Farsad v QBE Insurance (Australia) Limited
[2025] NSWPICMP 311
•6 May 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Farsad v QBE Insurance (Australia) Limited [2025] NSWPICMP 311 |
| CLAIMANT: | Shirin Farsad |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 6 May 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); motor accident; substantial collision; claimant re-examined; early complaint of left sided low back pain; absence of complaint at hospital not significant; MRI scan showed left L4/5 protrusion; prior back pain; clinical findings of the Review Panel support source of radiating pain from the L4/5 disc; intervertebral discs are cartilaginous structures; aggravation of disc involves further tearing which is a partial rupture of cartilage and ligaments; Held – motor accident aggravated the protrusion at L4/5; non-threshold injury within the meaning of the Act; MAC revoked and new certificate issued. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 7 October 2024 and certifies that the motor accident aggravated the L4/5 disc resulting in an injury which is not a threshold injury within the meaning of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Shirin Farsad (the claimant) suffered injury in a motor accident on 27 July 2023. The claimant made a U-turn and the insured vehicle coming in the opposite direction collided with the driver’s side of the vehicle.[1] Issues of the extent of the claimant’s negligence and/or contributory negligence are not before the Panel.
[1] Insurer’s bundle, p 45.
The insurer is liable to pay to Ms Farsad any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The following injuries were referred in the medical dispute for determination of whether the motor accident caused a non-threshold injury:
(a) cervical spine;
(b) thoracic spine;
(c) lumbar spine;
(d) right shoulder;
(e) left shoulder;
(f) right arm;
(g) left arm;
(h) left hip;
(i) right hip;
(j) right leg, and
(k) right ankle.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[3]
[3] Section 4.4 of the MAI Act.
STATUTORY AMENDMENT
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
ORIGINAL MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor McGrath who issued a Medical Assessment Certificate dated 7 October 2024 (the medical assessment certificate).[4]
[4] Insurer’s bundle, p 29.
The Medical Assessor found that all injuries referred for assessment were threshold injuries.
The Medical Assessor found normal range of movement in the cervical spine, thoracic spine, bilateral shoulders, arms and bilateral hips. The Medical Assessor found ongoing signs and symptoms in the lumbar spine with no neurological signs in the lower extremities. He stated:[5]
“She has residual lower back pain with occasional episodes of sciatic type pain into the left leg. She would satisfy the criteria for non-verifiable radicular complaints in the L5 distribution. She does not satisfy the criteria for radiculopathy.”
[5] Insurer’s bundle, p 40.
The Medical Assessor did not find that the motor accident aggravated the L4/5 disc pathology. He stated:[6]
“Given the previous history of back pain, we cannot be confident that the visualised pathology, particularly at the L4/5 level, is an outcome of the accident. This region of the spine was not highlighted during her hospital consultation which suggests it was not a non-threshold injury from its outset. Investigations for the lumbar spine, were also very late (one year) compared to other investigations, suggesting any MVA injury to this region was minimal. Alternatively, symptoms from the L4/5 disc may be a development from unrelated later inputs.”
[6] Insurer’s bundle, p 40.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the medical assessment certificate.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel issued a direction dated 21 March 2025 as follows:
“The Panel has received the bundles promptly filed by the parties in response to the recent direction
It is the Panel’s preliminary view that the only possible non threshold injury is to the lumbar spine. We seek the claimant’s consent to limit the medical dispute to the issue of whether there is a non-threshold injury to the lumbar spine with acceptance that the other physical injuries are threshold injuries.
Otherwise, the Panel directs:
(a)In the absence of such concession (to be communicated by cob 4 April 2025), the claimant is to file submissions by close of business 4 April 2025 specifying relevant page numbers of the bundles where there is evidence of a non-threshold injury. In the absence of submission the claimant is on notice that the Panel will assume there is no evidence supporting non-threshold findings for any other body parts.
(b)The claimant is to forward a hard copy of the lumbar spine MRI scan dated 27 August 2024 to the Personal Injury Commission (attention Principal Member Harris) who will arrange for Medical Assessor Dixon to review the MRI scan imaging of the lumbar spine.”
The only response to the direction was an application to admit late documents containing various scans. These scans are referenced in the discussion of the evidence.
The claimant did not respond to the Panel’s request to identify the basis that the alleged injuries were defined as non-threshold within the meaning of the MAI Act.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric 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 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines 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.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12] In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Claimant’s submissions dated 7 June 2024[14]
[14] Insurer’s bundle, p 15.
These submissions referred to the various body parts and submitted that the “injury is not a threshold injury”.
Claimant’s submissions dated 6 November 2024[15]
[15] Insurer’s bundle, p 8.
These submissions sought leave to review the medical assessment.
The claimant submitted that the Medical Assessor did not apply the correct test for causation and that the absence of contemporaneous complaint is relevant but not determinative noting that the GP recorded complaints of lower back pain four days after the accident.
Insurer’s submission dated 26 June 2024[16]
[16] Insurer’s bundle, p 19.
The insurer referred to the longstanding history of symptoms in the neck, leg, ankle, bilateral shoulders, lumbar spine and anxiety and depression. It submitted that there was a significant pre-existing medical history which correlates with the alleged injuries and that there were causation issues.
The insurer noted that the claimant attended hospital without a check-up and re-attended the following day when she underwent X-ray scans of the cervical spine, thoracic spine, pelvis and right ankle. These investigations showed nil fractures with a diagnosis of a likely soft tissue injury to the neck and chest.
The insurer noted that the claimant attended her general practitioner (GP) four days later with complaints of headache, neck pain with radiation into the arm, chest pain, thigh bruise, lower back pain, ankle swelling and anxiety. Further scans were normal.
The insurer submitted that the various injuries were threshold injuries. It referred to prior cervical spine pain and bilateral shoulder symptoms noting the MRI scan of the cervical spine dated 16 April 2021 and bilateral shoulder complaints in May and June 2021.
The insurer referenced the findings of Dr Perla in October 2023 and Dr Malouf on
11 September 2023 and submitted that any injury was a soft tissue injury.With respect to the back the claimant was in a wheelchair in October 2020 with left hip pain. There were reports of worsening pain over the following months including reference to a motor accident in November 2020.
The insurer noted there was no reference to back pain at hospital. Complaints to doctors in July and September 2023 referred to non-specific or muscular back pain.
The insurer submitted that any thoracic injury was soft tissue with no support for a non-threshold injury.
The insurer noted that there is a bruise on the right thigh and swelling on the right ankle which are threshold injuries.
The insurer noted there was no contemporaneous report of arm injury and this appeared in November 2023 (as well as prior to the accident) when there were complaints of a dead arm feeling.
Insurer’s submission dated 27 November 2024[17]
[17] Insurer’s bundle, p 2.
These submissions were filed opposing leave to review the medical assessment.
The insurer submitted that the Medical Assessor considered a detailed history provided by the claimant, carried out an independent clinical examination, provided a comprehensive summary of the evidence, noted the various investigations and provided appropriate diagnosis of MAI Act and the Guidelines.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
In mid-2017 the claimant reported pain in both hands, little finger, bilateral planter fascia, both knees and spinal pain.[18] Examination by the GP referred to tenderness at L4/5 and C4/5.
[18] Insurer’s bundle, p 111.
In March 2018 the GP noted bilateral carpal tunnel syndrome and left knee pain.[19]
[19] Insurer’s bundle, p 114.
In October 2020 the GP noted that the claimant had recently come back from Iran with a back injury, was in a wheelchair and had lumbar back pain with left-sided sciatica. Endone had been prescribed.[20]
[20] Insurer’s bundle, p 119.
On 28 October 2020 the GP noted that the sciatic pain was worse and radiating to the left leg.[21]
[21] Insurer’s bundle, p 120.
In November 2020 the claimant underwent a CT scan of the lumbar spine which showed disc bulging at L3/4 and L4/5 with no canal stenosis or evidence of nerve impingement and mild right L5/S1 facet arthropathy.[22]
[22] Insurer’s bundle, p 189.
Bilateral knee X-rays dated 3 December 2020 were essentially normal.[23]
[23] Claimant’s bundle, p 132.
In April 2021 the GP noted neck pain with radiculopathy and pain at T6/7 and T7/8[24] and bilateral elbow pain.[25] The MRI scan of the cervical spine dated 16 April 2021 showed minor diffuse disc bulge at C4/5 contributing to minimal canal stenosis with no other significant disc bulge or canal stenosis identified.[26]
[24] Insurer’s bundle, p 127.
[25] Insurer’s bundle, p 128.
[26] Insurer’s bundle, p 203.
In May 2021 the GP noted bilateral shoulder pain and organised an ultrasound.[27] The ultrasound of the right elbow showed lateral epicondylitis.[28]
[27] Insurer’s bundle, p 129.
[28] Insurer’s bundle, p 205.
The ultrasound of both shoulders dated 31 May 2021 was suggestive of bilateral subacromial/subdeltoid bursitis.[29]
[29] Insurer’s bundle, p 206.
Ongoing arm and arm complaints were noted by the GP at the end of 2021 into 2022.
On 8 March 2022 the GP noted lower back pain radiating to the buttock and prescribed Panadeine Forte.[30] On 25 March 2022 the GP recorded back pain, spinal pain, wrist and elbow pain and diagnosed polyarthralgia.
[30] Insurer’s bundle, p 137.
In September 2022 the GP noted long-standing elbow, shoulder and hand pain.[31]
[31] Insurer’s bundle, p 139.
Post-accident medical records
The claimant was discharged from hospital on 28 July 2023 with a diagnosis of likely soft tissue neck and chest injuries.[32] The history recorded at hospital was of no loss of consciousness.
[32] Insurer’s bundle, p 65.
Examination at hospital of the shoulders, back, pelvis and legs were normal with no paraesthesia down the arms. The chest was tender as was the right paravertebral region.
The claimant called her GP on 29 July 2023 enquiring of the results of the CT scan.[33]
[33] Insurer’s bundle, p 141.
On 31 July 2023 the GP noted the following symptoms:
(a) headache;
(b) neck pain radiating to both arms;
(c) chest pain;
(d) swollen right shoulder and pain;
(e) bruised right thigh;
(f) right sacroiliac joint pain and left sided pain with lower back pain;
(g) swollen right ankle and pain, and
(h) worsened anxiety.
The GP noted tenderness in the cervical spine (C4 and C8), thoracic spine (T6/7) and the lumbar spine (left S1).[34]
[34] Insurer’s bundle, p 142.
The claimant underwent X-rays of the thoracic spine, cervical spine, pelvis, right ankle and right leg on 31 July 2023.[35] The X-rays did not show any fractures or dislocations with minor degenerative changes noted at the greater trochanter.
[35] Insurer’s bundle, p 93.
In a claim form dated 7 August 2023 the claimant stated that the motor accident caused injuries to the cervical spine with radiating pain down both shoulders into the arms, thoracic spine, lumbar spine, right ankle, sacroiliac area, pelvis, right thigh bruise and psychological injury.[36] The claimant noted that she suffered a mid/lower back injury in 2015 and carpal tunnel/tennis conditions injuries in 2017.
[36] Insurer’s bundle, p 45.
On 30 August 2023 the GP recorded headaches were better, neck pain radiating to both shoulders, bilateral shoulder pain, thoracic spine pain, lumbar spine pain and the right ankle was painful and mildly swollen.[37]
[37] Insurer’s bundle, p 144.
The Allied recovery request dated 8 September 2023 noted cervical and lumbar spine injury following the motor accident with constant neck, shoulder pain worse on right side, lumbar spine with posterior left leg pain and right buttock pain and normal neurological assessment of the upper and lower limbs.[38]
[38] Insurer’s bundle, p 239.
Dr Malouf, rheumatologist, provided a report dated 11 September 2023 noting current problems of neck pain, shoulder pain, upper limb pain, thoracolumbar pain and lower limb pain. History included lower back pain in November 2020.[39]
[39] Insurer’s bundle, p 86.
Neurological examination of upper and lower limbs was normal including tone, power, sensation of pinprick and reflexes. Discomfort and bilateral shoulder joints was in keeping with mild rotator cuff tendinosis. There was restriction of lumbar extension due to the muscular lower back pain. Tenderness was noted over the right ankle with minor swelling, tenderness over the bilateral sacral regions, worse on the right and tenderness in the lumbar paraspinal muscles.
Dr Malouf opined that the gradual onset of symptoms following the motor accident was consistent with soft tissue and non-specific musculoskeletal pain with no evidence of nerve impingement or fracture.
On 25 October 2023 the GP noted bilateral shoulder pain radiating to both arms, mild back and lower back pain, radiating to the right leg.[40]
[40] Insurer’s bundle, p 148.
The MRI scan of the cervical spine dated 19 February 2024 showing a minor central disc protrusion causing minimal canal stenosis at C4/5 with a small central annular tear at C5/6 and minor disc protrusion causing minimal canal stenosis. The thoracic spine scan showed minimal spondylosis at T4/5 and T7/8 not causing canal stenosis.[41]
[41] Insurer’s bundle, p 91.
Timothy Lee, physiotherapist, provided a report dated 23 October 2023. He noted ongoing pain in the lower back, neck, thoracic spine, right leg and ankle pain.[42] In a report dated
8 January 2024 the physiotherapist noted increasing arm pain that had developed since November 2023.[43][42] Insurer’s bundle, p 68.
[43] Insurer’s bundle, p 80
An initial report by Dr Perla and Dr Antoun dated 4 September 2023 diagnosed soft tissue injuries to the neck, back, shoulder, ankle and anxiety.[44] The report was probably prepared in the absence of examination based on contact with the GP. In a subsequent report dated
30 January 2024 the doctors noted the ongoing restrictions certified by the GP and opined that the claimant “should have recovered”.[45][44] Insurer’s bundle, p 70.
[45] Insurer’s bundle, p 77.
Dr Malouf provided a further report dated 16 October 2023. The doctor noted non-specific shoulder and back pain and ongoing right ankle swelling. There was no radiation of pain into the lower limbs. Dr Malouf recommended changes to medication and noted commencement of physiotherapy.[46]
[46] Insurer’s bundle, p 79.
On 28 April 2024 the physiotherapist noted ongoing reported pain in the lower back, neck, shoulders and into the right leg.
The MRI scan of the lumbar spine dated 23 August 2024 showed a small posterior disc bulge and left foraminal disc protrusion contacting the left exiting L3 nerve root with potential for mild compression, and disc desiccation and broad-based left central foraminal disc protrusion at L4/5 without neural compression.[47]
[47] Claimant’s bundle, p 233.
On 16 September 2024 Dr Malouf opined that the disc protrusions at L3/4 and L4/5 were unlikely to be the cause of chronic lower back pain as there was no established arthritic change in the facet joints or significant spondylolisthesis. The potential irritation of nerve roots may contribute to proximal left lower limb pain, but the MRI scan did not demonstrate a clear cause for this particular pain.[48]
[48] Claimant’s bundle, p 230.
Dr Malouf provided a report dated 9 December 2024 covering attendances between
11 September 2023 and 16 September 2024.[49] The doctor diagnosed soft tissue injury related to the physical trauma of the car accident including right ankle sprain, bilateral shoulder sprain and cervical, thoracic and lumbar paraspinal muscular injuries.[49] Claimant’s bundle, p 227.
RE-EXAMINATION
The claimant was examined by Medical Assessor Assem who provided the following report:
“On 29 April 2025, Ms Farsad attended a medical assessment with Medical Assessor Assem at the Personal Injury Commission medical suites located at 1 Oxford Street, Darlinghurst. She arrived unaccompanied.
Pre-Accident Medical History and Relevant Personal Details
Ms Farsad is a 40-year-old right-hand dominant lady, who was involved in a motor vehicle accident on 27 July 2023. She has previously worked as a manager in a retail store. At the time of the accident, she completed a Master of Fine Arts degree and was self-employed as a cosmetic tattoo artist.
Past History
In 2015, while working at an auction house in London, she sustained a significant lower back injury. This occurred when lifting a heavy sculpture over a high counter, resulting in an immediate sharp pain in the upper lumbar spine region and difficulty breathing for several minutes. Despite the severity of her symptoms, Ms Farsad continued to work without taking time off or receiving any treatment.
She returned to Sydney in 2016, where she worked as a part-time retail manager. During this period, she experienced intermittent lower back discomfort, which she managed with postural adjustments. Concurrently, she developed arthritis in her left knee, that was exacerbated by prolonged standing on hard tiled surfaces. She was permitted to sit when needed during her shifts, and she continued working without formal work restrictions or time off.
In 2020, without an identifiable precipitating event, Ms Farsad experienced a significant flare-up of her lower back symptoms. At that time, she was studying for her Master’s degree in arts while continuing part-time retail employment. She sought medical attention for her back pain and requested further investigations, believing it was linked to her 2015 London injury. Despite the severity of her symptoms during this flare, she did not cease work and continued her academic pursuits.
In November 2020, a CT scan demonstrated early disc bulging at the L3/4 and L4/5 levels without nerve impingement or spinal stenosis. This was followed by an MRI scan of the cervical spine on 16 April 2021, which revealed a diffuse disc bulge at C4/5 in the cervical spine. Around this time, she was also diagnosed with bilateral subacromial and subdeltoid bursitis, managed successfully with ultrasound-guided corticosteroid injections.
In 2021, after returning from Iran where she had been stranded during COVID-19 border closures, Ms Farsad transitioned to working as a cosmetic tattoo artist. She reported returning to Australia in a wheelchair, presenting hunched over with significant pain localised to the mid and upper lumbar region radiating into the buttocks but not extending into the lower limbs. She attributed her deterioration at that time to a combination of psychological distress, including depression from prolonged isolation and stress during the pandemic, and exacerbation of underlying fibromyalgia symptoms, rather than to a discrete new mechanical injury.
Following her return to Australia, she was admitted to a medical quarantine hotel, where she received anti-inflammatory treatment. She noted significant improvement with medication and reported that by the tenth day of quarantine, she had recovered.
By late 2021 and early 2022, Ms Farsad resumed work activities, initially training on latex practice material for cosmetic tattooing and later working with clients. Although her work was physically demanding, she managed her duties effectively. She did report flare-ups of generalised musculoskeletal pain in March 2022, including symptoms affecting the spine, wrists, and elbows, leading her treating doctor to raise the possibility of fibromyalgia. During this period, her work hours were reduced, and she intermittently accessed Centrelink benefits.
GP records around March 2022 document complaints of polyarthralgia, back pain, and spinal discomfort. She was prescribed anti-inflammatory medications and Valium for pain and muscle spasm. Despite these complaints, she continued working.
At the time of the subject accident on 27 July 2023, Ms Farsad reported that her pre-existing musculoskeletal conditions were generally stable. She described being able to perform her tattooing work, albeit with modifications when needed. There was no contemporaneous medical documentation indicating that she was severely restricted or incapacitated by her prior musculoskeletal conditions immediately before the motor vehicle accident.
History of the Motor Accident
On 27 July 2023, at approximately 9:00 PM, Ms Farsad was driving her 2011 model Toyota sedan in an unfamiliar area near Auburn Train Station, at the intersection of Merrylands Road and Railway Terrace. Having become lost earlier in the evening while attending a work-related dinner meeting to discuss sponsorship for a charitable event, she attempted a U-turn in order to return to her previous route.
Ms Farsad began executing the U-turn across double white lines when she observed headlights approximately 100 metres away. Despite recognising the approaching vehicle, she described freezing in the roadway, unable to complete the U-turn. She assumed the oncoming vehicle would slow or stop; however, no such attempt was made. The oncoming vehicle, travelling at an estimated high speed, collided into the side of her vehicle.
The collision forcefully struck the right-hand side of her vehicle, primarily impacting the front and rear passenger doors. Ms Farsad’s car spun uncontrollably and ultimately crashed into the front of a nearby shopfront. She recalls losing consciousness briefly — describing a blackout of approximately 30 seconds — between the moment of collision and finding herself stationary in front of the store. She did not recall the vehicle spinning or the subsequent secondary impact with the shop.
At the time of the accident, Ms Farsad was wearing her seatbelt restraint. The airbags in her vehicle did not deploy. Her head impacted the side pillar of the vehicle near the driver’s side door, resulting in bruising to the right side of her head. She was anxious and distressed following the collision but initially reported no significant pain. Photographic evidence confirmed extensive damage to her vehicle, which was deemed a total loss following the accident. The passenger in her vehicle did not sustain new injuries but experienced a flare-up of pre-existing knee issues as a result of the collision.
History of Symptoms and Treatment Following the Motor Accident
She was transported by ambulance to Westmead Hospital. Despite clinical staff recommending a full assessment—including imaging—she left the hospital prematurely due to overwhelming anxiety and psychological distress related to the environment. As a result, no formal investigations or treatment were undertaken during that initial presentation.
On 28 July 2023, the day after the accident, her symptoms escalated, prompting her to present to Ryde Hospital via private transport. She reported right-sided neck pain and stiffness, sharp right-sided chest pain, right temporal and occipital headaches, lower back discomfort, and right ankle swelling.. She was diagnosed with soft tissue injuries: cervical spine whiplash, musculoskeletal chest strain, and a right ankle sprain. She was discharged with advice for conservative management and directed to follow up with her general practitioner.
Over the subsequent days, her symptoms became increasingly pronounced. She reported severe lower back pain that was different in character and location to what she previously experienced. Her lower back pain was radiating into her left leg, with associated difficulty in sitting or standing, stating she was unable to sit normally for approximately six weeks. Additionally, she described widespread musculoskeletal inflammation, including persistent right ankle swelling, which reportedly lasted for eight months
On 31 July 2023, Ms Farsad consulted her general practitioner, Dr. Rahman, reporting persistent headaches, neck pain radiating into her arm, thoracic discomfort, lower back pain (tenderness left sacroiliac joint) , swelling in her right ankle, and visible thigh bruising. Clinical examination identified soft tissue injuries without signs of acute neurological compromise. Radiological investigations, including further X-rays of the thoracic spine on the same day and cervical spine, pelvis, and right lower extremity imaging on 1 August 2023, were unremarkable.
Physiotherapy commenced in August 2023 under the supervision of Timothy Lee. Initial assessments noted ongoing cervical spine stiffness, mid-thoracic discomfort, and significant lower back pain with episodic sciatic-type symptoms radiating into the left lower limb. Ms Farsad described pronounced difficulty with prolonged sitting and bending, activities fundamental to her role as a cosmetic tattoo artist.
In September 2023, she was assessed by rheumatologist Dr. Nicholas Malouf. On examination, Dr. Malouf found no clinical evidence of radiculopathy or neurological deficits. He proposed that central sensitisation contributed to her heightened pain experience, alongside mechanical musculoskeletal injury. Continued conservative management, including physiotherapy and exercise-based rehabilitation, was advised.
In October 2023, her left-sided sciatic-type pain became more frequent, particularly with prolonged sitting, standing, and cold exposure. She described marked discomfort after approximately 40 minutes of sitting, worsening substantially after two hours, often accompanied by radiation of pain from the left buttock into the posterior thigh.
In January 2024, a follow-up review with Dr. Malouf confirmed the persistence of lower back pain and sciatic-type symptoms. Examination remained stable, with no neurological signs. An MRI of the thoracic spine performed on 19 February 2024 identified minimal spondylosis with minor disc ridging at T4/5 and T7/8, without canal stenosis. Although this accounted for some thoracic discomfort, it was not deemed a significant structural injury related to the accident.
A subsequent MRI of the lumbar spine and sacroiliac joints on 27 August 2024 revealed degenerative disc changes at L3/4 through L5/S1, with an L4/5 disc protrusion and foraminal narrowing impinging upon the adjacent nerve root. This finding was consistent with the left-sided radicular symptoms she reported. The insurer contested the causal relationship, suggesting that the disc pathology was pre-existing; however, based on the clinical timeline and prior imaging history, Ms Farsad maintained that the L4/5 disc protrusion and associated symptoms represented new or exacerbated injury attributable to the accident.
Throughout this period, Ms Farsad reported using minimal analgesia due to allergic reactions manifesting as hives. Only when symptoms became severe would she resort to Panadeine Forte or Paracetamol to manage breakthrough pain, preferring meditation and non-pharmacological methods whenever possible.
She was unable to work for approximately six months following the accident, requiring assistance from her parents for daily activities. Upon eventual return to work, she could manage only occasional short tattoo sessions, adjusting her business model to accommodate procedures lasting one to two hours. Longer procedures were poorly tolerated, and flare-ups of back pain with leg symptoms continued to limit her capacity.
Current Symptoms
At present, Ms Farsad continues to experience persistent lower lumbar spine pain, characterised by a baseline discomfort fluctuating between 2–3/10 in severity, with exacerbations triggered by prolonged sitting, standing, or cold weather. Sciatic-type pain radiating into the posterior aspect of the left buttock and thigh occurs intermittently, particularly after extended periods of immobility exceeding two hours.
Neck and thoracic spine discomfort have largely resolved with physiotherapy and self-management, although occasional exacerbations occur following poor posture or overexertion. Right ankle symptoms have substantially subsided, with only mild residual stiffness reported during prolonged weight-bearing activities.
Examination
On examination, her height was 163 cm and she weighed 69 kilograms. Her general posture was unremarkable. Gait was observed to be normal.
Inspection of the lumbar spine revealed no visible deformity or swelling. There was no muscle guarding or spasm. On palpation, there was slight tenderness over both sacroiliac joints, more pronounced on the left side.
Lumbar spine flexion was full, with fingertips reaching near the ankles. Extension was also within normal limits without discomfort. Lateral flexion and rotational movements were symmetrically reduced to approximately three-quarters of the expected normal range, associated with mild pulling discomfort but no sharp pain.
Straight leg raise testing was performed to 80 degrees bilaterally without reproduction of radicular symptoms. Neural tension signs, including slump testing and femoral nerve stretch, were negative. Lower limb neurological examination revealed no motor weakness, muscle atrophy, sensory disturbance, or abnormal reflexes.
FABER's (Patrick’s) test was positive on the left, reproducing symptoms arising from the sacro-iliac joints. This test confirms that pain is arising from this joint.
Determination
In 2015, Ms Shirin Farsad sustained a lifting injury while working at an auction house, resulting in intermittent upper lumbar discomfort. No contemporaneous imaging was obtained immediately, but a flare-up in 2020 led to a CT scan in November of that year, which identified early disc bulges at L3/4 and L4/5 without nerve impingement. After receiving conservative treatment, she resumed unrestricted daily activities and self-employment as a cosmetic tattoo artist without any reported limitations.
Prior to the motor vehicle accident on 27 July 2023, Ms Farsad was functionally independent and had not attended any GP or hospital for spinal issues in the months preceding the incident.
On the day after the accident, Ms Farsad presented to Ryde Hospital. Four days after the accident, she reported lower back discomfort and in the weeks that followed, she developed sciatic-type symptoms radiating to the buttock and thigh—symptoms that were anatomically distinct from her previous back complaints.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or non-threshold injuries as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[50] and Insurance Australia Ltd v Marsh.[51]
[50] [2021] NSWCA 287 at [40], [41] and [45].
[51] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[52] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[52] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[53] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[54]
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[53] [2022] NSWPICMP 6 at [44]-[62].
[54] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel adopts the report of Medical Assessor Assem supplemented by the following reasons.
The motor accident involved a significant side-impact collision, consistent with axial and torsional forces known to provoke or aggravate lumbar disc pathology.
In the medical expertise of the Panel that the absence of complaint on the day at hospital is not significant as symptoms can readily develop over the following days. We note that left sacroiliac tenderness was noted by the GP on 31 July 2023 consistent with the claimant’s account.[55]
[55] Insurer’s bundle, p 142.
The progression of the applicant’s lumbar spine symptoms is consistent with a traumatic injury. The insurer referred to the absence of complaint at hospital of lumbar spine pain although this is reported to the GP within days of the motor accident. The short delay of reporting to the GP is not significant and in the Panel’s view, is medically explicable as related to the trauma caused by the motor accident.
We accept that the applicant had pre-existing pathology on the lower lumbar spine with intermittent symptomatology. However, the applicant’s evidence, consistent with the pre-accident records, is that the symptoms in the lumbar spine condition had generally resolved at the time of the motor accident. The absence of records of a recent complaint pre-existing the accident supports the applicant’s history.
We accept that there was pre-existing pathology although this also made the applicant vulnerable to aggravation from trauma such as a motor accident of this nature.
The MRI imaging in August 2024 revealed a left L4/5 disc protrusion with foraminal narrowing correlating with the newly emerged symptoms.
Although the claimant’s symptoms are now mainly localised to the sacroiliac joints, she continues to have intermittent non-verifiable radicular complaints since the motor vehicle accident. These symptoms are consistent with the pathology identified at the L4/5 disc.
While Medical Assessor McGrath concluded that the post-accident findings were a continuation of degeneration, this analysis does not adequately consider the anatomical distinction between pre-accident and post-accident symptoms, the new onset of radicular features and imaging that identified new structural changes.
Based on the totality of evidence, including contemporaneous symptom onset, anatomical symptom evolution, imaging findings, and biomechanical plausibility, it is the Panel’s opinion that the motor vehicle accident aggravated the disc pathology at L4/5 causing the herniation identified in the MRI scan.
Intervertebral discs are cartilaginous structures. An aggravation of that disc involving further tearing and causing herniation is a partial rupture of cartilage and ligaments. This injury qualifies as a non-threshold injury as defined under the MAI Act and Guidelines.
We note that there are references to either radiating pain or sciatica within the clinical records in March 2022. We comment that this is not objective signs of radiculopathy as defined in the Guidelines. We also note that there is an absence of recorded complaint of left sided radicular symptoms for 16 months prior to the motor accident.
Other injuries
There are multiple other alleged injuries alleged to be caused by the motor accident. The applicant was requested and did not identify any opinion or evidence which would support a finding that any of the injuries were classified as non-threshold. Further, the clinical findings of Medical Assessor Assem and the previous Medical Assessor did not support any basis for the other injuries to be classified as a non-minor injury.
CONCLUSION
For these reasons the Panel revokes the medical assessment certificate dated
7 October 2024. A new certificate is attached at the commencement of these Reasons.
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