Fayad v Insurance Australia Limited t/as NRMA Insurance

[2024] NSWPICMP 845

DETERMINATION OF REVIEW PANEL

CITATION:

Fayad v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 845

CLAIMANT:

Helen Fayad

INSURER:

Insurance Australia Limited t/as NRMA

REVIEW PANEL

MEMBER:

Ray Plibersek

MEDICAL ASSESSOR:

Michael Couch

MEDICAL ASSESSOR:

Drew Dixon

DATE OF DECISION:

10 December 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver of a car hit from drivers side by another car; on review, the Panel found that injuries to the cervical spine - disc bulge at the C5/6 level and C6/7 level with bilateral C6 nerve impingement with radiculopathy caused by the motor accident are non-threshold injuries; the Panel found the claimant’s significant pre-existing degenerative condition when subject to the sudden impact of the motor accident has caused or resulted in her underlying asymptomatic degenerative disease becoming symptomatic; the subject motor accident has caused an aggravation of the claimant’s degenerative disc disease; before the accident there was no evidence of the claimant experiencing any significant cervical spine pain or radicular symptoms; then shortly after the accident she reported cervical pain and symptoms down her left arm.; the common law view of causation in such a case doesn't require that the accident be a direct cause of the injury only that the accident made a material contribution to that injury; Briggs v IAG Limited trading as NRMA Insurance (No. 2) and Wright J and AAI Ltd t/as AAMI v Ahmed; the Panel also considered expert evidence from a traffic engineer and also medical journal articles about spinal injury. Held –original medical certificate regarding threshold injury revoked. 

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.     The Review Panel revokes the certificate of Medical Assessor Jonathan Herald dated 21 November 2023 and issues a replacement certificate determining that the following injuries caused by the motor accident are non-threshold injuries:

•      cervical spine – disc bulge at the C5/6 level and C6/7 level with bilateral C6 nerve impingement with radiculopathy.

STATEMENT OF REASONS

INTRODUCTION

1. On 14 November 2021, Ms Helen Fayad (the claimant) was driving a white Toyota Yaris on Old Windsor Road, Seven Hills. Ms Fayad stated that she was travelling at 70kmph in the left lane when a BMW four-wheel drive travelling on her right side collided with her car on the right side.

2. She reports that she was unable to accelerate as the gearbox of her vehicle went into neutral. She said she was in shock. The other vehicle drove away without stopping. She was able to put her car back into drive and continued driving. She had her seatbelt on. The airbags in her car did not deploy. No NSW police or ambulance attended the scene. She said that after the accident drove to a friend’s house who then drove her home. After the accident she reported developing neck pain and headaches.

3. The claimant made an Application for Personal Injury Benefits dated 2 April 2022.[1]

   [1] Insurer’s bundle R2 p 100.

4. The reported injuries included: neck pain, headaches referred left arm pain and psychiatric injury.

5. Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Ms Fayad under the Motor Accident Injuries Act 2017 (MAI Act).

6. By letters dated 3 June 2022 the insurer wrote the claimant accepting liability for the payment of statutory benefits for 26 weeks.[2]

   [2] Insurer’s bundle R2 p 100.

7. By letter dated 30 August 2022 the insurer advised the claimant that it had decided that she had sustained a minor injury and the insurer would not pay benefits after 26 weeks ceasing on 1 December 2022.[3]

   [3] Insurer’s bundle R2 p 103.

8. The claimant has sought a medical assessment of her cervical spinal injuries. The claimant was medically assessed by Medical Assessor Herald on 23 October 2023 who issued a certificate dated 21 November 2023.[4]

   [4] Claimant’s bundle pp 6-14.

9. The claimant requested the insurer to pay for physiotherapy and the surgery recommended by Dr Rao which included a C5/6 anterior cervical discectomy and fusion. In a letter dated 2 September 2022 the insurer declined the treatment and care requests.[5] The claimant then commenced review proceedings in the Personal Injury Commission (Commission) seeking findings that the proposed treatment was reasonable and necessary in the circumstances or relates to the injuries caused by the motor accident.

   [5] Insurer’s bundle R2 p 121

10. Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.

11. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.

12. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[6]

    [6] Section 7.20 of the MAI Act.

13. On 6 December 2023 the insurer’s solicitors filed an application with the Commission seeking a Medical Review Panel review of the certificate of Medical Assessor Herald.

14. This Review Panel (the Panel) has been constituted to review the certificate of Medical Assessor Herald dated 21 November 2023 about the threshold injury dispute.

15. There is another Medical Review Panel constituted to review the certificate of Medical Assessor Nelukshi Wijetunga dated 17 November 2022. This application concerns a treatment and care dispute about whether physiotherapy to the cervical spine relates to the injury caused by the motor accident and whether surgery to the cervical spine relates to the injury caused by the motor accident. This application and dispute will be dealt with in a separate Review Panel certificate and reasons.

16. The review of Medical Assessor Wijetunga certificate and reasons will be considered by a Review Panel constituted by the same members but will be given in a separate statement of reasons.

ASSESSMENT UNDER REVIEW

1. This dispute was initially referred to Medical Assessor Herald who assessed the cervical spine injury.

2. Medical Assessor Herald medically examined the claimant on 23 October 2023. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.

3. Medical Assessor Herald issued an assessment certificate dated 21 November 2023. The certificate found the cervical spine injury was a soft tissue injury to the cervical spine with left C6 radiculopathy and that the injuries were caused by the accident and are threshold injuries for the purposes of the MAI Act.[7]

   [7] Medical Assessor Herald’s examination and reasons clearly found radiculopathy and therefore a non-threshold injury but his certificate found that the injuries were a threshold injury where the word "non" was missing.

4. Medical Assessor Herald noted that the claimant reported that she continues to have neck pain and symptoms of numbness and weakness affecting her whole left upper limb. She described it as radicular pain.

5. Medical Assessor Herald’s examination of the claimant’s cervical spine revealed some midline tenderness. He also noted:

   “… some associated paravertebral muscle spasm. She has stiffness over the cervical spine with 50% of range with forward flexion and lateral flexion to 50% of range to the right but 25% of range to the left. Extension is limited to 25% of range. She has a positive Spurling’s test to the left upper limb with radiculopathic symptoms radiating down. Neurological examination reveals some decreased triceps extension strength and biceps strength is also weak. She has grade 4 power of wrist extension and finger extension. She has good grip strength and flexion is intact. She has reduced biceps reflex bilaterally and there is decreased sensation over the C6 distribution of her left upper limb.”

6. Medical Assessor Herald’s diagnosis of the claimant’s neck was an “…aggravation of underlying cervical spondylosis and development of left C6 radiculopathy.” Medical Assessor Herald’s findings on causation were that:

   “Helen has some features of underlying degenerative changes in the cervical spine or cervical spondylosis. This particularly involves the lower levels of the cervical spine, C5/6 and C6/7 levels. However, she did not have pre-existing features of radiculopathy and it was not until after the motor vehicle accident that she developed left C6 radiculopathy. As such, the motor vehicle accident can be said to have caused her left C6 radiculopathy.”

7. Medical Assessor Herald concluded that the claimant’s injuries were threshold injuries.

REVIEW PROCEDURE

1. The claimant’s review applications have a long and convoluted history of numerus procedural steps which are briefly referred to below. The insurer’s solicitors have also provided detailed chronologies of the conduct of both Review Panel’s, but these are not reproduced in these reasons.[8]

   [8] See insurers submissions dated 19 March 2024.

2. On 14 April 2023 a differently constituted Medical Review Panel (Member Cassidy, Medical Assessor Gibson and Medical Assessor Stubbs) issued directions about the conduct the review of Medical Assessor Wijetunga’s assessment of physiotherapy and surgical treatment dated 17 November 2022. That Review Panel noted that the liability notices provided by the insurer (R3 at p 466 and R4 at page 475 of the insurer’s bundle) suggested that the claimant appears to have been in receipt of a minor injury/threshold injury decision which has not been challenged by the claimant. If that is the case, then that Review Panel queried whether there is any utility in the treatment dispute continuing and whether the Review Panel should recommend to the President that the review proceedings should be dismissed.

3. In a decision dated 23 August 2023 Senior Member John Harris rejected an application to dismiss the review of the medical assessment pursuant to s 54 of the Personal Injury Commission Act 2020 (PIC Act).

4. An application for review of the medical assessment of Medical Assessor Herald was lodged by the insurer on 6 December 2023 which is within 28 days of the date on which the certificate was made available to the parties.

5. The claimant did not lodge a reply to the insurer’s application for review. The claimant confirmed by message to the Commission on 15 January 2024 that she did not intend to lodge a reply to the review application.

6. On 2 February 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel. The delegate’s reasons were that she accepted the submission that the Medical Assessor failed to actively engage with the supporting documentation which satisfied her of reasonable cause to suspect that the medical assessment was incorrect in a material respect.

7. The Panel notes the claimant has undergone the C5/6 C6/7 ACDF procedure on 22 February 2024 in Westmead Hospital and that this was conducted as an elective surgery through the public hospital system.

8. Both the claimant and insurer lodged Applications to Admit Late Documents Forms. The claimant’s solicitors have filed and served a series of medical records and X-ray records with an Application to Admit Late Documents dated 23 August 2024. The insurer’s solicitors have filed and served in the portal some written submissions and a PIC Certificate of Doron Samuell with an Application to Admit Late Documents dated 23 September 2024.

9. Both parties sought to provide late submissions in this review. In an application dated 23 August 2023 the claimant also sought to admit: X-rays, MRI of the cervical spine and medical records from Westmead Hospital and also clinical records from the Esplanade Medical and Dental Centre. In an application dated 23 September 2024 the insurer also sought to admit the certificates and reasons of Medical Assessor Doron Samuell dated 30 July 2024. Pursuant to the Personal Injury Commission Rules 2021 rule 67 the Panel admits all late submissions and documentary evidence in the interests of justice.

10. The Panel issued directions to the parties dated 24 September 2024 and 15 October 2024 requesting both parties to lodge their updated submissions and bundles of documents to be relied upon in the review. In the directions dated 15 October 2024 the Panel scheduled a video conference examination of the claimant for 5.00pm on Monday, 18 November 2024.

11. Clause 14F of Schedule 1 of 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.

12. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[9] Accordingly, the President’s delegate referred the matter to this Panel to assess.

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

13. 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.[10]

    [10] Section 41(2) of the PIC Act.

14. 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.[11]

    [11] Rule 128 of the PIC Rules.

15. The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS

1. The Motor Accident Injuries Amendment Act 2022 (the 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”.

2. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.

3. Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.

4. A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.

5. Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:

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

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

7. 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.

8. Version 9.2 of the Guidelines commenced on 10 November 2023 and replaced the Motor Accident Guidelines version 9.1, except for claims arising from motor accidents before 1 April 2023. For claims arising from motor accidents occurring before 1 April 2023: cls 4.36, 4.37, 4.40 and 4.41 of these Guidelines do not apply, and cls 4.36, 4.39, 4.40, 4.41, 5.1(c), 5.15 and 5.16 in the Motor Accident Guidelines version 9 continue to apply.

47.Version 9.3 of the Guidelines commenced on 6 December 2024 and applies to policies that come into effect on or after 15 January 2025.  Part 1 of version 9.2 continues to apply for policies that come into effect from 15 January 2024 to 14 January 2025. For claims arising from motor accidents occurring before 1 April 2023, select clauses of version 9 continue to apply. 

1. In respect of the medical assessment of whether an injury is a threshold 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    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”

2. In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:

   “5.7   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.

   5.8    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.

   5.9    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.”

ASSESSING THE CAUSATION OF INJURIES

1. The provisions of the Civil Liability Act 2002(the CL Act) apply in determining issues of negligence and causation. See sub-ss 5D and 5E of the CL Act about the issues of causation and onus of proof as they apply to the MAC Act and MAI Act.[12] Otherwise under sub-s 3 B(1) the provisions of the CL Act do not apply to or in respect of civil liability.

   [12] Sub-sections 3B(1) ( e) and (e1) and 3B(2) of the CL Act.

1. In Raina v CIC Allianz Insurance Ltd Campbell J stated:[13]

   [13] [2021] NSWSC 13 (Raina) at [65].

   “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.”

2. Part 6 of the Guidelines deal with assessing the degree of permanent impairment arising from an injury caused by a motor accident. Under the heading “Causation of injury”, cls 6.5 to 6.7 set out how causation of injury is to be assessed.

3. The issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.

4. In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[14] his Honour Justice Wright stated at [35]:

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

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   ‘Causation of injury

   6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

   6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.

   6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.’”

5. In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:

   “75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from: 

   (1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   (2) a review of all relevant records available at the assessment;

   (3) a comprehensive description of the injured person’s current symptoms; 

   (4) a careful and thorough physical examination; and

   (5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination. 

   76.    In Mr Briggs’s case that would include, without attempting to be exhaustive: 

   (1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;

   (2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and

   (3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident. 

   77.    In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”

6. In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[15] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:

   [15] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39] and [41].

   “42.   The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cls 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.

   43.    In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”

7. In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[16] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:

   [16] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].

   “71.   The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:

   … it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.

   72.    Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].

   73.    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. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.

   74.    For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”

8. The issue of assessing causation relating to radiculopathy was recently considered in the case of Allianz Australia Insurance Limited v Susak [2024] NSWSC 1359.

9. In Susak his Honour Griffiths AJA noted[17] that the Review Panel explained why, by applying the principle in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227, it concluded that this injury was not a threshold injury because radiculopathy was present at the time of the original medical assessor’s examination.

   [17] At [51].

10. Regarding the issue of causation his Honour Griffiths AJA stated that “...the task of both the original medical assessor and the Review Panel was to make findings on issues of fact, including those relating to the question of causation. Their function was to form and give their own opinion on that question, applying the medical assessors’ medical experience and expertise. As Leeming JA said in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [44] (Basten JA and Simpson AJA agreeing), the question of causation is a question of fact “and quintessentially so”. His Honour went so far as to say that once a finding of fact is made, “no further explanation of the reasoning is required”.[18]

    [18] At [77].

EVIDENCE BEFORE THE REVIEW PANEL

Application for Personal Injury Benefits

1. The Application for Personal Injury Benefits is dated 22 April 2022.

Police and ambulance reports

1. The NSW ambulance and police did not attend at the motor accident. On 15 November 2021 the claimant made a report to the NSW police.

Hospital reports

1. There are extensive hospital notes produced by the claimant’s solicitors concerning the claimant’s cervical spine and her surgery on 22 February 2024.[19]

   [19] Records from Westmead Hospital – claimant’s bundle A 14 pp 76-263.

Treating medical evidence

Pre-accident treating records

1. There were limited medical records available for the claimant’s medical history prior to the subject motor vehicle accident in 2021. The claimant has had previous surgery and a prior motor vehicle accident in 2005 with reported injuries to her back. Unfortunately, there were no comprehensive medical records produced to the Panel about the injuries and recovery from the 2005 motor vehicle accident.

2. In bundles of documents the parties produced over a thousand pages of clinical and treating medical records for the claimant prior to and after the subject motor vehicle accident. The Panel has reviewed all the treating medical records produced by both the claimant and the insurer.

3. The medical history given by the claimant prior to the subject motor accident is that she had no previous history of shoulder or neck injuries or problems. The claimant had disclosed a previous motor vehicle accident in 2005 with injuries to her back injuries but has denied any back surgery prior to 2024.[20] Prior to the subject motor vehicle accident the claimant had an appendicectomy and a breast augmentation. [21]

   [20] Insurer’s bundle RA 2 pp 7-8 – certificate of Medical Assessor Herald.

   [21] Records from Westmead Hospital – claimant’s bundle A 14 p 102.

Post-accident treating records

1. There are limited post-accident clinical medical records available from the claimant’s treating general practitioners from the Esplanade Medial & Dental Centre including: Dr Sumit Chadha, Dr Raghu Modur and Dr Karina Jain. [22]

   [22] Insurer’s bundle R7 pp 149-153 and claimant’s bundle 13-36 and 39-61.

2. There is a consultation report from Dr Sumit Chadha dated 15 November 2021 and amended and updated on 15 May 2022.[23] The initial consultation notation is dated 15 November 2021 and refers to ongoing issues with neck pain with referral down the left side paraesthesia in the left hand. The examination showed weakness in the intrinsics of the left hand with neck range of near full. These notes were amended on 17 May 2022 with a note by Dr Chadha that the claimant was involved in a car accident on 14 November. She was in driver of her car no airbags deployed. She was able to self-extricate. Pain on the left side of her neck with referral down the left side.

   [23] Claimant’s bundle p 18.

3. There is a consultation report from Dr Chadha dated 3 December 2021 where the claimant reports that her neck symptoms are much better after receiving a cortisone injection.

4. There is a clinical record from Dr Raghu Modur dated 17 January 2022.[24] Dr Modur noted that the claimant suffered domestic violence yesterday, physical assault by her ex-partner. Police complaint by the patient. Right lower chest wall pain. Left side of face and upper thoracic spine pain since the physical abuse. Left mandible. Face mild swelling but no obvious deformity evident, range of movement normal, upper thoracic spine paraspinal no bruise.

   [24] Insurer’s bundle R7 p 151.

5. There is a consultation report from Dr Chadha dated 10 June 2022. Dr Chadha notes the purpose of visit was for a review of pain. Good improvement with physio, nighttime pain still quite high. Neck range of movement restricted on bilateral rotation, worse on left, left shoulder range of movement restricted. Pain reproduced with facet joint palpitation on left.

6. There is a consultation report from Dr Chadha dated 8 July 2022. Dr Chadha notes a referral for a neurosurgeon is needed. Pain is still quite severe despite the injection and physio review.

7. In Certificate of Capacity/Certificate of Fitness dated 29 July 2022 Dr Chadha described the claimant’s injuries as motor vehicle accident related neck pain with radiculopathy.[25]

   [25] Insurer’s bundle R3 pp 130-133.

8. There is a consultation report from Dr Karina Jain dated 10 January 2023 which notes pain in left shoulder radiates down the arm.

9. The full files from Westmead Hospital have also been provided to the Panel and reviewed by it.

Reports of Dr Prashanth Rao – neurosurgeon and spine surgeon

1. There are a number of reports from Dr Prashanth Rao who was a treating spinal surgeon for Ms Fayad.[26] A report dated 16 August 2022 from Dr Rao (co-signed by Dr Jabir) notes the impression was bilateral formal stenosis at C5/C6 with disc bulge right C6/C7 formal stenosis impinging the right C7 nerve root.

   [26] Claimant’s bundle A 3, A5 and A 6 pp 4-12.

2. In a report dated 24 August 2022 Dr Rao wrote that the claimant’s spinal pain had been present for 10 months is chronic and radiating with weakness and numbness so surgical management has been recommended. The surgery recommended by Dr Rao was for a C5/6 anterior cervical discectomy and fusion and C6/C7 total disc replacement.

Medical Assessment of Medical Assessor Wijetunga

1. The treatment and care dispute about physiotherapy and the surgery recommended by Dr Rao for a C5/6 anterior cervical discectomy and fusion was referred to Medical Assessor Wijetunga who issued a Medical Assessment Certificate dated 17 November 2022.

2. Medical Assessor Wijetunga found that the examination of the claimant’s cervical spine showed normal tone, normal strength with the exception of triceps extension (C6 and C7) and reduced sensibility over the lateral aspect of the left forearm and left index finger (C6 and C7). Medical Assessor Wijetunga concluded that the neurological examination showed “reduced strength and sensory changes of the left C6 nerve”. Medical Assessor Wijetunga concluded that the proposed cervical spine surgery and need for physiotherapy was caused by the accident and was reasonable and necessary in the circumstances.

3. Medical Assessor Wijetunga found that the claimant had two clinical signs of radiculopathy, muscle weakness and reproducible sensory loss in the C6 distribution. Those findings made by Medical Assessor Wijetunga were consistent with the MRI scan dated 17 November 2021 which showed bilateral nerve impingement on the exiting C6 nerve roots.

4. Medical Assessor Wijetunga noted that the claimant reported that whilst she was working full time between 2016 and 2018 she had consulted an osteopath which she advised was related to general muscle soreness from administrative work. However, the claimant did not report any relevant neck pain in the 12 months prior to the subject accident. The claimant had a previous motor vehicle accident in 2005 resulting in a lower back injury. She reports that this was treated conservatively and it resolved within the next two years. She denies having any time off work related to this injury. She has sustained fractures in right 5th metacarpal (between 2014/15). This was treated conservatively and she does not describe any ongoing problems. She also described a fracture on the right metatarsal and this was also treated conservatively. She did not experience any ongoing difficulties with this.

Medical Assessment of Medical Assessor Doron Samuell

1. The dispute about whether the post-traumatic stress disorder injury was referred to Medical Assessor Doron Samuell who issued a Medical Assessment Certificate dated 30 July 2024.

2. The claimant told Medical Assessor Samuell that she last drove before her surgery in February 2024. She said that she has not been allowed to drive again until she gets a medical clearance for that. She does some cleaning duties at home, but not to her usual standard. She has not engaged any external assistance. Her children do the shopping. She sometimes accompanies them. She said that she dresses herself and showers and toilets herself. She tries to shower once per day, however, it can stretch out to every second day.

3. Around 18 months after the subject accident, the claimant told Medical Assessor Samuell that within the context of pain and untoward physical changes, her mood was adversely impacted. Medical Assessor Samuell noted that there is some contemporaneous evidence to support that assertion. She describes herself as having been tearful at a level that was probably clinically significant.

4. Medical Assessor Samuell diagnosis was that the subject accident and its sequelae satisfy the stressor criterion for an Adjustment Disorder. Criterion B, the threshold criterion, was satisfied insofar as the symptoms were clinically significant. The balance of the criteria was satisfied and the claimant suffered an Adjustment Disorder. Her symptoms did not satisfy the diagnostic criteria for a post-traumatic stress disorder. She did not describe re-experiencing phenomena among other symptoms and as such the diagnosis of post-traumatic stress disorder could not be made.

1. Medical Assessor Samuell opinion about causation was that the subject accident and its sequelae satisfied the stressor criterion of an Adjustment Disorder, no other causes were identified and the accident occurred prior to the onset of the Adjustment Disorder. On that basis, Medical Assessor Samuell concluded that the subject accident caused the Adjustment Disorder.

REVIEW OF THE RADIOLOGY

1. There are a number of X-rays, MRIs and CT scans reporting on the claimant’s cervical spine.

2. There is an MRI scan of the claimant’s cervical spine dated 17 November 2021 by Dr Pascal Bou-Haider.[27] This shows disc bulging at the C5, C6 and C7 levels and nerve root impingement at the C6 level. In conclusion the report showed high grade bilateral formal stenosis at the C5 /C6 level due to a combination of uncovertebral hypertrophy, disc bulge and a small left foraminal disc protrusion impinging both exiting C6 nerves. High grade right foraminal stenosis at the C6/C7 from uncovertebral hypertrophy impinging exciting right C7 nerve.

3. There is an X-ray of the claimant's spine dated 17 August 2022 from Dr Joseph Sanki.[28] This shows mild spondylotic change present in the discovertebral joints with evidence of loss of disc height and endplate sclerosis and endplate osteophyte formation. Mild arthritic changes present in the facet joints. The images of the cervical spine show arthritic change is affecting the discovertebral joints and the facet joints. The most arthritic facet joints are located at the C7/T1 bilaterally and the left side of the C5/C6. The most arthritic discovertebral joint is located at C5/C6.

4. There is an MRI scan of the claimant’s cervical spine dated 30 August 2023 by Dr Antony Peduto.[29] The conclusion of the report is bilateral moderately severe C5/C6 exit foraminal stenosis. Mid C4/C5 right exit foraminal narrowing. Moderately severe right C6/C7 foraminal stenosis.

COLLISION AND BIOMECHANICS REPORT – DR ANDREW MCINTOSH

91.There is a Collision and Biomechanics  report by Dr Andrew McIntosh dated 8 September 2022.[30]

[27] Insurers bundle R 9 pp 198- 199.

[28] Insurer’s bundle R8 pp 200-201.

[29] Claimant’s bundle p 38.

[30] Insurer’s bundle R8 pp 193-198.

1. In this report Dr McIntosh provided a detailed expert report and analysis of the subject motor accident and the likely biomechanical forces present during the motor accident.

2. Dr McIntosh concluded that the resultant change in the claimant’s vehicle as a result of the collision was most likely less than 10 kilometres per hour. The claimant alleged injuries to her neck and mid back with headaches and anxiety. Her diagnosis refers to a neck injury with C6 radicular pain on the left. The mechanics of the collision could have reasonably led to the injuries of which the claimant is now complaining. The claimant might have experienced some general soreness as a result of the incident with symptoms resolving over a short period of closed duration. It is very unlikely that under the likely circumstances of the accident that the biomechanical forces acting on the claimant’s cervical spine would have resulted in any structural injury to bone, joint, intervertebral disc or aggravated the underlying progression of the claimant's ageing and or disease process.

REVIEW OF THE MEDICAL LITERATURE

1. There are five articles from medical journals included in the insurer's bundle of documents.[31]

   [31] Insurer’s bundle RA pp 15-47.

2. The articles are a review of serious and also asymptomatic spinal injury with MRI investigations.

3. The Panel has considered these articles in its review of this claimant’s case. The Panel notes that every injured persons case is different and must be evaluated by taking into account each person's clinical history and presentation. The Panel notes that the 4th numbered article conclusion is as follows:

   “Imaging findings of spinal degeneration are present in high proportions of asymptomatic individuals increasing with age. Many imaging based degenerative features are likely part of the normal ageing and unassociated with pain. These imaging findings must be interpreted in the context of the patient's clinical condition.”[32]

BENCHMARK ASSESSMENT REPORT

[32] Insurer’s bundle RA p 34.

1. There is a Benchmark Assessment report dated 14 June 2022 which assess the functional capacity of the claimant.[33]

   [33] Insurer’s bundle RA 4 pp 134-140.

2. Ms Fayad reported stiffness in her left shoulder and headaches in the weeks after the subject motor accident. She reported numbness down her left arm. Dr Chadra referred Ms Fayad for an MRI on 17 November 2021. He recommended a steroid injection which Ms Fayad said only gave her pain relief for one week. Ms Fayad reported a history of poor mental health resulting in her accessing the disability pension and ceasing work.

3. Dr Chadra told Benchmark Rehab that Ms Fayad commenced seeing him soon after the accident and he was unable to comment on any pre-existing medical conditions. Dr Chadra explained that as a result he had to assume that her symptoms were a direct result of the subject motor accident.

SUBMISSIONS

Insurer’s submissions

1. The insurer has provided written submissions dated: 25 July 2023 , 6 December 2023, 19 March 2024, 23 September 2024 and 24 October 2024.[34]

   [34] Insurer’s bundle R1 pp 2-5 and RA 1 pp 2-6.

Insurer’s submissions dated 25 July 2023

1. The insurer’s solicitor’s submissions dated 25 July 2023 refer to the X-ray and MRI of the claimant’s cervical spine. The submissions also refer to the reports of neurosurgeon Dr Prashanth Rao who recommended a spinal vertebrae fusion at C5/C6 and C6/C7 with a disc replacement.

2. The insurer’s solicitors dispute that there are any non-threshold injuries sustained by the claimant.

3. The insurer submits that there is no evidence that the claimant sustained any injury to the nerves or that there is a complete or partial rupture of tendons ligaments menisci or cartilage.

4. The insurer further submits that the claimant’s injuries do not satisfy the criteria of radiculopathy set out in clause 5.8 of the Guidelines. The claimant's medical evidence does not show that there are any two or more clinical signs found on examination that would satisfy the injuries being classified as non-threshold.

Insurer’s submissions dated 6 December 2023

1. The insurer’s solicitors’ submissions dated 6 December 2023 submit that it is a breach of procedural fairness for Medical Assessor Herald to have the certificate of Medical Assessor Wijetunga before him for consideration.

2. The insurer’s solicitors also submit that Medical Assessor Herald reasons read as if he was unaware of the assault suffered by the claimant in January 2022.

3. The insurer’s solicitors also submit that Medical Assessor Herald failed to actively engage with many of the records produced by the insurer in its bundle of documents. The insurer particularly points to a biomechanical report and property damage report stating that the subject accident could not and did not cause the pathology identified on the imaging of the spine and the symptomology developed after the accident and the claimants intervening fall.

4. The insurer says that Medical Assessor Herald should have explained why he preferred one conclusion over another and that he also failed to properly address the biomechanical report and property damage reports.

5. The insurer argues that Medical Assessor Herald should have examined and measured the claimant’s upper limb circumference and muscle wasting. The insurer highlights that the claimant must be assessed in compliance with clause 5.8 (c) and Table 6.8 of the Guidelines.

6. The insurer refers to the Biomechanics report by Dr Andrew McIntosh dated 8 September 2022.[35] It says that the findings of this report are consistent with the claimants initially reported symptomology of aggravation of the pre-existing underlying pathology and which improved with treatment and time by December 2021. The insurer highlights that the claimant was involved in a subsequent intervening event open assault in January 2022.

   [35] Insurer’s bundle R8 pp 193-198.

7. The insurer highlights the claimant’s symptomology, character and intensity of her pain radicular features and the functional impairment only occurred after the subsequent intervening events and months after the subject motor accident and its effect had resolved.

8. The insurer submits the subject motor accident was not and could not be the proximal cause for the cervical complaints made in 2022 and subsequent surgical requests by Dr Rao.

9. The insurer emphasises that the claimant’s cervical spine showed degenerative changes common in the asymptomatic population. There is no evidence that the pathology shown on the imaging was caused by the subject motor accident particularly noting the delayed seeking of treatment and progressive reported deterioration.

10. The insurer then points to the medical literature produced in its bundle of documents which shows that injury can give the impression of a traumatic causation but these changes are often part of the ageing and degenerative progress given their prevalence in the asymptomatic population. The insurer submits that annular tears are a common finding in the asymptomatic population.

11. In summary the insurer argues that the medical literature shows that disc degeneration commencement occurs from early on in life later compounded with minor traumatic or repetitive occupational events. In the claimant’s case there is significant history of trauma, fractured vertebrae at the relevant levels and engagement in significantly intensive manual occupation. Such imaging findings within 12 weeks of new and serious spinal complaints are highly unlikely to represent any new structural change. Most new change such as disc signal, facet osteoarthritis and endplate signal changes represent progressive age-related changes not associated with acute events.

12. The insurer submits the mechanism of the subject motor accident is inconsistent with the degree of injury reported by the claimant. The imaging changes of the claimant’s spine do not evidence any acute pathology in the cervical spine. The insurer submits the pathology shown on the imaging is consistent with progressive degenerative changes attributable to the claimants age and body constitution.

13. The insurer submits that any soft tissue aggravation of the pre-existing chronic pathology caused by the subject accident had resolved. The proximal cause of the claimant's subsequent deterioration and radicular features is the January 2022 subsequent assault which is an intervening event.

14. The insurer particularly highlights the change in character, intensity and functional issues following the intervening assault.

Insurer’s submissions dated 19 March 2024

1. In the submissions dated dated 19 March 2024 the insurer submits that both Review Panels consist of the same Member and Medical Assessors. The insurer had specifically requested a re-examination of the claimant which was scheduled for Medical Assessor Couch on 19 February 2024. The claimant advised their solicitors on or about the 8 February 2024 that surgery had been scheduled of the cervical spine for the 22 February 2024.The claimant did not attend the assessment with Medical Assessor Couch on the 19 February 2024.

2. The insurer highlights that the claimant would be entitled to a claim for damages given the non-threshold finding, ongoing treatment and care, and possible non-economic loss claim. Thus, in the absence of an abandonment by the claimant of the claim of injury to the cervical spine in the subject accident resulting in non-threshold injury and requiring cervical fusion and permanent impairment to the region, the insurer urges the Panel to continue with the process as outlined under the various statutes.

3. The insurer submits, as a result of the claimant’s failure to attend the 19 February 2024 re-examination with Medical Assessor Couch, the insurer has been prejudiced with respect to the treatment and care dispute as well as the threshold injury dispute. The insurer submits the Panel may still benefit from a re-examination of the claimant, particularly once the claimant has past the immediate post-surgery recovery. The Panel may obtain their own history as to functioning, signs and symptoms at all the key stages. That is at the time of the subject accident, pre and post injection, pre and post January 2022 intervening event, following the claim being made, and pre and post-surgery.

4. The insurer submits the Panel may also put to the claimant various issues including: the biomechanical report by Dr MacIntosh opining the subject accident “It is very unlikely that under the likely circumstances of the accident”; the effect of the assault in January 2022, and changes in symptomology and the character of the symptomology at the relevant key stages.

5. The insurer highlights per AAI t/as AAMI v Phillips [2018] NSWSC 1710 at [29]-[33] the following two-fold test of causation of treatment and care: the subject accident “made at least a material contribution to the need for surgery”. “Whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered”.

6. The insurer reiterates Dr McIntosh’s biomechanical report which concludes that it was unlikely in the circumstances of the accident that the biomechanical forces acting on the claimant’s cervical spine would have resulted in any structural injury or aggravated the underlying progression of the claimant’s ageing and/or disease process.

7. The insurer reiterates that the subject accident could not and did not cause any new pathology. Any aggravation of the pre-existing pathology would and did resolve prior to the subsequent intervening event in January 2022 which resulted in various documented injuries.

8. The medical literature about the proposed cervical fusion shows it is not an evidenced based intervention nor is the proposed fusion operation indicated for the claimant’s reported symptomology.

Insurer’s submissions dated 23 September 2024

1. In the insurer’s submissions dated dated 23 September 2024 the insurer submits that the subject accident at most caused a temporary aggravation of the claimant’s degenerative cervical spine pathology, which had resolved prior to the subsequent intervening event in January 2022 which caused new and different symptoms including involving facial neurological symptomology. Thus, the insurer argues that even if the Panel were to accept the finding of cervical radiculopathy was present at the time of Medical Assessor Herald’s examination, it was proximally related to the subsequent intervening event rather than the effects of the subject accident. The insurer cautions against accepting the finding of cervical radiculopathy as made by Medical Assessor Herald given the issues with examination given the issues with procedural fairness, failure to consider intervening event, failure to provide sufficient reasons, and the incomplete examination as outlined in the Review Application submissions [RA1].

2. Regarding the treatment and care dispute about the spinal surgery by Dr Rao who requested approval for an C5/6 C6/7 ACDF. The insurer submits that if the Panel finds that the proposed surgery related to the effects of the subject accident, it was not reasonable and necessary in the circumstances as discussed in Johnston v QBE [2023] NSWPICMP 21 at [137], [147], and [152]-[153] as highlighted at [RA1]. The insurer argues that:

   (a)     the claimant did not undergo an evidence-based exercise strengthening program and relied on passive physiotherapy treatment modalities;

   (b)     in the absence of objective testing confirming pain inducing levels, the procedure was conducted solely to address abnormalities on imaging of a degenerative nature found often in the asymptomatic population and in those with vertebral osteoarthritis as confirmed by the bone scan;

   (c)     the lack of evidence that the proposed procedure is a cost-effective treatment for cervical spinal pain alone, particularly in the absence of verified radiculopathy at any stage despite various reports of distal neurological abnormalities, and

   (d)     the costs proposed exceeding the AMA Fees and thus regulated costs.

3. The insurer also submits the procedure as proposed by Dr Rao on the 24 August 2022 cannot be found to be reasonable and necessary in the circumstances as it has been undertaken in the public system as an elective surgery on the 22 February 2024. Thus, even if the procedure proposed by Dr Rao was related and reasonable and necessary, it can no longer be reasonable and necessary in the circumstances.

4. Finally the insurer argued that even if it were accepted the subject accident caused the need for the procedure and it was reasonable and necessary in the circumstances, the procedure in and unto itself does not constitute a non-threshold injury within the meaning of the MAI Act based on the Mandoukos[36] rationale as the procedure is not an injury caused by the subject accident as defined under the Act but rather it is treatment and care.

   [36] Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 at [99].

Insurer’s submissions dated 24 October 2024

1. In the insurer’s submissions dated 24 October 2024 the insurer commences with a chronology of the medical evidence.

2. The insurer refers to the 16 August 2022 report from Dr Rao and highlights that the examination does not show two or more criteria for verified radiculopathy in accordance with Clause 5.8. The insurer also highlights the contrast between the 3 December 2021 general practitioner (GP) consult indicating good result from the cortisone injection and the months of no reported symptomology and the history given to Dr Rao of no improvement with the injection.

3. The insurer highlights that over a four-month period the claimant did not make complaints of neck pain, radicular features, or other symptomology in her various GP consults.

4. The insurer also highlights the forces that would be required to cause the injuries following the 16 January 2022 assault, including “left mandible/ face mild swelling” possible rib fracture, would be well in excess to those involved in the subject motor accident.

5. The insurer submits that the medical records show the claimant’s cervical spine symptomology had resolved by about 3 December 2021 and then there was a period of five months without the claimant reporting any ongoing cervical symptomology despite the assault on 16 January 2022.

6. The insurer states that the complete medical records show a gap of five months between the 3 December 2021 (which noted a indicating good recovery from the cortisone injection) and the renewed complains of cervical spine issues on or around the 21 April 2022 despite the claimant attending a number of medical consultations where complaints of ongoing neck pain could have been made.

7. The insurer submits that it has previously made extensive submissions regarding the pathology identified on the 17 November 2021 MRI of the cervical spine with reference to particular medical literature. The insurer submits that when Dr McIntosh’s opinion is added to the medical literature and the imaging reports, the mechanism of injury could not and did not cause the claimant’s pathology as identified on imaging.

8. In summary the Insurer’s position is that at most there was a temporary aggravation of the claimant’s pre-existing cervical pathology at the left C6 nerve root, which was treated with a cortisone injection and had resolved by 3 December 2021. The insurer also argues that the forces involved in the subject accident, could not and did not cause any new cervical spine pathology as opined by Dr McIntosh and evidenced on imaging. The insurer says this view is consistent with the pathology found in the asymptomatic population and also the degenerative and multilevel nature of the claimant’s pathology identified on the imaging of her cervical spine.

9. The insurer submits that in the months after the subject motor accident the effects of the temporary aggravation of the cervical spine had resolved. The insurer submits the claimant’s cervical spine complaints are consistent with a progression of her pre-existing cervical pathology either due to the 16 January 2022 assault, pre-existing arthritis, or the deterioration of her cervical spine over time.

1. The Insurer submits, consistent with AAI t/as AAMI v Phillips[37] the subject accident did not make “at least a material contribution to the need for surgery” as any aggravation of the underlying degenerative pathology had resolved and the subject accident did not cause any additional pathology. The insurer also argues that the “proposed surgery would not have arisen but for the occurrence of” the subsequent intervening event in January 2022 or the natural progression of the claimant’s pre-existing cervical pathology. Also the claimant’s pre-existing cervical spine pathology would have progressed and would have resulted in the elective spinal surgery conducted in February 2024 regardless of the subject accident and the temporary aggravation to the cervical spine region.

   [37] AAI t/as AAMI v Phillips [2018] NSWSC 1710 at [29]-[33].

2. The insurer highlights the claimant’s submissions and medical evidence do not support a finding of verified radiculopathy in accordance with Clause 5.8 of the Guidelines at any stage following the subject accident or which could be causally related to the effects of the subject accident.

3. The insurer reiterates the surgical procedure proposed is not evidence based for cervical spine pain alone. This was clearly articulated in the 18 November 2022 submissions at
   [21]-[33] with extensive medical literature supporting the same. The Insurer highlights there no medical or symptoms justification for a fusion of the C6-7 level other than the pre-existing pathology noting the absence of neurological abnormality consistent with the degenerative pathology at that level and the good effect of the C6 left nerve root injection. Thus, a procedure to this level cannot be considered to be related to the effects of the subject accident nor reasonable and necessary in the circumstances.

4. The insurer highlights the poor surgical result with ongoing requirement for treatment and lack of resolution of symptoms anticipated in those submissions is confirmed by the claimant in her submissions dated 15 October 2024 at [A12] at [10]-[11]. These submissions state there is a continuation of the symptoms, anticipating a lifetime of treatment including further possible surgery, and ongoing issues in the region requiring treatment. The insurer highlights these issues are consistent with the medical literature for the fusion of the spine for pain and arthritic changes alone without vertebral instability and verified radiculopathy not otherwise amenable to less invasive surgeries such as foraminotomy and laminectomy for the release of nerve roots.

5. The insurer notes the objection of the claimant to the inclusion of Medical Assessor Samuell’s certificate. The insurer highlights the decision is relevant as it provides a fresh account of claimant’s physical and psychological symptomology.

Claimant’s submissions

1. The claimant’s solicitors provided written submissions dated 14 October 2024 and 15 October 2024.[38]

   [38] Claimant’s bundle A 11 pp 63-70 and A 12 pp 71-75.

2. In the submissions dated 14 October 2024 the claimant submits that that a disc bulge at the C5/6 level with bilateral C6 nerve impingement as well disc bulge at the C6/7 level with left C7 nerve flattening and radiculopathy, alongside a diagnosis of post-traumatic stress disorder constituted the claimant sustaining non-threshold injuries.

3. The claimant contends that Medical Assessor Herald correctly determined that the claimant has sustained traumatic injury to her cervical spine at the C6 junction with verifiable radiculopathy, which is a non- injury threshold for the purposes of the MAI Act.

4. The claimant contends that Medical Assessor Herald has rightfully acknowledged that while the claimant may have some pre-existing spondylosis, there seems to have been an aggravation to develop radiculopathy following the motor accident on 14 November 2021. The Medical Assessor has provided evidence of the claimant’s signs of radiculopathy and his steps of reasoning in reaching the conclusion that the claimant has sustained a non-threshold injury (physical).

5. The claimant has undergone elective surgery to her cervical spine on 22 February 2024 under the care of Dr Gemme Olsson (neurosurgeon). The surgery was a C5/6 and C6/7 anterior cervical discectomy and fusion at Westmead Hospital.

6. The claimant submits that she has not previously been recommended any surgical intervention to her neck. She says she did not complain of any pain symptoms nor was she required to consult a neurosurgeon for the opinion and management of her cervical spine. The claimant was previously asymptomatic and did not require any medication for the management of any symptoms. She took no anti-inflammatories or other medication to alleviate any nerve irritation.

7. Medical records from Westmead Hospital from July 2023 suggest that the claimant had axial neck pain and headaches with associated occipital neuralgia. The claimant argues that this is referred pain from the pathology from the cervical spine.

8. The claimant submits that Medical Assessor Herald has correctly referred to neurological symptoms associated with the claimant’s neck injury i.e. weakness, pins and needles and tingling in both hands. The claimant’s injuries meet the assessment criteria for verifiable radiculopathy.

9. The claimant disagrees that it is a breach of the rules of procedural fairness for the certificate of Medical Assessor Wijetunga to have been forwarded to Medical Assessor Herald. The claimant argues that this is rather the intent of procedural fairness which is designed to ensure fairness and transparency.

10. The claimant asserts that the mere action of the Commission referring Medical Assessor Wijetunga’s certificate to Medical Assessor Herald was in the interest of justice ensured the claimant procedural fairness. The claimant affirms that they do not take issue with the referral of the certificate to Medical Assessor Herald nor does the action deny the insurer procedural fairness.

11. The insurer has argued in their submissions dated 6 December 2023 that Medical Assessor Herald has failed to consider other relevant factors in the disruption of the chain of causation, being that the claimant was a victim of assault in January 2022. The claimant emphasises that there is no evidence to suggest that the claimant sustained any injuries to her cervical spine following an incident of domestic violence.

12. The insurer relies on Dr McIntosh’ biomechanical report. The claimant presses that it’s not the sole consideration in respect to the mechanics of the accident and the injury sustained by the claimant. The police report dated 13 May 2022 makes reference to both vehicles travelling at 60kmph just prior to the accident. The claimant argues that such impact from a high speed is consistent with the trauma to the claimant’s cervical vertebrae and in line with contemporaneous medical evidence available following the accident.

13. The claimant seeks the correction of an “obvious error” in the assessment of Medical Assessor Herald and for the decision to be affirmed that that the claimant sustained a non-threshold physical injury.

14. The claimant’s solicitors make further submissions dated 15 October 2024. These further submissions are in addition, and in response to the submissions provided by NRMA dated 23 September 2023 under the Application to Admit Late Documents enclosing a copy of the certificate of Medical Assessor Doron Samuell.

15. The claimant confirms that she has undergone a C5/6 C6/7 ACDF under the care of neurosurgeon, Dr Gemma Olsson on 22 February 2024. The surgery was undertaken at Westmead Hospital under the public health system because of the insurer’s denial of covering the costs of the cervical spine surgery.

16. The claimant confirms that despite the claimant undergoing surgery, a determination by the Panel should still be made in relation to her surgery to address causation. The claimant submits that she has incurred out of pocket expenses following surgery, which she seeks reimbursement for through the insurer.

17. The claimant highlights that the insurer has no justification for making such an assertion that the claimant’s injuries have resolved prior to January 2022 and they have failed to establish that the claimant in fact sustained any aggravated injuries to her neck during the incident in January 2022 involving assault by her ex-partner.

18. The claimant submits that the assault in January 2022 did not cause any aggravation to her cervical spine and that her symptoms have been solely caused by the subject motor accident.

19. The insurer has erroneously alleged that the claimant’s neck was aggravated in the incident involving domestic violence. The claimant responds that notwithstanding that the assault took place, there is no evidence of the claimant sustaining any injury to her neck from the assault.

20. The claimant highlights the clinical notes by Dr Chadha following the motor accident on 14 November 2021. The notes refer to six instances commencing on 15 November and continuing to 10 June 2022 where the claimant is reporting ongoing neck pain and referred pain down her left arm.

21. The claimant objects to the provision of the certificate of Medical Assessor Doron Samuell to the Panel, which details the claimant’s psychological assessment for the purposes of the threshold injury dispute. Whilst the claimant notes that there are two limbs of the threshold injury dispute, being physical and psychological, the claimant highlights that the insurer has only lodged a review application in respect of the claimant’s physical injuries, requesting a review of the certificate of Medical Assessor Herald (physical assessment).

22. The claimant objects to the provision of the certificate of Medical Assessor Doron Samuell to the Panel, which details the claimant’s psychological assessment for the purposes of the threshold injury dispute. Whilst the claimant notes that there are two limbs of the threshold injury dispute, being physical and psychological, the claimant highlights that the insurer has only lodged a review application in respect of the claimant’s physical injuries, requesting a review of the certificate of Medical Assessor Herald (physical assessment).

MEDICAL EXAMINATION   

1. Ms Fayad was interviewed via Teams by Medical Assessors Couch and Dixon on 18 November 2024 over a period of approximately 50 minutes. This was principally for the purposes of clarifying the history, although some brief physical observations were also noted and documented. The sound and visual link was satisfactory throughout. The Medical Assessors commenced by explaining the purpose of the re-examination.

Past Medical History

1. Ms Fayad was asked if she had been troubled by neck or arm symptoms prior to the motor vehicle accident. She replied, “not really… I was doing a lot of office work”. She explained that in previous jobs her duties involved administration, accounts and bookkeeping and general office all-rounder duties. She said that she had sometimes got stiff/sore from sustained postures at work but had never consulted a doctor or had any imaging. At times, she had sought treatment from an osteopath, chiropractor or chinese massage therapist.

2. She was specifically asked if she had had any similar symptoms to those described in her left upper limb since the accident – she replied, “No!” clearly and convincingly. She was also asked if she had had any previous corticosteroid injections and she said she had not. She added that, “after the accident because the pain was persistent I did have an injection because I thought it would help, but it didn’t”. She did also recall having some acupuncture for low back pain many years earlier but never for her neck.

3. Ms Fayad also said that she was no longer doing office work prior to the accident and was working as a personal carer. She had a single very disabled client. She would sometimes work a 24-hour shift, including a sleepover. She indicated that this client needed 24-hour care. She said that she typically worked 50 to 56 hours per week, usually between Thursday and Sunday. There were sometimes two carers in attendance. She described doing the full range of personal care duties, including showering, toileting, hoisting in and out of bed, dressing, etc. She said that because of ongoing symptoms she had been unable to return to this work at all after the subject accident.

4. She was asked about the history of the domestic assault in January 2022. She recalled being punched in the left ribs. She was not struck on the head or neck or grabbed by the head or neck. She did not fall or hit her head. She did not go to hospital but did see her GP and have a chest x-ray. She did not recall any neck symptoms afterwards.

5. There had also been a mention of previous problem gambling. Ms Fayad was asked about this. She said that in 2018 she had been playing the pokies as a way of coping with stress-related both to domestic conflict and the death of her mother. She said that she had declared this to an examining psychiatrist. She said that she no longer had any problem with this.

6. She was asked about a previous motor vehicle accident in 2005. This occurred in Erskine Park/St Clair. She was stopped waiting to turn right onto the M4 at traffic lights. She moved forward when the lights turned green and was “T-boned” on the left side. She said that she could not recall if her car needed to be towed away or not. She recalled having some low back pain but not requiring surgery, and she made a full recovery. She could not recall any neck symptoms from this accident.

History of the Motor Vehicle Accident

1. Ms Fayad stated that on 14 November 2021, she was alone driving a 2016 Toyota Yaris (a small hatch back). She was wearing a seatbelt. She was proceeding in the left hand lane of three lanes on Old Windsor Road, after just crossing an intersection controlled by traffic lights. She felt “a massive impact” and her car was pushed to the left. She realised after that the automatic gearbox had gone into neutral (Panel comment – if Ms Fayad still had her left hand on the gear change, it is possible that body jolting impact could have involuntarily moved the lever forward). She said that a much larger BMW X5 four-wheel-drive/SUV struck the right offside rear door.

2. She was asked about any body movement she recalled after the accident – she simply recalled, “my knees were shaking and I was in shock”. The BMW did not stop and she realised that if she did not obtain their details she would probably have to pay an insurance excess. She chased the other car and flashed her lights but they did not stop – she was apparently able to obtain their registration details. Damage to her car was to the right hand rear panel or panels and the bumper. She had comprehensive insurance. She was provided with a rental car and thought the repairs had taken about two weeks, but was not told the cost.

3. History of symptoms and treatment following the motor vehicle accident

4. Ms Fayad recalled the very early onset of neck pain and persistent numbness down her left upper limb. She also began to drop things recalling, “I grabbed things and they’d drop out of my hand”. She recalled numbness, particularly in the left index and middle finger. She was unable to return to work as a personal carer at all.

5. She was asked more about treatment for her injuries. She said that she continued seeing her GP for about a year and also had physiotherapy. She had one periradicular injection, which gave some relief for about three days (presumably only while the local anaesthetic was working). She was taking the anti-neuropathic drug Lyrica (Pregabalin) and simple analgesics. She was not improving and her GP decided to refer her to a neurosurgeon (Dr Rao). Ms Fayad also recalled that the insurer had initially paid for physiotherapy and did pay for the first consultation with Dr Rao, but subsequently would not approve recommended C5/6 and C6/7 ACDF – she said that it was at this stage that she first consulted a solicitor.

6. She was asked if the surgery had helped. She replied, “In terms of constant pain yes, but my neck is now stiffer in rotation – I have to turn my whole body”.

7. She said that her left upper limb symptoms were somewhat better but that “for some reason” she now had some trouble with her right shoulder – when describing this she abducted her right shoulder to 90 degrees, stating that it then seemed to lock. On request, she abducted further to a maximum of 120 degrees and described pain, pointing to the glenohumeral joint. In contrast, she could quite freely abduct the left shoulder to 160 degrees.

8. She was asked if overall she was better or worse than one year earlier when assessed by Medical Assessor Jonathan Herald for the threshold injury dispute. She thought that she was probably somewhat better. In addition to neck and upper limb symptoms, Ms Fayad described some difficulty getting off to sleep and said that she had purchased a special pillow recommended by a physiotherapist. She said that she was not usually woken by pain in the night, commenting that she takes Dytrex (Duloxetine) 30mg at night – she had previously taken the anti-neuropathic pain drug Lyrica but this caused weight gain (Duloxetine is an serotonin and norepinephrine reuptake inhibitor (SNRI) antidepressant which is also useful for neuropathic pain).

Current Treatment

1. Ms Fayad takes Panadol Osteo two tablets three times a day, Palexia (Tapentadol) 50mg up to daily if pain is particularly bad – she tries to avoid this because of side effects and its potentially addictive character. She in fact said that she only takes this every one or two weeks. She also takes Duloxetine 30mg at night. She has been having physiotherapy about every two weeks (funded by her) and uses heat packs on her neck for relief.

Physical examination (via Teams video)

1. Both Medical Assessors agreed that she presented in a very straightforward way. She appeared to be quite intelligent. Although some of her early education had been in Lebanon, she spoke perfect English with an Australian accent. She did look tired around the eyes, consistent with her history of some sleep disturbance.

2. There was a 50mm transverse anterior scar on the right side of the neck consistent with previous anterior cervical discectomy and fusion (ACDF). This showed some adherence when she rotated her head and neck to the left. She said that this does bother her to some extent and she applies creams to the scar.

3. All active cervical spine movements were moderately restricted. As noted above, she could apparently only abduct the right shoulder to 120 degrees – describing pain and putting her left hand over the glenohumeral joint to demonstrate. The left shoulder appeared to be pain-free and she could abduct freely to 160 degrees.

4. Obviously, proper neurological examination could not be performed by Telehealth – the Medical Assessors agreed that this would not be very helpful, as she had already had the cervical spine surgery.

5. Ms Fayad presented in a very genuine and straightforward manner.

6. She described a significant crash when her small car was side-swiped by a much larger and heavier SUV. She gave a history, confirmed by the GP’s documentation of the early onset of neck and left upper limb symptoms. MRI scan of cervical spine three days after the accident showed a small left foraminal disc protrusion impinging upon both exiting C6 nerve root, as well as degenerative changes with foraminal stenosis at C5/6 and C6/7.

7. Although it only gave brief relief, Dr Guy Harris, radiologist, reporting on left C6 nerve root injection 11 days after the accident on 25 November 2021, stated:

   “She reported a pre-procedure pain score of 7/10 and a post-procedure pain score of 3/10”.

8. All these features suggest an acute disc protrusion in the accident, causing left C6 nerve root irritation.

9. Medical Assessor Wijetunga in the certificate under review two years before the Panel re-examination showed signs consistent with left C6 radiculopathy. Medical Assessor Herald in his threshold assessment one year later also found symptoms and abnormal signs on examination consistent with left C6 radiculopathy, with sensory loss and weakness in the appropriate distribution.

1. Both Medical Assessors considered that the C5/6, C6/7 ACDF was causally related to injuries sustained in the accident, and medically reasonable and necessary in the circumstances. Although at Telehealth assessment some nine months after surgery, Ms Fayad did not report complete relief of symptoms, there had been some improvement. The main object of surgery would have been to relieve her left upper limb radicular symptoms and she said that these had improved. She did report some increased stiffness in her neck following surgery – this may occur following fusion, and may also improve over the next year or so.

DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION

1. In the motor vehicle crash on 14 November 2021 Ms Fayad sustained a number of injuries caused by the accident.

Cervical spine – soft tissue injury

1. The Panel finds that Ms Fayad sustained a non-threshold injury to her C5/C6/C7discs in her cervical spine and radiculopathy as a result of the accident.

2. The Panel notes the insurer’s submissions that any soft tissue aggravation of the claimant’s pre-existing chronic pathology caused by the subject accident had resolved. The insurer’s view is that the proximal cause of the claimant's subsequent deterioration and radicular symptoms is the January 2022 subsequent assault which is an intervening event. The Panel disagrees with these submissions from the insurer. The MRI of 17 November 2021 demonstrates the claimant had pre-existing cervical pathology with some disc bulging and also nerve root impingement at the C6 nerve root. The MRI showed significant foraminal stenosis at both C5/6 and C6/7. The Panel also note the claimant reported some neck symptoms about 2016-2018 and had some treatment from an osteopath. Unfortunately as there is almost no medical or clinical evidence prior to 2021 the Panel cannot reliably conclude what if any neck symptoms were present in the claimant before the subject accident. All that can be said is that there was no evidence of the claimant reporting or experiencing any significant cervical spine pain or radicular symptoms prior to the subject motor accident.

3. The Panel also disagrees with the insurer submission that the claimant’s pre-existing chronic pathology caused by the subject accident had resolved and then subsequently deteriorated due to the 16 January 2022 assault. The claimant’s evidence to this Panel and to Medical Assessor Wijetunga that the injury from the assault was mainly her lower chest area and not her neck. The Panel also disagrees with this submission because the claimant continued to report radicular symptoms in her cervical spine and left arm during the period between the subject accident and her assault in January 2022. The claimant had an MRI scan of the cervical spine on 17 November 2021 which showed bilateral nerve impingement on the exiting C6 nerve roots. The claimant confirmed at the re-examination on 18 November 2024 that she continued to have radicular symptoms before and after the alleged assault in January 2022.

4. The Panel also notes the biomechanical engineers report by Dr McIntosh which provides the expert opinion that the forces generated or involved by the motor vehicle accident could not have generated sufficient force to cause the claimed injury. The Panel has also taken this report into consideration however given the clinical history provided by the claimant together with all the other expert medical evidence the Panel's opinion is that the subject motor accident was sufficient to cause or aggravate the injury to the claimant’s cervical spine and discs. Based on its comprehensive review of all the evidence including the clinical notes and imaging studies and also its re-examination of the claimant, the Panel’s conclusion is that the subject accident was sufficient to cause the injury or aggravation to the claimant’s cervical discs because of the advanced stage of degenerative cervical spinal disease. The Panel also notes there was no evidence before it that the claimant’s cervical spinal disease was symptomatic prior to the subject accident in November 2021.The Panel further notes that the claimant confirmed at the re-examination on 18 November 2024 that she had no radicular symptoms prior to the subject motor accident.

5. The Panel notes the insurers submissions that at most there was a temporary aggravation of the claimant’s pre-existing cervical pathology at the left C6 nerve root, which was treated with a cortisone injection and had resolved by 3 December 2021. The insurer also argues that the forces involved in the subject accident, could not and did not cause any new cervical spine pathology as stated by Dr McIntosh and evidenced on imaging.

6. The Panel notes the detailed and helpful report from Dr McIntosh who describes the nature of the accident. There were no airbags deployed, no police or ambulance attended and no hospitalisation occurred. Dr McIntosh writes that the mechanics of the collision could have reasonably led to the injuries of which the claimant is complaining. The claimant might have experienced some general soreness as a result of the incident with symptoms resolving over a short period of closed duration. In his opinion is very unlikely that under the likely circumstances of the accident that the biomechanical forces acting on the claimant’s cervical spine would have resulted in any structural injury to bone, joint, intervertebral disc or aggravated the underlying progression of the claimant's ageing and or disease process. However the Panel finds that the claimant’s pre-existing degenerative condition was significant and having carefully questioned the claimant and examined the medical evidence the Panel has come to a different conclusion about the cause of the claimant’s cervical spine injury.

7. The Panel also does not agree with the insurer’s argument that even if the Panel were to accept the finding of cervical radiculopathy was present at the time of Medical Assessor Herald’s examination, it was proximally related to the subsequent intervening assault event rather than the effects of the subject accident. The Panel does not accept the insurer’s characterisation of Medical Assessor Herald’s examination findings because he specifically questioned the claimant about the assault and she responded that it was mainly her lower chest that was injured. The claimant’s description of the assault injury is consistent with her report to her GP, Dr Modur who noted on 17 January 2022 that the claimant suffered domestic violence yesterday, physical assault by her ex-partner. Police complaint by the patient. Right lower chest wall pain. Left side of face and upper thoracic spine pain since the physical abuse. Left mandible. Face mild swelling but no obvious deformity evident, range of movement normal, upper thoracic spine paraspinal no bruise.

8. The Panel notes that the insurer’s solicitors have in their written submissions appended five medical journal articles concerning the interpretation of MRI scans and the assessment of cervical spine injury and disc bulging.

9. The Panel has carefully considered these medical articles and the insurer’s submissions. The Panel notes that every injured person’s case is different and must be evaluated by taking into account each person's clinical history and presentation. The Panel notes that the 4th numbered article conclusion is as follows:

   “Imaging findings of spinal degeneration are present in high proportions of asymptomatic individuals increasing with age. Many imaging based degenerative features are likely part of the normal ageing and unassociated with pain. These imaging findings must be interpreted in the context of the patient's clinical condition.”[39]

   In this claimant’s case and given her clinical history and presentation, the Panel’s clinical medical judgment is that the subject motor accident was sufficient to cause the cervical injuries complained of by the claimant.

   [39] Insurer’s bundle RA p 34.

10. The Panel finds that the claimant’s significant pre-existing degenerative condition when subject to the sudden impact of the motor accident has caused or resulted in her underlying asymptomatic degenerative disease becoming symptomatic. The Panel finds that the subject motor accident has caused an aggravation of the claimant’s degenerative disc disease. Before the accident there was no evidence of the claimant experiencing any significant cervical spine pain or radicular symptoms. Then shortly after the accident she reported cervical pain and symptoms down her left arm. The common law view of causation in such a case doesn't require that the accident be a direct cause of the injury only that the accident made a material contribution to the that injury. See: Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J and AAI Ltd t as AAMI v Ahmed [2023] NSWPICMP 126.

CONCLUSION AND CERTIFICATION

1. The Panel’s opinion is that the subject accident caused injuries to the claimant’s cervical spine.

2. For the above reasons the Panel revokes the certificate of Medical Assessor Herald dated 21 November 2023 and issues a replacement certificate determining that the following injuries caused by the motor accident are non-threshold injuries:

   •cervical spine – disc bulge at the C5/6 level and C6/7 level with bilateral C6 nerve impingement with radiculopathy.

3. The new certificate is attached at the commencement of these reasons.