Insurance Australia Limited t/as NRMA Insurance v Deering
[2025] NSWPICMP 41
•21 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Deering [2025] NSWPICMP 41 |
CLAIMANT: | Rowdy Deering |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Alan Home |
DATE OF DECISION: | 21 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 8 August 2023; threshold injury dispute; issues narrowed by Review Panel; Review Panel assessment on the papers; pre-existing lumbar spine complaints requiring chiropractic treatment; no relevant radiology before motor accident; whether annulus fissure at L4/5 disc was causally related to motor accident; Held – Medical Assessor Truskett's determination of non-threshold injuries affirmed; the Review Panel certifies that the injury referred for assessment and caused by the accident, namely, the lumbar spine injury, is not a threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Philip Truskett dated |
STATEMENT OF REASONS
INTRODUCTION
Mr Deering (the claimant) was involved in a motor accident on 8 August 2023. He says he was driving his car along a road when a vehicle on his left failed to give way at a stop sign and pulled out in front of him causing a T-bone collision.
Mr Deering sustained whiplash and pain in his lower back. After radiological scans, he says there was an annulus tear at L4-5 with right sided radiculopathy.
Mr Deering made a claim for statutory benefits with NRMA, the third-party insurer of the vehicle that he says caused the motor accident. NRMA accepted the claim for statutory benefits (weekly payments and treatment and care) for up to 52 weeks from the date of the motor accident.
Medical disputes arose about whether Mr Deering’s injuries were threshold or non-threshold injuries and whether requested treatment and care is causally related to the motor accident and reasonable and necessary. The matter was referred to the Personal Injury Commission (Commission) for medical assessment.
On 30 August 2024, Medical Assessor Philip Truskett (the Medical Assessor) issued a certificate of assessment finding Mr Deering’s lumbar spine injury caused by the motor accident and that it was not a threshold injury. The Medical Assessor also found the requested treatment and care to be not causally related to the motor accident and was not reasonable and necessary.
NRMA lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s delegate and this Panel was convened to conduct the review.[1]
[1] Section 7.26(5) of the MAI Act.
RELEVANT STATUTORY PROVISIONS
Threshold injury
Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[2]
[2] The terminology for accidents that occurred before 1 April 2023 was “minor” injury and statutory benefits were only paid for up to 26 weeks.
For physical injuries, a threshold injury is defined as a “soft tissue injury”.[3]
[3] Section 1.6(1) of the MAI Act.
A “soft tissue injury” is defined as:
“An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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.”[4]
[4] Section 1.6(2) of the MAI Act.
A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[5]
[5] Section 4(1) of the Motor Accident Injuries Regulation 2017.
The Motor Accident Guidelines (the Guidelines)[6] defines radiculopathy as:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent Impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the
(c) muscle atrophy and/or decreased limb circumference
(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.[7]
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.”[8]
[6] For motor accidents that occurred from 1 April 2023, the applicable version of the Guidelines is version 9.3.
[7] Clause 5.8 of the Guidelines.
[8] Clause 5.9 of the Guidelines.
Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.
Causation
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes. [9]
[9] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
Clauses 6.6 and 6.7 state:
“6.6 Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following”
1. The alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
Medical Assessor Truskett found that before the motor accident the claimant suffered from no back pain. The motor accident was therefore considered causal of the L4/5-disc rupture.
The Medical Assessor concluded that the L4/5 disc rupture, which eventually led to disc protrusion and compression of the L5 nerve root on the right side, required surgical decompression[10] and was considered not a threshold injury.
[10] Surgical decompression of the L4/5 was performed on 22 December 2023. This is the subject of a separate treatment and care medical dispute before the Commission (matter number M23296/24).
SUBMISSIONS
Claimant’s original application submissions dated 3 July 2024
The claimant submits that as a result of the motor accident on 8 August 2023, the claimant sustained various physical injuries including the following injury to the lumbar spine:
“Lumbar spine – posterior disc bulge at L4/L5 level with annulus tear, small sequestered fragment at the right lateral recess possibly contacting the descending right L5 nerve root, right L5 neurogenic radiculopathy secondary to right L4-L5 acute lumbar disc herniation, aggravation of pre-existing degenerative changes.”
The claimant says he has constant pain in the lumbar spine.
The claimant refers to the following evidence that supports a finding that he sustained a lumbar spine injury as a result of the motor accident of 8 August 2023:
(a) Certificate of Fitness dated 30 November 2023 – “Radiculopathy to right LL… Whiplash injury to neck and lower back” [A8];
(b) MRI of the lumbosacral spine dated 22 November 2023 – “posterior disc bulge at L4/5 with annulus tear… small sequestered fragment at the right lateral recess… contacting the descending right L5 nerve root at the lateral recess” [A4];
(c) report of Dr Randolph Gray dated 28 November 2023 – Diagnosed “Right L5 neurogenic radiculopathy with corroborative evidence… of right L5 nerve root impingement secondary to right L4-5 acute lumbar disc herniation”. On examination, there was “significant nerve root tension signs down [the] right leg” [A7];
(d) Altius Initial Needs report dated 13 December 2024 – claimant reported “right sided lower back pain… lateral sided leg pain from the hip to the ankle… lateral sided pins and needles from the hip to the ankle”. Claimant received cortisone injection but still reported experiencing “pain symptoms in his back, and pain and changes in sensation in his right lower limb” [A11];
(e) Healthmarq Initial Needs report dated 19 December 2023 – claimant suffers from “ongoing pain through the lower back down the right lower limb, reported as shooting pain… aggravated by sitting, standing, walking and general day to day tasks” [A12];
(f) report of Dr Randolph Gray dated 19 December 2023 – claimant suffers from “recurrent pain… down his right leg in the L5 distribution” and that the claimant did not have “a sustained response to the CT-guided perineural injection”. The claimant therefore would be proceeding with the surgical option of a microdiscectomy [A7];
(g) Allied Health Recovery Request dated 7 March 2024 – claimant continues to experience “pain through the lower back down the right lower limb” [A6], and
(h) Certificate of Fitness dated 19 March 2024 – Dr Hossan diagnosed “back pain with radiculopathy to the right LL…” and recommended “EP therapy” [A8].
The claimant submits that there is no evidence of a tear before the motor accident as he has not engaged in any pre-accident scans.
Accordingly, the claimant says the lumbar spine injury was as a result of the motor accident and is not a threshold injury.
Insurer’s original reply submissions dated 18 July 2024
The insurer submits that there is evidence to suggest pre-existing conditions in the claimant’s lumbar spine as follows:
(a) CT lumbar spine report dated 11 August 2023 – demonstrates L5-S1 facet joint arthropathy, with a small disc bulge at L4-5 that is not associated with neural compression [A1];
(b) CT lumbar spine report dated 16 October 2023 – outlines a mild disc bulge, with subtle sclerosis of the right facet joint [A3], and
(c) Certificate of Capacity dated 17 August 2023 – outlines an exacerbation of pain due to prior L4-5 and L5-S1 disc condition [A7].
The insurer acknowledges that the claimant underwent right L4-5 discectomy and lateral recess decompression surgery on 22 December 2023. The MRI finding of a L4-5 annulus tear is also acknowledged.
However, the insurer disputes that the claimant did not suffer from any pre-existing injuries before the motor accident. The insurer argues that based on the available evidence, the lumbar spine condition pre-dated the motor accident and was symptomatic requiring chiropractic treatment. The insurer submits that on the balance of probabilities, causation under cl 6.7 of the Guidelines between the subject accident and the presence of the annular tear is not established.
In addition, the insurer acknowledges that documentation from Dr Randolph Gray and
Dr Hossan indicates that the claimant was diagnosed with right L5 neurogenic radiculopathy. However, the insurer says there is no evidence from the clinical examinations of any medical health practitioner to satisfy the two or more clinical signs of radiculopathy for a diagnosis of radiculopathy to be made in accordance with cl 5.8 of the Guidelines.
The insurer therefore submits that the claimant’s lumbar spine injury as a result of the motor accident is a threshold injury.
Insurer’s review application submissions dated 27 March 2024
The insurer takes issue with the Medical Assessor’s determination that the claimant’s lumbar spine L4/5 disc rupture and annular tear is related to the motor accident and is not a threshold injury.
The insurer refers to the Medical Assessor’s conclusion at paragraph 17 of the Certificate reasons:
“Prior to the motor vehicle accident, he suffered from no neck pain or back pain. The motor vehicle accident of 8 August 2023 is therefore considered causal of the soft tissue injuries, neck and L4/5-disc rupture.”
The insurer submits that the Medical Assessor’s conclusion that the lumbar spine condition was causally related to the motor accident was incorrect and based on incorrect information.
The insurer refers to the Certificate of Capacity / Certificate of Fitness dated 17 August 2023 and 16 October 2023 [A7] which provide the diagnosis of “soft tissue injury neck and back causing severe pain. Exacerbation of pain due to L5/S1 and L4/5 disc”. It also notes pre-existing condition of “previous L5/S1 disc and L4/5.”
The insurer also refers to the clinical notes of Rouse Hill Chiropractic [R2] which noted the claimant’s back pain before the motor accident and required treatment. It is submitted the clinical notes indicate that approximately six months before the motor accident, the claimant reported symptoms in the T5-6, T4-5 and L4-5 areas, with reports of irritation in the lower back.
The insurer therefore asserts that the available information indicates that the claimant had lumbar spine issues before the motor accident, particularly at the L4/5 level.
Claimant’s review reply submissions dated 30 September 2024
The claimant submits that the Medical Assessor did not err in finding that the pathology in the lumbar spine was caused by the motor accident.
Before the motor accident, the claimant says he had a brief history of lower back pain for which he sought treatment from a chiropractor and was provided with an exercise program. There was however, no ongoing lower back symptoms up until the date of the motor accident.
The claimant says he reported to the Medical Assessor the impact of the motor accident was such that his vehicle was later written off. Moreover, the general practitioner’s records indicate lower back pain complaints beginning immediately after the motor accident.
The claimant says the Medical Assessor was correct to conclude, following consideration of the MRI results and the claimant’s history, that the claimant sustained or aggravated a lumbar disc protrusion and ligament ruptures as a result of the motor accident and this constitutes a non-threshold injury.
DOCUMENTATION
The Panel has read all the material provided by the parties in the originating bundles as well as the review application and reply bundles. The relevant material is summarised above in the parties’ submissions. The Panel does not propose to re-summarise the material but matters of relevance will be referred to and discussed in the consideration of the issues below.
THE REVIEW
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[11]
[11] Section 7.26(6) of the MAI Act.
The parties may, however, agree on whether a particular injury is caused by the motor accident and the associated degree of permanent impairment. Where there is agreement, the particular injuries need not be subject of assessment in the review.[12]
[12] Section 7.25 of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[13]
[13] Section 7.26(7) of the MAI Act.
A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[14]
[14] Rule 128 of the Personal Injury Commission Rules 2021.
On 15 October 2024, a Direction was issued requiring the parties to confirm the issues in dispute in the review. The parties duly responded and agreed that the only matter in dispute is whether the claimant’s lumbar spine L4/5 disc rupture and annular tear injury is causally related to the motor accident.
The Panel met by way of teleconference (Microsoft Teams) on 13 January 2025.
As the issue was narrowed to whether pathology shown in radiology is causally related to the motor accident with no issue raised as to the clinical findings of Medical Assessor Truskett, the Panel was of the preliminary view that the Review could be conducted on the papers without a re-examination of the claimant. The parties were advised with submissions invited. The parties responded and made no objections.
CONSIDERATION OF THE ISSUES
The Panel notes the insurer’s submissions that set out consultation entries at Rouse Hill Chiropractic Pty Ltd dated 7 February 2023, six months prior to the accident, outlining symptoms and treatment for the T5/6, T4/5 and L4/5 areas for which range of motion was reduced and irritation of lower back was provided.
The Panel also notes a consultation from the chiropractor, dated 8 August 2023, referring to lower back pain. This was the date of the accident. This consultation was likely to have taken place before the accident as the accident is documented in the claim form to have occurred at 4:10pm.
The Panel notes that CT scan examination of the lumbar spine performed on 11 August 2023 demonstrated a small disc bulge at L4/5 without neural compression and further CT scan on 15 October 2023, also demonstrated a disc bulge at L4/5 with subtle sclerosis of the right facet joint.
The Panel notes the Certificate of Capacity, prepared by Dr Wassif, dated 17 August 2023, outlining soft tissue injuries to the neck and pain causing severe pain and an exacerbation of pain due to prior L4/5 and L5/S1 disc condition.
No pre-accident imaging was presented.
On 22 November 2023, MRI scans demonstrated the posterior disc bulge, with an annulus tear at L4/5.
The Panel confirms the treating neurosurgeon, Dr Gray, on 28 November 2023, diagnosed an acute L4/5 lumbar disc herniation with associated right L5 neurogenic radiculopathy.
The Panel notes that although Dr Gray documented significant nerve tension signs down the right leg, he found no focal myotomal weakness. The other clinical criteria required for a diagnosis of radiculopathy are not set out.
The Panel find that on balance, the motor vehicle accident has aggravated any pre-existing pathology at L4/5.
No previous imaging was provided to determine whether the annulus fissure was a new finding.
However, the panel notes that the annulus fissure occurred at L4/5, in close proximity to the disc protrusion that ultimately caused a right L5 neurogenic pain and necessitating the L4/5 discectomy and lateral recess decompression performed by Dr Gray on 22 December 2023.
The Panel finds that as the claimant’s symptoms correspond clinically with a specific disc protrusion at L4/5, the posterior annulus fissure at L4/5 is consistent with an acute L4/5 disc injury.
The Panel find that the mechanism of the accident could cause a disc injury and that the disc injury was caused or aggravated by the mechanism of the accident.
The Panel is aware that posterior annulus fissures may be an incidental finding due to underlying degeneration, but finds that the increasing back pain following the accident and the development of radicular complaints due to irritation or compression of the L5 root, have been caused or aggravated by the subject motor vehicle accident.
Whilst the Panel acknowledges that the claimant had symptomatic lower back condition requiring chiropractic treatment in December 2021, February 2023 and again on the day of the accident, there is no previous record of radicular complaints. On that basis the Panel is satisfied that the motor vehicle accident has aggravated the pre-existing condition.
The Panel finds that surgical treatment to remove disc material and the related scarring would also constitute non-threshold injuries.
For the above reasons, the Panel was satisfied on the balance of probabilities that the annulus fissure at L4/5 was caused or materially contributed to by the subject motor accident. In the event that the annulus fissure at L4/5 was present before the subject motor accident, for which it is noted that the Panel does not have radiological evidence of, the Panel was satisfied, again on the balance of probabilities, that the subject accident aggravated the pre-existing condition.
Although not disputed by the parties, the Panel was of the view that the annulus fissure at L4/5 causing the claimant back pain is considered a rupture of ligaments or cartilage and is therefore excluded from the definition of soft tissue injury.
CONCLUSION
The Panel concludes that the claimant’s injury caused by the motor accident is not a threshold injury.
The certificate issued by Medical Assessor Truskett dated 30 August 2024 is therefore confirmed.
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