Hashimi v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Hashimi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 858
CLAIMANT:	Ali Al Hashimi
INSURER:	NRMA
REVIEW PANEL
MEMBER:	Cameron Thompson
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:	13 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); claimant was injured in a motor accident on 8 April 2018 when the vehicle he was driving collided with another vehicle which pulled out from a side street; dispute as to whether the injury to the claimant’s lumbar spine caused by the motor accident is a minor injury for the purposes of the MAI Act; Medical Assessor (MA) issued certificate when the relevant term was “minor injury”, now described as a threshold injury; MA determined that the claimant had a soft tissue injury to the lower back caused by the motor accident and that this is a minor (threshold) injury; claimant re-examined; Medical Review Panel (Panel) diagnosed that the injury to the claimant’s lumbar spine is an annular tear to the L4/5 disc; in the opinion of the Panel an annular tear is a tear in the fibrocartilage and falls outside the definition of a soft tissue injury as defined by section 1.6(2) of the MAI Act and consequently the annular tear of the L4/5 disc is not a threshold injury; Held – the annular tear of the claimant’s L4/5 disc was caused by the motor accident and is not a threshold injury for the purposes of the MAI Act; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel assessment of threshold injury Replacement certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Kumar dated 30 July 2021. 2. The Review Panel certifies that the following injury caused by the motor accident on 8 April 2018 is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017: (a) lumbar spine – annular tear of the L4/5 disc.

STATEMENT OF REASONS

BACKGROUND

The claimant, Ali Al Hashimi, was injured in a motor accident on 8 April 2018 when the vehicle he was driving collided with another vehicle which pulled out from a side street (the motor accident).
NRMA (the insurer) is liable to pay the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. 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[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[2] Section 4.4 of the MAI Act.
There was a dispute as to whether the claimant’s injury caused by the accident is a minor injury for the purposes of the MAI Act which was referred to Medical Assessor Kumar for assessment.
Medical Assessor Kumar issued a certificate dated 30 July 2021 which certified that the following injury caused by the motor accident is a minor injury for the purposes of the MAI Act:
(a) lumbar spine.
The claimant sought a review of the certificate of Medical Assessor Kumar.
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented to on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The certificate of Medical Assessor Kumar was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions of the parties and certificate of Medical Assessor Kumar were written at a time when the term was “minor injury”. We have used this term in these reasons as it was used by the parties or the Medical Assessor. However, the issue in dispute in this matter is whether the injury caused by the accident is a threshold injury for the purposes of the MAI Act.
Pursuant to 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 the Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor,[3] and pursuant to s.7.26 of the MAI Act, on review, by a Review Panel.
[3] Section 7.20 of the MAI Act.

THE MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Kumar assessed the claimant and issued a certificate dated 30 July 2021.
The following injury was referred to Medical Assessor Kumar for assessment:
(a) whether the injury to the lumbar spine caused by the motor accident is a minor injury for the purposes of the MAI Act.
Medical Assessor Kumar reviewed the documents provided to him and clinically examined the claimant and made the following diagnosis:
“Mr Ali Al Hashimi was involved in motor vehicle accident on 8/4/18. However, he did not sustained [sic] any major injury. He was assessed by ambulance officers at the scene and decided to go home. He self-presented later at the ED of Westmead Hospital with lower back pain and right subcostal pain.
In the accident he sustained a lower back injury which is still continuing.
His diagnosis would be:
·soft tissue injury to the lower back.
On clinical examination he does not have any of the signs of radiculopathy as defined
by MAA Guideline, Item 1.94, Chapter 1, Edition 30^th November 2017…”[4]
[4] At par 18.
Medical Assessor Kumar determined that the claimant never had any problems with his lumbar spine in the past and was active in a lot of contact sports and that there is no documented medical evidence of any back injury in the past and that therefore his soft tissue injury is caused by the motor accident.
Medical Assessor Kumar concluded that the soft tissue injury to the claimant’s lumbar spine is a minor injury for the purpose of the MAI Act.

THE APPLICATION FOR REVIEW

On 12 December 2020, pursuant to s 7.26 of the MAI Act, the claimant made an application to refer the medical assessment to a review panel (the Panel) for review.
On 23 November 2021, the President’s Delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment is incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; insurer’s bundle p 1.
Pursuant to s 7.26(5)(A) of the MAI Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
On 6 August 2024, the claimant was examined by Medical Assessor Couch.

STATUTORY PROVISIONS

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the 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.”
Section 1.6 provides that 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 Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 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:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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.”
Clause 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 5.7 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)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.[9]
[9] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10]
[10] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] [2021] NSWSC 13 (Raina) at [65].
In Briggs v IAG Limited trading as NRMA Insurance[12] his Honour Justice Wright stated at [35]:
[12] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

CLARIFICATION OF MEDICAL TERMINOLOGY

In medical assessments and imaging reports, the terms "annular tear" and "annular fissure" are often used interchangeably to describe a separation within the annulus fibrosus of the intervertebral disc. Whilst "annular tear" is commonly associated with an acute or trauma-related injury, "annular fissure" is a more neutral term, acknowledging that such findings may also result from degenerative processes. For the purposes of this review, the terms may be regarded synonymously, with "tear" indicating the traumatic origin suggested by clinical context and accident-related symptoms.

MATERIAL BEFORE THE PANEL

The Panel issued directions dated 28 February 2022 requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
Further, the claimant was directed to include in his bundle the following:
(a) the clinical records of all general practitioners who have treated the claimant during the period of 12 months prior to the accident on 8 April 2018, and
(b) the imagining/film of the X-ray of the claimant’s lumbar spine on 9 April 2018 and the MRI scan of the claimant’s lumbar spine on 28 November 2018.
In response to these directions, the claimant uploaded to the portal at AD2 a bundle of documents indexed and paginated from pages 1 to 98 (CB).
The insurer uploaded to the portal a bundle of documents indexed and paginated from pages 1 to 187 (IB).
The Panel has read and considered the documentation as identified in paragraphs 37 to 40 above in making its findings and determinations.

SUBMISSIONS

Claimant’s submissions dated 22 December 2020[13]

[13] CB p 10.

These submissions were relied upon by the claimant on his application to the Dispute Resolution Service (DRS) seeking a review of the insurer’s determination that the injuries resulting from the motor accident meet the definition of a “minor injury” pursuant to s 1.6 of the MAI Act.
The claimant submits that the contemporaneous evidence of the xray to the lumbar spine conducted on 9 April 2018 identifies that there is transitional lumbosacral segmented alongside mild clockwise rotation of the lumbar spine and that it is evidence that such findings are not consistent with the definition of a minor injury.
It submits that further contemporaneous evidence of an MRI to the lumbar spine on 28 November 2018 identifies that a radial annular tear is evident and concludes that there is a complete sacralisation at L5, and that the motion segment is at L4/5 where the disc is degenerate, and facet joint synovitis is present at this level. The claimant submits that pursuant to s 1.6 of the MAI Act, and annual tear does not constitute a minor injury as it not categorised as a soft tissue injury.
The claimant refers to the certificate of capacity of Dr Ijaz Khan dated 18 May 2020 which notes that the claimant sustained the following injuries as a result of the motor accident:
(a)    mechanical low back pain with bilateral lower limb radicular symptoms;
(b)    L4/5 radial annular disc tear;
(c)    disc material contacts ventral aspect of thecal sac, and
(d)    facet joint synovitis.
The claimant submits that radicular symptoms are the compression, inflammation and/or injury to a spinal root nerve and that pursuant to the provisions of section 1.6 of the MAI Act, the bilateral lower limb radicular symptoms are not a minor injury as it is an injury to nerves.
The claimant submits that for these reasons the insurer has erred in its decision in deeming the claimant’s injuries as minor.

Claimant’s submissions dated 25 August 2021[14]

[14] CB p 37.

These submissions were relied upon by the claimant in support of the application for a review of the assessment of Medical Assessor Kumar.
The claimant submits that the assessment of Medical Assessor Kumar is incorrect in a material respect because the claimant’s injuries should have been determined by him as “non-minor”.
The claimant refers to the definition of “minor injury” under section 1.6(2)(a) of the MAI Act and clause 4(1) of the Motor Accident Injuries Regulation 2017 which notes the following:
“(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
The claimant notes that Medical Assessor Kumar acknowledged that the claimant had no history of pre-existing injuries or problems with his lumbar spine in the past and that therefore he determined that the injury to the lumbar spine was caused by the motor accident on 8 April 2018.
The claimant submits that the clinical records of the claimant’s treating general practitioner, Dr Selim, confirm that the claimant has not reported any other injuries to the lumbar spine prior or subsequent to the motor accident and that these records further evidence that the claimant has not undergone any scans in relation to the lumbar spine but for the scans conducted in relation to the injuries sustained in the motor accident.
The claimant submits that Medical Assessor Kumar’s diagnosis that the claimant sustained a “soft tissue injury of the lower back” which was caused by the motor accident is incorrect.
The claimant emphasises that Medical Assessor Kumar concedes at paragraph 21 of his certificate that an annular tear is not a soft tissue injury and the claimant further submits that an annular tear is not an injury to the spinal nerve root, and that based on this reasoning, an annular tear is a “non-minor” injury for the purposes of the MAI Act.
The claimant refers to the statement by Medical Assessor Kumar that:
“There is no clinical evidence of acute traumatic tear and is not in keeping with a chronic degenerative tear.”
The claimant submits that Medical Assessor Kumar has erred in this finding, noting that the MRI to the lumbar spine dated 28 November 2018 identifies the presence of an annular tear.
The claimant submits that Medical Assessor Kumar failed to acknowledge the presence of the annular tear in the MRI scan and thus erred in determining the claimant’s injuries are “minor”. The claimant submits that if Medical Assessor Kumar had noted the presence of the annular tear, he would have deemed the claimant’s injuries as “non-minor”.
The claimant submits that in the absence of any prior scans or evidence that suggested the annular tear was received prior to the motor accident, it can be conclusively established that the annular tear was caused by the motor accident.
The claimant submits that because Medical Assessor Kumar determined that the injury to the lumbar spine was caused by the accident, the presence of the tear is not in keeping with that of a chronic degenerative tear and has been solely caused by the accident.
The claimant submits that should Medical Assessor Kumar have acknowledged the presence of the annular tear, the claimant’s injury to the lumbar spine would have been deemed as “non-minor”, thus materially altering the outcome of the assessment and the matter should be referred to a Review Panel for further consideration of these issues.

Insurer’s submissions dated 22 February 2021[15]

[15] IB p 10.

These submissions were relied upon by the insurer in reply to the claimant’s application to the DRS.
The insurer refers to the three provisions which define what constitutes a minor injury under the MAI Act – s 1.6 of the MAI Act, clause 4(1) of the Motor Accident Injuries Regulation 2017 and clause 5.2, 5.5, 5.7, 5.8 and 5.9 of the Guidelines.
The insurer emphasises that clause 5.9 of the Guidelines states that where the injury does not meet the criterion for radiculopathy, the injury will be assessed as a minor injury.
The insurer refers to the following evidence from the medical records in relation to the treatment of the claimant after the accident:
(a)    the ambulance report which states that two patients were refusing assessment following the motor accident, that airbags were deployed in both vehicles, that the patients were ambulant on the scene and that there was no transportation to hospital;
(b)    the claimant’s attendance at Westmead Hospital Emergency Department on 8 April 2018;
(c)    the claimant’s report that he declined an offer to attend the Emergency Department at the scene, subsequently developed right chest wall pain and lumbar back pain and self-presented to the Emergency Department;
(d)    the claimant’s report that there was no head strike or neck pain, nil nausea or vomiting, no limb weakness or paraesthesia and no palpitations or abdominal pain;
(e)    the X-ray of the lumbosacral spine on 9 April 2018 which showed transitional lumbosacral segment and mild clockwise rotation of the lumbar spine;
(f)    the certificate of capacity of Dr Ijaz Khan dated 18 May 2020 in which he diagnosed mechanical low back pain with bilateral lower limb radicular symptoms, L4/5 radial annular disc tear, disc material contacts ventral aspect of the thecal sac and facet joint synovitis;
(g)    the Allied Health Recovery Request dated 18 May 2020 in which the physiotherapist, Jason Madz, diagnosed L5 disc prolapse with bilateral neural symptoms down the legs;
(h)    the Certificate of Capacity dated 12 October 2020 in which Dr Khan mirrored the diagnosis in his prior certificate;
(i)    the MRI scan of the lumbar spine on 28 November 2018 which showed complete sacralisation at L5, the motion segment is at L4/5 where the disc is degenerating and that facet joint synovitis is present at this level, and
(j)    the Allied Health Recovery Request dated 9 December 2020 from the exercise physiologist, Jeremy Lai.
The insurer submits that the injuries sustained in the motor accident fall within the definition of a minor injury pursuant to s 1.6(2) of the MAI Act, clause 4 of the Motor Accidents Injuries Regulation 2017 and the Guidelines.
The insurer submits that there is no evidence that the claimant sustained an injury to any nerves or that there is a complete or partial rupture of tendons, ligaments, menisci or cartilage. Furthermore, the insurer submits that clause 5.5 of the Guidelines states that the diagnosis of minor injury should be performed based on clinical assessment. It submits that there is no evidence from the treating general practitioner or hospital from clinical examination that satisfied a diagnosis of injury to a spinal nerve root and that clause 5.7 of the Guidelines states that an assessment of whether there is radiculopathy is essential.
The insurer submits that the claimant’s injuries do not satisfy the criteria of radiculopathy pursuant to clause 5.8 of the Guidelines and that the claimant’s medical evidence does not show that there are two or more clinical signs found on examination that would satisfy that the injuries are non-minor.
The insurer notes that the MRI of the lumbar spine documents the evidence of an annular tear at L4/5 level. The insurer further notes degenerative changes such as a loss of disc hydration specifically at L4/5 level.
The insurer submits that given the lack of evidence of adjacent trauma findings, and the absence of neurological signs or radiculopathy that has arisen from this vertebra level, the annular tear is not related to the motor accident.

Insurer’s DRS submissions dated 17 September 2021[16]

[16] IB p 101.

The insurer disagrees that there is a material error in Medical Assessor Kumar’s Certificate.
The insurer notes the claimant’s submission that annular tears are non-minor injuries as noted by Medical Assessor Kumar and the claimant’s submission that in the absence of previous imaging, the imaging findings must be due to the subject accident as the imaging findings are not in keeping with degenerative findings and thus the claimant sustained non-minor injuries to the lumbar spine.
The insurer refers to Medical Assessor Kumar’s reasoning that there was no radiculopathy and that “there is no clinical evidence of acute traumatic tear and is not in keeping with a chronic degenerative tear”.
The insurer submits that the word “not” in the above quote from Medical Assessor Kumar is an obvious error and inconsistent with the rest of his certificate and the finding of minor injury and that once that obvious error is corrected it is clear that Medical Assessor Kumar determined that the imaging findings were incidental findings which could not and were not caused by the motor accident.
The insurer submits that Medical Assessor Kumar having reviewed the imaging was satisfied that the findings were not of an acute traumatic nature but rather were in keeping with chronic degenerative findings and that therefore the tear was not caused by the motor accident, and has discharged his obligation to provide reasons for his determination that the imaging findings did not relate to the accident.
The insurer submits that a difference in opinion regarding causation of the findings on imaging is not grounds to suspect that there may be material error with the certificate and that therefore the claimant has not provided sufficient reasons to the Proper Officer to have reasonable cause to suspect that the Medical Assessor’s certificate is incorrect in a material respect.
In the event that the matter is referred to a Review Panel, the insurer submits that the “radial annular tear” noted on imaging is an incidental finding which, on the balance of probabilities, was more likely than not to be pre-existing, and which may have been rendered symptomatic by the motor accident. It also submits that anatomically, the intervertebral disc is not cartilage and thus a fissure in this region caused by the motor accident would not evidence a non-minor injury as defined under the statue.
The insurer refers to the medical literature which evidences that disc bulging and any suspected tears of the fibrous tissue do not necessarily evidence tears to the cartilaginous endplate and that this would be equivalent of muscular hematoma being referred to as a musculoskeletal tear and therefore not a minor injury.[17]
[17] IB p 102 at [15] and [16].
At paragraphs 17 to 20, the insurer refers to the medical literature which it submits evidences that disc degeneration commencement occurs from early on in life and is later compounded with minor traumatic or repetitive occupational events and that such imaging findings, including complete sacralisation, disc hydration and radial annular tears are highly unlikely to represent any new structural change, and that most new changes, such as disc signal, facet osteoarthritis, and endplate signal changes represent progressive age–related changes not associated with acute events.
The insurer notes the degenerative changes in the lumbar spine including an annular fissure, but submits that, based upon the literature it has referred to, noting the extensive degenerative findings including disc desiccation and complete sacralisation and the absence of traumatic changes, it is more likely than not that these findings are incidental rather than a finding caused by the motor accident. The insurer further submits that it is possible, as found by Medical Assessor Kumar, that the pre-existing degenerative findings have been rendered symptomatic which is a minor injury as defined by the statute.

RE-EXAMINATION

The Panel having reviewed the application and documents relied upon by the parties formed the view that a re-examination of the claimant was not required and that this application may be determined solely based upon the written application. However, the Panel issued a direction on 9 July 2024 requiring the parties to advise by 15 July 2024 as to whether they request that the claimant be re-examined before the application is determined. In response to that direction, the insurer advised that it does not object to the matter proceeding on the papers without a re-examination. The claimant, however, requested a re-examination on the basis that it would be beneficial for the Panel to consider the claimant’s most current complaints and restrictions. The Panel then determined that in order to facilitate the just, quick and cost-effective resolution of the real issues in this review the claimant should be re-examined.
The claimant was re-examined by Medical Assessor Couch on 6 August 2024 at the Commission’s rooms. The examination report is as follows:
“Mr Al Hashimi attended alone and was examined over a period of 75 minutes. He said that he had driven from the family home in Chester Hill. Medical Assessor Couch started by clarifying that Mr Al Hashimi understood the purpose of the re-examination and the review panel process.
Pre-accident medical history and relevant personal details
Mr Al Hashimi said that he grew up with his family in Western Sydney. His parents had emigrated to Australia from Iraq in the late 1990’s. He is the third of five children. He is currently living with his mother and three siblings. His older sister has left home and is married with two children, and lives nearby.
He said that he did fairly well at school at Birrong Boys High School and completed Year 12 and his HSC. At the time of the motor accident in April 2018, he was in the first year of study towards a Diploma in Construction Management at The College, Nirimba Campus, University of Western Sydney in Quakers Hill. He explained that he had always been “a hands-on person” and had previously had some work experience with a builder, an electrician and other trades. His older brother is an electrician and has his own business.
Mr Al Hashimi also said that he has many uncles and other relatives who own various barber shops all over Sydney. His father had died when he was only 11 or 12 years old. He said that he had first started helping in barber shops whilst at primary school, and later used to do paid work as a barber on weekends. He said that he had already purchased his first car when he got his Provisional P1 driver’s licence.
Mr Al Hashimi clearly described good health and a high level of physical fitness with no physical restrictions prior to the motor accident. He said that he had been very physically active when at school and soon after leaving school. He described playing social soccer about five times a week. He went to a gym and swimming pool complex in Kingsgrove, where several other relatives attended, four or five times per week. He commented that “I never sat down!” He denied any previous low back injuries or low back symptoms.
History of the motor accident
Mr Al Hashimi confirmed the mechanism of the accident described on page three of Medical Assessor Kumar’s certificate dated 30 July 2021. He was alone, driving a VW Golf (he thought it was a 2011 or 2012 model) and wearing a seatbelt. He was driving along a main road on the way home – he thought this was in a 50 km/hr zone. Another car suddenly pulled out from a side road on his left, having apparently ignored a stop sign. Mr Al Hashimi recalled swerving to the right but then having to swerve back again to avoid a car travelling in the opposite direction. He hit the offending car on the driver’s side – he thought slightly in front of the driver’s door. He said that both cars were then deflected into other vehicles. His airbags deployed. His car was subsequently towed away and written-off by the insurer.
The incident details in the police report described the motor accident as “MAJOR TRAFFIC CRASH” – “INJURY OR FATAL CRASH” – “TOW AWAY INJURY” and the description of the accident in the police report was consistent with the history given by Mr Al Hashimi on re-examination. The Ambulance Electronic Medical Record included notes that “unable to locate patient” and “2 CAR MVA – 2 PTS REFUSING ASSESSMENT, AIRBAGS DEPLOYED IN BOTH VEHICLES. PTS AMBULANT ON SCENE, GCS 15, NOAD”. However, the police report stated that “Both drivers were treated at the scene by Ambulance officers for minor lacerations and chest pains. Both drivers declined to be conveyed to hospital for further treatment”. The police description is consistent with the history obtained on re-examination from Mr Al Hashimi.
History of symptoms and treatment following the motor accident
Mr Al Hashimi said that he was able to self-extricate from his car. Ambulance, fire brigade and police attended. He recalled being assessed by paramedics who “told me it was a big accident – are you sure you’re OK – you may not feel it at the moment ... go to hospital if you need to later’”. He went back to the family home but about an hour later developed quite bad pain, mostly in the low back. His brother took him to Westmead Hospital Emergency Department.
The Westmead Hospital ED Discharge Summary dated 8 April 2018 (the Discharge Summary) stated:
“Driver restrained, travelling 50 km/hr
T-boned to front passenger side of car, other vehicle travelling ?10/20 km/hr
Airbags deployed. Self-extricated, ambulant at scene
Declined offer of CDA to come to ED
Developed right chest wall pain and lumbar back pain subsequently so self- presented
Able to breathe and cough comfortably
Remembers events
No head strike or neck pain
No nausea or vomiting
No limb weakness or paraesthesia
No palpitations or abdominal pain
Has had ibuprofen with effect while waiting” [18]
[18] CB pages 12 and 13.
The Discharge Summary also noted:
“Head – no bruising or abrasions
Neck – no c-spine tenderness
Chest – tender R costal margin, not point tender
Abdomen – no seatbelt sign, soft, mild tender R flank, no peritonism
Back – no deformity or palpable step, tender L3/4 left paraspinal
Upper limbs – nil injuries
Lower limbs – nil injuries”.[19]
[19] CB p 13.
It appears that the only imaging performed was a chest x-ray – this and blood test results were reported as unremarkable. Mr Al Hashimi was discharged home with simple analgesia for follow up the following day with his general practitioner (GP), and a recommendation to consider physiotherapy referral if his back pain persisted.
Mr Al Hashimi also recalls that one or two days later he returned to Westmead Hospital Emergency Department for a few hours because “my body started shaking and I collapsed”. From his account, it seems that no further specific diagnosis was made, and he was discharged home with painkillers.
Mr Al Hashimi was asked about any radiation of his low back pain. He recalled that later pain had spread to the left lower limb (pointing to the posterolateral left thigh) – probably a few weeks after the accident. Records have been reviewed from NAS Advanced Medical Centre (NAS) in Auburn from June 2016 until 28 October 2020[20]. The first mention of any low back symptoms was when Mr Al Hashimi attended Dr Virk on the day after the accident, 9 April 2018, complaining of low back pain. The doctor recorded tenderness and restricted range of movement of the back due to pain and Mr Al Hashimi was referred for x-ray of the lumbosacral spine. This was performed on the same date and was reported to show mild clockwise rotation through the lumbar spine, normal vertebral body heights, a transitional lumbosacral segment and intravertebral disc heights maintained. The conclusion in that x-ray report was – “Transitional lumbosacral segment noted. Mild clockwise rotation of the lumbar spine evident. Today’s findings do not explain the sciatica and I would recommend an MRI for full characterisation”[21].
[20] CB p 49.
[21] CB p 17.
Mr Al Hashimi attended Dr Selim at the same practice on the following day (10 April 2018) complaining of pain in the chest wall, left wrist and low back and was given the anti-inflammatory Diclofenac 50 mg twice daily. He again attended Dr Selim on 16 May 2018 (five weeks after the accident) complaining of persistent back pain and inability to bend or stand. He was given Panadeine Forte and referred for MRI of the lumbosacral spine. MRI of the lumbar spine was performed privately (not eligible for Medicare cover if referred by a GP) on 28 November 2018 which reported as follows:
“Clinical history: severe back pain.
Findings: Multiplanar, multisequence acquisitions have been performed
through the lumbar spine. L5 is a transitional body and is completely
sacralised.
No significant central canal stenosis or nerve root compressive lesion is
demonstrated at L1/2, L2/3 or L3/4.
At L4/5 there is loss of disc hydration although the disc height is relatively
well maintained. A radial annular tear is evident. Disc material contacts
the ventral aspect of the thecal sac without significant central canal or
nerve root compromise. Minor facet joint synovitis is noted at this level.
CONCLUSION: There is complete sacralisation of L5. The motion segment is at L5/4 where the disc is degenerate. This does not result neural compression. However, facet joint synovitis is present at this level.
If a trial of conservative therapy fails, consideration may be given to facet joint blocks with local anaesthetic and corticosteroid as a diagnostic and potentially therapeutic procedure.” [emphasis added][22].
[22] CB p 19.
Subsequent attendances at NAS during 2018 confirm persistent and at times severe low back pain. On 28 March 2019, Dr Selim mentioned possible specialist referral if symptoms persisted.
Mr Al Hashimi was asked more about his treatment since the accident. He said that he had mostly continued to attend his GP, Dr Selim. It seemed that he had probably not been referred to any medical specialists for assessment or for treatment of his back condition. He also mentioned that he preferred to avoid doctors and did not like taking medications.
He described having a considerable amount of physiotherapy initially – at times up to twice per week. He described very good temporary relief from modalities (possibly Transcutaneous electrical nerve stimulation (TENS)/interferential) while at the physiotherapist, but with recurrent pain soon afterwards. He also said that he had himself paid to attend a chiropractor one to two years earlier, with limited benefit. On questioning he denied any injections to the lumbar spine. He thought that surgery might possibly have been mentioned. He said that he did not want surgery at his age.
Mr Al Hashimi was asked about previous analgesics he had tried, and said that Panadeine Forte did not help much. He had tried Tramadol but ceased this because of side effects including nausea. (Mr Al Hashimi said that he had previously taken some Endone after an unrelated hand operation). He said that now he only takes occasional paracetamol if his back is worse – particularly if it stops him sleeping.
Current Status
Mr Al Hashimi said that he did not think his back symptoms were improving, but to some extent he was learning to live with it. He was asked to stand up and point to the painful area – he pointed to the lumbosacral area - slightly more to the left side. He described radiation to the left buttock and posterolateral thigh. He said that at the time of this interview, pain was not radiating below the left knee, although at times pain had gone down to the calf and almost reached the foot. He was not apparently describing any radiation as far as the toes. He was asked about coughing or sneezing and said that this aggravates low back pain but apparently not lower limb symptoms. (At this stage of the interview, having stood up to point to the painful areas, Mr Al Hashimi remained standing for some time for relief of low back pain).
Mr Al Hashimi said that his back is never completely pain-free. Pain is typically aggravated by prolonged postures including sitting and standing, with some relief from walking around. He said that if he is working in a barber shop cutting hair, any slight forward leaning posture is painful. He explained that he normally elevates the customer’s chair as high as possible, but this does not always obviate all bending.
Mr Al Hashimi was asked about heavy lifting. He said that he generally avoids this but if he does lift anything heavier than usual his back is painful. He spontaneously commented that sudden reflex movements, for example bending down to pick up something that he has dropped, are very painful. Jolting, for example going over a speed bump too fast in a car or missing a step whilst walking, is very painful. (He commented that speed bumps are worse if he is the passenger rather than the car driver – when driving he is ready for the bump and braces himself).
He described some relief from lying down in bed, but he is never completely pain-free. He often puts a pillow between his legs or under his knees if lying on his back.
Mr Al Hashimi was asked to rate his back pain on the Visual Analogue Scale (VAS) of 0 to 10. Medical Assessor Couch confirmed that he understood this. He thought the average pain level was around 5 to 6/10, although he said that it sometimes “actually hits 10” – for example if he is sitting still for too long.
Current activities
As noted above, Mr Al Hashimi said that he was not able to spend sufficient time working as a barber to make his shop viable. He had not continued with work on his construction management diploma since the injury but said that it might be possible for him to resume this later. He lives with his mother (who apparently receives an invalid/disability pension), two brothers and a younger sister.
Mr Al Hashimi was asked specifically about current exercise, particularly noting his history of very regular exercise prior to the accident. He said that he does currently have a gym membership but has only attended on very few occasions. He said that he tried using light weights, but this aggravated his back pain. He also tried using a treadmill or an exercise bike and found these painful. He said that having swum regularly before, he realised that swimming might help him but described feeling demotivated and “lazy”.
He was asked if he felt depressed and said that he probably was but that he was a very private person in relation to his feelings and had not discussed this with anyone. He went on to say that he felt bad seeing his contemporaries working hard, saving money and getting ahead, while he was achieving little. He was asked if he walks for exercise and said that walking does help his back pain to some extent, but only described walking a few hundred metres at a time.
Physical examination
Mr Al Hashimi presented as a pleasant, cooperative young man. He had a friendly manner and good rapport was established. He seemed to be quite intelligent. He gave a clear history, with no suggestion of an exaggeration or dramatisation of symptoms. During the physical examination he showed good effort, with no abnormal pain behaviours or evidence of self-limitation or inconsistency.
He had short hair and a neat beard. He was wearing a singlet, T-shirt, tracksuit pants and underwear, sneakers and socks. He undressed to his boxer shorts for examination of the lumbar spine and lower limbs. He was able to sit on a standard office chair during a fairly prolonged interview, but was noted to remain standing for some time, apparently for relief of low back pain, once he had stood up to point to the painful areas. Height was 170 cm and weight 72 kg. He said that he had put on some weight since the accident. He was able to get in and out of a chair and on and off the examination couch normally and could lie prone and then roll over to supine for examination.
Cervical spine
The posture of the head and neck was normal. Two pale 20 mm long scars were noted on the back of his head – he said that he had been extremely active as a child and attributed these to lacerations. He reported slight tenderness over the cervicothoracic junction in the midline and over the trapezius muscles but there was no muscle guarding or spasm. Active cervical spine flexion and extension were both full. Lateral flexion was two-thirds of normal bilaterally. Rotation was full to the right and slightly diminished (three-quarters normal range) to the left.
Lumbosacral spine
With Mr Al Hashimi standing posture was normal. His abdomen was slightly protuberant – consistent with putting on some body fat through physical inactivity since the accident. On palpation while lying prone, he reported slight tenderness over the distal lumbar spine, in the midline and to the left. There was very slight tenderness over the left sacroiliac joint (SIJ).
Spinal rotation (which mainly occurs in the thoracic spine) was tested with Mr Al Hashimi seated to stabilise the pelvis – rotation was full bilaterally, although he complained of some low back pain at the limit of left rotation. He did not describe any thoracic back pain.
The lumbar paraspinal muscles were carefully palpated while Mr Al Hashimi moved his bodyweight slowly from one foot to the other – the muscles on the weight-bearing side relaxed normally, indicating no spasm.
Active range of movement (AROM) of the lumbosacral spine was carefully measured with Mr Al Hashimi standing with knees straight: flexion was about half of normal – he could reach fingertips just below the knees with quite limited movement of the lumbar spine – a considerable amount of the movement was at the hips rather than in the spine. He reported increased low back pain on flexion. Lumbar extension was almost full but also accompanied by some reported pain. Lateral flexion was full and pain-free to the right, and two-thirds of normal with some discomfort to the left.
Consistent with his straightforward presentation, Mr Al Hashimi did not describe any back pain on light axial compression of the spine or simulated rotation of the spine. Patrick’s (Faber) test did not produce any SIJ pain, but he did describe slight groin pain bilaterally.
Upper extremities
Hands were clean and very soft with no callouses – consistent with his description of little recent physical activity. Grip strength was normal bilaterally. Both upper arms measured 30 cm in circumference, the right forearm 26.5 cm and the left 25.5 cm (consistent with his right-hand dominance). Biceps, triceps and brachioradialis reflexes were normal and symmetrical.
Lower extremities
10 cm proximal to the patella the right thigh measured 46 cm and the left 45.5 cm. Both calves measured equally at 35.5 cm (he is right footed). Knee jerks and ankle jerks were normal and symmetrical. Power of all muscle groups in both lower limbs was normal and symmetrical, including extensor hallucis longus (L5 nerve root) and ankle eversion (S1 nerve root). Effort was somewhat intermittent when testing the left side, but with encouragement full power was elicited. Light touch sensation was preserved in both lower limbs.
Straight-leg-raising tested supine was at the lower limit of normal at 50 degrees on the right, with some pulling in the hamstrings only. It was slightly less on the left at 40 degrees, with some lower limb pain reproduced by sciatic stretching (with passive ankle dorsiflexion) suggesting a degree of positive neural tension on the left.
A few functional activities were observed: Mr Al Hashimi could walk normally in bare feet, first with weight on his forefeet and heels off the floor, and then with weight on his heels and forefeet off the floor. He could squat almost fully to the floor and recover without using hand support, describing slight low back pain and also slight knee pain. Medical Assessor Couch demonstrated a squat/walk to him (duck walk). Mr Al Hashimi was able to do this, but rather slowly and cautiously, complaining of some low back pain – he did not do this as easily as would be expected in a healthy young man.
Conclusions following re-examination
Mr Al-Hashimi is a now 24-year-old man who was involved in a moderately severe “T-bone” crash at the age of 18. Prior to that he convincingly describes being very fit, physically active, and with no back or other symptoms. The mechanism of the crash as described had the potential for causing significant injury.
Although he initially declined transport to hospital, within a few hours he noted low back pain, and was taken by his brother to Westmead Hospital where low back pain and tenderness over the lumbar spine (particularly on the left side) was documented. Soon afterwards he consulted his usual GP and there were repeated attendances after this.
Because of persistent pain, his GP arranged MRI scan of the lumbosacral spine, which was performed some months after the accident (this was performed as a private examination – presumably Mr Al Hashimi had to pay for this himself). A radial annular tear and some loss of disc hydration was noted at L4/5, although with relatively well-maintained disc height. (The preservation of disc height suggests that the disc condition was relatively recent).
He now gives a convincing history of persistent mechanical low back pain with some left lower limb radicular symptoms. He convincingly describes his back condition as having had a major effect on his lifestyle, including inability to work properly as a barber or continue his previous full exercise regimen.
Physical examination showed a straightforward presentation. In the lumbar spine there was localised tenderness, worse on the left side, dysmetria, marked restriction of lumbar flexion, and positive left-sided neural tension, although there were insufficient abnormal signs to formally diagnose radiculopathy. The clinical picture was entirely consistent with an acute disc injury sustained in the subject accident, resulting in a degree of nerve root irritation on the left. (The Panel notes that, apart from the initial investigations in the year after the accident, he appears to have had no further investigations or specific treatment).”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen.[23]
[23] [2022] NSW CA 31 [11], [21] and [64].
The Panel adopts the reasoning in Lynch v AAI Ltd[24] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[24] [2022] NSW PICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Couch in its reasons and adds the following further reasons.

Diagnosis

The Panel diagnoses that the injury to the claimant’s lumbar spine is an annular tear to the L4/5 disc.

Threshold injury

The insurer submits that:
“…. Furthermore, the insurer submits anatomically, the intervertebral disc is not cartilage and thus a fissure in this region caused by the subject accident would not evidence a non-minor injury as defined under statute.”[25]
[25] IB p 102 at [14].
In the opinion of the Panel, this submission by the insurer is incorrect. The annulus fibrosus, where the annular tear occurred, is composed of fibrocartilage—a type of tissue that includes both collagen fibres (which have ligament-like properties) and cartilaginous material. This fibrocartilaginous structure is unique to the intervertebral disc and differs from typical ligament or cartilage tissues found elsewhere in the body. An annular tear is thus a tear in this fibrocartilage and falls outside the definition of a soft tissue injury as defined by s 1.6(2) of the MAI Act. Consequently, the annular tear at the L4/5 disc is not a threshold injury.
Whilst the presence of objective signs of radiculopathy related to this would also categorise this as a non-threshold injury (irrespective of the radiology), it is already clear from the definitive combination of documented clinical and radiological findings that this is not a threshold injury.

Causation

The Panel has read and considered the insurer’s submissions, and in particular its submissions in relation to the significance of the radial annular tear of the claimant’s L4/5 disc shown on the MRI scan dated 28 November 2018, and the extensive supporting medical literature included in the insurer’s documents and referred to by the insurer. It should be emphasised that both Medical Assessors on the Panel, prior to reading this material, were well aware that disc abnormalities seen on imaging, including disc annular fissures or “tears”, are quite common findings in the general population and that they often do not represent an injury or correlate with clinical symptoms. The Panel is also aware of the need to avoid the “post hoc ergo propter hoc" logical fallacy.
The Panel is also well aware of the medical literature referred to by the insurer which confirms the high incidence of imaging abnormalities such as bulges, protrusions, herniations and disc osteophyte complex, which may sometimes be used somewhat loosely and interchangeably, and which should not automatically be assumed to have a traumatic causation.[26]
[26] IB p 102 at [17].
The insurer submits that based upon this medical literature and the extensive degenerative findings on imaging of the lumbosacral spine, including disc desiccation and complete sacralisation, and the absence of traumatic changes, that these findings are incidental and not caused by the motor accident.
Without providing a detailed summary of the voluminous medical literature relied upon by the insurer, the Panel specifically refers to the following.
The Panel notes the systematic review of features of asymptomatic spines highlighting the prevalence of disc bulges, protrusion, fissures, and other features across ages in the medical literature relied upon by the insurer[27] including the reported occurrence of annular fissures seen on MRI scan in asymptomatic patients of various ages and a reported 19% incidence of this at age 20 years. However, Mr Al Hashimi was 18 years old at the time of the accident, and had no previous history of back pain or imaging findings. This age factor, combined with the early onset of symptoms following the accident, strengthens the conclusion that his annular fissure was caused by the motor accident rather than a pre-existing degenerative process.
[27] IB p 102 at [18].
The Panel also notes the review of the medical literature relied upon by the insurer that reports that high intensity zones (HIZs) seen on MRI scan are not synonymous with the presence of an annular fissure.[28]
[28] IB p 174.
Having taken the above into consideration, the Panel emphasises the following:
(a)    Medical Assessor Kumar in his certificate of 30 July 2021 obtained a history of a significant frontal collision in which the claimant’s airbags deployed. The claimant reported early onset of chest and low back pain following the accident, which is supported by the police report.
(b)    Clinical records from the claimant’s usual general practitioner, Dr Selim of NAS, were reviewed from January 2014 until October 2020. Prior to the subject accident there were occasional attendances with unrelated minor complaints, and no mention of any back or other musculoskeletal symptoms. On 9 April 2018 (the day after the accident), Mr Al Hashimi attended Dr Muhammad Virk at the same practice, who recorded the following:
“Review
mva yesterday
another car hit his car
being to hospital
cxr was clear
now now [sic] lower back pain, tender
rom restricted due to pain
lower limbs okay.”[29]
He was given analgesia and an x-ray of the lumbar spine was requested (the Medical Assessors on the Panel note that it would not be usual practice to perform radiology on an 18-year-old complaining of back pain at the first attendance, unless it was sufficiently bad to cause concern).
The next day, 10 April 2018, he attended Dr Selim, again with low back pain and was given Fenac, a non-steroid anti-inflammatory drug (NSAID).
Six weeks after the accident, on 16 May 2018, Dr Selim documented ongoing low back pain with restricted movements and referred him for MRI of the lumbosacral spine. Subsequent attendances during 2018, 2019 and April 2020 continued to mention troublesome low back pain.
(c)    The findings and conclusions in the report of the MRI scan of the lumbosacral spine dated 28 November 2018 are set out at pages 19 and 20 above. They support the diagnosis of an acute L4/5 disc injury.
(d)    The Panel comments that sacralisation of L5 is a quite common anatomical variant, does not per se cause symptoms and is not of concern. The Panel notes that the radiologist clearly reports an annular tear through the disc annulus, sufficient to allow disc material to protrude and contact the thecal sac (the tough membranous sac which encloses the nerves within the lumbosacral spinal canal), although it did not apparently cause nerve root compression. In the opinion of the Panel this feature is consistent with an acute disc injury resulting in mechanical back pain.
(e)    The loss of disc hydration, which in the radiologist’s conclusion is described as “… the disc is degenerate”, found seven months after the accident, is consistent with secondary dehydration caused by the annular tear and loss of disc material (nucleus pulposus). The fact that disc height was relatively well maintained is consistent with this being a fairy recent event. In contrast, where there has been longstanding disc degeneration and loss of disc material, disc height tends to gradually reduce. These radiological findings, together with the timing of the MRI, are consistent with an annular fissure sustained in the motor accident.
(f)    The medical literature and research referred to by the insurer showing an age-specific prevalence of various disc abnormalities on MRI at the age of 20, including 19% prevalence of annular fissure, was in relation to asymptomatic patients. However, in the opinion of the Panel, the clinical and radiological picture in Mr Al Hashimi’s case is clearly of an acute injury, persistent and troublesome low back pain, due to an acute annulus tear of the L4/5 disc. Although Mr Al Hashimi stated that his airbag(s) deployed, his reported and medically-documented chest pain suggests that he was thrown forward quite forcefully against his seatbelt and/or airbag. In the opinion of the Panel, this had the potential for sudden lumbar flexion, causing greatly increased pressure on the L4/5 disc.
(g)    The insurer emphasised the significance of Dr Tej Dugal’s report dated 9 April 2018 on plain X-ray of the lumbar spine which concluded that “Transitional lumbosacral segment noted. Mild clockwise rotation of the lumbar spine evident. Today’s findings do not explain the sciatica and I would recommend an MRI for full characterisation”[30]. The Panel has added the emphasis in bold. The Panel is of the opinion that both the sacralisation of L5 and slight rotation are common anatomical variants and are not relevant to Mr Al Hashimi’s symptoms or the question of causation of the injury to his lumbar spine.
[29] CB p 55.
[30] CB p 17.
On the basis of the clinical presentation, history of onset of symptoms, and MRI findings consistent with a recent annular tear, the Panel concludes that Mr Al Hashimi’s L4/5 injury was caused by the motor accident.

CONCLUSION

For the reasons set out above, the Panel has determined that the following injury caused by the motor accident on 8 April 2018 is not a threshold injury for the purposes of the MAI Act:
(a) lumbar spine – annular tear of the L4/5 disc.
The Panel revokes the certificate of Medical Assessor Kumar dated 30 July 2021. A replacement certificate is attached to the commencement of these Reasons.

Actions

Download as PDF Download as Word Document

Citations

Hashimi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 858

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13

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

[2024] NSWPICMP 858

13 December 2024