Habib v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Habib v Allianz Australia Insurance Limited [2025] NSWPICMP 789
CLAIMANT:	Maher Habib
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Leslie Barnsley
DATE OF DECISION:	13 October 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about threshold injury and treatment; assessment review under section 7.26; claimant injured neck and lumbar spine; alleged lumbar spine annular fissure; pre-accident lumbar spine conditions; thoracic spine pain; insurer alleged symptoms due to degenerative conditions; original Medical Assessor (MA) assessed accident did not cause lumbar or cervical spine injury and declined treatment; Held – accident mechanism consistent with cervical injury claimed but did not cause injury as first symptoms were recorded ten months after accident; 2022 accident did not cause lumbar spine annular fissure; did not cause injuries that required cervical MRI; treatment not necessary and reasonable; consulting neurosurgeon for thoracic spine pain caused by accident and reasonable and necessary; threshold certificate upheld and previous treatment certificate revoked.
DETERMINATIONS MADE:	CERTIFICATES OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 Review Panel Assessment of Threshold Injury 1. The Review Panel affirms Medical Assessor Wallace’s certificate dated 24 May 2024 in respect of threshold injury. 2. The Panel finds the motor accident did not cause the following injury: · lumbar spine injury. 3. The claimant has not established that the accident caused him to suffer a non-threshold injury for the purposes of the MAI Act. Review Panel Assessment of Treatment and Care 4. The Review Panel makes the following findings in respect to the following assertions about disputed treatment and care sought under s 3.24 of the Motor Accident Injuries Act 2017: *Cervical MRI* · the physical injuries giving rise to the need to investigate the claimant’s cervical spine condition were not related to an injury caused by the accident, and · the physical injuries giving rise to the need to investigate the claimant’s cervical spine condition are not reasonable and necessary in the circumstances. *Medical specialist consultation* · the physical injuries giving rise to a need for referral to neurosurgeon surgeon Dr Brian Hsu, relates to the injury caused by the motor accident, and · the physical injuries giving rise to a need for referral to neurosurgeon surgeon Dr Brian Hsu is reasonable and necessary in the circumstances. 5. The Panel has decided differently to Medical Assessor Wallace in this respect. 6. Medical Assessor Wallace’s certificate dated 24 May 2024 regarding whether the proposed medical treatment was reasonable and necessary is revoked and the Panel issues a replacement certificate.

REASONS

BACKGROUND

The claimant was injured on 24 September 2022 in a rear end collision while he was seated in the back of the vehicle driven by his son.
A dispute arose between the insurer and the claimant about whether the injuries were threshold injuries following s 1 .6 of the Motor Accident Injuries Act 2017 (MAI Act).
The insurer’s letter dated 24 January 2023 initially admitted liability for statutory benefits after 26 weeks after the accident because an MRI after the accident demonstrated an annular fissure at L5/S1, which led to the insurer to find that the injury was not threshold as expressed under s 1.6 of the MAI Act.
The insurer’s letter dated 27 February 2023 notified the claimant that liability beyond 26 weeks after the accident was denied because the insurer relied on Dr Suri’s report dated

4 February 2023 suggesting that the accident had not contributed to the annular fissure but was the result of a condition existing before the accident. The insurer upheld that decision in an internal review dated 20 March 2023.
The insurer and the claimant are also in a dispute under s 3.24 of the MAI Act relating to the provision of treatment and care from injuries caused by the accident in respect to a cervical spine MRI investigation and consultation with spinal surgeon Dr Brian Hsu.
The claimant applied to the Personal Injury Commission (Commission) to resolve this dispute.
The Commission referred the lumbar spine to Medical Assessor Raymond Francis Wallace to assess:
·        whether the injury caused by the motor accident is a threshold injury under Schedule 2, s 2(e) of the MAI Act;
·        whether any treatment and care relates to an injury caused by the accident under Schedule 2, s 2(b) of the MAI Act, and
·        whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the MAI Act.
On 30 April 2024 Medical Assessor Wallace assessed the claimant and produced a certificate dated 24 May 2024 finding the accident did not cause or materially contribute to the claimant’s injuries and did not address whether the claimant’s lumbar spine injury could be classified as non-threshold.
He also declined to find that the treatment sought was causally connected with the accident and that it was necessary and reasonable.
The claimant applied for review of the certificate on the basis the certificate did not express a clear path of reasoning. The President’s delegate found on 23 September 2024 there were sufficient grounds to suspect that the medical assessment was incorrect in a material respect.
The President of the Commission has constituted the Review Panel (this Panel) to review Medical Assessor Wallace’s assessment dated 24 May 2024 (the Review).
The Panel met on 30 January 2025 to discuss how this matter may proceed.
The Panel was concerned about the lack of references to the cervical spine until Dr Glen Sheh’s report dated 19 June 2023 requesting an MRI because the claimant was complaining of right upper limb weakness.
The Panel sought evidence, submissions or references to current submissions on when the claimant first felt symptoms in that region.
The Panel noted that the insurer declined to fund the visit to Dr Hsu who treated the claimant in 2015, because the claimant has already seen Dr Simon McKechnie, who operated on the claimant's lumbar spine at L5/S1 in 2018. The parties needed to confirm whether this is still a disputed issue.
In order to refine the disputed points, the Panel notes that it was apparently undisputed that Dr Mohammed Assem's examination referred to in his report dated 17 May 2023 elicited verified radicular signs after the accident, and in comity with the David and Lynch[1] decisions that finding would satisfy the criteria for a non-threshold condition if the Panel finds that the accident materially contributed to that condition.
[1] David v Allianz Australia Ltd [2021] NSWPICMP 227 and Lynch v AAI Limited t/as AAMI [2022].
The Panel also notes that although MRI scans of the lumbar spine identify degeneration, further scans shortly after the accident identified an annular tear. This could satisfy the non-threshold criteria if the Panel finds the accident materially contributed to that condition.
It would also assist the Panel if the parties can refer to evidence that would indicate the level of force the claimant experienced in the collision.
The Panel considered it must re-examine the claimant to clarify the history and test for radiculopathy.
Medical Assessor Barnsley arranged to re-examine the claimant on behalf of the Panel on

4 April 2025 at the Commission’s medical suites.
The Commission arranged for a chaperone to attend the examination and an interpreter was to be provided if the claimant notified the Commission that he requires one.

Legislative framework

At the time the relevant dispute became apparent s 1.6 of the MAI Act defined a threshold injury[2] to include a “soft tissue injury” or a “threshold psychological or psychiatric injury.” Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
[2] Previously known as a minor injury up to 31 March 2023.
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines)[3] are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI Act.
[3]Guidelines version 10 commenced on 15 September 2025.
In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess the threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy, which is verified under these clauses will not be classified as a threshold injury.
Radicular symptoms may be present but will not be verified unless two or more signs present during an examination which comply with these Guidelines. Note that non-verified radicular symptoms may support a finding that changes are causally linked to the relevant accident.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(e) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were threshold or satisfying the threshold as defined under the MAI Act.
The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[4]and Insurance Australia Ltd v Marsh.[5]
[4] Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287.
[5] [2022] NSWCA 31.
The Panel adopts the reasoning in David that radiculopathy can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.
The Panel also adopts the reasoning in Lynch v AAI Ltd[6] that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
[6] [2022] NSWPICMP 6.
The rules of evidence do not apply to this Review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a threshold injury, it is unclear and unlikely the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment apply to assessing causation in threshold injury disputes. This is because Part 6 is specified as applying only to the assessment of permanent impairment.
In order to promote consistency and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in cls 6.6 and 6.7 of the Guidelines.
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
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 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 the Personal Injury Commission) in considering such issues.
6.6    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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    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 accident. The 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.”

Assessment under Review

Medical Assessor Wallace considered the claimant’s initial submission dated 23 May 2023 that the motor accident has caused an annular fissure to the lumbar spine and exacerbated pre-existed spinal injuries. A further submission dated 24 July 2023 claimed that the MRI investigation of the cervical spine was necessary as the claimant had been experiencing right arm weakness.
The insurer submitted on 15 June 2023 that consulting Dr Hsu was unnecessary as the claimant was already consulting neurosurgeon Dr Simon McKechnie.
The insurer claimed that the annular fissure at L5/S1 was degenerative and unrelated to the accident. The respondent submits Dr McKechnie noted on 7 February 2018, that the claimant was complaining of radicular symptoms in the right leg and had reduced reflexes following the 2018 surgery.
On 24 September 2015 the claimant suffered a lumbar spine injury at work. Dr Hsu examined that condition and recommended operative intervention. On 7 December 2015 the claimant underwent L4/5 discectomy and rhizolysis. Dr McKechnie later recommended revision surgery, which happened on 21 November 2018. The claimant underwent redo L4/5 discectomy and rhizolysis as well as instrumented posterior fusion at the L4/5 level.
After the accident an ambulance transported the claimant to Hornsby Hospital to check claims of back pain. After X-ray he was discharged. His general practitioner (GP) referred him to Dr Hsu who injected corticosteroids into his spine. This did not help. The claimant attended physiotherapy until mid-2023.
Dr McKechnie reviewed him and referred him to pain specialist Dr Sheh who recommended a six-week pain management program commencing in September 2023.
Occupational physician Dr Khan consulted with the claimant in regard to fitness for work.
Medical Assessor Wallace refers to the claimant consulting his GP four weeks before the accident complaining of two months of sore ribs.
The Medical Assessor refers to scans taken after the accident then concludes there is no objective medical evidence that the claimant injured his lumbar spine as a result of the accident.
In respect of the treatment the Medical Assessor found there was no evidence supporting a cervical spine injury from the accident and he has no cervical symptoms. Accordingly, an MRI is not reasonable or necessary.
The Medical Assessor found the claimant did not require Dr Hsu to review his condition because Dr McKechnie was already attending to the claimant’s thoracic spinal injury.

Evidence

The NSW Ambulance record of the accident dated 24 September 2022 refers to the claimant having 8/10 back pain the full-length and width immediately after the accident but no radiation, paraesthesia or neck pain. The claimant found it hard to get in a position of comfort but analgesia helped and he was transported to hospital. The Hornsby Hospital discharge notice confirms the claimant’s treatment related to his back pain.

The claimant’s application for personal injury benefits dated 26 October 2022 refers to the claimant’s lumbar spine injury.
The claimant’s GP Dr Rahul Suri answered the insurer’s questionnaire on 4 February 2023.[7] The GP diagnosed the claimant’s thoracolumbar back pain is a soft tissue injury and an exacerbation of the existing thoracic spondylosis. He denied a link between the accident and the L5/S1 annular fissure.
[7] Page 134 of the claimant’s bundle
Rehabilitation specialist Dr Mohammed Assem examined the claimant and produced a report dated 17 May 2023. He recorded the history before and since the accident. On examining the claimant’s lumbar spine, the specialist noted radiculopathy with sensory loss, weakness, loss of reflex and muscle atrophy involving his right leg.
Dr Assem noted the claimant’s extensive lumbar spine surgery before the accident had a good outcome and the claimant had been able to return to full-time work. Lumbar spine treatment after the accident including injections had not been beneficial. The claimant has tried working as an Uber driver with restricted hours. He finds it difficult to cope.
Dr Assem opined that,
“Considering the four-year interval between the previous imaging and the imaging taken after the accident, along with the sudden onset of lower back pain and radicular symptoms in his right leg, it is more probable than not that the annular fissure is associated with the motor vehicle accident.”

Submissions

Claimant’s submissions

The claimant submitted on 23 May 2023 the accident caused the following:
· lumbar spine annular fissure, and
· exacerbated pre-existing spinal injuries.
The claimant submits lumbar spine MRI report dated 24 November 2022 identifies a “broad-based posterior disc bulging with a slight paracentral annular fissure at L5/S1”, which is not a threshold condition under the legislation.
A lumbar spine MRI dated 26 September 2018 addressing the same area reports the claimant had a “small broad based posterior disc osteophyte complex. Moderate facet arthropathy, mild canal stenosis”.
There is no medical evidence supporting the connection between the pre-existing lumbar spine injuries and the injuries sustained in the motor vehicle accident other than aggravation.
Before the accident the claimant had not experienced radiculopathy. After the accident the claimant was found to have radiculopathy at L3 and L4 referred to in the lumbar spine MRI dated 24 November 2022.
Spine specialist Dr Hsu opined on 19 January 2023 that the accident may have precipitated the claimant’s L3 – 4 symptoms. The claimant later submitted that this doctor also noted the claimant’s back and leg pain.
SIRA Authorised Health Practitioner Dr Mohammed Assem reported on 17 May 2023 that he had examined the claimant and found sensory loss, weakness, loss of reflex and muscle atrophy involving the right leg, which meets the radiculopathy definition in the Guidelines. This was an L5 radiculopathy.
Dr Assem opined that the accident and the annular fissure were causally related noting the previous radiology, lack of symptoms and accident circumstances which involved acute back pain appearing abruptly. That opinion and the radiculopathy assessment should satisfy the Panel that the accident caused non-threshold injuries in the claimant.
In respect to seeing Dr Hsu for treatment the claimant only submits that the accident caused the condition related to the visit and that the claimant would benefit from attending that specialist. There are no submissions on the MRI.
In the review application submissions dated 31 July 2024 the Panel notes that the submissions refer to applying the proper causation test under the Guidelines set out above.
Relevantly, the claimant submitted that the decision maker must address Dr Assem’s findings.
On 14 March 2025 the claimant submitted Dr Brian Hsu’s report dated 13 March 2025 with All Care Physiotherapy clinical notes as of 26 February 2025.
The claimant submits that Panel should consider the above as providing an updated treatment history and relevant to the threshold injury assessment.

Insurer’s submissions

The insurer’s opinion is that the four-year gap between the scans justifies finding that the changes seen in late 2022 are a result of degeneration not the accident.
Dr McKechnie’s records show that the claimant’s 2015 lumbar spine injury required Dr Hsu performing a right L4/5 partial laminectomy, microdiscectomy and rhizolysis in 2015 and

Dr McKechnie’s 2018 L4/5 laminectomy, stereotactic 4/5 pedicle screw, PLIF plus revision right L4/5 microdiscectomy and rhizolysis.
The 24 November 2022 thoracic and lumbar spine MRI scan identified the annular fissure at L5/S1.
The insurer refers to Dr Suri’s opinion regarding the accident not causing the annular tear, and that the claimant’s symptoms were soft tissue only.
The insurer refers to Dr Hsu’s opinion in his report dated 19 January 2023 that the MRI showed degeneration above and below the L4/5 discectomy.
The insurer refutes the claimant telling Dr Assem he did not experience radiculopathy before the accident because Dr McKechnie’s records note radicular symptoms in the right leg on

7 February 2018 and reduced reflexes after the 2018 surgery.
The insurer agrees that the claimant complained of back pain on the day of the accident but highlights that there is no objective finding of acute traumatic injury to the lumbar spine following the accident. This likely represents soft-tissue injury which could be expected to have resolved.
Dr Mohammad Assem’s report dated 17 May 2023 (A2) ultimately concludes that ‘it is more probable than not that the annular fissure is associated with the 2022 accident’ however it is admitted in an earlier paragraph that:
“… the bone scan ‘does not conclusively determine whether the annular fissure observed on the radiological imaging resulted from acute trauma or accelerated degenerative changes that may have occurred regardless of the motor vehicle accident.”
The claimant’s lumbar spine CT scan dated 27 April 2023 notes the L4/5 screw fixation, together with disc degenerative changes with arthrosis and impingement of L4 nerve root (R17). These conditions are consistent with the non-accident related degeneration of the existing complaints without identifying any accident related acute conditions.
In terms of consulting with Dr Hsu the insurer submits that funding treatment with that specialist while the claimant was seeing Dr McKechnie was inconsistent with the Clinical Framework for the Delivery of Health Services, because it would be duplicitous treatment that would hinder the ability to measure and demonstrate the treatments efficacy.
In respect to a cervical spine MRI the insurer disputes a nexus between the accident and the relevant condition because that complaint is not made until the claimant consults with

Dr Sheh in June 2023. With the claimant’s extensive background of spinal degeneration and a lack of complaints despite several opportunities after the accident to report symptoms to the claimant’s GP, treating specialists and physiotherapists, the insurer submits that the cervical spine complaints are more likely associated with non-accident related spinal degeneration.

Re-examination

Mr Habib attended his re-examination at the Commission’s medical suites on 4 April 2025. Medical Assessor Les Barnsley examined the claimant in the presence of a chaperone.
At the outset of the assessment the reason for the examination was explained. It was also explained that the examination did not involve the same confidentiality as a routine medical consultation, that the Medical Assessor would not be involved in any way in Mr Habib's treatment and the nature of the questions and examination required were frankly disclosed.
Mr Habib has background medical problems with type 2 diabetes mellitus and hypercholesterolemia. He had a gastric sleeve in 2010 for weight loss.
In 2015 he suffered a lifting injury to his lower back. He experienced low back pain and pinching in his right buttock after trying to lift a heavy item at work. This was also accompanied by some thigh numbness primarily on the posterior aspect. He was investigated with an MRI scan and a disc lesion at L 4/5 was diagnosed. He was subsequently seen by Dr Brian Hsu and went on to have a discectomy in 2015.
Unfortunately, the operation had negligible effect on his pain, and he progressed to have a fusion at L4/5 by Dr McKechnie in 2018. He said that following this procedure his symptoms were entirely relieved. He described it as “the best thing I've ever done.”
He claimed to have had no low back pain between that surgery and the motor vehicle accident in 2022. Medical Assessor Barnsley drew to his attention the GP notes from late 2021 which described him as having some low back pain. Mr Habib could not recall this.
In the period between his 2018 surgery and the subject accident he returned to work full time as a service manager. He maintains that he was asymptomatic before the accident from the point of view of spinal pain.
On 24 September 2022 he was seat-belted rear seat passenger on the driver's side in a Subaru. The car was stationary waiting to turn right when the insured car struck it from behind. The impact was unexpected and Mr Habib recalls being jolted but cannot recall hitting anything inside the car. He had some difficulty getting out of the car which he thinks was due to thoracic spinal pain, but he cannot recall the details.
An ambulance attended and he was taken to Hornsby Hospital where he underwent some imaging and was given some analgesics.
Mr Habib then waited a few days before seeking any further medical treatment with the expectation that his thoracic spinal pain would settle. His pain at that time was above the site of his previous symptoms and he demonstrated it extending from the T1/2 level upwards to the interscapular region.
His GP organised physiotherapy and he continued to take analgesics and occasionally anti-inflammatory medication.
Unfortunately, the thoracic spinal pain has persisted. It has been associated with some increased sensitivity over most of the posterior thoracic spine and he experiences spasms in the thoracic musculature. The pain also radiates around his chest.
Because of these symptoms he was referred to Dr Brian Hsu for assessment of his thoracic pain primarily. Medical Assessor Barnsley confirmed with Mr Habib that he was not having any regular follow up with Dr McKechnie at this time.
Medical Assessor Barnsley asked Mr Habib specifically about his lower back pain. He stated that a few weeks after the accident he developed intermittent pinching pain in the right buttock that was associated with some tingling in the posterior thigh. This has persisted since then. The symptoms occur approximately every three weeks although he was hesitant to ascribe a frequency to them and only last a couple of hours at a time. They are in a similar site to those he experienced in 2015 to 2018.
Medical Assessor Barnsley asked Mr Habib specifically about any neck pain since the accident. He specifically denied any neck pain immediately following or subsequent to the accident.
Medical Assessor Barnsley also asked Mr Habib specifically about the presence or absence of any neurological symptoms in the upper limb. He had not noticed any weakness numbness or tingling in the arms.
Because his thoracic spinal pain persisted, which has been his major problem since the accident, he was eventually referred to Dr Glenn Sheh for pain management and consulted her in June 2023. She noted some weakness in the right upper limb on examination and

Mr Habib understands that she was concerned about the possibility of a lower cervical disc lesion which might be contributing to both the clinical finding of arm weakness and the thoracic symptoms.
Mr Habib’s current symptoms are pain across the lower half of the thoracic spine that radiates round to the anterior chest. It is associated with significant sensitivity over this area with the posterior chest wall feeling itchy and sensitive to touch. He has focal discomfort in the right mid buttock with numbness that radiates down the posterior thigh. He gets these symptoms approximately every three weeks.
He specifically denies any other neurological symptoms in the upper or lower limbs such as weakness numbness or tingling.

Examination

On examination he weighed 70kg and was 162cm tall.
Examination of the cervical spine demonstrated decreased flexion and extension to 75% of what would be expected. He reported it was limited by exacerbating his lower thoracic spinal pain. Lateral flexion was normal on both sides and left and right rotation with 75% of expected movement again because of apprehension over precipitating thoracic spinal pain. There was no guarding or spasm in the cervical musculature.
Upper limb neurological examination demonstrated give way weakness with no myotomal weakness. In other words, he could briefly exert power and then would relax the muscles. This is not an organic feature of muscle weakness or neurogenic weakness.
Reflexes were present and symmetrical at both biceps, both supinator and both triceps jerks. The sensation was intact over all dermatomes. Spurling’s test was negative. The circumference of the upper limbs measured 10cm above the lateral epicondyle was 27.5cm on both sides. Forearm circumference measured 10cm below the lateral epicondyle was 26cm on both sides.
Examination of the thoracic spine revealed normal flexion and extension, but right rotation was limited compared to left. There was no guarding or spasm in the thoracic spinal musculature and chest wall sensation was intact in all dermatomes. Abdominal reflexes were intact.
On examining the lumbar spine, he was noted to be able to stand on his heels and toes. Flexion and extension of the lumbar spine were normal with lateral flexion reduced by 50% symmetrically. There was no guarding or spasm on the palpation of the lumbar musculature.
Neurological examination of the lower limbs revealed negative straight leg raise tests on both sides. On assessment of power there was give way weakness, particularly in the right leg. This affected multiple muscle groups including hip flexion, knee extension, knee flexion, ankle dorsiflexion and an ankle plantar flexion.
The inconsistency between the formally assessed power and his ability to stand on his heels and toes was brought to Mr Habib’s attention. He was given the opportunity to repeat the examination. On repeat examination there was an improvement in the power.
On examining the reflexes in the lower limbs, the knee jerks were symmetrical, but the left ankle jerk was decreased relative to the right.
The sensation was intact in both lower limbs. The circumference of the thigh measured 10cm above the superior pole of the patella was 45cm on both sides. The circumference of the calf measured 10cm below the inferior pole of the patella was 37cm on both sides.

Panel’s deliberations

Mindful of the examination findings and the prior documentation, the Panel then considered the specific disputes.
The Panel considered the principles of causation set out in the Motor Accident Guidelines 9.3 (the Guidelines), in particular at cl 6.7, in particular that the subject accident does not have to be the sole cause of a condition, but it can be a contributing cause, as long as the impact is not negligible. These clauses are addressed to causation of permanent impairment, but the principles are applicable to threshold and treatment disputes too.
The authorities on causation summarised above refer to how medical review panels must decide initially whether it is medically possible for the condition to occur, and if it is, then the Panel must weigh the evidence to see if it satisfies the balance of probabilities.
In respect of considering whether the evidence supported the subject accident causing the annular tear, radiculopathy and the conditions requiring specialist consultation and scans, it considered the principles referred to in Kirby P’s dicta in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). In Kooragang Kirby P said at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
These principles equally apply to the causal relationship between a medical condition and a motor accident under the MAI Act by reason of the same statutory language.

Treatment

The first dispute concerned the need for a cervical MRI scan. There had been no cervical spine symptoms following the accident and there were no neurological symptoms in the upper limb following the accident.
The Panel considered that whilst a rear end accident could injure the cervical spine, the lack of contemporaneous cervical spine or upper limbs symptoms until the claimant sees Dr Sheh indicates that the accident in question did not cause an injury to the cervical spine and therefore any investigation of the cervical spine did not relate to the accident in question.
Further consideration of whether the cervical MRI is reasonable and necessary is not required.
The second treatment dispute concerned whether consultation with Dr Brian Hsu was reasonable and necessary. Mr Habib developed new back pain following the accident, which satisfies the causal nexus. Based on the available documentation and his history the pain was in a new area and was different to that which he had experienced following the lifting injury in 2015. In addition to the pain, he noticed increased sensitivity and pain radiating around the chest wall.
At the time of the 2022 accident Mr Habib was not receiving regular treatment or care from any neurosurgeon. The Panel notes that the insurer considered that he was receiving treatment from Dr McKechnie. This would not appear to be the case.
The Panel therefore considers that in light of the concern over important thoracic spinal pathology it was reasonable and necessary for a neurosurgical consultation to be sought. As it was a new problem there would be no specific indication to use a previously treating neurosurgeon.
The Panel therefore considers that the request for a referral to Dr Hsu was related to the accident and was reasonable and necessary.

Threshold injury

The Panel then considered the question as to whether a lumbar spine injury had been caused by the 2022 accident and if so whether or not this was a non-threshold injury.
There had been a significant history of lumbar spinal problems requiring two previous surgeries. There had been a fusion at L4/5, and documentation of prior pathology at the L5/S1 level in 2018.
The Medical Assessors noted that in the accident there had been no rotational force applied to the spine, but the claimant had been subjected to a significant jolt, noting that the airbags in the insured vehicle deployed. The Medical Assessors therefore considered that the accident could have caused injury to the lumbar spine.
The Panel then considered whether or not the accident did cause an injury to the lumbar spine. If there had been a significant new disc lesion or significant aggravation of a prior disc lesion at the time of the accident it would have been expected that there would be new pain in that region.
The available documentation and the history obtained from Mr Habib today suggested a period of several weeks passed between the accident and the first recurrence of his right side buttock pain. The Panel therefore considered it was more likely that the new symptoms represented ongoing degenerative changes at that level rather than a new traumatic injury.
Considering all of the available evidence, and applying the full gamut of clinical skill, the Panel considered that the accident did not make a material contribution to the annular tear noted on the post-accident MRI.

Specifically, the nature of the forces to which the claimant was exposed did not involve significant excursions of the lumbar spine, which would typically be needed to cause a disc annular tear.
Secondly, there was a significant period of time between the accident and the development of his lumbar symptoms. This would not be expected in the case of an acute disc tear. Finally, the Panel noted that the discs adjacent to a fused level are subject to altered forces which in the Panel’s opinion would be more likely than the subject accident to lead to an annular tear.
Similar considerations apply to the question of whether the lumbar radiculopathy documented by Dr Assem was caused by the accident. A lumbar radiculopathy results from compromise of a nerve root, typically from a disc prolapse or protrusion impinging on the exiting nerve root.
As noted above, the Panel thought that whilst the jolt of the accident could cause an injury to the lumbar spine, there was not the rotational or flexion or extension force that would be necessary to damage a disc. Also, there would be an expectation that if there were an acute disc injury, it should have precipitated unequivocal lumbar pain, and radicular symptoms either concurrently or soon afterwards.
The development of a temporary radiculopathy (noting that the examination by Medical Assessor Barnsley did not find radiculopathy) sometime after the subject accident does not accord with the accident causing same, and it was the Panel’s opinion that this development was more likely related to the progression of the documented degenerative changes in the lumbar spine.

CONCLUSION

The Review Panel affirms Medical Assessor Wallace’s certificate in respect of threshold injury dated 24 May 2024.
The Panel finds the motor accident did not cause the following injury:
· lumbar spine injury
The claimant has not established that the accident caused him to suffer a non-threshold injury for the purposes of the MAI Act.
The Review Panel makes the following findings in respect to the following assertions about disputed treatment and care sought under s 3.24 of the MAI Act:
Cervical MRI
·the physical injuries giving rise to the need to investigate the claimant’s cervical spine condition were not related to an injury caused by the accident, and
·the physical injuries giving rise to the need to investigate the claimant’s cervical spine condition are not reasonable and necessary in the circumstances.
Medical specialist consultation
·the physical injuries giving rise to a need for referral to neurosurgeon surgeon Dr Brian Hsu, relates to the injury caused by the motor accident, and
·the physical injuries giving rise to a need for referral to neurosurgeon surgeon Dr Brian Hsu is reasonable and necessary in the circumstances.
The Panel has decided differently to Medical Assessor Wallace in this respect.
Medical Assessor Wallace’s certificate dated 24 May 2024 regarding disputed treatment and care sought under s 3.24 of the MAI Act is revoked and the Panel issues a replacement certificate.

[2025] NSWPICMP 789

13 October 2025