Insurance Australia Limited t/as NRMA Insurance v Aziz

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Aziz [2023] NSWPICMP 268
CLAIMANT:	Nada Aziz
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	15 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of Medical Assessment Certificate and reasons of Medical Assessor (MA) Chan dated 30 April 2021; claimant involved in a motor vehicle accident on 1 September 2018 suffering cervical and lumbar spine injuries and claiming deep vein thrombosis (DVT) of left leg and also incontinence; determination of the Review Panel about whether the claimant had suffered non-threshold injuries; MA determined that the claimant had suffered threshold injuries only; no evidence of radiculopathy on examination and no signs satisfied in clause 5.8 of the Motor Accident Guidelines (version 9.1, effective 1 April 2023); significance of annular tears and annular fissures discussed; claimant had long pre-accident history of spinal complaint; Panel not satisfied that there was an annular tear arising because of the accident and concluded that the claimant had a disc herniation which was a senile bulge; panel did not accept that claim of DVT and incontinence arose from the accident; Held – the claimant had suffered threshold injuries to her cervical spine and her lumbar spine.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Panel revokes the certificate of Medical Assessor Chan dated 30 April 2021 The Panel determines that the following injuries were caused by the motor accident: · Cervical spine - soft tissue injury; · Lumbar spine – soft tissue injury. The Panel determines that the cervical spine injury and the lumbar spine injury are threshold injuries. The Panel determines that the following injuries were not caused by the accident: · left leg – DVT (deep vein thrombosis) (swelling in the legs and not being able to move) · urinary incontinence

STATEMENT OF REASONS

THE ACCIDENT

The Claimant was involved in a motor vehicle accident on 1 September 2018 when, as the driver of a vehicle slowing to stop at a red traffic light in the left lane along Bungarribee Road, Blacktown NSW, the insured car in the lane to the claimant’s right attempted to turn left into a side street and in doing and collided with the right hand side rear of her vehicle.

The injuries

The injuries alleged by the claimant were:
a.    neck – left-sided sciatica
b.    Lower back – left-sided sciatica left leg
c.     left leg – DVT (swelling in the legs and not being able to move) and developed urinary incontinence
d.    psychological – chronic post-traumatic stress disorder, conversion disorder, co-morbid panic disorder, co-morbid persistent depressive disorder.
The following injuries were referred by PIC for assessment by the assessor:
cervical spine – neck – left sided sciatica
lumbar spine – lower back – left sided sciatica
leg – left leg – DVT (swelling in the legs not being able to move and developed urinary incontinence

BACKGROUND

On 22 December 2020 the claimant lodged an application for assessment of whole person impairment (WPI). Subsequently on 21 January 2021 the claimant requested that the application be considered only as an application for assessment of threshold injury. At that time it appears that there was no dispute on foot regarding the whole person impairment of the claimants injuries. The initial dispute before Dispute Resolution Service (DRS) was whether the injuries caused by the accident were minor injuries for the purposes of the Motor Accident Injuries Act (the Act).
The assessor did not consider the psychological injuries.
The assessor determined that the left leg DVT was not caused by the accident.
The assessor did not consider the issue of the claimant’s urinary incontinence.
The assessor found that the following injuries were caused by the accident;
a. cervical spine – soft tissue injury
b. lumbar spine – soft tissue injury
The assessor determined that the injury to the claimant’s cervical spine was a threshold injury.
The assessor determined that the injury to the claimant’s lumbar spine involving a small annular tear in the L4/5 disc caused by the accident was not a threshold injury for the purposes of the Act.
The insurer sought a review of the assessor’s reasons.
On 31 August 2021 the President’s delegate referred the medical assessment of the assessor to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in this application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decisionmaker’ is defined in clause 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 provisions apply. The new review provisions provide at section 7.26(5) of the Motor Accidents Injuries Act (the MAI Act) that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Personal injury commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a medical assessor – see section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts the proceedings and may determine the proceeding solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see section 7.26(6) of the MAI Act.
The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this direction.
The Panel put to the parties that the only matter for determination by it, following an application for review by the insurer, is whether the assessor was in error to determine that the injury to the claimant’s lumbar spine involving a small annular tear in the L4/5 disc was not a threshold injury for the purposes of the Act.
The claimant responded that the determination of the Panel should not be limited to whether or not the injury to the claimants lumbar spine is non-minor. In light of further submissions of the claimant, made on 19 April 2022, the Panel has undertaken its determination going to both the claimant’s cervical spine and lumbar spine.
At the request of the Panel, the parties were asked to provide copies of radiological reports after their initial bundles of documents had been provided to the Panel. Thereafter the claimant produced the following;
(a)   MRI scan of July 2017;
(b)   MRI scan in approximately February 2018;
(c)   MRI scan of 2 September 2018;
(d)   MRI scan of 18 February 2018;
(e)   MRI scan of approximately 30 June 2019; and
(f)    MRI scan of 2 February 2020.
The claimant sought additional time to obtain the following further reports;
(a) MRI scan of 3 February 2014; and
(b) MRI scan of 3 or 5 February 2019.
The insurer also lodged on or around 5 October 2022;
(a)   clinical records Blacktown General Practice as at 22 July 2022
(b)   clinical records Blacktown Family Surgery as at 30 August 2022
(c)    clinical records Walters Road Medical Centre as at 2 September 2022
(d)   clinical records Fitco Health Technologies as at 2 September 2022
(e)   clinical records Blacktown Physioclinic as at 5 September 2022
(f)    clinical records Midwest Heart Clinic as at 9 September 2022
(g)   letter to Schreuders Compensation Lawyers from Hall and Wilcox 4 October 2022

LEGISLATIVE BACKGROUND

Jurisdiction
Threshold injury/non-threshold Injury

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

Threshold injury

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

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4.1 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.”

FOR CONSIDERATION

Does the claimant have cervical radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.8 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 ...
(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.”

The insurers submissions

The insurer has lodged submissions both for the initial threshold injury dispute and with respect to the review application.
The insurer says that the claimant had a chronic history of back pain with MRI scans of the lumbar spine performed in 2014, 2017 and 2018.
The insurer has referred to the GP notes which report “three bulging discs with nerve root compression”.
The insurer has also referred the Panel to the GP notes which contain reference to a reported spontaneous acute flare up with radiation down the left lower limb, three days before the accident.
The insurer points out that the assessor noted that the claimant’s initial complaints following the accident were only in the neck, radiating to the back. The assessor also noted that an MRI scan of the low back was performed at the hospital the day following the accident, on 2 September 2018. The insurer says that the assessor that as sufficient to indicate that there was contemporaneous injury to the low back however the insurer says that this was in the absence of a note of specific pain below the spinal level T10.
The insurer says that the assessor expressed the opinion that as the claimant had pre-accident pain, the accident had causally exacerbated her low back pain.
Regarding the reasons of the assessor, the insurer says that the assessor dealt with the question of threshold injury on pages 12 to 14 of his certificate. The assessor ultimately made the following findings which the insurer says are partially contradictory namely;
a) cervical spine soft tissue injury is a threshold injury
b) lumbar spine soft tissue injury with a small annular tear in the L4/5 disc is not a threshold injury.
The insurer submits that the finding of page 12 that the injury was a soft tissue injury and on page 14 that there was also a tear in the disc and not a threshold injury, conflict.
The insurer has referred to the assessor’s comments on page 13 at paragraph 2 of his certificate with regard to the MRI scan of the lumbar spine taken on September 2018 when he says, “I noted that in this lumbar spine MRI report, there was no evidence of traumatic disc changes such as disc herniation or extrusion, vertebral body oedema or interspinous ligament oedema. The mild disc bulge with a small annular tear in L4/5 disc being degenerative changes in the lumbar spine”.
The insurer submits that with this statement, the assessor appeared troubled by the fact that while in the lumbar spine MRIs of 2 September 2018 and 5 February 2019 an “annular tear”had been reported in the L4/5 disc but that there was an absence of such a finding in three subsequent MRIs. In this regard the insurer relies on the following comment by the assessor, “if there is an annular tear in L4/5 disc, the radiologist who examined the lumbar spine MRI images would have mentioned its presence in the report stated 18.2.19, 30.6.19 and 2.2.20”.
The insurer submits that contrary to the observations of the assessor that the lumbar MRI showed no evidence of traumatic changes, and the fact that “the small annular tear in L4/5 could be a fissure, degenerative changes in the lumbar spine and not related to the trauma at the accident”, he then concluded “as I have not sighted the lumbar spine MRI films/images of any of the lumbar spine MRI which Mrs Aziz had before and after the subject accident and an “annular tear” had been reported in the L4/5 disc in the lumbar spine MRI on the 2.9.18 and on the 5.2.19 giving Mrs Aziz the benefit of a doubt, I deemed the injury to lumbar spine – a small annular tear in L4/5 disc caused by the motor accident is not a threshold injury for the purposes of the ACT (sic)”.
The insurer says that the basing of the assessor’s decision on the fact that he had “not sighted the lumbar spine MRI films/images of any of the lumbar spine MRI which Mrs Aziz had before and after the subject accident” is improper.
The insurer says that the assessor failed to ask for an assessment by a radiologist assessor of the radiological images, when the assessor was so clearly concerned as to inconsistent reporting about this, when he had not seen them himself, and when issue was crucial to the dispute in question was not appropriate.
The assessor failed to address the issues of causation raised by the insurer in its submissions and expert medical evidence.
The insurer relies on the report of Dr Keller and the insurer submits formed the view there was no accident -related impairment to assess.
The insurer also relies on the opinion of Dr Casikar who diagnosed a “soft tissue injury to the back” and “significant emotional problems”, neither of which the insurer submits would be classified as a non-threshold injury.
With respect to the impact of the injury, the insurer refers to the opinion of Dr Casikar and commented that the apparent severity of the accident did” not indicate or is unlikely to have had a major injury”. Similarly, Dr Keller said that” the mechanism of the accident was of low speed being a sideswipe whilst her vehicle was stationary. It is not likely that this would have chance measured significant forces to Ms Aziz’s body and it is not likely that it would have caused any lasting injuries”.
The insurer refers to Westmead Hospital records which confirm a “large number of Emergency Department presentations since 2008 with back pain…”
The insurer refers to an MRI scan of the claimant’s lumbar spine taken in March 2014 which showed “ Right paracentral disc protrusion at the L3/4 levels abuts the exiting right L3 nerve root. There is no evidence of neural impairment. In particular no evidence of left L5 neural impingement. There is partial sacralisation of the L5 vertebra and the left L5 transverse process articulates with the iliac bone, an anatomical variant, this may be the cause of the patient’s symptoms.

The insurer submits that the MRI scan of July 2017 show similar findings to those from 2014.
The insurer submits that the clinical records of Blacktown Family Medical Centre show that the claimant had various physical concerns pre-accident including significant back problems immediately pre-accident.
The insurer has referred to an entry of 29 August 2018, three days before the accident, in clinical notes of the claimant’s GP which says ”acute flareup of chronic back pain radiating down left lower limb area. Was not doing anything potentially aggravating at time pain started. Denies lower limb weakness or paraesthesia. Denies bladder and bowel dysfunction. Has been using simple analgesia with little effect. MRI carried out approximately six months ago demonstrated three bulging discs with nerve root compression…”
The insurer further noted comments that the patient appeared distressed, she had an antalgic gait, and the GP recorded limited range of motion in all planes. A referral to a neurosurgeon was recommended.

The claimant’s submissions

The claimant agrees with the assessors finding that the cervical spine injury was caused by the accident.
The claimant submits that even if the assessor did not err in making a clinical finding for radiculopathy, he ought to have made a clinical finding of a non-verifiable radicular complaint.
The claimant says that while she recognises the PIC Assessment concerned a finding of minor / non-threshold injury, it is submitted that insofar as a clinical finding is met, the injury is not soft tissue injury.
With regard to the cervical spine, the assessor determined that ‘[t]here was no non=verifiable radicular complaint.’ (p. 5). The claimant submits that she did present with a non-verifiable radicular complaint.
The claimant says that the assessor noted that:-
‘[The Claimant] said she had pain in the neck all the time. The neck pain radiated to the head into both shoulders, worse in the left arm and shoulder. In addition she had numbness in the left hand.’ (p. 4). The claimant submits that radiating pain from the neck into the shoulder, and numbness, are both symptomatic of non-verifiable radicular complaints.
The claimant submits that even if the assessor did not locate objective clinical findings of dysfunction of the nerve root, the reported symptoms fell within the scope of non-verifiable radicular complaint.
The claimant further submits that the assessor is incorrect in a material respect because, should the alleged soft-tissue injury to the cervical spine be found to be radiculopathy, it is a non-threshold injury.
While the claimant’s submissions only go to the claimant’s cervical spine injury, the claimant has said in separate correspondence that a complete examination of all areas of complaint should be undertaken and considered.

Medical examination

The claimant was examined by Medical Assessor Stubbs. His report follows.
The Panel adopts the findings of Medical Assessor Stubbs.

The examination

Nada Ahmed Aziz date of birth 1 July 1973.
Date of accident 1 September 2018 at age 45.
Insurers submissions: On 22 December 2020 the claimant lodged DRS application initially for WPI assessment. In January 2001 this was changed to a threshold injury assessment. Ms Aziz had a long history of chronic back pain. There have been MRI studies of the lumbar spine performed in 2014, 2017 and February 2018. The GP notes report a spontaneous flareup of the back pain 3 days before the motor vehicle accident. Assessor Chan had noted that the MRI performed on the original hospital admission after the accident, to September 2018 was sufficient to indicate a contemporary injury of the low back even if not mentioned in the notes.
The assessor found that the following injuries were caused by the accident – cervical spine soft tissue injury, lumbar spine soft tissue injury but not a subsequent deep venous thrombosis. The cervical spine soft tissue injury was a threshold injury but the lumbar spine soft tissue injury – specifically – a small annular tear at the L4/5 disc is not a threshold injury.
Ms Aziz had been asked to take all the relevant imaging to the medical assessment. She did not.
Assessor Chan made his decision – to give the benefit of the doubt to the patient – on the basis of the MRI reports before and after the motor vehicle accident. He had not seen the imaging. The general practitioner Dr Somail had written in the Blacktown Family Medical Practice notes on 11 September that there was nil new pathology detected. No specialist radiological assessment was requested.
Independent medical examinations commissioned by the insurer, Dr Andrew Keller (16 October 2019), occupational physician and Dr Vidyasagar Casikar (2 November 2020), neurosurgeon, and determined that the road traffic accident was not a major factor in her complaints. Dr Keller did not believe that the motor vehicle accident was severe enough to cause significant injury, and no musculoskeletal pathology had been identified and her presentation was inconsistent. Dr Casikar, who had seen photographs of the claimant’s car, also believed that the accident was unlikely to have caused a major injury. There are been escalating symptoms and disabilities since the accident that seemed unrelated to the accident.
Dr Zbigniew Poplawski, orthopaedic surgeon reporting for the claimant wrote: “she has also developed an apparent complete inability to move her left leg, which has no anatomical basis and is not in keeping with the results of the investigations. She is diagnosed as suffering from a conversion disorder, anxiety/pain attacks and a post-traumatic stress disorder”.
Dr Graeme Vickery 16 October 2019, psychiatrist to NRMA wrote that she had a somatoform function neurological symptoms disorder (conversion disorder) with a comorbid major depressive disorder and panic disorder. He was pessimistic that this would improve with treatment.
Treating doctor’s
On 18 February 2019 Dr Sara Al Samail of My Health Medical Centre had referred Ms Aziz to Westmead Hospital Emergency Department based on an MRI and noting that she was already reviewed by Dr McMasters a neurosurgeon with the subsequent diagnosis of conversion disorder.
Dr Samir Benjamin a consultant psychiatrist soon saw her for assessment on 2nd May 2019 and for treatment through until March 2020 with both conversion disorder and a major depressive disorder.
Westmead Rehabilitation Hospital had her under care from 14 October 2019 till 18 November 2019 having previously been admitted to Westmead public hospital from February 2019 till April 2019 with low back pain and left lower limb numbness and weakness with no cause identified.
The significance of annular tears, annular fissures and high intensity zones (HIZ) and the relationship to low back pain, and in particular causation is complex and needs to be explained in depth. The words tear and fissure commonly are interpreted as indicating the cause is a violent event. This interpretation needs to be understood in terms of clause 5.4 of version 9.1 effective from 1 April 2023 Motor Accident Authority Personal Injury Guidelines (MAA PIG). Diagnostic imaging is not considered necessary to assess a threshold injury. Clause 5.5 a diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by the medical practitioner or other suitably qualified person independent from the insurer. Clause 5.6 the assessment of whether an injury caused by the accident is a threshold injury for the purpose of the act should be based on the evidence available and include all relevant findings derived from – (a) a complete comprehensive accurate history including pre-accident history and pre-existing conditions, (b) a review of all of the 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.
A soft tissue injury – an injury to tissues 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 sign over your membranes) but not an injury to nerves or a complete or partial rupture of tendons and ligaments, menisci or cartilage.
Discussion:
The annulus of the intervertebral disc is complex fibrous structure that connects the vertebrae above and below the disc. Histologically it is a ligament like structure. HIZ found on MRI may be taken to infer that this is a partial rupture of ligaments and hence is a non-threshold injury. Thus, the finding of a high intensity zone on MRI is sometimes interpreted as a non-threshold injury, especially if the terms annular tear or annular fissure are included in the radiological report. However, this line of reasoning requires expansion and comparison present knowledge of a high intensity zone.
·        An HIZ has a bright signal on T2 weighted MRI images. These are sometimes called annular tears or annular fissures. The 3 terms are often used interchangeably, but HIZ refers only to bright signal seen on the T2-weighted images, it is a radiological finding with no assumptions about causation/pathology. The term annular tear is a histopathological diagnosis made on microscopic examination of tissues recovered at operation or at autopsy. An annular fissure is a finding made only on provocative discography of the intervertebral disc when the injected contrast into the nucleus of the disc penetrates the annulus. The three terms are not interchangeable.
·        Since the features referred to in Ms Aziz’s lumbar spine MRI only concerned the radiological appearance, the Panel will continue to refer to these as HIZ. The distinction is important since the histopathological findings of operative or autopsy specimens are associated with intervertebral disc degeneration not trauma. Histologically these include tendon fibre disruption, mucoid degeneration, delamination of annular bundles and calcification.
·        HIZ were originally described in spinal surgery candidates in whom provocative discography was the proposed preoperative investigation. Provocative discography was known to give unreliable results in predicting surgical outcome and had the possibility of accelerating degenerative changes in the discs tested as well as complications directly associated with the invasive nature of the procedure. HIZ was proposed as a radiological sign that the intervertebral disc was the source of the pathology producing low back pain and so discography would not be necessary. It should be appreciated that though there was a correlation this did not mean there was necessarily causation as the initial reports were in highly selected groups with chronic low back pain.
·        With time HIZ were found in asymptomatic subjects either as part of a control group who did not have low back pain or as part of ongoing population studies of ageing changes in asymptomatic subjects. HIZ were common and part of normal spinal aging and thus unreliable predictors of low back pain.
·        HIZ are common in asymptomatic spines between 30 and 60% depending mostly on the age of the subject.. The distribution of the HIZ is throughout the annulus. Only one in 2 occurs in the posterior annulus.
·        In MRIs performed on average 1.5 days after beginning of low back pain found HIZ in 30% and T2 enhancement in the outer annulus (also regarded as an HIZ phenomenon)) in a further 20%. Granulation tissue, the possible source of the enhanced signal, would not have developed in this timescale; therefore the “tears” are pre-existing.
·        The natural history of HIZ is for the lesion to mostly stay the same in appearance over a short timescale. Less than one in 5 enlarges, one in 5 gets smaller and one in 5 disappears. There is no correlation with changes in size of the HIZ and the presence or absence of symptoms of low back pain.
·        There is a positive correlation between the presence of a HIZ and other features of age-related changes in the intervertebral disc: disc desiccation, intervertebral disc protrusion and bulging, foraminal narrowing, loss of disc height and annular desiccation and marginal osteophytes and general factors such as age, inactivity, and obesity.
·        HIZ are therefore common findings of normal spinal ageing and often pre-date the onset of any episode of low back pain. They have a positive correlation with other features of intervertebral disc degeneration but are not an independent cause of back pain.
·        Unlike other features of spinal ageing high intensity zones do not become more common with increasing age. Rather they have a frequency of approximately one in five spines irrespective of age. They disappear the most highly stressed reasons spine, the lower lumbar and lower cervical spine, but appear at less stressed levels higher in the spine with less advanced degenerative changes. The interpretation is that high-intensity zones are transient feature of early intervertebral disc degeneration and as such are a normal though transitory finding.
·        A HIZ is part of the natural history of disc degeneration but is not an independent source of low back pain.
The Panel supplied PDF files of the literature referenced above, and more, to both parties via the PIC. For ease of consultation, the Panel refers only to the 7 most germane of the references, which together cover the gamut of arguments presented here in relation to causation of annular tears/fissures.
The attached references, which have already been provided to the parties, are applied by the Panel to form a part of this report.
References
Caragee E. 2000 Volvo award winner in clinical studies: lumbar high-intensity zones and discography in subjects without low back pain. Spine 2000; 25:2987-92
Hyodo H. Discogenic pain in acute non-specific low-back pain European spine Journal 2005; 14:573-7
Jason Pui Yin Cheung. The relevance of high-intensity zones in degenerative disc disease. International Orthopaedics 2019; 43 (4): 861-867
Khan I. The lumbar high-intensity zone: 20 years on. Clinical radiology 201 469
Masatoshi Teraguchi. Classification of high-intensity zones of the lumbar spine and their association with other spinal MRI phenotypes: the Wakayama Spine Study. PL OS 1 September 20, 2016, DOI: 10. 1371/journal.pone. 0160111
Masatoshi Teraguchi. The association of high-zones on MRI in low back pain a systematic review. Scoliosis in spinal disorders – open access http s://doi.org/10.1186
Mitra D. Longitudinal study of high-intensity zone on MRI of lumbar intervertebral discs. Clinical radiology 2004; 59:1002-8
Wang H. Correlation between high-intensity zone on MRI and discography in patients with low back pain. Medicine (Baltimore) 2017; 96 (30): e7222 – delete the lot?
History and examination of Nada Aziz conducted by Assessor Stubbs at the PIC rooms. Azara Zachrae Mourtad CPN 045841 was the interpreter. Mrs Aziz travelled to the PIC rooms by Uber in the company of her husband.
Mrs Aziz provided a number of investigations mostly those from Westmead Hospital but including two MRIs of the cervical spine and a MRI the lumbar spine done in March prior to the collision. These were reviewed and the data stick was returned to Mrs Aziz
Mrs Aziz is now 49 years old. She is an Iraqi from Kurdistan who married an Australian resident Irani national in 1996. The couple have three children, the eldest son is 26 and has just completed university degree, he is going on to higher studies, the younger son is 24 and still at university. Their daughter is now 14 and in year nine. Family lived together in a housing commission home which is specially modified as a disability house. They moved into this home about six months after Mrs Aziz was discharged from the rehabilitation unit at Westmead Hospital in late 2019. Mr Aziz has been on a disability support benefit for many years. At the time of the motor vehicle accident Mrs Aziz was receiving a carers benefit for looking after her husband. She had never worked. The daughter who was a passenger was then nine years old. Since the motor vehicle accident both sons receive carers benefits for looking after their parents.
She felt that she was fit and able and did not report any significant prior medical conditions. She did report that she had low back pain in the past and this had been investigated and she understood she had only one area of concern. This seems to have arisen several years ago. She was asked about the general practitioner notes of her having chronic low back pain in 2016 without accident or injury. She cannot remember the details. The GP notes do not go back more than a couple of years before the motor vehicle accident. She is now very distressed as she understands the imaging studies show much more extensive changes in her spine, and the pain she is suffering now is far worse.
The motor vehicle accident occurred when she was driving her daughter in the family car, a RAV4. She was turning at lights and a car ran through the lights and T-boned her car on the driver’s door. Her daughter was in the back. The at fault driver and two passers-by helped her out of the car. The vehicle has subsequently been repaired and is still in use.
She was taken to the Blacktown Hospital and assessed. She was let home within the same 24-hour period. On the following day she developed nausea and vomiting and increased neck shoulder and back pain. She attended Bankstown hospital again and was held for a further 24 hours.
Present situation is that she requires help with all her bathing, showering and toileting. This is provided by her daughter and her husband. She uses either a wheeled walker frame for the very limited movement she makes outside the house or a hopper frame inside the house. She likes to socialise with friends and follow social media but is essentially housebound. She suffers from urinary incontinence and wears absorbent knickers. The disability support house provided by New South Wales Housing Commission is much more satisfactory than her previous house. This has a shower chair, toilet frame and so forth.
The progress since the accident is of increasing difficulty with activities of daily life including progressive weakness on the left side. This reached the stage when she was admitted to Westmead Hospital under the care of Dr Masters a neurosurgeon whom she had previously seen for consultations after the accident. She presented to the accident and emergency department complaining of lower limb paralysis and urinary symptoms (incontinence not retention) she was admitted for investigations and stayed in the hospital for almost 2 months. The discharge diagnosis was of a conversion disorder. This was complicated by the development of a deep venous thrombosis in the left leg about two weeks after discharge. This was treated by Clexane injections then oral anticoagulants as an outpatient. She was referred to the Westmead Rehabilitation Hospital and attended there for a month in late 2019 followed by outpatient physiotherapy.
She is presently taking Lyrica and Endone together with simple analgesics for pain management no further intervention is planned.
Mrs Aziz is157 cm tall and weighed 64 kg. She used a wheelie walker and can get out of a chair with the walker. Mrs Aziz undressed to her underwear to allow examination. In the walker she drags her left leg, and it is noted that she crooks her right leg behind her left ankle to straighten her leg when performing a slump test. She is however able to get on the examination couch with minimum assistance. General inspection shows no obvious wasting of the left arm or leg compared to the right, no skin discolouration, oedema, or other effects one might see with prolonged immobility or dependency.
She does not attempt to tiptoe or heel toe walk. The spinal examination is complicated because she must hold the frame. She moves her neck freely and equally in all directions. There is no spasm or guarding. Lumbar spine movement is more limited because she will not let go of the frame but is noted that she can slump forwards when sitting and there is no referred pain when knee extension is performed when sitting on the side of the couch though it is noted that she crooks her right foot behind the left ankle to extend the knee. Grip strength on the right side is 5/5 in all motor units. On the left side of the upper limb has 4/5 grip strength in all muscle groups. In the lower limb she does not show any active movement in hip and knee flexion or ankle flexion and dorsiflexion. Sensation is normal on the right side, but she reports abnormal burning sensation on the left on the left side, especially the left lower limb but she does appreciate pinprick; this does not follow a dermatomal or peripheral nerve distribution. Reflexes are moderate and symmetrical in upper and lower limb. Tone on the left side is normal. There is no spasticity, no sustained clonus, Babinski sign is normal and there is active resistance to passive straight leg raising. There was no wasting or tenderness about either shoulder girdle. Both arms have a girth of 28 cm in the forearms 24 cm. In the lower limbs girth of the right thigh is 48 cm, 47 cm on the left and the calf are 28 cm on the right and 27 cm on the left. The movement pattern when rising from a wheelie walker shows active motor function in the left lower limb.

Active range of motion is normal on the right-hand side. Passive range of motion is normal in the left upper extremity but there is weakness in all motor groups 4/5. There is full range of movement in the right lower extremity and 5/5 power. There is better than 90° passive hip flexion and knee flexion, and she is quite comfortable lying supine with hip and knee extended. Power in the left lower limb is 0-1/5
Imaging studies:
The following imaging studies from Westmead Hospital were reviewed. Regional bone scan of February 2019 is normal. The pulse Doppler ultrasound March 2019 shows a venous thrombosis. The MRI the lumbar spine of 18 February 2019 shows diminished nuclear signal at L4/5 and L5/S1 with some disc bulging at these levels. Spinal canal is normal in dimensions, the nerve roots sequestrate normally. There is no annular fissure. The intervertebral foramina show on only modest age-related narrowing in the lower lumbar spine, right equals left. The lumbar spine imaging is normal for age.
Other imaging includes an MRI of the lumbar spine of 16 March 2014 (probably Western Imaging Group, no report is available, but the imaging sequences match the 2 September 2018 MRI) which is essentially no different from the MRI of 5 February 2019. The report on the Western Imaging Group reaches the conclusion that there is broad herniation of L4/5 with a right paracentral annular tear in contact with the right L5 nerve root. The Assessors would re-define the broad herniation as simply a senile bulge not a herniation and is a normal finding. The Assessors do not agree that there is an annular tear and note the reported L3/4 herniation is likewise a senile bulge and that contact with the right L3 nerve root is a very common finding in normal spines. The Assessors note that the paralysis is on the left whereas the reported pathology is on the right.
Cervical MRI of 2 September 2018 (probably Western Imaging) and 30 June 2019 (Imaging Department Blacktown Hospital) are the same. This shows some modest loss of signal in the lower cervical spine, good preservation of the intervertebral foramina and some senile bulging. Spinal cord was normal. Findings in short – normal for age.
There is also a whole spine MRI of 18 February 2019 (Westmead) which shows an entirely normal spinal cord.
Conclusion: though the left lower limb shows some minor muscle wasting this is not consistent with paralysis but is plausibly due to changes in gait pattern. Though she reports difficulty in bladder control, this is incontinence not retention. The treating neurosurgeon suggested a conversion disorder not spinal injury. The Assessors agree with this diagnosis. There are no physical findings that suggest any permanent spinal injury or reason for incontinence arising from the accident.

Panel considerations of injury

For Ms Aziz’s cervical spine injury to fall outside the definition of threshold injury in s 1.6, she would need to have two of the five signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
On the day Medical Assessor Stubbs examined the claimant, the Panel’s findings are that the claimant did not and does not have radiculopathy because:
(a)    loss of or asymmetry of reflexes – all the claimants reflexes were present and equal on both sides;
(b)    positive sciatic nerve root tension signs are not relevant in assessments of the cervical spine;
(c)     muscle atrophy and or decreased limb circumference – there was no evidence of this
(d)    muscle weakness – on testing, there was no muscle weakness found by Assessor Stubbs, and
(e)    reproducible sensory loss anatomically localised to an appropriate nerve root distribution – the claimant complained of loss of sensation over the whole of her arm which did not correspond to an appropriate nerve root distribution.

Regarding the claimant’s lumbar spine, this was dealt with by Medical Assessor Stubbs. The claimant has a long pre-accident history of spinal complaint. . The Panel is satisfied that there are no physical findings that suggest any permanent spinal injury. Any injury suffered by the claimant to her lumbar spine is of a soft tissue nature and by definition, a threshold injury.
The Panel reiterates that they do not agree that there is an annular tear and note the reported L3/4 herniation is likewise a senile bulge and that contact with the right L3 nerve root is a very common finding in normal spines. The Panel confirms that the paralysis is on the left whereas the reported pathology is on the right.
Concerning the attributability of the condition of the DVT, the claimant had an ultrasound Doppler of her lower limbs on 6 March 2019. This was undertaken when she was an inpatient at Westmead Hospital. At that time, there was no evidence of DVT in her right or left lower limb. She was discharged home from hospital on 10 April 2019. Subsequently, she underwent a further ultrasound Doppler which showed evidence of DVT in her left leg.
The claimant used a walking stick after the accident from 2 September 2018 to 18 February 2019. She did not develop DVT in her left leg within close proximity after the accident. The DVT in her left leg occurred seven months after the accident possibly on account of her Functional Neurological Disorder which was diagnosed by Dr Lam at Westmead Hospital This reduced her mobility.
The Panel is not satisfied that the complaint of DVT in the claimant’s left leg is attributable to the accident.

Causation
DETERMINATION

The claimant was involved in a motor vehicle accident on 1 September 2018. The Ambulance report record stated that on arrival “patient walking, alert and orientated, holding neck. Patient was involved in a moderate to low speed MVA. Patient was driving and hit on the right hand side A pillar.” Patient complaining of severe central neck pain radiating to lumbar region.”
The Panel has concluded that it would not be unreasonable for the claimant to suffer injury to her cervical and lumbar spines as a direct consequence of this accident. She made immediate complaint about these areas of injury when admitted to hospital. In the particular circumstances of this accident, the Panel is satisfied that the injuries suffered by the claimant to her cervical and lumbar spines are causally related to the accident occurring on 1 September 2018.

The Panel revokes the certificate of Medical Assessor Chan dated 30 April 2021.
The Panel determines that the following injuries were caused by the motor accident:

(a) Cervical spine - soft tissue injury;
(b) Lumbar spine – soft tissue injury.

The Panel determines that the cervical spine injury and the lumbar spine injury are threshold injuries.
The Panel determines that the following injuries were not caused by the accident:

· left leg – DVT (swelling in the legs and not being able to move) and
· urinary incontinence

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Citations

Insurance Australia Limited t/as NRMA Insurance v Aziz [2023] NSWPICMP 268

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[2023] NSWPICMP 268

15 June 2023