Gray v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Gray v Allianz Australia Insurance Limited [2023] NSWPICMP 481
CLAIMANT:	William Earl Gray
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	28 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was a driver in a stationary car hit from behind by a truck and another car; injuries reported include neck, thoracic spine, lumbar spine, both shoulders both hips and legs; accident occurred in 2004; 17-year delay in bringing application; Review Panel found the cervical spine, thoracic spine, lumbar spine, hips, legs and shoulder injury were a soft tissue injury; all the injuries sustained by the claimant were soft tissue injuries which resolved about 12 months after the accident; claimant had ongoing intermittent and low level symptoms of neck and lumbar spine pain; none of the claimant’s ongoing complaints or symptoms were caused or aggravated by the motor accident in 2004; claimant’s experienced acute cervical spine pain and left shoulder disability in 2018 which was not caused by the motor accident; none of his ongoing complaints or symptoms such as the C5 nerve root compression or problems at the L5 level were caused by or contributed by the motor accident in July 2004; claimant’s cervical and lumbar spine symptoms and complaints were ongoing for some years before and after the motor accident and were caused by age-related degenerative spinal disease; Held – original medical certificate affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel affirms the certificate of Medical Assessor Mohammed Assem dated 7 March 2022 and issues a replacement certificate determining that: 1. The following injuries were not caused by the motor accident: • left and right arm – soft tissue injury, aggravation of degenerative changes; • left and right Hip – associated pain and restricted movement from the lumbar spine injury; • left and right lower limbs- pain, restricted movement, soft tissue injury; • left and right shoulders -soft tissue injury, aggravation of degenerative changes, frozen shoulder; • cervical spine – soft tissue injury, aggravation of degenerative changes, C5 nerve root compression, osteophytes, radiculopathy; • thoracic spine acceleration S1 nerve root compression, aggravation of degenerative changes, and • lumbar spine aggravation acceleration of degenerative changes spondylolisthesis, disc protrusion at L5/S1 and left and right L5 radiculopathy.

STATEMENT OF REASONS

INTRODUCTION

On 2 July 2004, William Earl Gray (the claimant) was the driver of a car involved in a collision at the intersection of Ryde and Yamko Roads, West Pymble NSW. Mr Gray wrote that he was stopped at the intersection when a truck hit another car and the other car and the truck both hit his vehicle. The truck driver said that his truck was fully loaded and he could not stop.[1]
[1] Claimant's bundle AD 3 p 26.
In an attachment to the Application for Personal Injury Benefits dated 8 April 2021, Mr Gray stated that he sustained injuries to his: cervical spine, left and right shoulders, left and right arms, thoracic spine, lumbar spine, left hip and lower limb, right hip and lower limb and psychological injury.[2]
[2] Claimant's bundle AD 3 p 16.
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Gray under the Motor Accident Compensation Act 1999 (MAC Act).
The claimant sought a medical assessment of his injuries. Medical Assessor Assem issued a certificate dated 7 March 2022.[3] He found that, of the injuries referred to him for assessment, none were related to the motor accident. Therefore, an assessment of the degree of permanent impairment of those injuries was not required.
[3] Claimant’s bundle AD 3 pp 93- 101. Subsection 58(1) (d) of the MAC Act.
On 12 April 2022 the claimant filed an application with the Personal Injury Commission (the Commission) seeking a Panel review of the certificate of Medical Assessor Assem.
ASSESSMENT UNDER REVIEW
The dispute was initially referred to Medical Assessor Assem who assessed Mr Gray and issued a certificate dated 7 March 2022.[4]
[4] Claimant’s bundle AD 3 pp 93- 101.
The injuries referred for assessment included: cervical spine, thoracic spine, lumbar spine left and right shoulders and arms, and both hips.
Medical Assessor Assem medically examined the claimant on 7 March 2022. 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.
Medical Assessor Assem recorded the claimant’s relevant pre-accident medical history as being hypertension, gastro oesophageal reflux, trigeminal neuralgia, hay fever and granuloma involving vocal cord. Mr Gray denied any accidents, injuries or complaints involving his neck prior to the subject matter accident. Mr Gray told Medical Assessor Assem that an ambulance driving along Mona Vale Road stopped to provide assistance to the accident victims. Mr Gray said he reported neck stiffness and was provided with a cervical brace by the ambulance. He was transported to Hornsby Hospital where he underwent X-rays of the cervical spine before he was released later that day.
Mr Gray reported to Medical Assessor Assem that he continued to experience recurrent neck pain. Medical Assessor Assem wrote that he had difficulty finding a continuation of the symptoms from 2007 until 2018. Mr Gray was issued with a WorkCover certificate for preinjury duties on 2 September 2004 and the insurer closed his claim in October 2005.
Mr Gray told Medical Assessor Assem that he continued to experience intermittent neck discomfort. Mr Gray told the Medical Assessor that his chiropractor Jeff Baxter continued to treat him and that his records would show a continuation of symptoms until around 2018 when he began developing tingling and weakness in his left arm. Mr Gray told the Medical Assessor that his back symptoms did not occur until several years after the accident. He did not report an injury to his left and right shoulder.
Mr Gray told the Medical Assessor that he does not experience neck discomfort at the present time. He told the Medical Assessor that he did not know if his back pain is related to the motor vehicle accident. He said he sometimes experiences discomfort and stiffness in the neck but this readily resolves. Mr Gray did not report any injury to his hips. Mr Gray did not report an injury to his shoulders or arms. He said he had referred pain to his left shoulder from his cervical spine.
Medical Assessor Assem found that contemporaneous medical evidence supports Mr Gray sustained a whiplash injury to cervical spine in the accident. He lost one week off work before returning to work. There is no evidence of further neck complaints after 2007 despite Mr Gray continuing to consult medical specialists for different medical issues.
Medical Assessor Assem found that the chain of events after the motor vehicle accident appeared to be broken in 2007 when there was no medical evidence provided of ongoing symptoms and limitations that could be related to the subject matter accident until 11 years later. Medical Assessor Assem said that when this was brought to Mr Gray's attention he claimed to have continued to experience symptoms and receive treatment. Medical Assessor Assem requested the treating clinical records of his treating chiropractor Mr Baxter, but these were not available. Medical Assessor Assem did not accept that the later development of left C5 radiculopathy secondary to degenerative changes from a large osteophyte pressing on the exiting C5 nerve root was a consequence of the motor vehicle accident.
Medical Assessor Assem concluded that none of the listed injuries were causally related to the motor vehicle accident and therefore an assessment of Mr Gray's whole person impairment (WPI) is not required.

REVIEW PROCEDURE AND LEGISLATION

The present application is a review of a medical assessment made under s 63 of the
MAC Act.
Mr Gray’s claim and his entitlements to compensation are governed by the provisions of the MAC Act. Under the MAC Act, damages for non-economic loss can only be awarded where the permanent impairment is assessed to be greater than 10% and is the result of an injury caused by a motor accident. The assessment of the degree of permanent impairment of an injured person is to be made in accordance with the Guidelines referred to below.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134 and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). These Guidelines apply to motor accidents occurring between 5 October 1999 and 30 November 2017 (inclusive), and are the Motor Accidents Medical Guidelines issued under s 44(1)(c) of the MAC Act. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides are to be followed.
[5] Section 133. Motor Accident Permanent Impairment Guidelines Version 1 Effective from 1 June 2018.
Due to the nature of the injuries sustained by the claimant, the chapter 3 of the AMA4 Guides is relevant when assessing his musculoskeletal system.
Dispute resolution
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[6]
[6] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment and the review of medical assessments by this Panel.[7]
[7] Sections 61, 62 and 63 of the MAC Act.
Review
An application for review of the medical assessment of Medical Assessor Assem was lodged by the claimant.
On 31 May 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[8]
[8] Section 63(2B) of the MAC Act.
The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act, pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel considered it appropriate for the assessment to review all matters with which the assessment of
Medical Assessor Assem was concerned.
The Panel issued a Direction to the parties dated 27 July 2022 requiring each party to file an indexed, paginated bundle of documents and advising the parties that the Panel had decided to re-examine the claimant. In response to this Direction, the solicitor for the insurer and claimant both filed a bundle of documents. The claimant attended his re-examination on
23 May 2023. [10]
[10] Claimant’s bundle AD 3 and Insurer’s bundle AD 4.

CAUSATION OF INJURY

The claimant’s solicitors submissions, which are referred to below, place a substantial emphasis on the issues including the review panels role, causation of injury and overreliance upon contemporaneous notes made by the Medical Assessor.[11] In view of this, the Panel sets out the following comments about the issues raised by the parties.
[11] Claimant’s bundle AD 3 pp 1-6.
First, regarding the issue of inconsistency, cl 1.41 the Guidelines provides that where there is an inconsistency between the Medical Assessors clinical findings and the information obtained through medical records and observations those inconsistencies must be brought to the injured person’s attention. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.[12]
[12] Clause 1.41 of the Motor Accident Permanent Impairment Guidelines version 1.
Causation of injury is addressed in the Guidelines:
5.     “1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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.     1.6   Causation 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:
7.1.      The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
8.2.      The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
9.This, therefore, involves a medical decision and a non-medical informed judgement.
10.   1.7   There 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.”
In Briggs v IAG Limited trading as NRMA Insurance[13] his Honour Justice Wright stated at [35]:
[13] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372. See also Insurance Australia Limited trading as NRMA Insurance v Trkulja [2023] NSWSC 956.
11.“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
12.6.5     An 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.
13.6.6     Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
14.'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:
15.1.        The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
16.2.        The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
17.This, therefore, involves a medical decision and a non-medical informed judgement.
18.6.7     There 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.”
Wright J then described the panel’s role in a medical review was to:
“… consider whether the motor accident did cause or contribute to [the claimant’s ] condition. This required, not a consideration of material derived as a result of an internet search …. 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.” [14]
[14] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [75].
Regarding the issue of the existence or otherwise of contemporaneous evidence of complaint (which has been raised by the claimant’s solicitors in its submissions) the Panel has had regard to the following legal authority.
In Norrington v QBE Insurance (Australia)Ltd[15] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
[15] [2021] NSWSC 548, Norrington.
19.“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority(NSW)[16] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”

In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[17] Justice Walton set aside the decision of a medical review panel. In considering the question of causation in relation to an amputated toe, Justice Walton stated by focusing on whether there was a contemporaneous record of complaint in the clinical notes the actual question the review panel was required to consider was overlooked, in that case, did the motor vehicle accident materially contribute to the right second toe amputation.
The Panel has had regard to the above authorities which emphasise that a failure by a treating doctor to make a record of a complaint of injury or symptoms by claimant should not be treated as decisive or as proof that injury did not occur or that symptoms did not exist.
Finally, there is the issue of which party bears the “onus of proof” where causation is in issue. In Insurance Australia Limited trading as NRMA Insurance v Trkulja[18] Chen J held that the review panel correctly identified the appropriate legal principles in connection with causation but then misdirected itself and reversed the onus of proof. His Honour held that the review panel misstated the legal onus: “… the onus is upon the first defendant [claimant] to satisfy the review panel that causation is established, not upon the insurer.”[19] Chen J also noted that the review panel did not refer “…to s 5E of the Civil Liability Act 2002 (NSW) (‘CLA’) which identifies where the onus of proof lies: s 3(2)(a) of the CLA; Raina v CIC Allianz Insurance Limited (2021) 95 MVR 73; [2021] NSWSC 13 at [65] (‘Raina’).”[20]
The Panel notes that s 5E of the Civil Liability Act 2002 provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

EVIDENCE BEFORE THE REVIEW PANEL

[16] [2012] NSWSC 650.

[17] [2021] NSWSC 804, Kinchela.

[18] [2023] NSWSC 956.

[19] [2023] NSWSC 956 at [84].

[20] [2023] NSWSC 956 at [84].

Application for Personal Injury Benefits
In the Application for Personal Injury Benefits dated 8 April 2021 stated that he sustained cervical spine, left and right shoulders, left and right arms, thoracic spine, lumbar spine ,left hip and lower limb, right hip and lower limb and psychological injury.[21]
Statement of the Claimant dated 15 April 2020
[21] Claimant's bundle AD 3 p 16.
The claimant has provided a statement dated 15 April 2020. [22]
[22] Insurer’s bundle AD 4 p 25 – 30.
This statement sets out a brief chronological history of when the accident occurred and what medical treatment he had and what steps he took with his lawyers to commence his damages claim. The statement also notes that Mr Gray saw his treating general practitioner (GP) Dr Charters in May 2018 in response to his neck pain becoming worse and that he was experiencing “new symptoms” of tingling down his arms. Mr Gray said he saw Dr Charters again on 17 May 2018. Dr Charters informed him that the MRI scan revealed that his C5 vertebrae was compressing the spinal cord and that was the reason for his "new symptoms". Dr Charters organised for Mr Gray to urgently see a neurosurgeon named Dr Coughlan.
Mr Gray said he had previously seen Dr Conlon in relation to an existing low back condition.
Police and Ambulance reports
An ambulance report dated to July 2014 noted that Mr Gray complained of neck and eye pain.[23] The Insurer also notes that Hornsby Hospital has a record that the claimant did attend at some stage in 2004 but says that those notes have been destroyed.[24]

Treating medical evidence
Pre-accident treating records
[23] Claimant’s bundle AD3 p 96 and Insurer’s bundle AD 4 pp 424- 425.
[24] Insurer’s bundle AD 4 p 21 and p 34.

Comprehensive and complete medical records are not available for the claimant’s medical history prior to motor vehicle accident. A few records are available but many early records including early chiropractor, CT scans and X-rays are not available.
The Claimant has a history of lower back pain as a teenager for which he was required to wear a Milwaukee brace for 2.5 years. This may indicate a possible problem with spinal curvature or scoliosis.
In its bundles of documents, the claimant and insurer has reproduced over 600 pages of clinical and treating medical records for the claimant prior to and after the accident. The Panel has reviewed all the pre and post-accident treating medical records produced by both the claimant and the insurer. There are some records available from his treating chiropractor Mr Jeff Baxter who has treated claimant’s back from about 1995 until the present time. A complete set of Mr Baxter’s records were not made available to the Panel. The insurer notes that the claimant had previously seen Mr Baxter at Chester Hill and Berowra, but those records are not available.[25]
Post-accident treating records
[25] Insurer’s bundle AD 4 p 21.
The claimant attended Dr Terri Tomson at Kariong Medical Centre about a month the accident. She recorded: “MVA accident 1 month ago whiplash immediate neck pain, Hornsby Hospital XR NAD, saw Dr wanted to have physio”.[26]
[26] Insurer’s bundle AD 4 p 51.
Dr Tomson completed a Workcover certificate. There was a referral for a CT due to “persisting pain good ROM pain and tender C4L”. It is unclear whether the CT was obtained, but there is no such report in the file.
On 2 September 2004 Dr Tomson certified the claimant as fit for work in a Workcover certificate.
On 13 January 2005 Dr Tomson noted that Mr Gray reported “….longstanding neck problems, better with phyio.”[27]
[27] Insurer’s bundle AD 4 p 51.
The available chiropractic and GP medical records indicate that Mr Gray attended Mr Baxter or his treating GP intermittently from early 2005 until 2012 complaining of mild low back and neck pain and seeking treatment for both. In 2012 the claimant injured his lower back while using a fitness machine in a gym. On 2 February 2015 he was referred to a sports medicine specialist Dr Jonathan King. He was also referred to a neurosurgeon
Dr Marc Coughlin for his lower back pain.
A referral from Dr Antoine Louka from Kariong Medical Centre, dated 27 June 2007, stated that the claimant had a whiplash injury to the neck in a motor vehicle accident three years ago and he is still having neck pain and stiffness.[28]
[28] Insurer’s bundle AD 4 p 75.
The claimant consulted Dr King on 2 February 2015 regarding ongoing right foot numbness and tingling which has persisted since October 2012 when he injured himself using an abdominal strengthening device. After using the machine Mr Gray says he experienced lower back pain and right leg pain. He told Dr King that he's had low back pain since his teenage years. Dr King notes a CT scan of the lumbar spine performed in 2012 showed grade 1 spondylolisthesis on L5/S1 and a right side L5/S1 disc protrusion.[29] Dr King examined Mr Gray and noted that he displayed limited lumbar spinal flexion with extension being pain-free. Dr King found no leg weakness and knee and tendon reflexes were absent active straight leg raises when negative. Dr King referred to an MRI of Mr Gray's lumbar spine which showed grade 1 spondylolisthesis of L5/S1 with disc protrusion possibly compressing the L5 nerve roots.
[29] Claimant’s bundle AD3 p 42.
A report dated 5 March 2015 from neurosurgeon Dr Marc Coughlin stated that the claimant has had chronic back pain since about 2012. He describes worsening pain down the right leg with numbness. Dr Coughlin also noted early spondylosis at L5/S1 junction with compression of the L5 nerve root on the right-hand side.[30]
[30] Claimant’s bundle AD3 p 31.
On 16 February 2016 Dr Dennis Crimmins, consultant neurologist, conducted a nerve conduction study of Mr Gray's lower limbs. He concluded that the nerve conduction studies are within normal limits and there was no evidence of peripheral neuropathy.[31]
[31] Claimant’s bundle AD3 p 43.
The claimant continued to have treatment for his lumbar spine from Dr Coughlan in 2016 and 2017. On 25 April 2017 the claimant reported still having back pain on the right side.
Dr Coughlan did not note any complaint of neck or upper limb pain issues between 2015 and early 2017.
On 31 March 2017 the claimant attended his chiropractor Mr Baxter, who recorded neck stiffness for the last few months particularly in the morning.
In a report dated 22 July 2016 Dr Coughlin reported that the claimant had significant numbness down both legs. Dr Coughlin noted that the claimant had mild anterolisthesis at L5/S1. Dr Coughlin confirmed that nerve conduction studies are within normal limits with no evidence of peripheral neuropathy. Dr Coughlin wrote that a lot of his symptoms are likely to be coming from the anterolisthesis at L5/S1.[32]
[32] Claimant’s bundle AD3 p 32.
In a further report dated 25 April 2017 Dr Coughlin reported that the claimant's clinical examination is very reassuring. There is no foot drop specifically his straight leg raises are negative and his reflexes are equal and symmetrical. Dr Coughlin reassured him that at this point he doesn't need any surgical intervention.[33]
[33] Claimant’s bundle AD3 p 33.
On 11 May 2018 Mr Gray attended his chiropractor Mr Baxter recorded a complaint of “acute C - 1 week insid. onset”.[34]
[34] Insurer’s bundle AD 4 p 248.
On 17 May 2018 the claimant attended his treating GP Dr Hayley Charters. Dr Charters referred Mr Gray to Dr Coughlin.[35] In her referral letter Dr Charters wrote that Mr Gray was previously referred to him in 2016 with L5 pain which has improved. She writes that he now presents with a new problem - apparent C5 radiculopathy.
Dr Charters wrote that Mr Gray presented with some weeks of left-sided neck pain and shoulder pain with tingling sensation down the middle of his arm but not into his hand.
[35] Insurer’s bundle AD 4 p 22 and letter dated 17 May 2018 AD 4 pp 332 – 333.
Mr Gray said that he went to his chiropractor one week ago after he found he could not move his shoulder. Dr Charters wrote that upon examination Mr Gray presented with a frozen shoulder with limitation of all movements and was unable to raise his shoulder. Power in the elbow, wrist and hand were normal. His MRI shows likely left-sided C5 nerve root compression.
Dr Coughlin noted that the claimant had an operation performed on 22 May 2018 which was a C4/C5 disc replacement.
Dr Coughlin reported again on 5 July 2018. He wrote that the claimant has done very well after his C4/C5 disc replacement. Dr Coughlin noted that intraoperatively there was a very large, calcified spur at the C4/C5 level affecting the C5 nerve root. The claimant had severe motor deficit prior to the surgery and was unable to move or abduct left shoulder. This is largely returned and is almost back to normal. The claimant has no residual weakness and continues to improve his physiotherapy.[36]
[36] Claimant’s bundle AD3 p 37.
Dr Coughlin reported again on 25 August 2018. He wrote that the claimant is doing really well after his C4/C5 disc replacement. His flexion and extension movement has a fantastic range of motion prosthesis. Dr Coughlin reported that the claimant has very large osteophytes at C5/C6 and C6/C7. Dr Coughlin reported that the claimant is feeling very good, his C5 paresis is almost completely returned to normal and he has very little residual discomfort. Dr Coughlin thinks that the claimant should make a full recovery. Dr Coughlin reported that he is very happy with the claimant’s progress and outcome.[37]
[37] Claimant’s bundle AD3 p 38.
Dr Coughlin reported on the claimant on 18 February 2019. He noted that the claimant has suffered a significant loss of sensation in both feet, worse on the right-hand side. He has chronic spondylolisthesis at L5/S1. The claimant has a large spur that has formed on the right-hand side pushing into the L5 nerve root. He has significant degenerative changes at L4/L5 but does not have stress fractures.[38]
[38] Claimant’s bundle AD3 p 39.
Dr Coughlin reported on the claimant on 7 March 2019. He noted that the claimant’s symptoms are remarkably stable. He has minimal back pain. He does have some pain higher up. He has L5 nerve compression within the foramen.[39]
[39] Claimant’s bundle AD3 p 40.
Dr Coughlin reported on the claimant on 19 June 2019. He noted that the claimant’s has a chronic unstable L5/S1 segment with spondylolisthesis. His right foot is worse with tingling and numbness but he doesn't have foot drop. His back feels weak but doesn't have severe back pain. His nerve conduction studies confirm mild changes consistent with a chronic right L5 radiculopathy. He gets transient numbness particularly when sitting. He doesn't have significant pain and I think conservative treatment is appropriate. [40]
[40] Claimant’s bundle AD3 p 41.
On 21 November 2019 Dr Hayley Charters, Mr Gray’s treating GP, wrote a letter detailing a list of consultations she had with Mr Gray that relate to treatment for the injury in relation to his motor vehicle accident on 2 July 2004.[41] The letter listed a total of 14 visits dated from
25 October 2007 until 31 July 2019. Of those 14 visits only six of the visits mentioned cervical or neck pain or symptoms. Most of the other visits were described as being for pain or weakness at the L5/S1 level. The last reported consultation for neck pain or cervical spine symptoms was dated 20 April 2009. There was then a nine-year gap until the next mention of left arm or cervical symptoms at C5 level with a nerve root compression referred to on
14 and 17 May 2018.[42]
Medico-legal reports and other reports
[41] Insurer’s bundle AD 4 p 282.
[42] Insurer’s bundle AD 4 p 282.
Many of the medico-legal and radiology reports are summarised in the below section headed review of radiology. Set out immediately below are a number of other relevant reports.
The claimant's treating chiropractor Mr Jeff Baxter wrote a letter dated 29 October 2018.[43] In that letter Mr Baxter wrote that Mr Gray had regularly consulted him since 13 April 2005 for treatment for a persistent neck problem. Mr Baxter stated that the treatment was for a neck injury sustained in 2004 in a motor vehicle accident with a truck. Prior to this incident Mr Gray had no previous complaint of neck injuries. Following the motor vehicle accident Mr Gray had undergone six months of physiotherapy for his whiplash injury. He then presented again following a re-aggravation that occurred in January 2005. Mr Baxter wrote that over the subsequent years he has treated Mr Gray for problems relating to a persistent and degenerative cervical whiplash injury. Then on 1 May 2018 he sought treatment for a significant re-aggravation of cervical pain and left shoulder pain. The symptoms quickly degenerated so that Mr Gray requiring cervical spine surgery. Mr Baxter notes that he consulted with Mr Gray between 1995 until 2000 at a previous practice but he does not have access to those files as the practice records were sold. Mr Baxter also notes that some of the consultations were for a mechanical lower back issue. Mr Baxter also noted that prior to the 2004 motor vehicle accident Mr Gray had never reported to him nor sought treatment for any cervical spine issue.
[43] Insurer’s bundle AD 4 p 129.
The clinical records from Mr Baxter indicate that he provided treatment to Mr Gray on 12 occasions from 13 April 2005 until 14 May 2018. Mr Baxter confirmed that he did not provide treatment to Mr Gray from 24 February 2012 to until 31 March 2017. [44]
[44] Insurer’s bundle AD 4 p 131.
In a report dated 27 March 2019 Dr Ryan, Orthopaedic Surgeon wrote;
25."Post operatively Mr Gray's motor function had improved and at Dr Coughlan's examination was almost normal……By 25 August 2018 Mr Gray was completely recovered with very little discomfort. He continued to do exercises for his left shoulder. He did not require medication".
26. Dr Ryan concluded,
27."Mr Gray suffered a significant injury to his neck in a Motor Vehicle Accident on
[45] Insurer’s bundle AD 4 p 435.
2 July 2004 that occurred in the course of his work as a sales representative …… These symptoms continued from the time of the accident through to May 2018 when he developed severe weakness of his left shoulder requiring surgical treatment".[45]
There is an occupational therapy care report dated 17 December 2020 by Sarah Williams.[46] This report was reviewed and considered by the Panel.
[46] Claimant’s bundle AD 4 p 59 - 91.
Dr Anthony Smith, Orthopaedic Surgeon, provided a report on the claimant dated
[47] Insurer’s bundle AD 4 pp 406- 415.
17 August 2021.[47] Dr Smith summarised all the GP notes about Mr Gray’s complaints or symptoms about his neck beginning on 11 August 2004 through to 24 September 2007. Dr White also refers to an MRI report from 15 May 2018, demonstrating degenerative disease at C3-4, with outlet narrowing bilaterally, more marked on the right than the left, with osteophyte formation. At C4-5 there is left-hand uncovertebral osteophyte formation and significant narrowing of the left nerve root outlet canal. There is irritation of the exiting left C5 nerve root. Degenerative disease is described at C5-6 and C6-7, with uncovertebral joint osteophytes and outlet stenosis at both levels.
Dr Smith wrote that the claimant has
28.“… recovered from the accident of 2 July 2004. There was a large period where he was seeing his doctor/s where there is no mention of any neck problems. There is no relationship between the accident of 2004 and the neck operation of 2018.” [48]
[48] Insurer’s bundle AD 4 p 412.
Dr Smith’s opinion was that:
29.“This man has a range of orthopaedic problems. He had thoracic scoliosis, which occurs in about 3% of the male population and is a familial inherited condition. This was treated by bracing when he was 16 to 18 years of age. He then developed symptoms from his lumbar degenerative disease in 2012 when using a particular circular exercise machine. The low back pain continued to be a recurrent problem thereafter.
30.In the motor vehicle accident on 2 July 2004, he sustained an aggravation to his cervical degenerative disease, and ever since that accident, he has been having episodic neck pain and headaches, without radicular symptoms. He attended the chiropractor, Mr Geoff Baxter, at the Hornsby Chiropractic Centre, about once a year. The treatment would relieve his symptoms, and he was able to function in his usual occupation up until the episode, which occurred for no apparent reason, in May 2018, leading to disc replacement surgery. He has ongoing degenerative disease, causing symptoms in the neck below C4-5.”
Dr Smith concluding comments were that the claimant had cervical degenerative disease and cervical arthritic problems. The pain he experienced consequent to the accident of
[49] Insurer’s bundle AD 4 p 414.
2 July 2004 would have been six months at the very most following that accident. Dr Smith said he agreed with the impairment assessment of Dr Ryan. The impairment is not consequent to the motor vehicle accident of 2 July 2004.[49]
Dr John O’Neill, Consultant Neurologist, provided a report on the claimant dated
[50] Insurer’s bundle AD 4 pp 416- 421.
25 August 2021. [50]
Mr Gray told Dr O'Neill that he sought chiropractic treatment after the accident and that his symptoms finally improved after 12 months but full movement never returned. Mr Gray said he had chiropractic treatment annually from 2005 until 2018. The chiropractic treatment would provide some relief from chronic neck pain and headaches from the neck up to the top of the head. Mr Gray said that his neck symptoms changed in 2018 with pain is radiating down his arm. Mr Gray told Dr O'Neill that at the time of the examination he was still having pains in the back of his neck and his left upper arm.
Mr Gray told Dr O'Neill that he did not relate his current symptoms in his low back and right leg to the motor accident. Mr Gray told Dr O'Neill that his main continuing symptoms after the accident was neck pain and stiffness which required ongoing physiotherapy and chiropractic treatment.

Dr O'Neill wrote that in his view the new symptoms of worsening neck pain and radiation of pain into the left arm in early 2018 were a consequence of progressive spondylitic degenerative disease of the cervical spine. Dr O'Neill said that the symptoms at the time were not directly attributable to the motor vehicle accident on 2 July 2004.
Regarding the lower back soreness after the motor accident this appears to have been short lived as Mr Gray does not recall persisting lower back pain is no record of low back problems in the GP notes until 8 October 2012.
Dr O'Neill stated that the motor vehicle accident on 2 July 2004 was not a contributing factor to the onset of symptoms in the lower back in 2012. He wrote this was caused as a consequence of the underlying developmental spondylolisthesis and associated disc degenerative change at that level.
Dr O’Neill concluded his report with an assessment of Mr Gray’s WPI attributable, in his opinion, to the motor accident and other causes.
There is an occupational therapy assessment report from Yvonne Varela dated
19 November 2021 which the Panel has also reviewed and considered.[51]
REVIEW OF THE RADIOLOGY
[51] Insurer’s bundle AD 4 pp 426- 452.
Much of the CT scans and other radiology is referred to above. The Panel has summarised below some of the CT scans, MRI reports and other radiology specifically referred to or reproduced by the parties in their bundles of documents.
An MRI cervical spine scan was performed by Dr Alan Chai on 17 May 2018.[52] In his report Dr Chai referred to clinical notes which said the patient reported left sided neck pain into shoulder and radiculopathy. Dr Chai found bony alignment was normal with no fractures. He reported that at the C3/C4 level bilateral degenerative joint changes with prominent osteophytes causing marked narrowing of the right and mild narrowing of the left nerve root entry zones. At the C4/C5 level Dr Chai reported on prominent left-sided endplate/uncovertebral marginal osteophytes causes significant narrowing of the left nerve root entry zone and severe left foraminal stenosis. Given the patient's clinical symptoms, irritation of the existing left C5 nerve root from this cannot be excluded. Dr Chai’s concluding comment was spondylostic changes and disc pathology as described with prominent osteophytes causing areas of canal and for foraminal stenosis.
[52] Claimant’s bundle AD3 pp 48 and 49.
An X-ray was performed on 9 July 2018 by Dr Sean Khoury.[53] The findings of the X-ray were C4/C5 disc replacement is demonstrated no instability is identified with flexion or extension. Multilevel degenerative disc disease facet and uncontroverted ball joint osteoarthritis, most marked at C5/C6 and C6/C7.
[53] Claimant’s bundle AD3 p 53
A CT lumbar spine scan was performed by Dr Alan Chai on 28 August 2018. Dr Chai found bilateral L5 pars defects with a 6 mm grade 1 anterolisthesis. Bony alignment otherwise normal no fracture or destructive bone lesion. Throughout most vertebrae in the lumbar spine he found mild endplate and moderate bilateral facet joint osteoarthritis. At the L5/ S1 level he found bilateral L5 pars defects with 6 mm grade 1 anterolisthesis. Disc space height narrowing. Moderate to severe right and mild to moderate left foraminal stenosis but no significant central canal stenosis.
An MRI lumbar spine scan was performed by Dr Brett Lyons on 23 February 2019.[54]
Dr Lyons commented that the lumbar spine was of a similar appearance to the previous MRI scan in February 2015 but with greater right paracentral disc bulge at L1/L2 with potential for right L2 irritation. The foraminal stenosis at L5/S1 on the right side remain severe but does not appear to have deteriorated markedly since the previous examination.
SUBMISSIONS
Claimant’s submissions
[54] Claimant’s bundle AD3 p 55
The claimant’s solicitors provided written submissions dated 12 April 2022.[55]
[55] Claimant’s bundle AD 3 pp 1-6.
In the submissions the claimant submits that Medical Assessor Assem decision was incorrect for the four following reasons: failure to use the correct approach to apportionment of impairment; applying the wrong test of causation; misplaced focused on contemporaneous records and inadequacy of reasons.
Regarding the apportionment issue, the claimant argues that all impairments in relation to the spine should be calculated in terms of WPI and assessed in accordance with cls 1.1 to 1.46 of the Guidelines and chapter 3.3 of AMA 4 Guides. The claimant argues that Medical Assessor Assem did not stipulate whether he was of the view that the impairment to the claimant's disc and the disc surgery was attributable to his pre accident condition or post-accident condition.
In relation to the causation issue the claimant submits that by applying the common-law test of causation in the claimant's case the C4/C5 disc replacement could readily be seen to have been caused by the motor accident since it was reasonably foreseeable that the claimant would undergo surgery.
Regarding contemporaneous records issue, the claimant submits that it is well-established case law that the lack of contemporary evidence is not definitive in a finding of causation. In his reasons Medical Assessor Assem found that the lack of contemporary evidence from 2007 until the date of the disc replacement showed that causation for the disc replacement is not related to the motor accident. The claimant submits that he stated several times that he continued to experience symptoms in his cervical spine and sought treatment for his complaints.
The claimant sought treatment from his chiropractor Jeff Baxter. Contrary to what
Medical Assessor Assem wrote in his reasons the records from Mr Baxter were available and contained in annexure six in the insurer's bundle of documents. This material was before Medical Assessor Assem at the time of his assessment. Medical Assessor Assem wrongly treated the absence of medical records of the claimant's complaints about his cervical spine as decisive evidence that the motor vehicle accident was not because of the claimant's injury. By failing to consider these records the Medical Assessor did not properly discharge his statutory function to ascertain causation.
The claimant submissions refer to page 7 of the Medical Assessor's reasons where he stated that the absence of the clinical notes from Mr Baxter made it difficult for him to find the later development of left C5 secondary changes and the C5 nerve root as a consequence of the motor vehicle accident.
Medical Assessor Assem failed to consider that the claimant may have incurred cervical spine injury in the motor accident notwithstanding an alleged absence of reported complaint by the claimant.
The claimant further submits that the medical assessor failed to provide adequate reasons. Medical assessor failed to reconcile his determination with the reports of Dr Davis, Dr Ryan and Dr Marc Coughlan. The claimant contends that it is clear that the claimant underwent a cervical spine disc replacement however Medical Assessor Assem did not provide a reason why the surgery was needed. The parties are left wondering as to what caused the need for surgery if not the motor vehicle accident.
Medical Assessor Assem should have set out his actual path of reasoning which led to his ultimate conclusion.
Insurer’s submissions
The insurer has provided two written submissions dated 2 May 2022 and 29 April 2021. [56]
[56] Insurer bundle AD 4 pp 1- 6 and at R 1 pp 19-23.
The insurer ‘s solicitors submit that Medical Assessor Assem did identify a cause of the cervical spine symptoms in 2018, which resulted in the surgery, namely “degenerative changes associated with a large osteophyte pressing on the exiting C5 nerve root” (page 7). Medical Assessor Assem stated that he found it “difficult” to associate this with the accident (page 7).
The claimant’s solicitors argue that the Medical Assessor placed undue reliance on the clinical record as opposed to the claimant’s recollection as to what had occurred over the last 18 years. The insurers solicitors submitted that there are legal authorities warning of the hazards of excessive reliance on clinical notes. However, given that 18 years have elapsed since the accident (and 4 years since the surgery) it was reasonable for
Medical Assessor Assem to refer to such records when considering whether the claimant’s memory of events was accurate.
The insurer further submits that Medical Assessor Assem was entitled to conclude that the claimant did not have trouble with his neck in that period where complaints were absent. Having preferred the history in the notes to the claimant’s recollection, it was consistent for Medical Assessor Assem to find that the accident in 2004 was not materially causative in the degenerative process which caused an acute crisis in 2018 leading to the surgery.
The insurer submits that there is a lengthy absence of complaint of cervical spine symptoms between 2007 and 2018. Then in 2018 Mr Gray began developing tingling and weakness in his left arm after travelling by aeroplane to South Australia. On 11 May 2018 he saw his chiropractor. On 14 May 2018 he consulted Dr Hayley Charters. He was unable to elevate his shoulder (page 3 – 4). There is an MRI of the cervical spine dated 15 May 2018, reported by Dr Alan Chai, showing spondylosis change and disc pathology as described with prominent osteophytes causing areas of canal and foraminal stenosis. Dr Charters, who was the long-term treating GP, noted in a referral to a specialist that Mr Gray presented with a new problem an apparent C5 radiculopathy. Dr Charters also noted that an MRI shows likely left-sided C5 compression.
The claimant submits the Medical Assessor “must first evaluate the impairment at the time of the assessment and deduct an estimate from any pre-existing impairment”. The insurer contends that this is correct, but only if the Medical Assessor is first persuaded that the accident did in fact cause the injury. In this case, the Medical Assessor clearly states that he is not persuaded that the accident did cause the condition which led to the surgery in 2018. He is therefore not permitted to assessment WPI at all.
The insurer submits that the claimant had a long history of lower back pain from his teens, and indeed was required to wear a Milwaukee brace for 2.5 years. That indicates that some structural problem in the spine was apparent at that time. The claimant had a working life as an automobile spray painter and heavy manual handling. His later career involved long hours on the road. There was then at least one gym injury in 2012, which resulted in acute lower back pain. In this context it is excessively speculative to say that a motor accident in 2004, which did not result in an attendance on a specialist at the time, has made any material contribution to the development of the present cervical pathology.
In its second set of submissions dated 29 April 2021 the insurer has provided details of the claimant’s pre and post-accident medical history.
Shortly after the motor accident the claimant submitted a workers compensation claim. From the list of payments, the insurer submits that it appears that he did not have any time off. The claimant had treatment until October 2005. The file was then closed. The claimant continued to work for the same employer. He lodged a recurrence claim on
5 September 2018. At that time he went off work for an unspecified time.
The insurer referred to a report dated 4 September 2018 provided by Dr Coughlan. In the report he says that after the subject accident the Claimant never regained full function of his neck and had ongoing neck stiffness.[57] Dr Coughlan wrote after the accident Mr Gray had recurrence of stiffness in the neck on a regular basis. He developed very significant ongoing left C5 pain and eventually required a C4/C5 disc replacement. Dr Coughlan wrote; " Given that he had no symptoms prior to his accident and then he remained symptomatic after the accident, is highly likely that the accident played a significant role in the genesis of his symptoms."
[57] Insurer bundle AD 4 p 406.
The insurer comments about Dr Coughlan’s letter is that Dr Coughlan himself was not told about any neck issues in the numerous consultations from 2015 – 2017. Nor is there anything about the neck in the clinical record of Dr Coughlan from April 2009 until the onset of acute pain in May 2018. In the insurers submission the opinion of Dr Coughlan is based on an inaccurate history and has a lack of critical analysis as to causation. It ought to carry little weight in a medical assessment.
The insurers concluding submissions are that the claimant has a long history of back pain commencing in his teenage years. The claimant has a long working life history of heavy manual work and long hours driving. He had a previous acute back injury which occurred in the gym in 2012 resulting in acute lower back pain. After his motor accident in 2004 there is no evidence that he attended a specialist for treatment at that time. It is speculative to suggest that the motor accident in 2004 has made any material contribution to the development of the present cervical and lumbar pathology.

MEDICAL EXAMINATION

The claimant was medically examined at the Commission rooms by
Medical Assessor Stubbs on 23 May 2023.
History
Mr Gray is 67 years old. He formerly worked as a national technical supervisor for DuPont Performance, a company providing paint and other specialised compounds for auto motive, aircraft, and machinery. This responsibility involved visiting customers to advise them of their particular requirements, running national training courses for the technicians and general office administration. He is married and lives in a two-storey house. He lives with his wife and likes to socialise, particularly with grandchildren. In 2018 he took a retirement package because of increasing ill-health. He takes medications for blood pressure and cholesterol and low dose of prednisone for polymyalgia rheumatica. He does not play any organised sport. He had a thoracic kyphosis treated by bracing as a teenager.
In July 2004 he was stationary traffic lights. His car was hit from the rear by a large fully loaded truck which he estimates to be in the region of 40 tons gross weight. There were secondary collisions with other vehicles he sat in the vehicle. He was assisted out by the ambulance and taken to Hornsby Hospital in a neck brace. The car was towed away. (Medical Assessor Assem reports vehicle was repaired). He was told he had a whiplash injury. He was off work for several weeks in part because he could not drive and because the car had not been repaired. He underwent a course of physical therapy with little benefit during the first six months and then started to see a chiropractor. He had a very painful neck with tingling on the side of the forearm. This gradually improved particularly with chiropractic treatment including traction. He ceased formal physical therapy around 2007 and continued to have chiropractic treatment thereafter on a regular basis. His WorkCover claim settled in 2005.
The initial symptoms particularly low back pain did not develop for some time and there was no other troublesome injury from the motor vehicle accident.
In 2017 – 18 began to develop tingling and weakness the left arm together with increasing neck pain and low back pain after flying to South Australia. The left arm was tingling and neck pain increased and he saw Dr Charters in May 2018. An MRI scan showed left side and C5 nerve compression. He was referred to Dr Couglan and at Gosford Private Hospital (self-funded) and on 22 May 2018 he had a C4/5 disc replacement. He also began to suffer from increasing stiffness and pain in the mid and lower back and his shoulders. He attributes the now widespread symptomatology, the need to use a walking stick and the increasing degree of stoop full to the long-term effects of the motor vehicle accident.
In November 2021 he had a total knee replacement with a good result.
He feels the cervical disc fusion reduced tingling and width experienced in the left side. The neck remains very stiff and uncomfortable as does his back and shoulders. His posture has improved, and the forward stoop has much reduced.
When asked about the gap in his orthodox medical treatment between 2007 and 2018 he replied that he continued to see several chiropractors most noticeably Mr Jeff Baxter throughout the whole period. It was pointed out to him that Medical Assessor Assem felt there was a break in the chain of causation with the absence of any confirming clinical record that he was still undertaking treatment. Medical Assessor Assem had requested the chiropractic notes. He replied that he had offered to obtain these for Medical Assessor Assem but Medical Assessor Assem had refused them. It was then pointed out that the Commission dealt with claimants through their solicitors. His solicitors needed to obtain the chiropractors reports and submit them to the Commission for inclusion in the material under consideration.
Clinical examination
Mr Gray is 193cm tall and weighs 114kg he has slightly stooped posture but can stand fully straight when his height was measured. He bought a walking stick into the examination and uses in his right hand. He walks with a slight stoop but flexed fully at the waist when demonstrating how much his stoop had improved since the surgery. He has athletic build and looks to be in his mid-50s rather than his late 60s.
Cervical spine there is a right sided five cm anterior incision consistent with cervical disc replacement. He moves his head symmetrically to ½ range of movement. There is no spasm or guarding. There is diffuse tenderness over the whole of the cervical spine spreading down between his shoulder blades. Grip strength is 5/5 on the right and 4/5 on the left in the C6 musculature but not elsewhere. Measurements of the arm and forearm. Arm circumferences within 1 cm of each other. Sperling’s test is negative, the Valsalva manoeuvre was normal, traction seems comfortable. The left biceps jerk is mildly reduced. The other upper limb reflexes are normal but of low amplitude. With a pinwheel mapping there is a slight diminution in two-point discrimination of a C6 distribution.
There seems to be a slight residual C6 radiculopathy. The nerve root is no longer entrapped hence the absence of positive tensions tests.
Lumbar spine and thoracic – forward flexion is fingers to mid shins side bending and rotation are symmetrical. There is mild mid low back tenderness but no spasm or guarding. Girth of the lower limbs is equal, clinical power is 5/5 when heel toe walking (without a stick). Squatting is to 90° right equals left. Reflexes are brisk and symmetrical even allowing the total knee replacement. Knee extension is full when sitting. Traction signs are negative. There is no sensory loss. The clinical examination showed his lumbar spine and thoracic as being in DRE 1Table 7 of the Guidelines.
Upper limbs there is a low normal symmetrical range of active movement in the shoulders. There are no positive provocation tests provocation tests for impingement or instability. The rotator cuff and deltoid muscles were of good quality. There is no active shoulder pathology.
Elbows hands and wrists have a normal range of movement and there is no weakness in the ulnar nerve supplied hand muscles. Abduction of the left thumb is full but probably only 4/5 compared to 5/5 on the right. There is no assessable upper limb pathology on either side.
Lower limbs he has good hip and knee mobility with a slight residual loss of terminal extension and side with a total knee replacement. Ankles and feet are normal.
Discussion
Mr Gray has evidence of a slight residual C6 radiculopathy of normal dermatomal distribution, slight residual weakness in the biceps and an un-elicitable left biceps jerk. He had a relatively slow recovery from his surgery with the arm tingling persisting for several months. Radiculopathy is a usually dramatically improved by decompressive surgery. He had a disc replacement at C4/5 and the C6 nerve root exits at the C5/6 level, the Panel cannot explain that discrepancy.

He moved about freely and comfortably on a clinical examination, there is no need for a walking stick. Apart from this he was consistent in the clinical examination.
His other complaints are:
·        arm – soft tissue injury;
·        hip – associated pain and restricted movement from the lumbar spine injury;
·        shoulder soft tissue injury an aggravation;
·        thoracic spine acceleration S1 nerve root compression of degenerative changes, and
·        lumbar spine aggravation acceleration of degenerative changes spondylolisthesis thesis disc protrusion at L5/S1 and left and right L5 radiculopathy.
Medical Assessor Assem noted that in December 2012 he had a transitory L5 sciatica with persistent right weakness. In February 2015 saw Dr Jonathan King with low back complaints and L5 nerve root compression. Dr Couglan saw him in March 2015 for low back discomfort and foot weakness. None of these were associated with neck symptomatology. There are no abnormal findings now present.
These injuries do not appear to be secondary to his cervical pathology, not part of his complaints following the motor vehicle accident 2004 and, in any case, have no abnormal findings on present clinical examination.
On 13 January 2005 Dr Tomson noted that Mr Gray reported “….longstanding neck problems, better with phyio.” The first documented reference to neck pain and left arm tingling is by Dr Hayley Charters in May 2018. There is a break of 11 years in the clinical record as provided. There is no medical evidence to suggest that soft tissue injuries to the cervical spine aggravate or accelerate degenerative change. The left arm tingling and neck pain that took him to Dr Couglan in 2018 is unrelated to the motor vehicle accident 2004. There was an episode of soft tissue injury to the cervical spine that produced symptoms but this did not influence the later development of the cervical spine disease. The neck symptoms that later required fusion are not caused by the motor vehicle accident.
The Panel Assessor put this issue to Mr Gray: Medical Assessor Assem felt there was a break in the chain of causation with the absence of any confirming clinical record. It was explained to Mr Gray that the long break in the clinical record suggested that the original injury had resolved. This is the expected course and the medical evidence was that transitory neck symptoms did not cause aggravation of the normal age related changes in the neck nor were future episodes of neck pain any more likely if there was a previous motor vehicle accident with whiplash. Medical Assessor Assem had offered Mr Gray the opportunity to present any notes from the chiropractors that would show that there was no pain free period between the motor vehicle accident and his subsequent development of neck pain requiring surgery.
The Panel did not accept Mr Gray’s statement that he had offered these notes to Medical Assessor Assem but he had refused them. Mr Gray became indignant when it was pointed out that he did in fact have the opportunity to present such evidence, if it existed, through his solicitor. The Panel Assessor then stated that the Panel would consider this evidence which was the same offer that Medical Assessor Assem had previously made.
The Panel applied the same test to the complaints of low back pain which resulted in the lumbar spinal surgery performed in 2015. The same reasoning applies, there is a long break following the motor vehicle accident before the development of symptoms, at least eight years. As with the cervical spine there is no evidence of accelerated spinal ageing following single episodes of injury unless there is evidence of significant structural damage with immediate and continuing severe pain and disability. The Panel did not accept that the complaints of low back pain are caused by the motor vehicle accident.
Regarding the other injuries before the Panel including left and right shoulders, left and right arms, thoracic spine, lumbar spine, left hip and lower limb, right hip and lower limb the Panel finds that these do not appear to be secondary to his cervical pathology. These injuries not part of his complaints following the motor vehicle accident 2004 and have no abnormal findings on present clinical examination.

CONSISTENCY

The Panel accepted the claimant’s account of how the motor vehicle accident occurred and how he received his reported injuries.

PANEL DELIBERATIONS

Diagnosis and causation

Cervical spine injury

The Panel notes that the pre-accident treating records show that there was little evidence of any degenerative changes in the cervical spine prior to the accident, The records show that the claimant had a history of lower back scoliosis and pain as a teenager for which he was required to wear a Milwaukee brace for 2.5 years. There are few treating GP records available prior to the motor accident on 2 July 2004. Prior to the accident there is no GP record moderate or severe pain in the cervical spine or any numbness or tingling into the arms. The claimant’s treating chiropractor Mr Jeff Baxter says he treated Mr Gray since 1995 but the treatment records from 1995 until the early 2000’s are not available because
Mr Baxter sold that practice and moved to another practice.
As a result of the accident in 2004 the claimant developed significant symptoms of neck pain and stiffness, but the reports of the symptoms were insufficient to attract a diagnosis of radiculopathy.
There are no X-rays, CT scans or MRI scans of the claimant’s cervical spine are available from the time of accident or shortly after. The treating GP and chiropractor records showed that Mr Gray complained of symptoms of neck pain and stiffness. Later medical reports, and Mr Gray’s comment to Dr O’Neill, show that these symptoms gradually improved and settled over about 12 months after the accident. According to Mr Gray and some medical records his reported symptoms and complaints of low-level neck pain and stiffness or discomfort did not resolve completely but continued.
Between early 2005 until 2012 the records of his treating doctors including his GP
Dr Charters, Dr King, Dr Coughlan and Mr Baxter show that he consulted them complaining mainly of low back pain. Mr Gray also complained of neck pain and sought treatment for mild neck pain and discomfort about once or twice per year over that period.
From July 2004 until mid May 2018 the medical evidence, radiological evidence and medical reports do not demonstrate evidence of radiculopathy in the claimant’s cervical spine. Prior to May 2018 there is no record of: loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The Panel accepts that from July 2004 until mid May 2018 Mr Gray experienced and occasionally complained of intermittent and low level cervical spine pain and stiffness.
On 21 November 2019 Dr Hayley Charters, Mr Gray’s treating GP, wrote a letter detailing a list of consultations she had with Mr Gray that relate to treatment for the injury in relation to his motor vehicle accident on 2 July 2004.[58] The letter listed a total of 14 visits dated from
25 October 2007 until 31 July 2019. Of those 14 visits only six of the visits mentioned cervical or neck pain or symptoms. Most of the other visits were described as being for pain or weakness at the L5/S1 level. The last reported consultation for neck pain or cervical spine symptoms was dated 20 April 2009. There was then a nine-year gap until the next mention of left arm or cervical symptoms at C5 level with a nerve root compression referred to on
[58] Insurer’s bundle AD 4 p 282
[59] Insurer’s bundle AD 4 p 282
14 and 17 May 2018.[59]
The clinical records from his treating chiropractor, Mr Baxter indicate that he provided treatment to Mr Gray on 12 occasions from 13 April 2005 until 14 May 2018. Mr Baxter confirmed that he did not provide treatment to Mr Gray from 24 February 2012 to until
[60] Insurer’s bundle AD 4 p 131
31 March 2017. [60]
The Panel notes that there was evidence of the claimant complaining of a significant increase in pain, disability and reduced range of motion in his cervical spine and left shoulder from mid May 2018.
In a referral dated 17 May 2018 from Dr Charters to Dr Coughlan describes the significantly worsening symptoms of cervical spine pain and left shoulder and arm numbness and states that Mr Gray was previously referred to him in 2016 with L5 pain which has improved. She writes that Mr Gray now presents with a new problem - apparent C5 radiculopathy.
An MRI of the cervical spine scan on 17 May 2018 [61] reported that at the C3/C4 level bilateral degenerative joint changes with prominent osteophytes causing marked narrowing of the right and mild narrowing of the left nerve root entry zones. At the C4/C5 level there was prominent left-sided endplate/uncovertebral marginal osteophytes which caused significant narrowing of the left nerve root entry zone and severe left foraminal stenosis.
[61] Claimant’s bundle AD3 pp 48 and 49.
After the surgery Dr Coughlin reported on 5 July 2018 that the claimant has done very well after his C4/C5 disc replacement. Dr Coughlin noted that the operation had shown a very large, calcified spur at the C4/C5 level affecting the C5 nerve root.
After reviewing all of the evidence, the Panels opinion is that Mr Gray sustained a soft tissue whiplash injury to cervical spine in the motor accident. This resolved about 12 months after the accident. The Panel notes that Mr Gray continued to complain of neck pain and stiffness and received occasional treatment from his treating chiropractor and GP. Given all the medical history, clinical presentation and the re-examination of the claimant by the Panel, the Panels opinion is that the ongoing cervical symptoms experienced by Mr Gray were related to his degenerative disease of his cervical and lumbar spine. The Panels opinion is that the symptoms he experienced were not related to the motor accident from July 2004 but were caused by degenerative spinal disease.
Considering the claimant’s history and complaints, it is possible there was soft tissue injury to cervical spine which resolved about 12 months after the motor accident.[62] The claimant continued to experience occasional intermittent mild cervical neck pain and stiffness until May 2018. However, based on the clinical and radiological records there is no evidence of nerve impingement, disc injuries or musculoskeletal injury prior to May 2018. The claimant’s acute symptoms in his cervical spine, left shoulder and left arm symptoms experienced in May 2018 were not caused by or related to the motor vehicle accident in July 2004. The acute episode in May 2018 was caused by C5 nerve root entrapment caused by a large spur or osteophyte which was confirmed by the MRI scan and the post operative report of
[62] Insurer’s bundle AD 4 pp 416- 421. As reported by Mr Gray to Dr John O’Neill, Consultant Neurologist.
Dr Coughlin.
Therefore, the Panel assessed the cervical spine injury sustained in the motor accident on
2 July 2004 as a soft tissue injury which resolved approximately 12 months after the motor accident. The episode of acute neck left shoulder and left arm pain in May 2018 was not caused by the motor accident in July 2004. The motor vehicle accident on 2 July 2004 did not cause, aggravate or materially contribute to the severe cervical spine symptoms experienced by the claimant in May 2018 which was caused by a C5 nerve root entrapment caused by a large spur or osteophyte.

Thoracic spine injury

By reference to the medical evidence, radiological evidence and medical reports summarised above, here is no evidence of radiculopathy in the claimant’s thoracic spine. Relying on the criteria of radiculopathy listed in the Guidelines there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Considering the medical history and complaint, it is possible there was soft tissue injury to thoracic spine in July 2004 which resolved approximately 12 months after the motor accident. Clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury.
Therefore, the Panel assessed the thoracic spine injury as a soft tissue injury which has resolved.

Lumbar spine injury

By reference to the medical evidence, radiological evidence and medical reports summarised above, there is some evidence of long-standing symptoms and problems in the claimant’s lumbar spine notably at the L5/S1 level.
The Panel notes the re-examination of the claimant showed forward flexion from fingers to mid shins side bending and rotation are symmetrical. There is mild mid low back tenderness but no spasm or guarding. Girth of the lower limbs is equal, clinical power is 5/5 when heel toe walking (without a stick). Squatting is to 90° right equals left. Reflexes are brisk and symmetrical even allowing the total knee replacement. Knee extension is full when sitting. Traction signs are negative. There is no sensory loss. The clinical examination showed his lumbar spine as being in DRE 1 Table 7 of the Guidelines.
Considering the medical history and complaint, it is possible there was soft tissue injury to lumbar spine in July 2004 which resolved approximately 12 months after the motor accident.

Left and right shoulder injury and arms

At the by re-examination by Medical Assessor Stubbs on 23 May 2023 he found in the uppers limbs and shoulders that there was a low normal symmetrical range of active movement. He found no positive provocation tests provocation tests for impingement or instability. The rotator cuff and deltoid muscles were of good quality.
Medical Assessor Stubbs found no active shoulder pathology. With the elbows hands and wrists Medical Assessor Stubbs found on examination that Mr Gray had a normal range of movement and there is no weakness in the ulnar nerve supplied hand muscles. Abduction of the left thumb is full but probably only 4/5 compared to 5/5 on the right. There is no assessable upper limb pathology on either side.
Considering the medical history and the evidence from before and after the accident outlined above, it is possible there was soft tissue injury to arms and shoulders at the time at the time of the motor vehicle accident. However, no tears or significant abnormality was demonstrated. Medical Assessor Stubbs found a full range of motion at both shoulders. Therefore, the Panel assessed any left and right shoulder injury or left and right arm injury had resolved.
Left and right hip injury and left and right lower limbs
At the re-examination by Medical Assessor Stubbs on 23 May 2023 he found in Mr Gray’s hips and lower limbs he has good hip and knee mobility with a slight residual loss of terminal extension and side with a total knee replacement. Ankles and feet are normal.
There was no assessable injury caused by or attributable to the motor accident in July 2004.

CONCLUSION AND CERTIFICATION

For the above reasons the Panel affirms the certificate issued by Medical Assessor Assem. All of the claimant’s injuries or complaints experienced by claimant in the motor accident July 2004 were soft tissue injuries that had all resolved by 12 months after the accident. None of his ongoing complaints or symptoms such as the C5 nerve root compression or problems at the L5 level were caused by or contributed by the motor accident in July 2004.
The certificate is attached at the commencement of these Reasons.

[2023] NSWPICMP 481

28 September 2023