Insurance Australia Limited t/as NRMA Insurance v BYA

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v BYA [2025] NSWPICMP 294
CLAIMANT:	BYA
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Tai-Tak Wan
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	29 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; threshold injury dispute; claimant alleged lumbar disc injury at two levels causing herniation and leading to surgery; causation disputed by insurer relying on accident reconstruction and medical experts; no expert evidence from claimant; low speed minimal damage accident; delay in reporting symptoms and accident; Held – claimant did not injure her lumbar spine in the motor accident; MAC revoked; new certificate issued; cases referred to; Kinchela v Insurance Australia Group Limited t/as NRMA Insurance, Briggs v IAG Limited t/as NRMA Insurance, and Insurance Australia v Milton followed in regard to test of causation; AAI Limited v McGiffen applied concerning absence of contemporaneous complaint; Puga v Allianz Australia Insurance Limited applied concerning onus of proof and question for Review Panel.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Assessor Woo dated 23 October 2022. 2. Finds that the claimant did not injure her lumbar spine in the motor accident on 8 January 2021. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

[BYA] was involved in a motor accident on 8 January 2021. She was 19 years old at the time and a backseat passenger in a Toyota Kluger driven by her mother. They were stationary in a car park when a reversing vehicle hit the passenger side of their car.
[BYA] says she injured her lower back in the accident and in April 2021 she made a claim for statutory benefits with NRMA, the third-party insurer of the vehicle that she says caused her accident. [BYA] also says she developed a psychological or psychiatric condition as a result of the accident.
A medical dispute about whether the claimant’s injuries are threshold injuries has arisen in connection with that claim[1]. On 7 October 2021, [BYA] referred that dispute to the Personal Injury Commission (the Commission) for assessment (proceedings numbered 10452583/21). The Commission allocated the dispute to the following medical assessors:
(a) Medical Assessor Hong who, on 6 September 2022 determined the claimant had a non-threshold psychiatric injury, and
(b) Medical Assessor Woo, who determined on 23 October 2022 that the claimant had a non-threshold lumbar spine injury (disc protrusion with radiculopathy).
[1] The terminology at the time was that of a minor or non-minor injury. On 1 April 2023 the terminology changed due to amendments made to the Act and that change in terminology applies to all accidents and claims. For simplicity, the Panel has adopted the new terminology throughout these reasons.
The insurer lodged an application for Review of Medical Assessor Woo’s decision and on

13 December 2022 a delegate of the President of the Commission allowed the Review to proceed. The Panel constituted to conduct that Review recommended the Review proceedings be dismissed due to the non-threshold injury decision of Medical Assessor Hong. The Commission did not dismiss the proceedings, and on 14 November 2023 the original Panel determined the claimant’s lumbar spine injury was not a threshold injury and affirmed Medical Assessor Woo’s certificate. This decision was the subject of judicial review proceedings and on 1 August 2024 the Panel’s decision was set aside, and the matter was remitted by the Court to the Commission for re-determination by a different panel.
In the meantime, on 20 October 2023, the insurer lodged an application for further assessment (proceedings numbered F-M10452583/21-03-1) in respect of the claimant’s psychological or psychiatric injury. The President’s delegate allowed the further assessment to proceed, but no further medical examination has been scheduled in that matter.
The matter then before the current Review Panel is whether the claimant’s physical injuries sustained in the car accident of 8 January 2021 are, or are not, threshold injuries.

LEGISLATIVE FRAMEWORK

Jurisdiction

[BYA]’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI 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 MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident[2] and cannot recover damages.
[2] [BYA]’s accident occurred before 1 April 2023. For accidents after that date statutory benefits are available for 52 weeks.
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[3].
[3] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Assessor Woo’s, further medical assessments and the Review of medical assessments by this Panel[4].
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Woo examined the claimant on 12 October 2022 and issued his certificate on 23 October 2022. He confirms at section [2] of his reasons that he was asked to assess the following injury:
“Lumbar spine – disc protrusion at the L4/5 and L5/S1 levels with left lateral recess stenosis and compression of the left S1 and S2 nerve roots with verifiable radiculopathy.”
The claimant reported a previous motor accident at the age of 13 in 2015. She was a front seat passenger in the family car when it was rear-ended. [BYA] did not go to hospital after that accident, saw her General Practitioner (GP) and did not make a claim.
The claimant gave a consistent history of the current accident noting that police did not attend, her mother drove the damaged car home, and it was later repaired. She told Medical Assessor Woo that “she sat in the back seat because she was feeling more comfortable than sitting in the front passenger seat.”
The claimant reported to Medical Assessor Woo that she had immediate lower back pain “at the impact of the accident” which has persisted and that she also developed right leg pain. She said her back pain was aggravated by standing at work. She said she paid for her own physiotherapy.
The claimant said her GP arranged for an MRI and she saw Dr Singh who recommended a CT guided cortisone injection which she had a which gave her some relief. Dr Singh advised her to have decompression surgery which was performed on 18 June 2021.
Medical Assessor Woo reports at [12] that the claimant complains of ongoing lower back pain at 7/10 compared to the pre-surgery level of 10 out of 10. She still had right leg pain after the surgery as well as left leg numbness involving the calf and the foot. She was having no treatment other than taking Mobic and Nurofen.
Medical Assessor Woo examined the claimant and found decreased sensation in the left lower limb localised to an L5 and S1 distribution and left ankle reflexes were absent.
Medical Assessor Woo noted the claimant did not report back pain on 22 January 2021 but said she had increasing back pain after starting work. [BYA] then attended her GP on 11 February 2021 complaining of back pain. While he noted the delay in the reporting of back pain, he says this is “likely related to her psychological issues including a pre-history of ‘severe social anxiety’.”
He found the lumbar spine injury was a non-minor (now non-threshold injury).

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer’s original submissions in response to the application for medical assessment clearly raise an issue of causation and note:
(a)    the minor nature of the accident (according to their insured driver);
(b)    the claimant’s attendance at the GP on 22 January 2021 when there was no mention of the accident, and
(c)    the record in the GP’s notes of a history of back pain with no history of a definite injury.
In terms of the review, the insurer submitted that the Medical Assessor had considered the “likely” explanation for the delay in reporting symptoms was the claimant’s social anxiety which is a psychological condition. The insurer says at [11] of the submissions:
“… the psychological comorbidities were either a factor or they were not. The Assessor appears to speculate as to the reason for the delay in reporting rather than actually ask the claimant the reason for the delay in the reporting.”
The insurer noted the claimant’s statement which says her delay in reporting was due to her hope that her injuries would improve. The insurer says the Medical Assessor has not explained his reasons and has not responded to the insurer’s arguments about causation.
The insurer then provides submissions on the basis the review was allowed. The arguments are similar to those raised in the original submissions and the insurer says at [23]:
“The Insurer submits the various reports to medical professionals of no definite history of injury on the 11.02.2021, 02.03.2021, 18.03.2021, and 25.03.2021, clinical entries unequivocally support the minor nature of the subject accident, the lack of acute injuries, and overall, the inconsequential nature of the subject accident with respect to the which are of a coincidental nature.”
The insurer says at [25] that the “mechanism of accident could not and did not cause an immediate injury to the claimant.”

Claimant’s submissions

The claimant’s submissions in response to the application for review dated 28 November 2022 argue that the Medical Assessor did explain his reasons for causation and that he accepted that [BYA]’s psychological issues were the reason or a part of the reason for her delay in reporting symptoms.
The claimant’s 3 April 2023 submissions in response to the application for review say that:
(a)    the claimant’s statutory declaration says she had immediate pain;
(b)    three weeks after the accident she started physiotherapy and massage therapy;
(c)    on 11 February after seven sessions of physiotherapy and no improvement she went to her GP and requested a referral for an MRI – she says she mentioned the accident, but he failed to record it;
(d)    the claimant was asymptomatic before the accident;
(e)    the first certificate of capacity dated 15 April 2021 refers to a lower back injury caused by the accident;
(f)
the opinion of her treating doctors should be preferred over the opinion of

Dr McIntosh;
(g)    the claimant relies on medical literature that suggests a delay of two weeks is not unusual for the onset of back pain;
(h)    it was open to Medical Assessor Woo to determine the delay in reporting was due to the claimant’s psychological disorder as her mother was with her and Medical Assessor Woo knew about the disorder, and
(i)    the claimant refers to the clinical notes about her anxiety disorder and says these confirm her “psychological comorbidities were the cause of, or at the very least, a significant factor in the delay in the reporting”.

Procedural matters

On 26 August 2024 the Panel issued directions for bundles from the parties. The Panel noted there had been an original assessment, Review Panel and Supreme Court proceedings and requested a single bundle of all documents to be relied upon.
The insurer’s bundle of 532 pages was relayed to the Panel on 9 September 2024 and the claimant’s bundle of 1,352 pages was provided to the Panel on 23 September 2024.
The Panel met on 30 October 2024 and reported to the parties on 4 November 2024 noting the following:
(a)    the real issue in dispute appeared to be causation and whether the claimant sustained any physical injury in the car accident. The parties were asked to confirm this understanding and advised that if there was agreement, a face-to-face re-examination was not required but that an audio-visual telehealth type re-examination would be appropriate;
(b)    the Panel noted the discrepancy between the claimant’s histories and the physiotherapist’s notes and said:
“the first [physiotherapy] record is dated March and not February 2021 and there are four entries not seven as stated in various histories and submissions. The claimant is to confirm whether there are other physiotherapy records that have not been provided (e.g. records from February 2021). In the absence of a response the Panel will proceed on the basis there are only four.”;
(c)    there was a medico-legal report from a psychiatrist relied on by the claimant but not from a physician or surgeon and the Panel asked the claimant to confirm this;
(d)    there was a biomechanical expert’s report from the insurer but not from the claimant in response and the claimant was asked to confirm this;
(e)    the statement of the insured driver would be considered in respect of the collision, the impact speed and damage done and the Panel would also consider the property damage file, and
(f)    the claimant’s treating doctors have provided an opinion based on the claimant’s history only and confirmation was required.
The parties were advised of the date for the re-examination of the claimant by Medical Assessor Dixon (4 February 2025). The Panel determined the re-examination would be held by audiovisual telehealth as there did not appear to be any need for a physical

re-examination due to the fact the surgery had occurred and in the light of the limited issue about causation.
The parties were invited to provide responses to the matters raised in the report.
The insurer responded, confirming its agreement with the summary of issues and confirmed the insurer had no evidence of any attendance at a physiotherapist until March 2021. The claimant did not respond.
On the morning of 4 February 2025, the Panel was informed that the claimant contacted the Commission (and Medical Assessor Dixon) advising that she was unwell (she was having a panic attack) and would not be participating in the teleconference. The Panel determined a further re-examination would be arranged and the claimant was directed to attend it.
The further re-examination by audiovisual telehealth was scheduled for 25 March 2025 and shortly before it was due to commence the Commission (and Medical Assessor Dixon) were contacted advising that the claimant was unwell (she was having a further panic attack) and would be unable to participate in the re-examination.
The Panel conferred and determined to offer the claimant a telephone-based re-examination on the afternoon of 26 March 2025 and the claimant agreed to be available.
The Panel has received nothing further from the parties and has still not received a response from the claimant to the matters raised in the 4 November 2024 report and directions document. Messages following up a response were sent on 31 January 2025 and again on 21 March 2025.
The Panel is therefore proceeding as follows:
(a)    the claimant has attended on her physiotherapist four times commencing in March 2021 and not seven commencing in February 2021;
(b)    the statement of the insured driver would be considered for limited purposes, and
(c)    the claimant’s doctors have provided opinions based on the claimant’s history only.

REVIEW OF THE EVIDENCE

General observations

The insurer’s bundle comprises over 500 pages and the claimant’s bundle contained more than 1,300 pages. In the claimant’s bundle, more than 800 pages concerned Court documents, the Court book and the previous Review Panel’s documents. These are not greatly relevant to this Panel (which is undertaking a de novo assessment) and there is a great deal of duplication of documents between the two bundles and within each bundle.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[5] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act …Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. … The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[5] [2022] NSWSC 1079.
The Panel has considered all of the documents provided but has included in this review only those documents the Panel considers relevant to the real issues in dispute.

Claim form and claim documents

The application for personal injury benefits was signed and dated as true and correct on

15 April 2021. The claimant provided the following history of the accident:
“I was a passenger in the backset of a car. The car was waiting to go into a carpark spot. The other vehicle reversed into the car I was in, striking it on the left rear side (door and tyre).”
[BYA] described her injuries as:
“lower back
Left leg and foot (shooting pain)
?? left side
Aggravation of pre-existing anxiety disorder.”
The first certificate of fitness was completed by Dr Shanmugan and is dated 15 April 2021. He records “MVA with lower back injury” and he says that the first time the claimant attended the practice was 11 February 2021.
The claimant provided a statutory declaration dated 31 May 2021[6]. In it the claimant says:
“[1] … We were stationary in the carpark … and were waiting to turn into a parking space when suddenly the vehicle at fault reversed into the left-hand side of our vehicle. I felt an immediate onset of pain in my lower back and left leg.
[2] Following the accident, I was not taken to hospital and I did not immediately seek medical treatment as I was hopeful that my pain was immediate and would soon subside. It did not occur to me to lodge a claim for compensation. I thought that my pain would go away within a few days or within a few weeks.”
[6] Page 189 of the claimant’s bundle. This statement was prepared as part of the claimant’s late claim application.
The claimant says however that her pain did not go away and in fact worsened with symptoms of tingling, pins and needles and numbness and she was struggling to walk properly and began dragging her left leg “to alleviate some of the pain”.

She says she commenced working on 29 January 2021 as she had signed a contract of employment before the motor accident.
On 3 February 2021 she says she attended Phsyio360 in Gledswood Hills and started treatment with Ms Pisarev and had “about 7 treatments in total”. The claimant said she had not seen her doctor as she thought her pain would improve with physiotherapy. However, her pain did not improve but got worse. She says the physiotherapist recommended she have an MRI. She says she saw her doctor on 11 February 2021 and obtained a referral for the MRI which she had on 18 March 2021.
The claimant says she was then referred to Dr Singh and she was advised to have an injection which she had.
The claimant said she continued to work between 29 January and 31 March 2021 and had five days of sick leave due to her injuries.
The claimant says after the epidural injection and after giving up work on 31 March 2021, her mother searched for a solicitor and arranged a consultation with the claimant’s current solicitors.
The claimant’s mother provided a statement in support of her daughter’s claim dated

8 February 2024.[7] It is in many respects much the same as the claimant’s and uses identical language and terminology in some parts. She says:
(a)    her daughter has struggled with social anxiety, but her condition was under control and not preventing her from “participating in employment or living life on an unrestricted basis” at the time of the accident;
(b)    the claimant was involved in a motor vehicle accident “which resulted in traumatic physical and psychological injuries”;
(c)    she gives a consistent history of the accident and that her daughter “felt an immediate onset of pain in her lower back and left leg”;
(d)    she says her daughter did not seek medical treatment “as she was hopeful that the pain was immediate and would soon subside” and it did not occur to [BYA] that they should seek immediate medical care, and
(e)    she says over a few weeks her daughter developed pain in her lower back and left leg with tingling, pins and needles and numbness and she struggled to walk properly and was dragging her left leg to alleviate the pain.
[7] Page 871 of the claimant’s bundle
She paints a picture both before and after the accident saying the claimant had arranged to work before the accident, was very family oriented, had a strong group of friends, went on walks and cooked and was very bubby and chatty and confident and that before the accident her daughter’s life was “very fulfilling.”
[BYA] says that “despite the pain”, the claimant commenced working on 29 January 2021 as a Student Learning Support Officer.
[BYA] says the claimant first attended Physio360 in Gledswood Hills on 3 February 2021 and has had seven physiotherapy treatments including massage, dry needling, shockwave therapy and heat and she has been given exercises to do at home.
[BYA] said they did not see a GP “as [[BYA]] thought her pain would subside with physiotherapy” but it did not, it got worse, and the physiotherapist recommended an MRI and so the claimant saw her GP Dr Shanmugan and obtained a referral for an MRI.

Insurer documents

Property damage records have been provided and confirm the insured driver paid an excess of $695.00 and the total cost of repairs was $2,447.28 (inclusive of GST). Of that, $1,225.70 was labour costs to remove and refit parts and paint the car and $85 in labour for “repairs,” There was $39.30 in parts and the remainder was for miscellaneous items including a new $544 “mag wheel”.
The insured driver provided a statement to the insurer’s investigators[8]. She says:
[8] Page165 of the insurer’s bundle.
(a)    she was driving a Toyota Camry which she had for 18 years;
(b)    she was over 80 years of age at the time of the accident;
(c)    she had a license due to expire in 2025;
(d)    she said she went on an errand and came back to her car;
(e)    she says she started the car:
“I very slowly pressed my accelerator, and I hardly moved. I think I must have moved a foot … I was slowly reversing when I felt more than heard a crunch. I looked in the rear-view mirror and there was a big car behind me.”
(f)    she says the back of her car hit the side of the other car. She described the impact at 2 out of 10 and her airbags did not go off;
(g)    she moved back into the car spot and got out of her car;
(h)    this was the first time the insured had an accident, and she exchanged details with [BYA] before she got out of the car;
(i)    she was then shown the damage, “a scratch over the rear wheel and I said “Is that it? That’s a scratch.”, and
(j)    she looked at her own car and there was a little scratch on the driver’s side back bumper which was minor, and she rubbed most of it off and touched it up with some paint she had.
The insured provided a hand-written letter from the insured which says she only spoke to the driver of the car ([BYA]). She did not sign the statement but had made amendments to it and asked the insurer not to contact her again.

Treating medical records and reports

Pre accident records

Notes have been provided by the Edensor Road Family Medical Centre. There is a note on

2 November 2015 of the claimant having been involved in a car accident (front seat passenger) hit from behind while stationary at a roundabout. The claimant had “some tenderness back of neck, both shoulders and lower back, no restriction of movement.”
On 1 December 2016 the claimant was weighed by the practice nurse at 95.7 kgs (and 170 cms tall) which Panel suggests could mean a body mass index (BMI) in the obese category 1 range. The claimant was lethargic, unwell and complaining of headaches on the right side of her head for a few months.
On 12 February 2018, an anxiety assessment was undertaken and a report compiled[9].
[9] Page 1328 of the claimant’s bundle.
Pre-accident records have been provided by Cherished Minds psychology practice[10]. The claimant attended on 1 March 2018 “following a long and complex history of anxiety which has severely affected her ability to engage in various daily tasks.” The claimant was having weekly sessions. The claimant had severe anxiety relating to school and had been unable to attend since term four. She was diagnosed with a social anxiety disorder (social phobia). The claimant completed year 11 and 12 by distance education. The last record is dated

2 July 2018 when it was noted that the claimant had improved but she remained anxious in social settings.
[10] Page 1311 of the claimant’s bundle.
The claimant’s last mental health care plan was developed on 23 April 2019, and she saw the psychologist once, in June 2019.
The claimant last attended Dr Shanmugam before the accident on 4 November 2020 seeking a referral to an ear nose and throat surgeon.

Post accident records

The claimant attended Dr Romeo on 22 January 2021, two weeks after the accident. This was described as a “check-up counselling re health and pathology was requested.” There is no mention of back or leg pain and no mention of any accident recorded at this appointment.
[BYA] next saw a doctor, Dr Shanmugam on 11 February 2021 and the note reads as follows:
“History of lower back pains, no definite h/o injury, wants MRI / CT scan L/S spine.”
There is no history of any accident recorded in the notes and in fact no history of any injury at that time. Diagnostic imaging requests were provided.
Notes have been provided by Physio360 and Rachel Pisarev at that practice has provided four sessions of physiotherapy to the claimant:
(a)    there are no records of any attendance in January or February 2021;
(b)    on 2 March 2021 the notes state:
“ongoing issue which has gotten worse over months. Low back pain and referral into L glute and HS. Standing long time feels back pain and left pain, sitting long time is less painful that its been but still get pins and needles after long time. Walking has been a bit better lately but still getting numbness the left after long time. Getting scan on Saturday”.
(c)    on 9 March 2021 the claimant had felt a bit better but had pins and needles and the numbness had been more intense. The claimant reported not having had the MRI and needed a letter to excuse her from an athletics carnival;
(d)    on 16 March 2021 the past few days were said to have been worse, and her leg was sometimes feeling heavy. While [BYA] had been doing her clam exercises, she “has been slack with her stretching”, and
(e)    on 23 March 2021 the claimant had the MRI which showed protrusions, and she was advised to go back to her GP and seek an opinion from an orthopaedic surgeon.
There is no mention of the car accident in any of the physiotherapist’s records.
On 15 March 2021 the claimant attended Dr Shanmugam for ear syringing and there is no mention of the accident or of back or leg pain recorded.
The MRI of the claimant’s lumbar spine is dated 18 March 2021[11] and is addressed to

Dr Shanmugam. Next to the heading “clinical history” it is noted, “low back pain, recurrent, no definite history of injury.” The comments were that there was:
“Left lateral recess stenosis and compression of the descending S1 and S2 nerve roots at L5/S1 secondary to a disc protrusion. Disc protrusion at L4/5 without significant canal / foraminal compromise.”
[11] Page 220 of the insurer’s bundle.
On 25 March 2021 the claimant attended with a note of “lumbar vertebral disc bulges, ref to spinal surgeon.” Dr Shanmugam referred the claimant to Dr Singh, “for an opinion and management. Patient has multilevel disc bulges with nerve impingement.” There is no mention of the accident in the referral.
Dr Singh wrote back to Dr Shanmugam on 31 March 2021. He confirmed left leg radicular symptoms from L5/S1 disc bulging and a disc bulging at L4/5 and he says, “her symptoms appeared after a car accident in January this year.” He says they did not improve with physiotherapy and needling. He noted “She is not a very good historian on the phone, and on all questioning regarding the weakness of the foot her answers remain equivocal.” Dr Singh recommended a left L5/S1 injection and requested she attend for a clinical examination with a pain diary. In his associated record of the telehealth consultation Dr Singh has a history of the clamant not participating in any regular exercise.
On 15 April 2021, Dr Shanmugam records a history of the car accident on 8 January 2021, that the claimant was a back seat passenger in a car driven by her mother when another vehicle reversed into them. He records no loss of consciousness, no police involved but that an insurance claim was made to NRMA on the same day.
Dr Singh wrote to Dr Shanmugam again on 12 May 2021. He was given a history of no symptoms in the back before the accident and back and leg pain following the accident and “more than likely than not that her conditions is related to the car accident, and that the accident is a direct contributor to her current condition.”
He says that the claimant has bulging discs, bilateral leg pain with sciatica and claudication symptoms. An injection gave her no sustained relief and he recommended decompression surgery. The claimant was said to have:
(a)    weak ankle eversion on both sides;
(b)    decreased sensation to fine touch in an L5 and S1 dermatome on both sides (left worse than right);
(c)    straight leg raise test was positive on both sides (left at 30 degrees worse than right at 40 degrees), and
(d)    depressed ankle reflexes on both sides and negative Babinski reflexes apparently on both sides.
The claimant attended on 27 May 2021. Her height was recorded as 170 and her weight at 102.5kgs which places her BMI in the obese category II.
A lumbar X-ray report from 5 June 2021[12] reports “generalised narrowing of the intervertebral disc spaces in the lumbar spine and lumbosacral junction for a patient of this age group. Degenerative dis space narrowing is most marked at the lumbosacral junction.”
[12] Page 1287 of the claimant’s bundle.
The operation report dated 18 June 2021[13] which includes this detail:
“The L5 lamina was partially removed … the S1 lamina was undercut and the hypertrophied ligamentum flavum was removed. The nerve roots were exposed and the foraminae explored. The disc herniation was removed after a small annulotomy. Three large sequestrated fragmenthoracic spine were removed. The process was repeated at L4-5.”
[13] Page 893 of the claimant’s bundle.
On 25 June 2021 the claimant reported to the practice nurse that her pain score was 3 out of 10 and she was walking and doing exercises, and she reported to Dr Shanmugan that her pain was minimal.
On 23 March 2023[14] the claimant had an MRI of her lumbar spine at the request of Dr Babak. The results were of a mild broad-based disc bulge and small postero-central disc protrusion at L4/5 and L5/S1. There was some mild indentation of the thecal sac at L4/5 and mild contact on the descending left S1 nerve root.
[14] Page 1181 of the claimant’s bundle.
Dr Singh has provided a report dated 11 April 2023[15] confirming a telehealth conference with the claimant. He refers to the previous surgery was for a “large herniated disc at each level following a motor vehicle accident.”
[15] Page 1304 of the claimant’s bundle.
He noted the claimant had recurrent back, hip and leg pain and that there was a loss of disc height and disc bulging at L4/5 and L5/S1. He requested a standing X-ray and further review. There is a request for radiology dated 8 February 2024 and a 20 February 2024 quote for revision L4/5 discectomy.[16]
[16] The claimant’s bundle contains all of Dr Hsu’ records from page 1295.
The 13 February 2024 MRI[17] showed a “large left paracentral disc extrusion that descends to the level of the L5 pedicle causing compression of the left L5 nerve root and contact with the left S1 nerve root.” There was also disc desiccation and a tiny central annular fissure at L3/4 and at L5/S1 disc desiccation and degeneration with a tiny central disc protrusion. An L4/5 epidural injection was performed.
[17] Page 1179 of the claimant’s bundle.
Dr Singh wrote to Dr Shanmugam on 15 February 2024 on 15 February 2024[18] saying the claimant had done quite well after her surgery but that she has recently had a recurrent large disc herniation with severe left sided leg pain. He advised urgent surgery.
[18] Page 965 of the claimant’s bundle.

Medico-legal reports

The insurer relies on a report from Dr McIntosh dated 23 March 2023. He is a collision and biomechanical expert.
He says at 6.1 of this report that, “the nature of the collision was not of sufficient severity to have caused injury to the Claimant’s lumbar spine as alleged.” And he says at 6.2 that the injured allegedly sustained are not consistent with the nature and mechanism of the collision because:
(a)    there was a very low severity side impact, with minimal change in velocity;
(b)    the vehicle may have been rocked or rolled but was not shunted;
(c)    the magnitude of the forces involved would have been very low;
(d)    the claimant was adjacent to the point of impact but there was no intrusion and a person wearing a properly adjusted seatbelt would not impact forcefully with the interior;
(e)    there is no [independent] contemporaneous evidence of any superficial injuries;
(f)    the claimant’s movement within the car would have been minimal;
(g)    the loads involved “would have been comparable to or less that those experienced during vigorous activities as may be expected of healthy adults”, and
(h)    he provides research, literature and testing to support his opinions.
He says at page 28 of his report that the thoracic and lumbar spines are well supported in motor vehicles during low-speed collisions and again he cites the literature and tests which support this.
Dr Teoh, psychiatrist provided a report to the claimant’s solicitors dated 30 March 2023. He takes this history “She recalled that she ‘did not feel anything much’ at the time, and she was not taken by ambulance to hospital.” He has a history of worsening back pain radiating to her left leg. She said she improved after surgery but had a recurrence of her pain. He has a history of the claimant’s mother not working since the accident.
Dr Teoh has a history of the claimant’s pre-accident mental history and her post accident “periodic acute anxiety attacks with breathlessness and dizziness.”
Dr Teoh diagnosed the claimant was a major depressive disorder. He assessed her WPI at 17%. Dr Teoh did not provide an opinion about how the claimant’s disorder interacts with her physical symptoms, for example whether this disorder would explain the claimant’s failure to complain about the accident or her symptoms to her treating health practitioners.
Dr Bentevoglio provided a report to the insurer dated 18 December 2023. He has a consistent history of the accident noting the claimant was a back seat passenger wearing a seatbelt when the other vehicle reversed into the family vehicle. Airbags did not deploy. He says “initially this young lady did not experience any symptoms at all. She was able to get out and walk and the car was able to be driven. She subsequently went home.” She then reported the “slow onset of back pain”, three weeks later along with pain radiating down her left leg.
The report states that the history was read out to the claimant, and she was asked if she had any corrections to make.
The claimant said she had no previous back problems, had some physiotherapy after the accident, saw her GP and had an MRI then surgery. She had a further MRI, further scans in 2023 and was due to see Dr Singh again.
The claimant reported low back pain most of the time even at rest and radiating to her left lower limb to her foot.
In terms of causation, Dr Bentevoglio noted he had a different history to that of Dr Woo namely that there was a three-week delay in the onset of back pain. He also has a history of left leg not right leg symptoms.
He says:
“May I reiterate that noting the minor damage to their vehicle I would not be of the opinion the motor vehicle accident caused this lady’s disc prolapse, particularly noting it was at two levels and not at just one level. The impact had to be minor in nature and she did not complain of symptoms to her local doctor for at least three weeks after the motor vehicle accident and that is in keeping with the history she provided me with.”
He considered the surgery reasonable and necessary but not related to the accident. He did not consider the minor nature of the collision could have caused a two-level disc prolapse.

Other assessments

Medical Assessor Hong examined the claimant on 6 September 2022 and issued his reasons on 9 September 2022. He was asked to assess “anxiety and post-traumatic stress disorder.”
Medical Assessor Hong records the following history:
(a)    the claimant is the eldest of three sisters;
(b)    her father and sister have obsessive compulsive disorder;
(c)    the claimant had childhood surgeries and a sinus operation and was involved in a 2015 car accident which caused an injury;
(d)    [BYA] had a long history of depression and anxiety stemming from kindergarten and resulting in the claimant leaving school in year 11;
(e)    the claimant had counselling, but her last treatment was likely late in 2018 and she did not have medication;
(f)    the car accident involved an elderly woman who reversed into the family car into the side where the claimant was sitting. Emergency services did not attend, the car was driven home and later repaired;
(g)    the claimant felt anxious, saw a physiotherapist in February 2021 and then her GP in March 2021, and
(h)    physically she deteriorated and had surgery and still has pain and numbness.
Medical Assessor Hong records that the claimant’s mental health deteriorated after the accident due to the pain and her inability to do things or walk properly. She has difficulty sleeping and has put on weight.
Medical Assessor Hong found the claimant did not have a post-traumatic disorder as the accident was not severe enough. He found an aggravation of pre-existing generalised anxiety disorder and social anxiety disorder and that although she has improved, she is not back to her pre-accident level. He found these were not minor (now non-threshold) injuries.

RE-EXAMINATION FINDINGS – DR DREW DIXON

On 4 February 2025 the claimant’s mother rang my rooms to advise me that her daughter was having a panic attack and would not be attending the audio-visual re-examination.
On 25 March 2025 less than an hour before the second attempt at a re-examination, my rooms were contacted, and I was advised the claimant was having a panic attack and would be unable to participate in the audio-visual re-examination.
The third attempt at the re-examination was conducted on a telephone call with the claimant on her mobile on 26 March 2025. While not ideal, the history taking was able to proceed.
Care was taken during the course of the call and questioning was deliberately “gentle”. It was my clinical judgment that I should not attempt to put all the inconsistencies in the claimant’s history to [BYA] for the risk of bringing on another panic attack and causing further harm to the claimant.

Pre-accident history

The claimant remembered having a 2015 accident and injuring her neck and back but does not remember having treatment after it. She said she had a previous mental health condition, but that she was functioning well before the current accident.
[BYA] was asked about activities she did before the subject accident, and she said she did her own exercises at home in her home gym.

History of the accident

[BYA] is now 22 years of age. The claimant said she was a rear seat passenger in a Toyota Kluger driven by her mother. She was the only passenger and sat in the back seat as she felt it was “more comfortable” than sitting in the front passenger seat. The claimant could not elaborate further on what she meant by “more comfortable”. The Panel notes this is a similar remark made to Medical Assessor Woo without any further information provided to that Medical Assessor.
[BYA] said they were in a car park, their car was stationary when another vehicle reversed out of a parking space and collided with the passenger’s side of their vehicle. The claimant did not see the vehicle reversing, did not see the impact and could not estimate the speed of the car. The claimant was wearing a seat belt and felt nothing at the time of the accident. She remained in her seat. Her mother got out of the car and exchanged details with the other driver. Police and ambulance did not attend the scene and after finishing their business, her mother drove the Kluger home. The Kluger was subsequently repaired.
When they got home, [BYA] said she got herself out of the car and it was at that time that she became aware of pain in her lower back and for the next few days this back pain persisted. Within a week she says she developed right leg pain. She commenced working as a teacher’s aide on 29 January 2021 but felt her back and right leg pain were being aggravated by standing at work and she had some time off work. She was asked twice, and on both occasions said it was right leg pain that she experienced not left.
She was asked why there was no mention of any back pain on 22 January 2021 when she saw Dr Romeo. She said she was not sure whether she mentioned the back pain to

Dr Romeo at that time.
She said she attended physiotherapy at Gledswood Hills which she arranged and paid for herself starting on 3 February 2021. She was adamant that was when the physiotherapy started.
She was asked why there was no mention of the accident in the physiotherapy notes or in her early attendances on her doctor and she confirmed she did not discuss the motor vehicle accident initially with her physiotherapist or with her GP. She could not explain why. She could not explain why she did not mention the car accident when her GP asked her on

11 February 2021 what could be causing her back pain and she could not explain why, on

18 March 2021, she did not mention the car accident when the radiologist asked her a similar question.
There are no records of any attendances on a physiotherapist in February 2021 put before the Panel. The physiotherapist noted, in her record of 2 March 2021, that the back pain had become more severe over “several months” and on 23 March 2021 after the MRI was obtained suggested she discuss the matter with her doctor and obtain a referral to a specialist.
The history recorded by the physiotherapist was put to [BYA] and she replied as follows:
“I attended a local physiotherapist in February 2021 in Gledswood Hills and during one of the physiotherapy consultations, I told her about the motor vehicle accident. It was my physiotherapist who suggested I have the MRI.”
As the claimant was not physically examined or seen, her height and weight could not be measured.

CONSIDERATION OF THE ISSUES – THE PANEL

What is the test of “causation” of injuries?

Under s 3.11 and s 3.28, an injured person’s entitlement to statutory benefits beyond 52 weeks after the accident is determined by the claimant’s injuries “resulting from” the motor accident being threshold injuries. Under s 4.11, entitlement to non-economic loss damages is determined by the degree of whole person impairment WPI as a result of the injuries “caused by” an accident.
Schedule 2(1)(e) empowers Medical Assessors (and this Panel) to determine disputes about injuries “caused by” the accident for the purposes of determining whether that injury is a threshold injury or not. Schedule 2(1)(a) empowers medical assessors (and this Panel) to determine the degree of permanent impairment resulting from the injury “caused by” the motor accident.
The words “resulting from” are not the same as the “caused by” and while different words have been used in Divisions 3 and 4 of the MAI Act, the same words have been used in the Schedule for the two different disputes.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[19], Justice Walton set aside the decision of a Medical Review Panel in a “minor injury” dispute and a question of causation in respect of an amputated toe. At [40], his Honour said:
“The second defendant [The Panel] failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
[19] [2021] NSWSC 804.
The relevant Guidelines referred to by Justice Walton are the Motor Accident Guidelines, a single volume of nine parts governing all aspects of the motor accident scheme including premium determination, treatment and care, permanent impairment and threshold injury.
Justice Wright in the later decision of Briggs v IAG Limited t/as NRMA Insurance[20] said:
“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[21] injuries.”
[20] [2022] NSWSC 372 at [35].
[21] The terminology in the legislation was at the time Briggs was decided that of “minor” injury. The term since 1 April 2023 is that of “threshold” injury.
In considering a similar issue in a case about entry into the Lifetime Care and Support scheme, Justice Beech-Jones in Insurance Australia v Milton[22] said at [35]:
“Construed in context the phrases “as a result of” and “due to” most likely correspond with the common law concept of causation.”
[22] [2015] NSWSC 1392.
The Panel is not aware of any other cases suggesting a different test to the usual test of causation should be applied.
Therefore, in answering the statutory question about threshold injury, the Panel will consider the Guidelines relevant to WPI and the twofold test of causation contained therein at cl 6.6:
(a) whether the accident could have caused or contributed to the injury, which is a medical judgment, and
(b) whether the accident did in fact cause or contribute to the injury, which is a factual or legal judgment.

The evidence on “causation”

The claimant told Medical Assessor Dixon she did not feel anything at the time of the collision but felt pain in her lower back when she got out of the car after she got home and that right leg pain came on later. The Panel notes:
(a)    the claimant and her mother have provided statutory declarations that state lower back and leg pain commenced immediately after the accident;
(b)    Medical Assessor Woo records a history of immediate lower back pain and the development of leg pain which persisting after the surgery with left leg numbness;
(c)    Dr Bentevoglio records (and he checked this with the claimant before writing it) a history of the claimant feeling nothing at all after the accident and the slow onset of lower back pain, and
(d)    Dr Teoh records the claimant did not feel much at all after the accident before developing worsening left leg pain.
The Panel notes that Medical Assessor Woo took a history from the claimant of her developing right leg pain after the accident in addition to the lower back pain and that this pain has persisted after the surgery along with left leg numbness. The claimant told Dr Dixon she had right leg pain. The Panel notes no other doctors have recorded any right leg symptoms after the accident and before the surgery.
The claimant told Medical Assessor Dixon she first saw her physiotherapist on 3 February 2021. The Panel notes:
(a)    both the claimant and her mother have given this evidence in their statutory declarations with both of them saying she had seven sessions in total;
(b)    the physiotherapist’s notes that have been provided to the Panel start with an entry on 2 March 2021;
(c)    there are no notes from 3 February 2021 (the Panel has requested them) and,
(d)    there are only four sessions recorded and not seven.
The first attendance on a health practitioner after the accident was on 22 January 2021 when the claimant saw Dr Romeo. There is no mention of back or leg pain in the notes and no mention of an accident. The first record of lower back pain (but not leg pain) is on

11 February 2021 when the claimant saw Dr Shanmugam who also records “no definite history of injury.” The radiologist who performed the MRI on 18 March 2021 also recorded “low back pain, recurrent, no definite history of injury”.
The accident was first mentioned to a doctor when the claimant attended Dr Singh on 31 March 2021.

Could the accident have caused the claimant’s injury?

The claimant alleges a lumbar spine injury in particular a disc injury and protrusion at L4/5 and L5/S1.
The insurer has retained an expert in biomechanics, Dr McIntosh who in his report of

23 March 2023 expressed the opinion (supported by tests, research and published data) that “the nature of the collision was not of sufficient severity to have caused injury to the Claimant’s lumbar spine as alleged” and that “the injuries alleged to have been sustained by the Claimant are not consistent with the nature and mechanism of the collision.
The claimant does not rely on an accident reconstruction expert to respond to Dr McIntosh or an expert to provide any alternative tests, research and published data.
The insurer relies on a report from Dr Bentivoglio who on 18 December 2023 after reviewing the documentation and examining the claimant expressed the view “the alleged mechanism of injury is [not] consistent with the nature and severity of the accident.”
The claimant does not rely on a medio-legal expert to respond to Dr Bentivoglio.
While Dr Singh provided an opinion on causation it does not appear he had much information about the mechanism of the accident. The fact that the claimant’s lower back and left leg pain may have commenced after the accident is not determinative of whether it was caused by or resulted from the accident.
The Medical Assessors have considered therefore:
(a)    the unchallenged opinion of Dr McIntosh as to the nature of the accident, the likely forces involved and the likelihood of two vertebral disc injuries leading to two-disc protrusions;
(b)    the report of Dr Bentevoglio, and
(c)    the statement from the insured driver, the damage done to the vehicle and the claimant’s report to Medical Assessor Dixon that she felt nothing immediately after the accident.
It is the clinical judgment of the Medical Assessors that the mechanism of the injury could not have caused two vertebral disc injuries resulting in two-disc herniations.

Did the accident cause or contributed to the claimant’s injury?

If the Medical Assessors’ clinical judgment about the first part of the test of causation is not correct, then the question which would remain to be answered is whether the accident did in fact cause or contribute to the claimant’s lower back injury.
The Panel notes the Court of Appeal decision in AAI Ltd v McGiffen[23] where it was said that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or mis-record histories of accidents” (Davis v Council of the City of Wagga Wagga[24]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[25]).
[23] [2016] NSWCA 229 at [64]-[66].
[24] [2004] NSWCA 34 at [35] (Davis).
[25] [2014] NSWSC 888 (Bugat) at [31]-[32].
The claimant relies on the opinion of her treating orthopaedic surgeon, Dr Singh who, in a report dated 31 March 2021 determined the claimant had lower back symptoms which appeared after a car accident in January and who on 12 May 2021 considered “it was more likely than not that her condition is related to the car accident, and that the accident is a direct contributor to her current condition.” It is not apparent from the records of Dr Singh and his notes and reports that he had a history of the nature of the accident, the impact speed and the likely forces involved. It does not appear he was provided with a copy of the reports of Dr McIntosh and Dr Bentivoglio or the factual material including the statement from the insured driver. The Panel in the report and directions document of 4 November 2024 sought clarification and confirmation of this from [BYA] and invited submissions but no response was received. The Panel indicated it would proceed on the basis that the only history of the accident the claimant’s doctors had was the history from the claimant.
The claimant’s histories about her attending a physiotherapist on 2 February 2021 are not borne out by the documentary evidence from that physiotherapist. The Panel requested in its report after the first preliminary conference, details of any other records, other than the ones we had but received none have been provided. The first attendance on the physiotherapist as documented was 2 March 2021. The Panel is not satisfied on the information before us that the claimant saw a physiotherapist before this date.
The first report then of lower back pain to a health practitioner was on 10 February 2021, one month after the accident.
The Panel would expect, if the accident was severe enough to cause acute tears to two of the claimant’s intervertebral discs and the eventual protrusion of disc material that there would be the immediate onset of severe lower back pain warranting immediate medical attention.
The claimant’s explanation that she had back pain which she thought would get better suggests any injury to her lower back in the accident was not significant and did not involve traumatic tears of the two discs and disc protrusions.
The claimant’s commencement of employment within three weeks of the accident is not behaviour consistent with traumatic disc injuries and worsening pain including pain down one of her legs. The claimant’s failure to report worsening pain and pain down the leg to her doctor on 22 January 2021 suggests to the Panel that any pain [BYA] did have at that time was not worsening.
The claimant’s GP’s note on 11 February 2021 that there was no history of injury and the radiologist’s notation of no history of injury on 18 March 2021 is not consistent with immediate pain in the back, which was worsening and developing into the left (or right) leg. If the claimant did sustain pain in her back and left leg on the day of the accident which did not get better but got worse, the Panel would expect that history to have been provided to the claimant’s GP at least and to the radiologist performing the MRI and to have been recorded as it is a significant clinical symptom.
As the recent case of Puga v Allianz Australia Insurance Limited [2024] NSWSC 1235 suggests, it is not a matter for the Panel to determine what else could have caused the claimant’s injury. To do that, risks reversing the onus of proof. The Panel has to ask the question and answer it – did the motor accident on 8 January 2021 cause the claimant’s injury.
The claimant bears the onus of proof in satisfying the Panel that she sustained a two-level disc injury in the accident and the Panel is not satisfied, on the information placed before us, that she did.

CONCLUSION

It is the Panel’s primary decision that the mechanism of this accident and the forces involved in it could not have a caused a two-level disc injury in the claimant’s lumbar spine. The Panel is not therefore satisfied that the accident of 8 January 2021 resulted in any injury to the claimant’s lumbar spine.
As the Panel has come to a different conclusion to Medical Assessor Woo, it follows that his certificate must be revoked, and a fresh certificate issued.

[2025] NSWPICMP 294

29 April 2025