Medical Assessor Gorman elicited responses indicating there was a loss of sensation in the left arm and not the right arm. The claimant conceded she had a loss of sensation in her left arm before the accident. In a person with FND and MS and pre-accident symptoms, it is the clinical judgment of the Medical Assessors that the loss of sensation on testing in the claimant’s left arm and hand cannot be interpreted as a sign of a left sided C6 radiculopathy.

Has the claimant had, at any time since the accident, radiculopathy?

1. The two Review Panels in David v Allianz Australia Insurance Ltd[22] and Lynch v AAI Limited t/as AAMI[23] found that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of “threshold injury” contained within s 1.6 of the MAI Act, the claimant must be found to have non-threshold injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment.

   [22] 2021 NSWPICMP 227.

   [23] 2022 NSWPICMP 6.

2. The panel in Lynch gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-threshold injury even though the claimant may have recovered from it.

3. David was cited in the case of Allianz Australia Insurance Limited v Susak.[24] While there appears to have been no argument in Susak about the correctness or otherwise of David, the premise that radiculopathy at one time satisfies a finding of non-threshold injury formed the basis of Acting Justice Griffiths’ decision. The Panel agrees with and approves the reasoning of the Panel in in David and will therefore consider:

   (a)    whether the claimant has radiculopathy within the meaning of the guidelines now?

   (b)    Whether the claimant has had radiculopathy within the meaning of the Guidelines at any time since the accident?

   [24] [2024] NSWSC 1359 (Susak).

4. The claimant relies on Dr Bodel’s report and his clinical findings as well as Dr Hoque, Dr Hassan and Dr Abraszko’s clinical findings that the claimant has had radiculopathy at various times after the accident.

5. Dr Abraszko reports on 15 February 2023 that the claimant has:

   (a)    radiating pain down the left arm – the Panel notes that radiating pain is not a sign of radiculopathy;

   (b)    power and tone were normal;

   (c)    decreased sensation in a C6 distribution – no mention is made of the right limb, and

   (d)    decreased left leg biceps and triceps reflex – the biceps and triceps are in the arm not the leg. While the Panel is prepared to accept this is a typographical error made by the doctor, the Panel notes there is no mention of the state of the reflexes on the right side.

6. There is no indication in this report that Dr Abraszko administered any nerve root tension sign tests and if so, what the result was. The Panel notes that an assessment of threshold injury is required, as set out in cl 5.6, to be based on “evidence available” including a “comprehensive accurate history, including pre-accident history and pre-existing conditions” and a review of “all relevant records available.”

7. Dr Abraszko has a record that Ms Deo “was apparently quite stable until she had an injury” and that the claimant had “sustained quite significant whiplash injury.”

8. Dr Abraszko does not report that she had a history of the pre-accident complaints and in particular the claimant’s complaints of severe pain in April 2022 that caused her to request Endone and Ms Deo’s complaints of left sided MS symptoms and the diagnosis of FND.

9. For the above reasons, the Medical Assessors do not accept the findings recorded in this report as confirmation of a C6 radiculopathy at that time.

10. Dr Hoque reports in on 28 July 2023 reduced sensation in the left arm compared to the right and reduced “left leg biceps and triceps” reflexes. The Panel notes the biceps and triceps reflexes are found in the arm and not the leg and that this error appears to have been derived from Dr Abraszko’s letter to him of February 2023. The Panel is not satisfied that Dr Hoque’s report is based on his own findings and testing.

11. Dr Hassan records left sided neck pain and radicular pain. Radiating (radicular) pain is not one of the five signs of radiculopathy. Dr Hassan records normal power and tone and he does not record any nerve root tension testing or signs. On examination he reports “tenderness over almost her entire spine” and while he notes reduced sensation, he also records the presence of hyperpathia which the Medical Assessors note is the abnormal painful reaction to a stimulus. At best Dr Hassan suggests the claimant has one sign of radiculopathy (reduced sensation).

12. The Medical Assessors are not of the view that Dr Hassan’s report establishes that the claimant had radiculopathy at that time within the meaning of the Guidelines.

13. On 1 September 2023 Dr Abraszko reported to the claimant’s solicitors. This report states that the claimant was not re-examined for the purposes of the report.

14. Dr Abraszko records the claimant complaints of constant neck pain, radiating pain, pins and needles, numbness in the thumb, a feeling of weakness in the left hand and constant back pain. However, on examination, power and tone were normal. There is no indication that any cervical neural tension tests were performed. Decreased sensation was said to be in the left C6 nerve root distribution and a decreased left biceps and triceps reflex.

15. Dr Abraszko says the claimant fulfills the definition of radiculopathy because:

    “Ms Deo has asummetry of the reflexes – weaker bieps and triceps jerk on the left side compared to the right one and repducible sensory loss in left C6 nerve root.”

16. As with her first correspondence, Dr Abraszko does not report that she had a history of the pre-accident complaints including severe neck and left shoulder pain in April 2022, her left sided MS symptoms and the diagnosis of FND. In addition, it is apparent the claimant was not re-examined before she wrote the report.

17. For the above reasons, the Medical Assessors do not accept the findings recorded in this report as confirmation of a C6 radiculopathy at that time.

18. The claimant relies on the findings of Dr Bodel in an examination on 22 June 2023 reported to the claimant’s solicitor on 9 November 2023.

19. While Dr Bodel had a history of the claimant’s MS, he does not have a history of the previous episodes of neck and shoulder pain.

20. He examined the claimant and reported sensory loss in the C6 distribution involving the thumb and index finger of the left hand only and he noted a diminished biceps reflex.” There is no suggestion he carried out any neural tension tests of the cervical spine. He does not mention atrophy or limb circumference, but he did measure grip strength reported as normal.

21. Dr Bodel does not record a triceps reflex response in either the left or right upper limb and he does not record any right sided findings in respect of the biceps reflex.

22. In the light of the claimant’s MS and FND and Medical Assessor Gorman’s finding of diminished reflexes on both sides, the Medical Assessors are not satisfied that Dr Bodel’s findings establish a C6 radiculopathy as there is an absence of recorded reflexes in the claimant’s right side.

DOES THE CLAIMANT HAVE A THRESHOLD INJURY?

1. The Panel has determined that the claimant did not injure her thoracic or lumbar spine in the accident. There is therefore no issue of whether it is or is not a threshold injury.

2. The Panel has also found that the claimant did not injure her right shoulder in the accident and therefore there is no issue of whether any injury is a threshold injury or not.

3. The Panel is satisfied that the claimant injured her left shoulder in the accident. The Medical Assessors are of the view this is a soft tissue injury. There is no evidence of any hard tissue (bony) injury and there is no radiological evidence that would support a finding that there has been the complete or partial rupture of tendons, ligaments, menisci or cartilage within the meaning of s 1.6(2). The claimant’s left shoulder injury therefore is a threshold injury.

4. The Panel is satisfied that the claimant injured her neck in the accident. The Panel was not satisfied that the annulus tear reported in November 2023 (but not November 2022) was caused by the accident and therefore the Panel is not satisfied that the claimant has the complete or partial rupture of tendons, ligaments, menisci or cartilage.

5. The Panel has not found a cervical radiculopathy at C6 either on examination by Medical Assessor Gorman and has not been satisfied the claimant had radiculopathy within the meaning of the Guidelines at any time since the accident.

6. The Panel is therefore of the view that the claimant has a threshold neck injury.

SHOULD THE TREATMENT IN DISPUTE BE ALLOWED?

The lumbar spine MRI

1. The claimant’s GP, Dr Hoque requested an MRI of the lumbar spine received by the insurer on 30 March 2023 and rejected by the insurer on 12 April 2023.

2. The Panel has found that the claimant did not injure her lumbar spine in the accident. Therefore, the request for an MRI investigation of the lumbar spine does not relate to the injuries caused by accident.

1. If the claimant did sustain an injury the Panel is of the view it was a soft tissue injury. The Panel notes the claimant had a thoracolumbar CT scan on 23 May 2022, a CT scan of the lumbar spine on 10 September 2022 and an MRI of the lumbar spine on 24 August 2023. The Medical Assessors are of the view that any further imaging of the lumbar spine after 10 September 2022 would not have been reasonable and necessary in the circumstances of a soft tissue lumbar spine injury.

The MRI and bone scan request

1. Dr Hassan completed a referral or request to MRI Now for an MRI of the lumbar spine and bone scan with SPECT on 28 July 2023. The clinical reason provided was for “cervical and lumbar spine – [radicular] pain with radiculopathy on [background] of MS since MVA, May 22. ?Discogenic? Facetogenic?.” This was accompanied by an MRI Now Booking confirmation dated 31 July 2023.

2. The insurer rejected this request on 22 August 2023. While it appears the MRI component of this request was done on 24 August 2023, the bone scan component was not.

3. As the Panel has found the claimant did not injure her lumbar spine in the accident then, for the reasons set out in paragraphs 263 and 264 above, the Panel is not satisfied that the treatment requested is reasonable and necessary in the circumstances or related to the injuries caused by the accident.

The cervical spine surgery

1. Dr Abraszko requested approval for surgery on 29 March 2023 and it was rejected on 12 April 2023.

2. The Panel is of the view the surgery is not reasonable and necessary in the circumstances for the following reasons:

   (a)    the Medical Assessors are of the view that surgery, particularly, spinal surgery should not be undertaken unless there is a real likelihood the surgery will be efficacious and reduce the claimant’s pain and symptoms;

   (b)    the claimant has two neurological disorders, MS and FND;

   (c)    the Medical Assessors note that MS results in symptoms with vision, walking and balance, thinking, numbness and weakness particularly in the arms and legs, muscle stiffness and fatigue;

   (d)    in a person with FND, the Medical Assessors note the brain has difficulty sending and receiving signals. FND results in a range of symptoms from issues with cognition and mobility, seizure like episodes and dizziness, speech difficulties, visual and hearing problems, pain including migraine, fatigue and numbness;

   (e)    the symptoms of MS and FND are unlikely to be improved by this surgery;

   (f)    Dr O’Neil the claimant’s treating neurologist for her MS over several years expressed the view that there should be a high level of certainty of any structural pathology causing symptoms before the surgery takes place;

   (g)    Dr O’Neil has identified functional overlay (the emotional response to a physical illness);

   (h)    Dr Hassan identified hyperpathia (an abnormal painful reaction to stimulus);

   (i)    on 14 December 2023 the claimant attended the neurology clinic in a wheelchair with her husband due to worsening symptoms. She complained of extreme fatigue, overall weakness, involuntary closing of the left eye the day before and inability to open the eye all day. Her whole body was said to ache and cause pain, and she had worse paraesthesia reported to be on the right side of her body;

   (j)    Dr Abraszko has a history of the claimant’s MS, but it is not clear whether she has a full history of the claimant’s pre-accident pain symptoms;

   (k)    Ms Deo’s current symptoms are predominantly in the region where in the past, her MS symptoms “flare”. While she reported to Medical Assessor Gorman that there had not been pain on the left neck and shoulder before, her consultation with Dr Ely on 30 July 2020 and Dr Hoque on 4 April 2022 recorded the main complaint as left neck and arm or shoulder pain, and

   (l)    on the second page of her September 2023 report, Dr Abraszko reports the C6 perineural injection provided no significant improvement for the claimant but on page 4 she reports Ms Deo’s pain responded well to the injection. The claimant stated at the examination with Dr Bodel in June 2023 and to Medical Assessor Gorman at the re-examination that the injection did not help and gave her no relief at all.

3. The Panel believes that there is “no high level of certainty of any structural pathology” causing the claimant’s symptoms. With Ms Deo’s widespread complaints, the Panel is extremely doubtful that the surgery proposed will lead to any benefit.

4. The Panel therefore believes that the request for a C5/6 posterior foraminotomy and rhizolysis is not reasonable and necessary in the circumstances.

5. Because of this finding it is unnecessary for the Panel to consider whether the treatment is related to the injuries caused by the accident. The Panel however notes, that it has found the claimant sustained a soft tissue injury which may have aggravated her cervical spine pre-existing degenerative changes (including osteophytes) which may in turn be irritating the claimant’s C6 nerve or nerve root. The Panel is not satisfied that any exacerbation or aggravation is ongoing, noting that the MRI in November 2023 appears to suggest that the claimant’s degenerative spinal condition is progressing. The Panel is not therefore of the view that the spinal surgery is related to the injury caused or materially contributed to by the accident.

CONCLUSIONS

1. The Panel finds that Ms Deo’s injuries arising out of the motor accident on 8 May 2023 are threshold injuries.

2. The disputed treatment claimed by Ms Deo is not related to the injuries sustained in the accident and is not reasonable and necessary in the circumstances.

3. As the Panel has come to the same conclusion as Medical Assessor Wallace, it follows therefore that his certificate should be confirmed.