El Shaimy v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	El Shaimy v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 247
CLAIMANT:	Adam El Shaimy
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	5 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of threshold (then minor) injury and insurer’s review of Medical Assessor (MA) Assem’s decision under section 7.26; claimant injured in bus accident (bus rear ended by a truck driven allegedly at speed); claimant alleged injury to neck, back and saphenous nerve injury in left lower limb; lack of clarity in body parts referred for assessment and only neck and left lower limb assessed; MA not satisfied saphenous nerve not injured and no evidence of radiculopathy or tear to any discs or ligaments in the neck; insurer submitted lower back injury should not be reviewed; Held – Panel determined lower back injury should be assessed; no re-examination was required; lumbar spine injured in the accident; claimant’s treating neurologist and MA had found three and four signs of radiculopathy when they examined the claimant and relying on the decision of David v Allianz Australia Insurance Limited; Panel satisfied claimant had sustained a non-threshold injury to his lumbar spine; Medical Assessment Certificate of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Assem dated16 August 2022. 2. Certifies that the claimant’s lumbar spine injury is not a threshold injury for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Adam El Shaimy was involved in a motor accident on 6 May 2019. In his claim form the claimant describes the accident as follows:
“As the bus that I was in … pulled over to the side to pick a passenger up, a semi-trailer rammed the back of the bus at speed.”
The claimant says he injured his neck, back and left saphenous nerve in the accident and made a claim for statutory benefits with NRMA, the third-party insurer of the vehicle that Mr El Shaimy says caused his accident.
A medical dispute has arisen about the nature of the claimant’s injuries sustained in the accident and whether any of them are not “minor” injuries within the statutory definition.

Mr El Shaimy referred that dispute to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA) for medical assessment.
On 16 August 2022, Medical Assessor Assem determined all of Mr El Shaimy’s injuries were “minor” injuries.
Following the abolition of the DRS, and the establishment of the Personal Injury Commission (the Commission), the claimant lodged an application seeking a review of the Medical Assessor’s decision.
On 18 October 2022, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. The President convened this Panel on 19 December 2022 to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr El Shaimy’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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.
The statutory benefits available under the MAI Act are limited. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 or 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[1]
[1] The statutory benefits scheme was amended by legislation in 2022. The term “threshold” injury was introduced to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident. The availability of statutory benefits was amended to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023.
In a common law damages claim, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.

Threshold injury

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.”
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) includes within the definition of soft tissue injury, “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”. In other words, an injury to a nerve is not a soft tissue injury (in accordance with s 1.6(2)) however if the injured nerve in question is a spinal nerve root that injury is a soft tissue injury unless the claimant has radiculopathy. If the claimant has radiculopathy, then that injury is a non-threshold injury.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and clause 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines[2]. Clause 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”.
[2] Two of five signs of radiculopathy are required.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act.[3] In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
[3] The current version of the Guidelines I version 9.1 effective 1 April 2023.
“5.3    The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4     Diagnostic imaging is not considered necessary to assess minor injury.
5.5     A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
The method of assessment in Part 5 does not appear to be limited to the assessment of minor injury disputes by medical assessors and Panel members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).

Dispute resolution

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.[4]
[4] Schedule2, clause 2(e) in the MAI Act.
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 Assem’s, further medical assessments and the Review of medical assessments by this Panel.[5]
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Assem examined the claimant on 16 August 2022 and issued his reason on the same day. Medical Assessor Assem says he was asked to assess the following:
(a) whether an injury to the saphenous nerve of the left knee caused by the motor accident is a minor injury for the purposes of the MAI Act, and
(b) whether an annular tear and cervical spine radiculopathy caused by the motor accident is a minor injury for the purposes of the MAI Act.
Medical Assessor Assem has a history of an earlier motor accident on 11 March 2013 when the claimant’s vehicle was rear-ended and the claimant sustained injuries to his neck, back and right wrist. He summarises the findings of radiology undertaken in May 2016 and an opinion of a neurologist that the claimant had a “C6 radicular picture”.
The claimant described the accident. He was a passenger on a bus that was stopped when it was rear-ended by a semi-trailer. The claimant says he was propelled two or three seats forward and his left knee hit a part of the seat. He says he developed bruising and a limp.
The claimant said the day after the accident he woke up with pain in his left groin shooting down the inside of his left leg accompanied by spasms but could not access medical attention as he was incarcerated at the time.
The claimant told Medical Assessor Assem that three weeks after the accident he developed pain in his neck and lower back which he reported to Justice Health. He was released from prison on 6 or 7 July 2019 and saw his general practitioner (GP) on 16 July 2019. An MRI of the neck and lower back on 27 August 2019 showed a large disc bulge in the neck and a tiny disc bulge in the back. An MRI indicated a minor sprain to the medial collateral ligament (MCL) and the lateral collateral ligament (LCL).
The claimant had physiotherapy and chiropractic treatment and saw Dr Singh who has recommended a cervical fusion and Dr Soo and Dr Borire in relation to his knee injury.
The claimant complains of constant neck discomfort which is now more intense and affects his activities of daily living. His main concern was constant discomfort in the left lower lumbar region with shooting pain. This is accompanied by sensory loss and dysesthesia and his leg feels weak and gives way.
On examination of the cervical spine, Medical Assessor Assem documents:
(a)    movements were normal or restricted but symmetrically restricted;
(b)    there was tenderness but no guarding or spasm, and
(c)    he was neurologically normal upper limbs.
On examination of the lumbar spine, Medical Assessor Assem documents:
(a)    a normal range of motion;
(b)    no tenderness, muscle guarding or spasm;
(c)    no sciatic nerve root tension signs;
(d)    markedly diminished left knee jerk reflex but symmetrical ankle reflexes were brisk and present;
(e)    0.5cm reduced circumference of the left thigh and calf;
(f)    generalised weakness of the left leg, and
(g)    diminished sensation in the medial aspect of the left thigh and calf.
Medical Assessor Assem summarises the documents. He accepts the claimant’s explanation for the delay in seeking treatment and accepts the claimant injured his left knee and cervical spine in the accident.
In terms of the cervical spine injury, Medical Assessor Assem noted the radiology suggests progression of the C5-6 bulge but no evidence of an annular tear and therefore the injury was a minor injury.
The saphenous nerve injury was dealt with by Medical Assessor Assem who considered such a nerve injury was inconsistent with the distribution of the claimant’s symptoms. Medical Assessor Assem was of the view that a saphenous nerve injury can occur when a knee hits a dashboard, but this would result in symptoms below the knee and not above the knee.
He also considered that as the symptoms crossed several myotomes and dermatomes they could be due to ‘epidural lipomatosis’ which is a rare constitutional condition but which is unlikely to have been caused by or aggravated in the accident.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant submits[6] at [4] that the claimant injured his lower back, cervical spine and left lower limb and at [5] that Dr Soo has diagnosed a traumatised saphenous nerve and Dr Singh diagnosed a tear in the lumbar spine and symptoms of radiculopathy in the claimant’s cervical spine.
[6] The submissions are dated 11 September 2022.
The claimant says the Medical Assessor did not:
(a)    identify any tests undertaken to identify the distribution of the reported sensory loss and dysesthesia;
(b)    did not identify the several myotomes and dermatomes he refers to;
(c)    does not explain why the reduction of left knee jerk reflex is inconsistent with a saphenous nerve injury;
(d)    does not refer to literature to explain why Dr Soo is incorrect, and
(e)    does not explain the significance of the 0.5cm difference in circumference in the left thigh and calf.
The claimant also argues at [18]-[21] that Medical Assessor Assem did not consider the annular tear to the claimant’s lumbar spine. The claimant says, the insurer’s internal review identified the L4/5 annular tear and this was part of the dispute. The claimant concedes the Commission’s application form could have been completed in a way which would have clearly identified this injury the claimant says a lumbar spine injury was inferred because there was no annular tear alleged elsewhere.

Insurer’s submissions

The insurer says that there is no error, and that the Medical Assessor has explained why he was of the view the claimant’s symptoms are not consistent with a saphenous nerve injury.
The insurer says at [7] that the Medical Assessor undertook an examination and utilised his clinical skills in doing so and that he is not required to explain the tests and procedures he administered.
The insurer says at [8] that he did explain that the saphenous nerve is a sensory nerve and therefore causes sensory loss and not loss of strength or reflexes or muscle atrophy [10].
The insurer says at [9] that the Medical Assessor is only required to make a diagnosis based on the available information, clinical examination and his own judgment.
The insurer says at [12]-[19] that the lumbar spine annular tear was not assessed because it was not clearly referred to in the form. The insurer also says that the Commission had identified what injuries were to be assessed and the claimant has not amended the application form or requested the injury be assessed.

Procedural matters

The Panel met on 23 March 2023 and reported to the parties on 30 March 2023.
The Panel noted that the Medical Assessor was only referred a neck injury and knee injury to assess but that he did examine the claimant’s lumbar spine. The Panel advised at [5]:
“The Panel is undertaking an assessment de novo of the medical assessment matter referred for assessment which is the dispute between the claimant and the insurer as to whether any of the claimant’s injuries are non-minor injuries. It is the Panel’s preliminary view that it may be open to it to undertake an assessment of a lumbar spine nerve root injury. The Panel invites submissions on this and whether the insurer wishes to obtain medical evidence about [the lumbar spine injury].”
The Panel also said at [6]:
“The Panel refers to the cases of David v Allianz Australia Insurance Ltd[7] (David) and Lynch v AAI Limited t/as AAMI (Lynch)[8]. These two cases found that if, at any time after the accident, the claimant’s accident-related injury falls outside the definition of ‘minor injury’ contained within s 1.6 of the MAI Act, the claimant must be found to have non-minor injuries regardless of the state of the injury (healed, recovered, in remission) at the time the Panel undertakes its assessment. The panel in David gave the example of a simple fracture sustained in the accident that heals by the time of the assessment. The injury is a non-minor injury even though the claimant may have recovered from it.
[7] 2021 NSWPICMP 227.
[8] 2022 NSWPICMP 6.
The Panel advised the parties that, subject to any submissions the parties wished to make, the injuries and issues in dispute between the parties appeared to be:
(a)    Neck
(i)Was there cervical radiculopathy at any time caused by the accident?
(ii)Is there an annular tear in the cervical spine discs and was it caused by the accident?
(b)    Lumbar:
(i)Was there lumbar radiculopathy at any time caused by the accident?
(ii)Is there an annular tear in the lumbar spine discs and was it caused by the accident?
(c)    Knee - saphenous nerve – was there an injury to the saphenous nerve evident at any time (regardless of whether it has recovered now)?
The Panel requested some additional documents, invited the parties to provide any final submissions and deferred its consideration of the matter to 31 May 2023.
The claimant provided documents and additional submissions on 8 May 2023[9] but did not raise any issue with the Panel’s preliminary view that it would consider the lumbar spine injury. The claimant said that “the evidence as a whole supports the submission that the Applicant has suffered an injury involving nerves, that he has more than a soft tissue injury and therefore the Applicant should be determined to have more than a minor injury”.
[9] Document AD3 and AD4 in the Commission’s file.
The insurer responded with short submissions but no additional documents and, like the claimant, did not address the issue of whether the Panel should consider the lumbar spine injury or not.
The insurer referred to the clinical notes of Dr Pope noting he reported on nerve conduction studies which revealed diminished saphenous sensory responses in both the injured and non-injured lower limb and that therefore the diminution of sensation in the left thigh and calf is not as a result of injury to the saphenous nerve and that the claimant’s physical injuries are threshold injuries.
The Panel met again on 31 May 2023. The Panel determined it had sufficient documentation and information before it and that we would proceed to an assessment of the medical dispute.

REVIEW OF THE EVIDENCE

The Panel has received the following documentation from the parties:
(a) the insurer’s bundle of documents comprising 113 pages (document AD2 in the Commission’s file), and
(b) the claimant’s bundle of documents comprising 118 pages (document AD1 in the Commission’s file).
The claimant lodged an application for admission of late documents on 8 May 2023 (document AD4) and the documents themselves (AD5). As the documents were requested by the Panel and are relevant to the proceedings, the Panel accepts these additional documents into evidence.
Neither party relies on independent medico-legal evidence but there is sufficient treating material to assist the Panel.
The claimant’s solicitor advised that records had been requested from Justice Health but had not been provided. The Panel is not of the view that we should delay the determination of the proceedings pending these records.

Claim form and claim documents

The application for personal injury benefits was declared as true and correct by the claimant on 16 July 2019.[10] The claimant alleges “lower back and neck pain, severe leg pain (left) inner thigh and knee region, numbness and burning feeling”.
[10] Page 22 of the claimant’s bundle
The certificate of fitness for the claim form is dated 16 July 2019 and was dated by Dr Lim.[11] It notes the cervical spine disc bulge indenting the thecal sac, the lumbar spine L4/5 annular tear and the left knee saphenous nerve injury with adjustment disorder.
[11] Page 43 of the claimant’s bundle.
There is a letter from the police advising no record could be found of the accident and both the insurer and the claimant have provided copies of NRMA’s liability notices.

Previous claim

The claimant had a previous accident in 2013 and the insurer has obtained records relating to that. Mr El Shaimy made a claim and the medical certificate completed in support of that claim was signed by Dr Gayed[12] and identifies a musculoligamentous sprain of the neck and a painful right wrist. The claimant was referred for physiotherapy and ultrasound.
[12] Page 44 and 60 of the insurer’s bundle and page 20 of the claimant’s bundle.
Radiology from 24 May 2013:
(a) identified no abnormality in the right wrist on x-ray but thickening of the tendon sheath adjacent to the distal end of the radius consistent with Dr Quervain’s type tenosynovitis, and
(b) partial sacralisation of the right side of L5 with a rudimentary L5/S1 disc.
An MRI undertaken on 9 December 2013[13] due to “neck pain radiating down left arm”. There was a “left paracentral disc bulge at C5/6 causing flattening of the left hemicord and moderate left foraminal stenosis” which was likely to be causing left C6 nerve irritation.
[13] Page 45 and 79 of the insurer’s bundle.
Dr Rail neurologist wrote to Dr Gayed on 13 January 2014[14] after the upper limb nerve conduction studies were done saying, “he has ongoing spasm related to this C6 radicular picture” and he reports that the claimant was to see Dr Abraszko.
[14] Page 51 of the insurer’s bundle.
Dr Abraszko wrote to Dr Gayed on 13 February 2014[15] noting Mr El Shaimy had painful neck movement to the left side but was neurologically normal. She was of the view the disc bulge at C5/6 was to blame but as he had improved with Epilim she suggested conservative management and recommended facet joint injections if his symptoms returned.
[15] Page 55 of the insurer’s bundle.
There is a chronic disease management plan completed on 26 February 2014 by Dr Gayed[16] noting the claimant was prescribed Mobic, had a whiplash injury, was overweight and required physiotherapy from Mr David Hanna at Trinity Physiotherapy.
[16] Page 70 of the insurer’s bundle.

Treating GP and allied health records and reports

The records of the Workers Doctors practice include notes[17] from Dr Lim and Dr Soo and the bundles contain other reports and records including the following:
[17] Page 93 of the insurer’s bundle and page 91 of the claimant’s bundle.
(a)    The first attendance was on 16 July 2019 when the claimant saw Dr Calvache-Rubio who took a detailed history from the claimant including issues with his low back, neck and left knee.[18]
[18] Page 35 of the claimant’s bundle.
(b)    Mr El Shaimy was next seen on 23 July 2019 and saw both the doctor and the physiotherapist a pattern which repeats itself. Many of the notes from the earlier consultation are repeated.
(c)    The claimant had an MRI of his neck, lower back and left knee on 27 August 2019 at the request of Dr Lim[19] due to “medial knee pain, thigh pain, neck and lower back pain” which revealed.
[19] Page 32 of the claimant’s bundle
(i)small knee joint effusion, some degenerative changes in the patella, no tears of menisci, tendons or ligaments and a tiny Baker’s cyst;
(ii)a “trivial central disc bulge” and “possible tiny annular tear” not causing any compression at L4/5. Some “prominent epidural lipomatosis extending from L5/S1 into the sacral sac”;
(iii)at C4/5 there was a “trivial disc bulge” with minor right neural exit foraminal narrowing, and at C5/6 a “large central and left mineralised disc bulge indenting the anterior thecal sac with moderate canal stenosis contributing to moderate to marked left neural exit foraminal narrowing.”
(d)    On 2 September 2019 the claimant attended with a note the claimant’s neck and back pain was not settling and referral to Dr Singh was provided.
(e)    There is a referral from Dr Lee to Dr Soo dated 8 October 2019[20] in respect of “ongoing knee numbness and burning sensation”.
(f)    On 28 October 2019 there was a consultation with Dr Lee concerning Mr El Shaimy’s cervical spine C5/6 disc bulge, lumbar spine L4/5 annular tear and left knee strain. It was advised he see an orthopaedic surgeon regarding his knee. He saw a physiotherapist at the practice on this day where the note is of improving lower back pain, but main problem was the neck pain.
(g)    The claimant attended the practice to review the reports of Dr Soo (14 November 2019) and Dr Singh (10 December 2019) and for physiotherapy.
(h)    On 20 January 2020 the claimant was seen by Dr Morgan Mo. The claimant had continued symptoms although his lower back pain had improved, and he was advised to try Gabapentin medication.
(i)    The claimant had a telehealth consultation with Dr Soo on 5 May 2020.
[20] Page 41 and 84 of the claimant’s bundle.
There are no further reports after that and no further notes from this practice. The claimant advised the Panel in the response to the Panel’s directions that he ceased attending Workers Documents on 5 May 2020 and did not return after his nerve conduction studies.
In the additional bundle of documents were the Trinity Health Care Centre records. The claimant saw Dr Bersano at that practice on 8 July 2019 for a check-up and advised he had a course of anabolic steroids, blood tests were done, but there is no mention of the car accident. The claimant next attended on 18 January 2020 for forms to be filled in and no mention of the car accident. Mr El Shaimy attended on 6 September 2022 for “persistent numbness of the inner left thighs extending from midthigh to the calf muscles” and the referral to Dr Pope was provided.
There is an allied health recovery request form[21] from the doctors at the Workers Doctors practice seeking physiotherapy and which refers to cervical spine strain, lumbar spine radiculopathy and left knee strain.
[21] Page 107 of the insurer’s bundle.
Mr Attia of Flame Tree Chiropractic provided a report dated 26 June 2021[22] “for an opinion on his neck pain and lower limb symptoms”. He noted temporary improvement after treatment, but occasional flare ups associated with increased activity and stress. The report details:
[22] Page 105 of the claimant’s bundle.
(a)    on examination 50% reduction in flexion and “catching pain” when coming back up in extension;
(b)    weakness in deep neck flexors;
(c)    positive signs of disc pathology;
(d)    neurological signs of diminished patella reflexes and loss of sensation noted along medial thigh;
(e)    10 sessions – soft tissue work and stretches with dry needling;
(f)    further exercise and stretches and strengthening exercises;
(g)    difficulties with activities of daily living and at work;
(h)    left leg reflexes and pin prick sensation are both diminished suggesting of nerve damage, and
(i)    further treatment was recommended.
The notes from the Flame Tree practice were provided in the additional documents from the claimant suggesting six attendances from 20 April 2021 to 26 October 2021. The first of these notes “Upper traps and neck spasm after bending down and doing physical activity last night that strained neck”. There was also cupping “back bilateral” undertaken. There is no mention of the car accident. At the fifth attendance, on 6 July 2021, is a mention of right knee and inner thigh numbness and loss of sensation, neck and lower back, cervical and lumbar disc, left arm.

Treating specialists

The claimant saw orthopaedic and spine surgeon Dr Singh on 17 October 2019[23] and he wrote to Dr Lim concerning the claimant’s neck pain and stiffness. He also noted an injury to the knee and lower back but felt the numbness around the left knee was secondary to an impact type injury and unrelated to the lumbar or cervical pathology. He notes the lumbar spine was “not symptomatic and can be left alone” but he did think the 2013 disc bulge had progressed. He recommended the claimant see an orthopaedic surgeon for the knee symptoms and a trial of perineural injections at C5-6.
[23] Page 16 of the additional bundle.
The claimant next attended Dr Soo wrote to Dr Lim 14 November 2019[24] – hit knee on back of seat in front, knee swelled up and was bruised and pain developed the next day. He denied previous injuries and previous knee problems. Constant numbness and pins and needles to the inside left thigh and inside of the knee. No pins and needles in his toes or feet. “He denied any pain in the knee” but gets twitching of his left leg at night. “He has no weakness to the knee or leg” but “sometimes he gets burning sensation to his knee on and off”. There was normal muscle bulk. On examination he had normal knee examination but an area of dense paraesthesia to the medical aspect of the knee from the distal thigh to the upper tibia. Normal motor function.
[24] Page 26 and 85 of the claimant’s bundle.
Dr Soo diagnosed trauma to a branch of the saphenous nerve, and he advised it would slowly improve with time.
Dr Soo also noted “in the lumbar spine he does have an annular tear and a small disc bulge at L4-5, however this is not symptomatic and can be left alone”.
In respect of the cervical spine he thought there was progression of the 2013 disc bulge with increased pain in the neck and restriction of movement and pins and needles in the left hand on occasions.
The claimant returned to Dr Singh for further review on 10 December 2019 and the claimant complained of periodical arm pain and pins and needles. Conservative treatment was advised and no further appointments arranged.
A further letter from Dr Soo to Dr Lim was sent on 5 May 2020.[25] This noted the claimant “still has the same symptoms of numbness to the front of his knee.” He was hypersensitive to touch and his knee was giving way. Dr Soo recommended nerve conduction studies.
[25] Page 112 of the insurer’s bundle and page 87 of the claimant’s bundle.
Nerve conduction studies were conducted on 25 May 2020 by Dr Borire.[26] The report to Dr Soo revealed “the saphenous sensory responses were symmetrical throughout limited by patient’s body habitus. All other peripheral nerve values are within normal limits.”
[26] Page 104 of the claimant’s bundle.
The claimant saw Dr Pope, neurosurgeon in September 2022. He wrote to Dr Ibrahim of the Trinity Health Care Centre about Mr El Shaimy’s presenting complaint of lower back pain and left lower limb pain with altered sensation.[27] Dr Pope had a history of the claimant hitting his “knees and shins” on the seat in front. Mr El Shaimy said he had minimal symptoms but developed pain in the left groin the day after the accident, radiating into the left anterior thigh and down the shin lasting for about three weeks but then he was left with constant numbness which has remained. He reports “there has been no weakness, no wasting of the leg but there is hypersensitivity to temperature of cold and hot objects in that area. There is no radicular pain down the leg anymore”. The claimant had lower back pain worse on the left side.
[27] Page 116 of the claimant’s bundle.
On examination of the lower back:
(a)    range of motion was restricted to 75% of normal in all directions;
(b)    minimal tenderness and some mild spasming but not in buttocks or hip;
(c)    tone in lower limbs was normal;
(d)    circumference in the thigh was 43 (left) and 44 (right) and in the calf 34 (left) and 35 (right);
(e)    myotomes were said to be normal;
(f)    diminished knee jerk on the left side which was almost absent, and
(g)    decreased sensation over the L4 dermatome and to a lesser extent over L3.
Dr Pope had reviewed the 2019 MRI and said, “with the wasting and the diminished knee jerk”, he wanted to repeat the MRI. He also wanted a bone scan done and advised the claimant to take Palexia and see Dr Alan Nazha pain specialist.
The claimant’s final submissions advise that the claimant never went to see Dr Nazha.
In the additional bundle of documents provided by the claimant, there is an MRI of the claimant’s lumbar spine dated 12 January 2023 but no further reports or letters from Dr Pope. The MRI reveals “No significant vertebral body compression fracture, focal disc herniation or neural impingement.”

CONSIDERATION OF THE ISSUES

Is the lumbar spine injury to be considered?

A copy of an email sent by the case manager at the DRS to the parties is relied on by the parties.[28] This refers to the application for medical assessment, identifies the medical assessment matter is a minor injury dispute and lists the injuries to be assessed as the claimant’s left knee and the neck. The email then says in bold type:
“Unless otherwise advised by the parties these are the only injuries that will be referred for medical assessment, contact DRS immediately if this [is] not accurate.”
[28] The email from Mr John Dickens is dated 1 May 2020 and is found at page 6 of the insurer’s bundle
A copy of a “referral letter” sent to the Medical Assessor by the Commission advising of the medical assessment appointment and dated 27 January 2022 was uploaded to the portal. This letter refers to only two injuries, the claimant’s neck injury and the left knee injury. This letter was also sent to the parties.
There is no documentation before the Panel to suggest the claimant ever sought an amendment to the application or specifically requested the claimant’s lumbar spine should be assessed and while Medical Assessor Assem examined the claimant’s lumbar spine, he did not make any findings in relation to it.
The claimant says the Panel should consider the lumbar spine, the insurer says as it was not assessed by Medical Assessor Assem, the Panel should not consider it.
In the Panel’s report and directions document after the first teleconference, the Panel expressed its preliminary view that as we were undertaking a de novo assessment of the threshold injury medical assessment matter, we should consider it. The parties were invited to provide submissions on that issue but neither party has addressed it.
The Panel notes the claimant alleged a lumbar spine injury in his claim form and that the insurer’s internal review decision addresses the L4/5 tear determining it was not caused by the accident and stating there is no evidence of radiculopathy. The insurer has therefore been on notice of the existence of a lumbar spine injury. The Panel invited the insurer to obtain evidence to address the lumbar spine injury if necessary, however the insurer has not accepted that invitation.
The Panel notes the guiding principle of the Commission is “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”[29] It is the Panel’s view that if we do not consider the lumbar spine injury, the claimant is likely to seek a further assessment under s 7.24 of the MAI Act which would cause further delays and incur additional costs which would not be in furtherance of the guiding principle.
[29] Section 42(1) of the Personal Injury Commission Act 2020.
Section 7.25(6) of the Act provides in respect of this review:
“The review of a 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.”
What was referred by the claimant to the DRS was a medical assessment matter about “whether the injury caused by the motor accident is a minor [now threshold] injury for the purposes of the Act.”[30] Medical Assessor Assem determined the two injuries referred to him (neck and saphenous nerve) were minor injuries. The Panel is not conducting an “appeal” of Medical Assessor Assem’s assessment of those two injuries, but we are undertaking a fresh assessment of the medical assessment matter that was referred by the claimant to the DRS that is what injuries were caused by the accident and whether any of them are threshold injuries.
[30] Schedule 2 of the MAI Act cl 2(e).
The Panel will therefore consider the lumbar spine injury.

Is a re-examination required?

The Panel is of a view that a re-examination of the claimant is not required. In the light of the decisions of David and Lynch, and unlike assessments of whole person impairment, the determination of threshold injury is not limited to how the claimant presents at a medical examination undertaken by a Medical Assessor. All of the claimant’s post-accident and pre-assessment state must be considered as part of the determination.
In the light of the Panel’s findings in relation to the lumbar spine injury, the Panel is of the view that, on the basis of the medical evidence before us, the claimant has had a non-threshold injury and therefore little would be gained by conducting a medical re-examination of the claimant.

Lumbar spine injury

Did the claimant injure his lumbar spine in the accident?

The claimant’s lumbar spine was mentioned in the claim form and the initial certificate of fitness. There is no mention of lumbar spine injury in relation to the 2013 accident.
Lower back pain is mentioned consistently in the records of Dr Lim and others although Dr Soo and Dr Singh suggest the claimant had minimal if any lower back symptoms at the end of 2019. Chiropractic treatment addressed the lumbar spine in June 2021 and Dr Pope has a clear history of ongoing lower back symptoms.
The claimant told Medical Assessor Assem that after the accident he developed pain in the neck and lower back and that the lower back and shooting pain were his main concern.
The unchallenged mechanism of the accident is that the claimant was an unsecured passenger in a public bus which was hit from behind by a truck “at speed”.
The Panel is satisfied that the claimant could have sustained a lower back injury in this accident and that the records support a finding that he did in fact sustain a lower back injury in the accident.

Has the claimant had lumbar radiculopathy at any stage since the accident?

Clause 5.8 of the Motor Accident Guidelines provides that radiculopathy requires two or more of the following clinical signs to be found on examination:
(a)    loss or asymmetry of reflexes;
(b)    positive sciatic nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference;
(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.
Dr Pope, a treating doctor, examined the claimant in September 2022 and reported to Dr Ibrahim as follows:
(a)    an almost absent left sided knee jerk reflex (indicating a possible L3/4 nerve root issue);
(b)    he did not mention nerve root tension signs;
(c)    one centimetre difference between the left and right thigh and calf. While falling short of the definition of atrophy in table 6.8 for the thigh, there is atrophy in the left calf and a decreased limb circumference in the thigh (also indicating a possible L3/4 nerve root issue);
(d)    no muscle weakness, and
(e)    sensory loss in the L4 and L3 dermatomes.
Dr Pope has therefore found three of the five signs of radiculopathy. His examination appears to be thorough and compliant with cl 5.6 of the Guidelines. He took a history from the claimant and reviewed the 2019 radiology. The medical members of the Panel are of the view there is no cause to doubt his clinical examination findings, particularly in the light of Medical Assessor Assem’s assessment.

Medical Assessor Assem examined the claimant a month before Dr Pope. He found:
(a)    markedly reduced left knee jerk reflexes;
(b)    no sciatic nerve root tension signs;
(c)    0.5cm reduction in circumference of the left thigh and calf;
(d)    generalised weakness of the left leg, and
(e)    diminished sensation in the left thigh and calf.
Medical Assessor Assem has therefore found four of the five signs of radiculopathy in an examination that complies with cl 5.6 of the Guidelines.

Is the claimant’s lumbar spine injury a threshold injury?

There was a tiny bulge and possible tear at L3/4 reported in the 2019 MRI. The MRI undertaken in January 2023 at the request of Dr Pope does not report any significant disc or vertebral findings. The Panel is not satisfied there is any “complete or partial rupture of tendons, ligaments, menisci or cartilage” in the lumbar spine and that therefore any disc injury in the lumbar spine is a soft tissue “threshold” injury within the meaning of s 1.6(1) of the MAI Act.
However, the Panel is satisfied the claimant has sustained injury to the spinal nerves most likely at L3 or L4. There is no evidence of a pre-existing lumbar spine condition, and the claimant has complained of lower back pain since the accident. The claimant has been assessed by two medical examiners (Dr Pope and Medical Assessor Assem) and has on both occasions had two of the five signs of radiculopathy present. The Panel also notes this finding of radiculopathy appears supported by the chiropractor’s report in June 2021.
While an injury to nerves comes within the definition of soft tissue injury in s 1.6(1) of the MAI Act, an injury to a spinal root manifesting in radiculopathy falls outside the definition. The Panel is therefore satisfied that the claimant has a non-threshold lumbar spine nerve root injury.

Is the neck injury a threshold injury?

In November 2019, Dr Soo has a history of occasional pins and needles in the left hand and increased pain in the neck. Pain is not a sign of radiculopathy according to the Guidelines.
There is no evidence of two or more signs of radiculopathy at any stage in Mr El Shaimy’s cervical spine. If there was a cervical nerve root injury it is, due to the absence of radiculopathy, a soft tissue injury and a threshold injury. While the Panel has not examined the claimant to determine whether there is currently cervical radiculopathy, in the light of the lumbar spine finding, the Panel does not propose to consider the issue of cervical radiculopathy further.
The claimant’s 2013 radiology revealed a left paracentral disc bulge at C5/6 and likely C6 nerve irritation. The claimant’s 2019 radiology revealed the same bulge. Dr Soo and Dr Singh suggest the disc bulge has progressed. Dr Pope took no report of neck symptoms.
It is the clinical judgment of the medical members of the Panel that while the disc bulge may have progressed, it is likely the progression of the disc bulge from 2013 to 2019 is the natural progression of disc degeneration and not suggestive of trauma caused by the accident. If the disc bulge has progressed there is insufficient evidence to suggest this has occurred due to a further “partial rupture of tendons, ligaments, menisci or cartilage”. The Panel is therefore satisfied Mr El Shaimy’s neck injury is a threshold injury.

Is there a saphenous nerve injury and is it a threshold injury?

The claimant said he hit his left knee on the seat in front of him in the accident. There is no history from Mr El Shaimy of hitting his right knee in the accident.
Dr Soo diagnosed trauma to a branch of the saphenous nerve and advised it would improve with time. Dr Soo in May 2020 referred to numbness at the front of the claimant’s knee.
Mr El Shaimy has reported to Dr Soo and Medical Assessor Assem a lack of sensation in the inside of the left thigh and the inside of the left knee but not pain in the left knee.
The claimant had nerve conduction studies done of the saphenous nerve which revealed the same diminution of sensation in both the left lower limb (injured) and the right lower limb (uninjured). If there had been a saphenous nerve injury the Panel would have expected the saphenous sensory responses to have been asymmetrical that is lower on the left than the right. While the claimant may have injured his knee in the accident, there is no evidence of a saphenous nerve injury to the left lower limb caused by the accident.
The Panel accepts the claimant hit his knee on the seat in front of him in this accident and injured it. The Panel is satisfied that any injury to Mr El Shaimy’s knee was soft tissue in nature and therefore is a threshold injury.

CONCLUSION

While the Panel is of the view the claimant’s neck and knee injuries are threshold injuries, the Panel is of the view the claimant’s lower back nerve injury is not a threshold injury due to the presence of radiculopathy.
As the Panel has come to a different view to Medical Assessor Assem, the Panel will revoke his certificate and issue a fresh certificate.

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Citations

El Shaimy v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 247

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[2023] NSWPICMP 247

5 June 2023