Halliday v AAI Limited t/as GIO
[2024] NSWPICMP 742
•28 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Halliday v AAI Limited t/as GIO [2024] NSWPICMP 742 |
CLAIMANT: | Brian Halliday |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Sophia Lahz |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 28 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; whether injury caused by the accident is a threshold injury; rear end collision; claimant alleges wedging of vertebral bodies of the thoracic spine caused or worsened by the motor accident; Held – claimant did not suffer a traumatic brain injury caused by the accident; headaches not an injury and are likely cervicogenic in nature; soft tissue injury to the neck found; found that vertebral wedging of the thoracic spine not caused by the accident and can be developmental in nature; if the claimant had sustained such injury as a result of the accident it would have brought substantial pain at the time of the accident and the evidence does not establish this; Medical Assessment Certificate confirmed; the claimant suffered a threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under s7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Ian Cameron dated 18 March 2024. |
STATEMENT OF REASONS
INTRODUCTION
Mr Brian Halliday (the claimant) alleges injury as a result of a motor vehicle accident that occurred on 2 November 2022. He was the driver of a stationary motor vehicle that was hit from behind.
The claimant lodged a claim for statutory benefits with AAI Limited t/as GIO (the insurer) who is the compulsory third party insurer of the vehicle considered to be at fault.
The insurer has denied ongoing statutory benefits on the basis that they considered the claimant to have suffered a minor injury (now known as threshold injury) for the purposes of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant requested an internal review of this decision and in a letter dated 13 April 2023 the insurer affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) for determination of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act.”
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the claimant’s accident caused psychological injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessment was assessed by Medical Assessor Ian Cameron. The Medical Assessor provided a certificate dated 18 March 2024 wherein he certified that the claimant suffered a threshold injury for the purposes of the MAI Act.
THE REVIEW
The claimant sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (the Review). On 13 June 2024 the President’s delegate determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to this Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide (s 7.26(5A) of the MAI Act) that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the Rules.
The Panel issued interim directions dated 13 June 2024 requiring the parties to lodge bundles of all documents relied upon in the review. Bundles were subsequently received by the parties.
The Panel convened a teleconference on 5 August 2024, and directions were subsequently issued requiring the claimant to attend a re-examination on 17 September 2024. The examination proceeded as scheduled with Medical Assessor Lahz and Medical Assessor Barnsley.
The Panel reconvened via teleconference on 23 September 2024.
LEGISLATIVE FRAMEWORK
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold injury is 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:
“…an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 also provides that the regulations may 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 to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.6 of the Guidelines provides: “in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“…radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines Permanent Impairment’.
a)Loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
b)Positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
c)Muscle atrophy and/or decreased limb circumference (see 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.”
Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[1]
[1] See s 3B(2) of the Civil Liability Act 2002.
In respect of the issue of causation, Part 6 of the Guidelines includes guidance. Whilst Part 6 deals with permanent impairment, it is still relevant to the issue of causation in respect of threshold injury disputes.[2]
[2] Briggs v IAG Ltd [2022] NSWSC 372.
Clause 6.7 of the Guidelines provides:
“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.”
ORIGINAL MEDICAL ASSESSMENT
Medical Assessor Cameron examined the claimant on 5 March 2024.
On examination, the Assessor found the cervical spine to have a moderately and symmetrically reduced range of motion in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints present. Similar findings were noted at the thoracic spine.
A full range of motion of the shoulders was noted with pain at the extremes. No neurological abnormalities were noted.
In respect of the lumbar spine, the Medical Assessor found a markedly and symmetrically reduced range of motion (to 50% of normal) in all planes, with no muscle spasm, guarding or dysmetria and no non-verifiable radicular complaints.
A full range of motion at the knees was noted and no neurological abnormalities found in the lower extremities.
Medical Assessor Cameron found no evidence of an injury to the brain, and concluded the claimant suffered soft tissue injuries to the cervical spine and thoracic spine. However, he also stated that there was no evidence of a specific significant injury to the thoracic spine, although chest symptoms were noted.
SUBMISSIONS
Claimant’s review submissions dated 8 April 2024
The claimant takes issue with the finding that the claimant had no specific significant injury to the thoracic spine, in a situation where an MRI of the thoracic spine dated 5 December 2022 noted wedging of several vertebral bodies. It is submitted that there is no evidence that the wedging was caused by any other incident other than the motor accident.
The claimant submits that the Medical Assessor ought to have examined radiological scans in forming his conclusions in accordance with cl 6.148 of the Guidelines. In this regard, it is noted that there is no dispute that the claimant suffered a previous L1 compression fracture, however, it was incumbent on the Medical Assessor to have adhered to the Guidelines and viewed the radiological imaging himself to determine whether the accident caused further loss of height.
Insurer’s submissions in reply dated 30 April 2024
The insurer notes the claimant’s submissions in respect of the thoracic wedging and the Medical Assessor’s findings of no significant thoracic injury caused by the accident. The insurer notes that Dr Tait, treating neurosurgeon, stated in his report of 3 March 2023 wherein he found no significant abnormality after considering the MRI of the thoracic spine.
The insurer notes that the claimant’s Application for personal injury benefits did not include any alleged lumbar spine injury, and the injuries referred to Medical Assessor Cameron did not include any alleged injury to the lumbar spine.
It is submitted that the claimant’s contention that the L1 compression fracture has been affected by the accident is entirely without evidence.
DOCUMENTS
The Panel has considered all documents provided by the parties in their respective bundles.
Botany Road Doctors Patient Health Summary
The claimant attended upon Dr Guirguis on 5 July 2013 and a lower lumbar spine injury by way of crushed vertebra the previous year is noted.
Emu Plains Doctors clinical file
The claimant attended upon general practitioner (GP) Dr Alhaid on 4 November 2022 after the accident. Neck pain is noted that occasionally radiates to the left elbow. There was tenderness over the bilateral trapezius muscle. The claimant is noted to have denied any other injuries.
By 11 November 2022 headaches were noted with the neck pain radiating to the head. The visits are frequent with the same complaints repeated.
Dr Ruaridh Cameron Smail, neurologist
An initial report of 12 January 2023 notes the claimant suffering from chronic migraine type headaches following a whiplash injury related to the subject accident. It was noted the claimant had not previously suffered headaches.
A report of 23 March 2023 noted headaches and cognitive fogging which started after the motor accident.
Ongoing reports are provided, and in a report dated 1 September 2023, the claimant attended in respect headaches. A re-emergence of occipital headaches on both sides is described with tenderness of the left greater occipital nerve. Some muscle tension in the neck is noted. Some mid thoracic pain radiating around the anterior chest is also noted.
RE-EXAMINATION
Mr Halliday who is aged 37 and right-handed arrived punctually for the appointment. He was observed in the waiting room, sitting very stiffly and at times, with his eyes closed. Subsequently, he walked into the consulting room, again moving very stiffly and carefully.
By way of background, he is originally from Ireland and has lived in Australia since 2018. Currently, he lives with his wife and children at Emu Plains.
Mr Halliday confirmed his involvement in a motor accident during (approximately) 2011, a head-on collision in which he sustained a serious injury to the lumbar spine (L1 compression/wedge fracture). He told the Medical Assessors that the latter injury “fully healed” and the symptoms had “settled down”.
Mr Halliday denied other injuries or accidents before the subject motor accident on 2 November 2022 He reported that he was “pretty good” beforehand and been working as a plumber/gasfitter. He said that he also regularly played soccer. He said too that he had not been taking any regular medications before the 2022 motor accident. He consumed alcohol in moderation and had not smoked in many years.
Mr Halliday recalled the subject 2022 motor accident. At the time, he was the restrained driver of a Mitsubishi Outlander, waiting to turn right, when a truck rear-ended his vehicle. He does not recall any head strike although he conceded that his head possibly struck the head rest whilst his neck was jerked backwards and forwards in a “whiplash” motion. He reported being able to exit the vehicle and inspect the damage despite feeling somewhat dazed. He noticed that his vision was abnormal and recalls having to ask for assistance with reading the other driver’s licence number on a mobile phone screen.
There was damage to the boot of his Mitsubishi which was later repaired. The car was drivable and the police and ambulance did not attend.
Immediately after the motor accident, Mr Halliday told the Medical Assessors that he had been aware of headache, neck pain and lower thoracic pain. He went home and took some Panadol. The headaches continued so he consulted his GP within the first 24 hours. The doctor prescribed analgesia and referred Mr Halliday for scans of the cervical spine and head, given his (then) complaints of neck and head pain. He also complained of tinnitus.
The contents of the GP records were discussed with Mr Halliday in that there is no mention of either thoracic or else lumbar pain during the early weeks following the accident. Mr Halliday responded by noting that the GP did not ask him many questions and further, that no physical examination was undertaken. He said the doctor “assumed” the problems were only in the neck and head so these were the body parts which were imaged, the results of the latter (according to Mr Halliday) indicating “nothing wrong”.
An MRI of the brain done 25 November 2022 showed only scattered white matter intensities, an age-related finding due to small vessel disease.
An MRI of the cervical spine on 25 November 2022 showed preservation of vertebral body heights with normal cord volume and signal. There was spinal canal narrowing at C34 associated with mild bilateral uncovertebral arthritis. There was no associated foraminal stenosis or else neural impingement. The facet joints were normal. There was no canal narrowing at the C56 level and the C67 level was also unremarkable. There was mild right C45 and C56 foraminal narrowing with potential irritation of right C5 and C6 nerve roots. (Medical Assessor’s comment – Mr Halliday does not report any right upper limb symptoms).
Following the abovementioned neck and head scans, Mr Halliday remained in considerable pain “further down the spine”, “knew something was wrong”, and says he then did his own research regarding the specific medical terms for the various spinal regions. Subsequently, he asked the doctor to conduct another spinal investigation being a thoracic MRI.
On 5 December 2022, a thoracic MRI reportedly showed a paracentral T9/10 disc bulge with leftward preponderance.
Mr Halliday told the Medical Assessors that he received physiotherapy although there have been no exercise physiology/gym based interventions.
Due to persistent occipital/base of skull headaches, Mr Halliday was referred to a neurologist who treated him for a cerebrospinal fluid (CSF) leak, reportedly with a blood patch. He reported that the blood patch provided no relief of headaches, tinnitus or else neck pain although at least it seemed to improve his cognition. Prior to the blood patch, he reported that there had been instances of getting lost and also of forgetting where he had parked his car. He thought he could have Alzheimer’s Disease although after the patch, his cognitive abilities certainly improved.
Since mid 2023, Mr Halliday has been experiencing “sharp shooting pains” over the anterolateral left-sided rib cage (worsened by inspiration) and around this time, he underwent a further MRI scan of the thoracic spine. This showed an acute focal T9/10 protrusion in contact with the spinal cord.
Nr Halliday also reported unpleasant sensations in both ears, akin to a “need for popping” to equalise pressures.
In late 2023, the neurologist administered multiple nerve blocks “all around” the back of his head (greater and lesser occipital nerves). A cervical spine block was advised too although according to Mr Halliday, his treating doctor decided “not to go” with that recommendation.
The only “painkiller” Mr Halliday takes presently is Pregabalin 25mg twice daily. Higher doses reportedly cause cognitive side effects.
The neurosurgeon (Dr Tait) whom he saw after the second thoracic MRI found no surgical indications and suggested referral to a pain specialist although the Insurer declined to fund this. Subsequently, according to Mr Halliday; “everything stopped”.
Current symptoms
Currently, Mr Halliday complains of ongoing posterior neck pain as well as pain at the skull base. Further, there is pain in the upper thoracic spine and in the lowermost thoracic spine. Head pain worsens with lifting, as well as on looking up and down. He does not report that headaches are affected by posture i.e. they are not necessarily worsened by erect posture or else relieved by lying down.
There is persistent pain over the left-sided anterolateral rib cage emanating from the lowermost thoracic spine. He does not report (on specific enquiry) any numbness/sensory change over the lateral chest wall.
On prolonged sitting, he complains of numbness in the upper anterior thighs/groins.
His spinal aches and pains are generally relieved by keeping himself mobile.
Tinnitus is generally worse on lying down at night.
Mr Halliday has been unable to resume any kind of work since the accident due to pain-related physical limitations for lifting/bending. Most of the pain is situated about the left-sided ribs and “up the back”.
He is also not driving very regularly, due to symptoms, the last time reportedly in May 2024.
Physical examination
On examination, the Medical Assessors found him a softly spoken man who moved very stiffly. There was moderately overweight body habitus with weight 91.2kg and height 173.5cm.
Gait was slow and stiff. He could slowly rise on his toes and then on his heels.
On inspection of the spine, there was loss of the lumbar lordosis.
At the neck, active movements were as follows: flexion 20 degrees, extension 30 degrees, lateral flexion 20 degrees to either side and rotation to either side 55 degrees. There was no dysmetria and also neither muscle spasm nor guarding.
Upper limb power, sensation and reflexes were preserved. The right arm girth measured 36cm compared with the left (35cm) at corresponding levels, consistent with right- handedness.
On thoracolumbar flexion, Mr Halliday brought his fingertips (barely) to knee level. There was minimal thoracic extension and no lumbar extension. Lateral flexion was symmetrical being 4cm to either side whilst rotation was also symmetrical being 30 degrees to either side. There was no dysmetria at the thoracic spine. There was also no muscle spasm or guarding at the thoracic and lumbar spine.
Lower limb strength, reflexes and sensation were preserved and there was no clonus. The thighs measured 49cm, 10cm above the superior patellar border. The calves measured symmetrically 40cm, 10cm below the inferior patellar border. Lower limb neural tension tests (SLR) were bilaterally negative. Abdominal reflexes were all present (the root value of the abdominal reflexes is T9 to T12)
During the lower limb examination, there were pain behaviours including facial grimaces and wincing.
The Medical Assessors apologised to Mr Halliday for any pain experienced during the clinical examination.
Investigations
Following the history and physical examination, the Medical Assessors reviewed the MRI thoracic spine (5 December 2022) and the CT scan of the lumbar spine done 11 March 2024. The subsequent 2023 MRI of the thoracic spine was unavailable.
The MRI of the thoracic spine done 5 December 2022 showed multiple small thoracic disc herniations (T6/7 and T7/8), the most prominent being at T9/10 where there was a left paracentral protrusion with disc desiccation and distortion of the anterior thecal sac. There was also a T11/12 discophyte complex although the spinal canal was spacious and the appearance of the thoracic cord normal (no change in signal and no cord syrinx). The Medical Assessors agreed with the formal radiology report, noting in addition the absence of any oedema/swelling of adjacent soft tissues, to indicate an acute (recent) thoracic spine/disc injury.
The CT scan of the lumbar spine (2024) showed an old L1 fracture with approximately 35% loss of height. At L45 there was disc bulging with abutment of the right L4 nerve root, and there was moderate right-sided L4/5 and L5/S1 facet joint arthritis.
FINDINGS
The Panel considered whether the referred injuries were threshold or alternatively non threshold injuries.
Mr Halliday has not sustained a traumatic brain injury. He does not meet the criteria set out in paragraph 6.164, page 113 of the Guidelines in that there is no evidence of medically verified alteration in consciousness such as reduced Glascow Coma Score (GCS), nor has there been any documentation in medical records of post-traumatic amnesia duration. Mr Halliday remembers the accident, and the immediate aftermath inclusive of events at the scene, as has been detailed above in the history. In addition, brain imaging after the 2022 the motor accident showed no abnormalities due to trauma. An MRI brain scan on 25 November 2022 showed scattered T2 signal change (due to small vessel disease), nothing to do with any trauma from the subject motor accident.
There is also no evidence of head strike during the motor accident. There is no evidence of any bruising or swelling around the head after the accident. All that can be said, based on the contents of medical records is that Mr Halliday developed occipital headaches afterwards. Headaches are a non-specific symptom and their presence cannot be taken to conclude that a traumatic brain injury has occurred.
At Panel examination on 17 September 2024, the claimant described headaches induced by head movement and lifting, rather than headaches adversely affected by postural changes. The features of the current headaches are not consistent with a low pressure headache, and in any event when treated for this (presumed) condition with a blood patch, unfortunately, the latter treatment did not resolve his headaches.
The Panel considered that the most likely explanation for his headaches was cervicogenic headaches due to soft tissue injury to the cervical spine (see below). This is a threshold injury.
The clinical examination of the cervical spine was unremarkable aside from uniform reduction in range of motion. There were not the two necessary signs required by paragraph 6.138, page 108 of the Guidelines to confirm the presence of a radiculopathy and there were also no clinical signs of spinal cord compromise i.e. no myelopathy. An MRI scan of the neck shortly after the motor accident in November 2022 showed degenerative changes only, not related to trauma from the motor accident. There was no evidence of any significant cervical disc lesion, fracture or else rupture of ligaments/tendons to indicate serious structural injury.
The neck injury is a soft tissue injury, and therefore a threshold injury.
Regarding the thoracic spine, the Medical Assessors found no clinical signs of thoracic radiculopathy. There are non-verifiable radicular complaints around the left-sided rib cage. The initial thoracic MRI scan on 5 December 2022 showed a mild (non-traumatic, non-acute) T9/10 paracentral disc protrusion (no signs of soft tissue swelling/oedema) and presence of (only) degenerative changes e.g. discophyte. Of note, at the time of the initial thoracic MRI, Mr Halliday was not complaining of chest wall pain. Mr Halliday told the Medical Assessors that at that stage, only lower thoracic (back) pain was present. The chest wall pain developed much later (at which stage the second thoracic MRI was arranged.)
The Panel notes the claimant’s submissions regarding “wedging” of other thoracic vertebrae (being regarded as “injuries”). The Medical Assessors point out that vertebral wedging is not synonymous with trauma/fracture. Wedging of vertebral bodies is often a developmental finding as in Scheuermann’s disease. Also, had there been multiple thoracic fractures, the claimant would have been experiencing substantial pain and would have been unlikely able to exit the vehicle, walk around at the scene and converse with others. Given that he alighted from the car and mobilised satisfactorily at the scene, the occurrence of multiple thoracic wedge fractures due to the subject motor accident is simply medically implausible. Further, a thoracic spine MRI scan performed four weeks later shows no evidence of acute thoracic fractures which would invariably have been associated with a degree of persistent soft tissue swelling/oedema (notably absent on the said scan).
Mr Halliday also told the Medical Assessors that the left-sided chest wall pain did not develop until mid 2023 at which stage, he proceeded to a progress MRI scan, by then showing an acute T9/10 disc protrusion contacting the cord. However, the latter scan was performed eight months after the motor accident and an acute disc protrusion developing so many months after the subject 2022 motor accident cannot, and is not plausibly related to the motor accident. On the balance of probabilities, it is not caused by the motor accident.
Therefore, the thoracic spine injury from the motor accident is a soft tissue injury, and thus a threshold injury.
The Medical Assessors reviewed the 2024 CT lumbar spine images, noting these showed a 35% compression of L1, which is essentially the same degree of compression as noted after the original motor accident in either 2011 or else 2013. There is no evidence presented that the subject motor accident has worsened the degree of chronic L1 compression.
Of note, the Panel found that the subject accident neither did, nor could have resulted in the present degree of L1 compression, specifically given the claimant made no acute complaints of low back pain to the doctor at the time of the motor accident. It is medically implausible that he could have sustained an aggravation of the L1 fracture with additional compression yet have no contemporaneous pain. An acute traumatic spinal fracture will invariably be associated with localised back pain, which the contemporaneous medical records do not indicate.
Thus, on the balance of probabilities, the claimant has suffered, at most, a soft tissue injury of the lumbar spine, which is a threshold injury.
CONCLUSION
The Panel concluded that all of the referred injuries (head, cervical spine, thoracic spine) are threshold injuries.
The medical certificate of Medical Assessor Cameron dated 18 March 2024 is therefore confirmed.
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