Frnsow v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Frnsow v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 283
CLAIMANT:	Fadia Frnsow
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL:	Member Belinda Cassidy Medical Assessor Rhys Gray Medical Assessor Trudy Rebbeck
DATE OF DECISION:	12 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); medical assessment of minor injury and claimant’s review under section 7.26 of the MAI Act; claimant involved in rear end collision; claimant alleged injuries to both shoulders, her neck, thoracic spine and lumbar spine arguing that a small annular disc tear in the lumbar spine (identified in radiology after the accident) was caused by the accident and that a disc tear was a non-minor injury; Held – the claimant was examined by two medical assessors and identified thoracolumbar pain not lumbosacral pain which did not correspond to the disc tear; the disc tear was not caused by the accident; the claimant had no radiculopathy and soft tissue injuries only within the meaning of section 1.6 of the MAI Act.
DETERMINATIONS MADE:	The Review Panel: 1. Confirms the certificate of Assessor Wong dated 13 June 2021. 2. Certifies that the injuries sustained by Ms Frnsow are minor injuries for the purposes of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Fadia Frnsow, was involved in a motor accident on 10 June 2020. She says she was stationary at traffic lights when her car was run into from the rear.
On or about 16 June 2020[1] Ms Frnsow made a claim against NRMA the third-party insurer of the vehicle she says caused her accident. NRMA (the insurer) has accepted liability and paid some benefits to Ms Frnsow[2].
[1] The application for personal injury (statutory benefits) is document [R3] in the insurer’s bundle.
[2] The insurer’s first liability notice is document [R4] in the insurer’s bundle.
On 28 July 2020 the insurer wrote to the claimant advising her that her injuries were ‘minor’ injuries within the definition in the legislation and that her benefits would cease 26 weeks after the accident[3]. An internal review was undertaken[4] and the dispute was referred to the Personal Injury Commission (the Commission) for medical assessment.
[3] The insurer’s second liability notice is document [A5] in the claimant’s bundle
[4] The insurer’s internal review decision is document [A4] in the claimant’s bundle.
On 13 June 2021 Assessor James Wong issued a decision determining Ms Frnsow’s injuries were minor, and the claimant has challenged that determination by lodging an Application for Review of the Medical Assessment.
The President’s delegate determined on 29 July 2021 that there was reasonable cause to suspect an error in Assessor Wong’s decision and a Review Panel (the Panel) has been convened by the President of the Commission.

LEGISLATIVE FRAMEWORK AND CASE LAW

Jurisdiction

Ms Frnsow’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and the assessment of damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘minor’ injuries. In a common law damages claim, no damages are recoverable if the claimant’s injuries are ‘minor’ injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) ‘whether the injury caused by the motor accident is a minor injury for the purposes of the Act’.

Minor injury

A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor 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.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor 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 (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in Ms Frnsow’s claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal serve root” and clause 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines[5]. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury”.
[5] Chapter 6 of the Guidelines.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act[6]. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
[6] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)     a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)     a review of all relevant records available at the assessment
(c)     a comprehensive description of the injured person’s current symptoms
(d)     a careful and thorough physical and/or psychological examination
(e)     diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
The method of assessment in Part 5 does not appear to be limited to the assessment of minor injury disputes by medical assessors and Panel members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).

Causation

In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[7] Justice Walton set aside the decision of a Medical Review Panel and dealt with the definition of ‘minor injury’ and a question of causation in respect of an amputated toe. It was found that the Review Panel had denied the claimant procedural fairness relying on articles not provided to the parties to enable them to make submissions in relation to those articles. At [40], his Honour said:
“The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
[7] [2021] NSWSC 804, Kinchela.
While Part 5 of the Guidelines apply to the determination of whether an injury is a minor injury, there is no definition of, or guidance for the assessment of “causation” in determining what injury (minor non-minor) was caused by the accident. There are provisions concerning causation in Part 6 of the Guidelines[8] but that Part only applies to the assessment of permanent impairment which is a separate and different medical assessment matter concerning entitlement to non-economic loss which is not in issue here.[9] Furthermore, cl 6.6 refers to the definition of causation in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) and those Guides are not applicable at all to the determination of ‘minor injury’ other than cl 5.8 which deals with radiculopathy.
[8] Clauses 6.5-6.7.
[9] See clause 6.3 of the Guidelines.
The determination of a minor injury dispute is relevant to both the claimant’s statutory benefits claim under Part 3 of the MAI Act and any damages claim that may be made in accordance with Part 4 of the MAI Act. In Part 3, the injured person’s access to ongoing statutory benefits beyond the first 26 weeks is denied if ‘the person’s only injuries resulting from the motor accident were minor injuries.’ In Part 4, an injured person’s ability to recover damages is also denied if ‘the person’s only injuries resulting from the motor accident were minor injuries.’
Clauses 5.1, 5.3 and 5.6 of the Guidelines use the term ‘injury caused by’ as does Schedule 2(2)(e) of the MAI Act when identifying one of the medical assessment matters as ‘whether the injury caused by the motor accident is a minor injury’. Clauses 6.1, 6.3 and 6.5 of the MA Guidelines also use that phrase in relation to the assessment of whole person impairment resulting from “the injury caused by” the motor accident.
While the assessment of minor injury and whole person impairment are two separate medical disputes and assessed in accordance with two separate chapters in the Guidelines, they are part of the same document, concerning the same benefits and compensation scheme. It could lead to perverse outcomes if two different tests of causation were used.
The Panel is therefore of the view therefore that the test to be applied and the question to be answered is whether Ms Frnsow’s injuries “caused by the accident” are minor or not minor and the approach to that should be a consideration of a medical decision and a non-medical informed judgment as follows:
(a) could the accident have caused the injury alleged to be non-minor (medical determination), and
(b) did the accident in fact cause the injury alleged to be non-minor (non-medical determination).
This is in keeping with the approach to causation in the permanent impairment chapter of the Guidelines, the provisions of the Civil Liability Act 2002 and the approach of the courts noting for example the High Court’s judgment in the lung cancer case of Amaca v Ellis[10]. In that case the Court determined that in circumstances where one substance 'can' (on the basis of epidemiological evidence) cause an injury, causation will only be established if it is shown that it 'did' cause the injury assessed on the balance of probabilities.

THE MEDICAL ASSESSMENT

[10] Amaca Pty Limited v Ellis; The State of South Australia v Ellis; Millenium Inordanic Chemicals Limited v Ellis [2010] HCA 5.

Assessor Wong’s decision

Medical Assessor Wong determined (at point 21 on page 10) that the claimant sustained the following injuries in the car accident:
(a)    both shoulders – minor strain;
(b)    cervical strain – minor strain;
(c)    thoracic spine – minor strain, and
(d)    lumbar spine – minor strain with a small annular disc tear.
Assessor Wong found all of the above to be minor injuries within the statutory definition.
Assessor Wong found no evidence of radiculopathy in the claimant’s cervical, thoracic or lumbar spine.
In terms of the lumbar spine injury, Assessor Wong (at point 20 on page 10) accepted the claimant’s evidence that she had no lumbar or lower back problems before the accident and that she had lumbar spine pain after the accident. He also accepted the claimant had a small annular disc tear at L4/5 as reported in the MRI scan and that, “As reported in the commonly accepted medical literature, this small tear may be found in the absence of an acute injury”. However Assessor Wong considered that the motor accident “may be a more than negligible contributing cause of the small annular disc tear as well.” This view is repeated at the bottom of page 14 of his reasons.
In relation to that tear, towards the bottom of page 15:
“The small annular disc tear reported on Ms Frnsow’s MRI lumbar spine is a soft tissue injury as defined in Section 1.6(2) of the Act above, because it is an injury to the fibrous annulus surrounding the L4-L5 disc, but it is “not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage’”.

Claimant’s submissions

In the submissions before Assessor Wong dated 20 October 2020[11], the claimant notes (at [4.1]) that she sustained in the accident injuries to her cervical spine, thoracic spine, both shoulders and lumbar spine. She suggests these findings are causally related to the subject motor accident, noting absence of any complaints of injuries to the claimant’s neck or whole back prior to the subject accident plus ongoing radicular pain from her lower back into her legs indicating non-minor injuries.
[11] Document [A3] in the claimant’s bundle.
In submissions made in this Review to the President’s delegate dated 17 June 2021[12] the claimant focusses (at [5]) on the lumbar spine injury and the MRI of 22 July 2020 which she says shows a broad disc bulge with small left annular disc tear at L4-5.
[12] Also identified as document [A1] in the claimant’s bundle.
The claimant says (at [7]) the tear shown on the MRI is an injury to the annulus fibrosis which is a “strong outer ligamentous ring” and that an annular tear is a tear in this ligamentous ring and that (at [8]) an annular tear is a complete or partial rupture of ligaments, thereby falling outside the definition of a minor injury.
The claimant refers (at [9]) to a SIRA Case Study 45[13] which indicated that “an annular fissure associated with a disc bulge was not a minor injury” and says [13] that Assessor Wong has failed to properly classify Ms Frnsow’s injury.
[13] Published on the website of the State Insurance Regulatory Authority.

Insurer’s submissions

The insurer’s original submissions before Assessor Wong and dated 3 March 2021[14] concede (at [15]) that there is no evidence of any pre-existing injuries or conditions.
[14] Document [R4] page 90 in the insurer’s final bundle.
The insurer documents the claimant’s medical treatment which commenced on the day after the accident when Ms Frnsow attended her general practitioner (GP). The insurer also notes the X-ray taken on 11 June 2020, the MRI of the neck and mid back dated 22 June 2020 and the MRI of the lumbar spine performed on 22 July 2020.
The insurer says (at [26]-[28]) that the evidence supports Ms Frnsow sustaining soft tissue injuries, that there are no fractures, no injury to nerves and no complete or partial rupture of tendons, ligaments, menisci or cartilage. The insurer notes she was diagnosed by her GP with sprains to the back, neck, shoulders and thoracic spine.
The insurer notes (at [29]) the findings including a T6 compression fracture and a T5 endplate fracture which NRMA says are not caused by the accident because the radiology suggests they are of ‘indeterminate age’. The insurer submits that the MRI shows degenerative changes in the thoracic and lumbar spines that were pre-existing and therefore the thoracic fractures are highly unlikely to have been caused in the accident.
The insurer argued that the small annular tear at L4-5 was not caused by the accident because (at [30]) there is a high level of disc bulging in the population at large. The insurer relied on several published medical journal articles to support this.
The insurer submitted (at [31]) that the MRI shows pre-existing and degenerative changes in her thoracic spine and lumbar spine unrelated to the accident and that therefore (at [32]) it is likely the annular tear existed before the accident.
Finally (at [35]-[a37]), the insurer submits that there is no evidence of radiculopathy within the meaning of cl 5.8 of the Guidelines.
The insurer’s submissions in answer to the application for review are dated 16 July 2021[15]. The insurer again refers to a number of articles and explains the anatomy of the intervertebral discs, the difference between the nucleus pulposis, the annulus fibrosis and the presence of endplate cartilage. The insurer says (at [6]) that the annulus fibrosis is not a “ligamentous ring” but “fibrous connective tissue” and argues:
(a) The tear to the anulus fibrosis is not a tear of a ligament but an injury to a fibrous connective tissue which fits within the definition of minor injury in section 1.6 [7].
(b)    The case study referenced by the claimant was not before the Assessor, is not binding on other assessors but that in any event it concerned a case of radiculopathy and the presence of the disc bulge and the tear was not the determinative factor in that case [9]-[12].
(c)    Assessor Wong determined the tear was causally related due to the absence of symptoms before the accident. While the insurer concedes there were no pre-accident symptoms, the imaging finding suggests a common age-related feature that can be present with or without symptoms [15]-[20].
(d)    The accident was minor, there was minor damage to the vehicle, the claimant did not require ambulance, hospitalisation or immediate medical treatment and reported nonspecific muscular pain (at [21]).
[15] Identified as document [R1] in the insurer’s bundle.
Nine extracts from literature were provided to support the insurer’s argument as to the epidemiological evidence and prevalence of tears in the general population.

REVIEW OF THE MEDICAL EVIDENCE

Treatment providers

Within the documents are the following imaging investigations:
(a)    X-ray dated 11 June 2020[16] which has a history of “recent MVA, pain in whole back” and the conclusion, “Compression fracture of T6 vertebral body, of uncertain age. Spondylitic changes involving cervical, thoracic and lumbar spine”.
(b)    MRI of the cervical and thoracic spine dated 22 June 2020[17] with a clinical note of, “Recent MVA. Back pain” and a reference to the T6 vertebral fracture. The neck shows no evidence of acute fracture or dislocation but spondylitic changes. In the thoracic spine it was said there was “no evidence of acute vertebral body fracture” however there was subtle depression of the superior endplate of T5 vertebra suggestive of a chronic bone injury and a ‘very subtle’ disc protrusion at T7-8.
(c)    MRI of the lumbar spine dated 22 July 2020[18] which records a history of “Back pain post MVA?Cause” with the comment “Mild lumbar spondylosis. There is some potential for nerve root irritation mainly at L4-5 level”. There is said to be a minimal disc bulge at L1-2, a mild disc bulge at L2-3 and L3-4 and at L4-5 “broad disc bulge with small left annular disc tear but no extrusion” and no disc protrusion at L5-S1.
(d)    bone density scan of the lumbar spine and left femoral neck dated 2 July 2020[19] with “?osteoporosis” in the clinical notes section. The conclusion of this study was that the lumbar spine bone density was normal and there was no increased risk of minimal trauma fracture. The left femoral neck was in the osteopaenic range with mildly increased risk of minimal trauma fracture.
[16] Document [A9] in the claimant’s bundle.
[17] Document [A8] in the claimant’s bundle.
[18] Document [A7] in the claimant’s bundle.
[19] Page 225 of the insurer’s bundle.

There is also a referral dated 27 July 2020 from Dr Abdullah of Main St Family Medical Centre to Dr James Van Gelder[20]. The referral notes no past history, worsening low back pain and medications including osteomol and paracetamol after the accident.
[20] Document [A6] in the claimant’s bundle.
The claim form[21] is dated 16 June 2020 and lists injuries to the neck, shoulders, whole back and headache. The claimant denies previous illness or injury to the same or similar parts of the body injured in the accident.
[21] Document [R3] in the original bundle now part of [R4] in the insurer’s review bundle.
The notes of Main St Family Medical Centre have been provided[22] and they include the following:
[22] Document [R6] in the original bundle now part of [R4] in the insurer’s review bundle and a more updated version is [R5].
(a)    Ms Frnsow commenced as a patient in the practice in January 2020 when she attended for headache and complaining of being weak with low energy.
(b)    On 27 February 2020 she attended with low blood pressure and headache (occipital radiating to frontal area and around eyes). She attended again on 4 May 2020 with her CT scans of the brain to discuss the results and the reasons for her headache. There is reference to a referral letter and a “Standard MSMC”[23].
(c)    Following the accident, the claimant attended Dr Emin on 11 June where he notes “whiplash to neck and lower back, headache, shoulders and whole back pain did not sleep due to pain, tender in occipital area C7, T9 and L5 areas”. A whole of spine X-ray was requested.
(d)    The claimant attended Dr Emin again on 13 June and he notes “epigastric pain radiates to mid back pain”. The X-rays were discussed with no obvious reference in the notes to continuing symptoms from the accident.
(e)    On 16 June, Dr Emin made reference to a “post mva sprain” to the whole back, shoulders and headache).
(f)    On 23 June, Dr Emin ordered MRI scans due to continuing pain in the neck and upper back, bilateral shoulder pain left more than right since the accident.
(g)    The certificate of capacity dated 16 June 2020 was signed by Doctor Emin[24]. He was of the view the claimant had no capacity to work until 10 July 2020. He records she was in a car hit from behind, she had no pre-existing factors, required analgesia, physio, MRI cervical and thoracic spine. He diagnoses “post MVA sprain to back + neck + thoracic + shoulders, headache”.
(h)    Later attendances include Dr Emin on 2 July (still has pain at T5-L5), 20 August (waiting for neuro-surgeon review for lower back pain – Panadeine Forte), 15 September (numbness in legs and hands), 24 September (second opinion sought), 17 October (ongoing neck and lower back pain), Dr Emin on 16 December (pain in the whole back with numbness in both legs).
(i)    On 15 September 2020 Dr Abdullah wrote a referral to Dr Neil Griffith[25] for the purposes of investigating the claimant’s ongoing neck and lower back pain with numbness in hands and feet with a query whether there was nerve compression. On 24 September 2020 another referral in the same terms was written for Dr Ibrahim Hanna.[26]
[23] Presumed to be Main Street Medical Centre for radiology referral.
[24] A clearer copy of this document is found at [R7].
[25] Page 231 of the insurer’s bundle.
[26] Page 233 of the insurer’s bundle.
Dr van Gelder is a neurosurgeon, and he has produced his records which begin with a letter to the claimant’s GP dated 15 September 2020[27]. He noted the accident and Ms Frnsow’s concern (which came from the X-ray report of 10 June 2020) that she had been diagnosed with thoracic fractures. Ms Frnsow complained of persisting symptoms including pain in the cervical and thoracolumbar spine. She said she gets numbness in the hands and feet and sharp pain in the left elbow and left shoulder and pain in her wrists and hands. She reported having headaches which had improved. Dr van Gelder also reported the development, a week after the accident, of urge incontinence and that the claimant has a numb feeling in her lateral leg with some paraesthesia which can extend to her foot toes and the soles of her feet.
[27] Dr James van Gelder’s records are [R6] in the insurer’s bundle and commence at page 245.
Dr van Gelder observed that Ms Frnsow “looks miserable” with reduced range of motion in the neck, pain in the neck on fully elevating her shoulders, tenderness in the scapula on both sides but more so on the left and minor tenderness in the whole of the spine. Ms Frnsow was also tender in the iliac spine and crest (no particular side is identified) but he records that her hips are normal. She was tender over the left epicondyle but had normal strength and reflexes in the arms and legs.
He reviewed the scans and said that the lumbar MRI of 22 July 2020 “shows common age-related degenerative changes” with early degenerative disease. He observed that at L5-S1 there was mild disc herniation with narrowing around the L5 nerves “because of her degenerative changes” but said that this degree of radiological change would not normally be “clinically important.” He said there were no signs of trauma.
In terms of Ms Frnsow’s neck, Dr van Gelder noted that the cervical spine MRI similar “common disc degenerative changes” with “no specific signs of deformity, instability or nerve compression or fractured bones or ligament injury”.
Dr van Gelder said that the thoracic MRI scan was “essentially normal” with nothing to correlate to the “suspicion of” compression fractures reported on the plain X-ray.
He diagnosed “non-specific neck and thoracolumbar pain” with “unverifiable radicular symptoms”. He was also of the view the claimant had injured her left shoulder and had a tender left elbow. Dr van Gelder said there was no indication for surgery and no neurological cause for her urge incontinence.
From the GP’s notes it appears the claimant saw Dr Hanna, neurologist, for a second opinion and his letters to the GP are in the notes and they include:
(a) 26 October 2020[28] - Dr Hanna notes he was referred to investigate and follow up Ms Frnsow’s complaints of cervical mid and lower back pain with numbness in the hands and feet. He has a consistent and accurate history of the claimant’s treatment including the referral to Dr van Gelder and that she “she is still complaining of the pain with numbness and tingling in her feet and her hands”. He examined her and recorded that there were no neurological symptoms, and her general examination was “unremarkable”. He was of the view she had sustained a musculoskeletal injury. He remarked that “changes seen on the spinal cord MRI scan are very consistent with old pathology and no acute pathology”. He requested blood tests and full body scan and said he would review her.
(b) 2 December 2020[29] - Dr Hanna reports that all blood tests were normal apart from low vitamin D. He reports “Her total body bone scan revealed some arthritic changes but no evidence of fracture as the MRI scan suggested at T6 and no fracture anywhere else”. He considered her pain was musculoskeletal and she was reassured that no further investigation was required.
[28] Page 209 of the insurer’s bundle.
[29] Page 205 of the insurer’s bundle.
The insurer has included within its material a copy of the police report[30] which identifies the two vehicles involved as the claimant’s Nissan Sedan and the insured Toyota Kluger. The report was made on 19 June 2020 at the police station and the pre-crash speed of the NRMA vehicle is reported at 60kmph. The history recorded by the police is as follows:
“On wed 10/6/20 at 3.10pm, VEH2 was stationary at the intersection of Edensor Rd X Smithfield Road Bonnyrigg. VEH2 was the 3^rd or 4^th vehicle within the right lane to turn right onto Smithfield Rd. VEH approached the intersection travelling in the right lane and collided with the rear of VEH2. Both vehicles exchanged details and left.”
[30] Document [R2] in the original bundle now part of [R4] in the insurer’s review bundle.
Photographs have been provided[31] which show some scratches and possibly indentation to the rear bumper bar. The bumper bar was removed and a photograph of the rear end of the car does not appear to show any chassis damage.
[31] Document [R8] in the original bundle now part of [R4] in the insurer’s review bundle.

REVIEW PANEL DELIBERATIONS

Following its first meeting, the Panel issued to the parties, a report and directions document dated 15 November 2021. In that document the panel advised that it would consider as part of its deliberations all of the documents relied on by the parties (excluding correspondence concerning whole person impairment and entitlement to non-economic loss) including any documents not before Assessor Wong. The Panel specifically referred to the articles relied on by the insurer and invited the claimant to respond to those.
The Panel also noted that the submissions from the parties dealt only with the injury to the lumbar spine suggesting the other injuries which had been found to be minor injuries were not in contention. The Panel informed the parties the Panel would focus on the lumbar spine injury.
The Panel determined the two medical members would re-examine the claimant on 18 January 2022. The re-examination of the claimant was rescheduled due to Covid.
The parties were asked to provide any final submissions addressing any of the matters in the report and directions document. No response was received from the claimant and while the insurer responded it took no issue with any of the matters raised by the Panel.

RE-EXAMINATION REPORT

Ms Frnsow attended for re-examination in the city with Medical Assessors Gray and Rebbeck.

Background

Ms Frnsow was born in Iraq, migrated to New Zealand for 17 years and relocated to Australia in 2019. She is married and lives with her husband and 12-year-old son.
In Iraq she worked in a printing laboratory and also for the Church, while in New Zealand she worked for Woolworths. Ms Frnsow is not working currently and is the carer for her disabled husband.
Ms Frnsow denied any past history of major illness apart from recurrent headaches. She did have excision of fatty lesions from the left upper arm and left scapular regions in Iraq. She denied any former injury or problems with her back, neck or shoulders, with no involvement in any other motor accident.
She takes no regular medications and does not smoke cigarettes or drink alcohol.
In terms of exercise, Ms Frnsow said that she used to accompany her son to basketball before the accident, but is unable to do so now. She described no regular specific exercise.

Motor accident

Ms Frnsow said she was the driver of her motor car coming home from school at 3.20pm on 10 June 2020. She was stationary in traffic, waiting to turn right, being the third car in a row. She recalled a “bump from the back” and felt shaken about. She said she was immediately worried, particularly with her son in the back seat and husband in the front seat - however, she said neither of them sustained injury from the motor accident.
Ms Frnsow was wearing a seatbelt and the air bags did not deploy. She recalled no contact between her body and any internal vehicle structure. Immediately after the accident she said she felt no particular problem, experienced no pain and said she got out of the car and could mobilise readily.
The claimant drove home without concern, saying she experienced the onset of a headache after arriving home, particularly as she could not help worrying. She described broken sleep that night because of concern about the accident, particularly her son, and she said she had continuing headaches.
Within the first 24 hours, Ms Frnsow described the onset of neck pain, pointing to the lower cervical spine, right more than left. She also described pain, pointing to the right trapezius area, that she described as “right shoulder pain” with no reference to the right deltoid/shoulder joint area. There was also the onset of “back pain”, and on request Ms Frnsow pointed to her mid-thoracic region as the location of her “back pain”.
The claimant attended her GP the next day and remembered having an X-ray and that her blood pressure was elevated. She continued to have headaches with neck, “right shoulder” and “back” pain.
As her symptoms continued, she said her GP organised an MRI of the neck and upper back and was prescribed Panadol. She later had an MRI of her lower back.
Ms Frnsow said it was not until some months later that she had eight sessions at physiotherapy, with some delay as she had been waiting on the insurer to approve and pay for it. She said that the treatment of massage and “machines” at physiotherapy did not help.
She was advised however to undertake exercise, swimming and apply hot packs. She could recall no other specific treatment apart from above and simple analgesia/anti-inflammatories.
Ms Frnsow recalled being referred to Dr van Gelder, neurosurgeon whom she said suggested no active treatment and no surgery. She also attended Dr Hanna, neurologist who said no further treatment was recommended.

Current symptoms and activity

Ms Frnsow said she is able to undertake household chores, cooking and looking after her husband and son, and she drives her son to school.
She said that any excessive walking causes her leg muscles to ache, and she feels tired in both legs with numbness. Ms Frnsow said she can walk up to half an hour without concern, saying pre-accident she was able to walk up to three hours.
Although she does the cleaning and cooking at home, she said she does the domestic work with pain, being located mainly in her neck and central back. She said she is unable to attend and properly interact with her son at basketball. She is able to drive satisfactorily.
Her continuing symptoms include headache, with neck, “right shoulder” and central back pain. With regards to her neck, the pain is more on the right side lower down and going into the right trapezius as far as the right deltoid region, with no upper limb complaints that would, in the medical members of the Panel’s view be considered radicular complaints.
Ms Frnsow described general numbness in her hands affecting all fingers, particularly in the mornings and when lifting objects. She also has pain and numbness in both legs with extended walking, located maximally in both calves but also the numbness being circumferential about both legs. The leg symptoms occur only with walking, not at rest.
On closer questioning of her “back” pain, she pointed to the mid to lower thoracic region as the source of the constant pain and described occasional radiation from the thoracic region down into the lumbar area. She described “back pain”, located in the mid thoracic region particularly when sitting. At no stage did Ms Frnsow point to, or locate the lumbar area, as the source of her painful “back”.

Examination

On examination, Ms Frnsow’s affect appeared normal and appropriate. She was in no obvious distress while sitting during the history taking and she moved readily during the physical examination. She walked without a limp.

Cervicothoracic spine

There was a full range of neck (cervicothoracic) movements with some irritability on terminal rotation to the right with no dysmetria. On palpation there was tenderness in the lower right paracervical musculature extending into the right trapezius region, with no localising tenderness and no guarding. There were no non-verifiable cervical radicular symptoms.
There was no muscle wasting about either shoulder girdle. There were old well healed surgical scars over the left scapular area and in the left upper arm. There was no local tenderness about either shoulder and no impingement. Both shoulders had equivalent and essentially full ranges of movement.
In the upper limbs there was no muscle wasting, no muscle weakness and no sensory deficit elicited. Provocative testing for carpal tunnel was negative. Upper limb reflexes were symmetrical and normal.
In terms of the definition of radiculopathy in cl 5.8 of the Guidelines the examination revealed there was:
(a)    no loss of reflexes or asymmetry of reflexes;
(b)    no positive sciatic nerve root tension signs;
(c)    no muscle atrophy or decreased upper limb circumference;
(d)    no muscle weakness. and
(e)    no reproducible sensory loss.

Thoracolumbar spine

In the mid-back (thoracolumbar spine) there was mild non-localised tenderness in the proximal right paravertebral musculature and extending into the right trapezius area without guarding. There was no mid or lower thoracic spinal tenderness elicited. There was no dysmetria of thoracic spine movements with no thoracic radicular complaints.

Lumbosacral spine

In the lower back (lumbosacral spine) there was no definite tenderness, no guarding and no radicular complaints. Movements of the lumbar spine were normal with no dysmetria. There were no non-verifiable lumbar radicular complaints.
In the lower limbs the left hip had a full range of movement. The right hip movements were irritable and with difficulty assessing range of movement.
Peripherally, there was limitation of straight leg raising bilaterally to about 50 degrees, equivalent bilaterally, on each side causing complaint of right loin discomfort, with no induced radicular symptoms. Lower limb power and sensation were normal. Lower limb reflexes were symmetrical and normal with no material wasting in the lower limbs. Responses to the Babinski reflex were normal.
Again, in terms of the definition of radiculopathy in cl 5.8 of the Guidelines, the Medical Assessors note that there was:
(a)    no loss of reflexes or asymmetry of reflexes;
(b)    no positive sciatic nerve root tension signs;
(c)    no muscle atrophy or decreased lower limb circumference;
(d)    no muscle weakness, and
(e)    no reproducible sensory loss.

Investigations

The claimant did not bring her X-rays or other investigations for review.
The MRI cervical and thoracic spine report from Dr Gacs dated 22 June 2020 says that in the cervical spine, there was no evidence of acute fracture or dislocation. In the thoracic spine there was no evidence of acute vertebral body fracture.
The MRI Lumbar spine report from Dr Pillay dated 22 July 2020 shows no vertebral crush fracturing. Description of disc bulges, facet joint hypertrophy and annular tear, reflecting chronic lumbar degenerative changes, with comment “mild lumbar spondylosis”.
The medical members of the Panel note that Dr van Gelder said that the thoracic spine MRI was essentially normal with no signs of bone fractures. Further, he said that the lumbar MRI showed common age-related degenerative changes that he felt would not normally be clinically important, with no definite specific signs of trauma.
The Panel noted at L4-5 the description is given of a “small left annular disc tear” that clinically is generally referred to as an “annular fissure”. This finding is, in the clinical experience of the medical members of the Panel, common in symptomatic and non-symptomatic lumbar MRIs, and is part and parcel of the degeneration and change in discs, particularly in the lumbar spine as the body ages.

FINDINGS OF THE PANEL

Diagnosis

In the medical members of the Panel's opinion, the diagnosis consistent with the review of the documentation and the report of the symptoms from Ms Frnsow at this assessment are:
(a) Cervical spine musculoskeletal pain (Whiplash Associated Disorder Grade II). This diagnosis is made in reference to the State Insurance Regulatory Authority (SIRA) whiplash guidelines. The guidelines recommend that the diagnosis of cervical spine pain after motor vehicle accidents is made according the Quebec Task Force classification of WAD grades 0àIV. Ms Frnsow complains of pain and has some loss of range of motion and/ or point tenderness therefore the classification WAD II applies. In Ms Frnsow’s case, given the neurological examination of her upper and lower limbs were normal and there was no evidence of either upper or lower radiculopathy WAD III does not apply.
(b) Thoracolumbar musculoskeletal pain (or non-specific thoracolumbar pain). Ms Frnsow clearly indicated in the history during this examination that her symptoms were felt in the region of posterior thoracic spine and that they would refer or spread down to the upper lumbar region. This would be consistent with a thoraco-lumbar area of symptoms. This area of symptoms is also consistent with that reported as painful to the treating doctors.

The medical members of the Panel observe that, in their clinical experience, “musculoskeletal pain” or “nonspecific pain” is the appropriate diagnosis when there is neck, thoracic or lower back pain with no evidence of radiculopathy present.
It is not clear whether the claimant sustained a specific or frank injury to her shoulders or whether any shoulder symptoms she experienced were related to her neck injury. The Panel notes that on examination the claimant had a full range of shoulder movements and that the claimant does not contest Assessor Wong’s finding of minor injury for any shoulder injury in any event.
The Panel is not satisfied that the claimant sustained any injury to Ms Frnsow’s lumbosacral spine in the accident. There is reference in the records of Dr Emin of “lower back” pain on 11 June and “whole of back pain” on 16 June and referrals were written to Dr Griffiths and Dr Hanna for neck and “lower back pain”. The Panel comments that these are general and non-specific terms. The Panel notes however that Dr van Gelder in September 2020 took a history of persisting symptoms in the cervical and thoracolumbar areas as did Dr Hanna. These are specific anatomical terms which are preferred by the Panel.
Of note during Assessors Rebbeck and Gray’s examination of Ms Frnsow was an absence of complaints of pain in the region of her lower lumbar region or lumbo-sacral region.

Did the claimant sustain a fracture to her thoracic spine?

The claimant did not bring her X-ray films or MRI scans with her to the examination. The medical members of the Panel have however carefully considered the radiology reports and the records of the claimant’s treating doctors.
The Panel notes that the 11 June 2020 X-ray considered there to be a “compression fracture of T6” that was “of uncertain age”. The 22 June 2020 MRI suggested there was no evidence of “acute” thoracic fracture.
Dr van Gelder and Dr Hanna did not consider there was evidence of any fracture and specifically no T6 fracture.
The medical members of the Panel are not satisfied the claimant has sustained any thoracic spine fracture but that if there is a fracture it would be longstanding and not caused by the accident.

Was the claimant’s L4-5 “small left annular disc tear” caused by the accident?

Whether an annular tear or annual fissure is or is not a minor injury is not necessary to be determined at this time by the Panel because the Panel is not of the view that Ms Frnsow’s small annular tear was caused by the accident for the following reasons:
(a)    Mechanism of injury - the mechanism of injury in this instance is a rear end motor vehicle accident occurring in a metropolitan street. Ms Frnsow said she was stationary when the NRMA insured vehicle impacted her vehicle from behind. The photographs of the accident are consistent with this showing a mild indentation of the rear bumper. This accident mechanism is unlikely to be associated with any injury to a structure such as the lumbosacral disc in the clinical judgment of the medical members of the panel.
(b)    Area of symptoms - Ms Frnsow clearly indicates that the area of her symptoms since the date of the accident are in the thoraco-lumbar region and not the lumbo-sacral region where the allegedly injured disc is situated. On specific questioning by the medical members of the Panel, the claimant pointed to the mid thoracic spine during this assessment and ran her fingers down toward the upper lumbar spine to indicate where her symptoms are felt. This was consistent with the physical examination undertaken, where full range of lumbo-sacral and thoracolumbar motion was present. Upon palpation, the most symptomatic area was reported as in the thoracic, not the lumbar spine. The observations made at this assessment are consistent with that reported by other medical professionals involved in her care notably the reports of both Dr van Gelder and Dr Hanna who indicate symptoms in the thoracolumbar region. Hence, it is the opinion of the panel that the area of symptoms is inconsistent with the lumbosacral disc to be causative of those symptoms.
(c)    Diagnosis - the medical members of the Panel have diagnosed thoracolumbar pain or thoraco-lumbar musculoskeletal pain. In making a diagnosis in relation to the spine, the medical members of the Panel are only able to provide a specific diagnosis when radiculopathy is present. In Ms Frnsow’s case, radiculopathy was absent. The medical members of the Panel undertook a thorough neurological examination of both upper and lower limbs, finding normal responses to reflexes, normal sensation in all dermatomes, and no evidence of myotomal weakness. This would suggest that there is an absence of either upper or lower limb radiculopathy. Further there was no evidence of spinal cord compromise, or myelopathy given the upper motor neuron reflexes were normal (for example the Babinski response). The findings in relation to the absence of radiculopathy are consistent with that of the other medical practitioners involved in this case. In particular both Dr Hanna (neurologist) and Dr van Gelder (neurosurgeon) found no radiculopathy was present.
Lack of known relationship between the symptoms and the imaging – Ms Frnsow’s symptoms are felt in the thoraco-lumbar region. However, even if the symptoms were felt in the lumbo-sacral region, there is no inevitable relationship between the report of symptoms and the findings on imaging. The clinical experience of Assessors Gray and Rebbeck is that imaging findings such as annular fissures (or tears) do not always correspond to low back pain. Annular fissures or tears are, in the experience of the medical members of the Panel just as common in those without symptoms as they are in a symptomatic population.
In the absence of any radiculopathy being present, and in the absence of any other known red flag diagnosis, the medical members of the Panel apply a diagnosis of “non-specific spinal pain” a term used interchangeably with “spinal pain due to a musculoskeletal cause”. The medical members of the Panel are unable to make any diagnosis more accurate than that in Ms Frnsow’s case.

CONCLUSION

On 10 June 2020 Ms Frnsow sustained musculoskeletal injury to her cervical and thoracolumbar spine causing pain and restriction of movement. She sustained no fractures, no injury to her nerves in particular no injury to her spinal nerves (due to the absence of radiculopathy) and she did not completely or partially rupture any tendons, ligaments, menisci or cartilage.
It therefore follows that Ms Frnsow’s injuries sustained in the accident are minor injuries within the statutory definition contained in s 1.6 of the MAI Act and that the certificate of Assessor Wong must be affirmed.

[2022] NSWPICMP 283

12 July 2022