Insurance Australia Limited t/as NRMA Insurance v Hmaydan
[2023] NSWPICMP 337
•18 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Hmaydan [2023] NSWPICMP 337 |
| CLAIMANT: | Abby Hmaydan |
INSURER: | Insurance Australia Ltd t/as NRMA |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 18 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; injury on 20 April 2021 from rear-end collision; threshold injury dispute; claimant re-examined; history of right shoulder, cervical and lumbar spine pain; low back pain noted by GP three days prior to motor accident; motor accident caused cervical spine injury; pre (2018) and post (2021) MRI scans show annular tear developed during this period; motor accident capable of causing annular tear; cervical spine asymptomatic at time of accident; examination of cervical spine showed complaints in C5/6 level and consistent with pain from the neck irritating adjoining nerves consistent with caused by annular tear; observations in Marques v QBE Insurance (Australia) Ltd applied; findings made that motor accident caused annular tear which was an injury to a ligament and cartilage; motor accident caused a soleus muscle tear which was a threshold injury; other injuries held to be threshold injuries; Held – original assessment confirmed. |
| DETERMINATIONS MADE: | Review Panel Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 6 July 2022 finding that the annular tear caused by the motor accident is not a threshold injury. |
REASONS
BACKGROUND
Ms Abby Hmaydan (the claimant) sustained injury in a motor accident on 20 April 2021. The claimant was a front seat passenger driven by a work colleague when the insured driver collided with the rear of the vehicle.[1]
[1] Insurer’s bundle, p 119.
The insurer is liable to pay to Ms Hmaydan any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issue presently in dispute is whether Ms Hmayadan’s physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act.
The medical disputes referred for assessment listed the physical injuries as:
· both hips;
· cervical spine;
· both shoulders;
· lumbar spine, and
· right ankle and calf – soleus muscle tear.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Medical Assessment
The medical dispute was referred to Medical Assessor Truskett who issued a Medical Assessment Certificate dated 6 July 2022 (the medical assessment). Medical Assessor Truskett found that the injuries to the left shoulder and lumbar spine were minor injuries and the annular tear at C5/6 and the right soleus calf muscle tear were not minor injuries.
Amendment to legislation
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The Medical Assessment was issued when the relevant term was minor injury which, because of the amendment, is now described as a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
The assessment by the Medical Assessor and the parties’ submissions were made prior to
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW
The insurer applied for a review of the medical assessment.
The President’s delegate referred the matter to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment of minor injury was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
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 new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.The review provisions provide[4] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[4] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[5]
[5] 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 and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
The Panel issued the following further Direction:
“1. The claimant is to file and serve by close of business 9 May 2023 the following documents:
(a)Physiotherapy records from 1 January 2018 to the date of the motor accident;
(b)Photographs of damage to vehicles in the motor accident.
2. The claimant is to produce actual scans/electronic images of the MRI scans of the cervical spine dated 15 September 2018 and 11 August 2021 to the Commission (attention Principal Member Harris) by close of business, 9 May 2023.”
Photographs of the motor vehicle accident were provided in response to the further Direction.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“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 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[8]
SUBMISSIONS
Claimant’s submissions undated[9]
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] Claimant’s bundle, p 24.
The claimant submitted there was “abundant evidence” that she had sustained a non-minor injury referencing:
· clinical notes confirming the accident and noting injury to the back, neck and right calf;
· referral for CT scans and ultrasound;
· ultrasound showing a soleous muscle belly partial tear which falls outside the definition of minor injury, and
· certificates of capacity.
Claimant’s submissions dated 15 August 2022[10]
[10] Claimant’s bundle, p 4.
These submissions were filed opposing the insurer’s application to review the Medical Assessment.
The claimant submitted that there was no error by the Medical Assessor referencing the reasons in the Medical Assessment.
The claimant submitted that the prior MRI scan only showed mild degenerative changes with no evidence of a tear. There were no prior recorded complaints of neck pain “contemporaneous to the accident”.
The claimant noted the clinical entry three days before the motor accident for prescription medication related to chronic back pain which was assessed as a minor injury.
The claimant noted that the Medical Assessor accepted that the neck pain and annular tear was caused by the motor accident.
The claimant otherwise referenced the Review Panel decision in Marques v QBE Insurance (Australia) Ltd.[11]
Insurer’s submissions dated 2 November 2021[12]
[11] [2022] NSWPICMP 302.
[12] Insurer’s bundle, p 111.
The insurer referred to the attendance on the general practitioner (GP) on 21 April 2021 and the certificate of capacity dated 29 May 2021. Physiotherapy commenced on 28 May 2021.
In July 2021 Dr New recorded a normal neurological examination in both the upper and lower limbs.
Prior medical history included chronic back pain in accordance with the history recorded by Mr Woodhouse (11 December 2020) and referral by the GP (16 July 2021).
The insurer submitted that the claimant had not satisfied two signs of radiculopathy or otherwise anything other than a soft tissue injury.
Insurer’s submissions dated 18 July 2022[13]
[13] Insurer’s bundle, p 7.
These submissions were filed seeking to review the medical assessment.
The insurer submitted that a muscle tear of the right calf was a soft tissue injury as defined in the MAI Act.
The insurer submitted that the Medical Assessor failed to review the MRI scan of the cervical spine dated 15 September 2018 which showed degenerative changes at various levels.
The insurer referred to the clinical entry three days prior to the motor accident when the claimant was prescribed Panadeine Forte. This contradicted the history that the claimant was off medication for approximately four weeks and able to attend the gym.
The insurer submitted that various material contradicted the history of only prior symptoms in the back. That evidence was:
· application for benefits which referred to a pre-existing back and neck condition;
· 26 November 2019 – clinical note of recurrent back pain/ neck pain;
· 15 September 2018 – MRI scan of the cervical spine and subsequent attendance on 3 October 2018, and
· 26 July 2021 report of Dr New referring to history of cervical and lumbar spine pathology.
The insurer submitted that there is an absence of reasons by the Medical Assessor explaining why the annular tear was caused by the motor accident.
The insurer otherwise reiterated its previous submissions that the annular tear was not caused by the motor accident and/or did not constitute a non-minor injury.
Further insurer submissions to Review Panel on annular tears[14]
[14] Insurer’s bundle, p 11.
The insurer submitted that the focal annular tear noted on imaging was an incidental finding which was probably pre-existing. It otherwise submitted that “the intervertebral disc is not cartilage and thus a fissure in this region” and would not constitute a non-minor injury.
The insurer referenced the medical literature[15] included in this bundle that annular tears are more prevalent with the passage of time and was found in 80% of the asymptomatic population, disc height loss in 56%, disc bulges in 60%, disc protrusions in 46%, annular fissures in 23%, and facet degeneration in 32% of the population.[16] The insurer highlights that disc fissures of the annulus of all types are “presenting nearly in all degenerated discs” and “fissures occur in all degenerative discs but are not all visualised”. Notably, the term fissure is preferred over tear “primarily out of concern that the word “tear” could be misconstrued as implying a traumatic aetiology”.
[15] Such as Boden et al, Abnormal magnetic-resonance scans of the cervical spine in asymptomatic subjects, A prospective investigation. JBJS, 72(8), 1178-1184; Coroneous M, Incidence, Evaluation and Classification of lumbar spine MR abnormalities in asymptomatic individuals.
[16] Insurer’s bundle, p 12.
The insurer, after referring to the various literature submitted:[17]
“The insurer notes the degenerative changes in the cervical spine including an annular fissure. However, based on the above literature, noting the extensive degenerative findings including disc desiccation and complete sacralisation and the absence of traumatic changes, the Insurer submits it is more likely than not that these findings are incidental rather than a finding caused by the subject accident. The Insurer submits it is possible, as found by Assessor Kumar, that the pre-existing degenerative findings have been rendered symptomatic which is a minor injury as defined under statute.”
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
[17] Insurer’s bundle, p 13.
A CT scan of the lumbar spine dated 6 December 2016 noted chronic pain with a broad herniation causing mild foraminal stenosis at L4/5.[18]
[18] Insurer’s bundle, p 198.
On 22 August 2018 Dr Needham, physician noted “longstanding neck and lower back pain”.[19]
[19] Insurer’s bundle, p 300.
The MRI scan of the cervical spine dated 16 September 2018 noted mild posterior bulging at multiple levels without canal stenosis or foraminal compromise.[20] The MRI scan of the lumbar spine showed minor spondylotic changes at multiple levels.
[20] Insurer’s bundle, p 302.
On 3 October 2018 Dr Needham noted the recent MRI scans “showed minimal structural abnormality” and recommended continuing physiotherapy treatment.[21]
[21] Insurer’s bundle, p 301.
On 26 November 2019 the GP noted “recurrent back pain/neck pain”.[22]
[22] Insurer’s bundle, p 178.
On 18 February 2020 the GP noted “Neck aces” with no radiation and back pain.[23]
[23] Insurer’s bundle, p 177.
An ultrasound of the right hip in February 2020 showed features of gluteus minimus and medius tendinosis with trochanteric bursitis.[24]
[24] Insurer’s bundle, p 232.
On 15 April 2020 the GP noted that the claimant was receiving constant physiotherapy for back pain and was suffering from a chronic pain syndrome.[25]
[25] Insurer’s bundle, p 176.
In July 2020 the physiotherapist noted excellent progress for the claimant’s chronic lumbar spine pain.[26] This improvement was noted in a further report dated 11 December 2020 which referred to daily Yoga routine and strength exercises undertaken at the gym.[27]
[26] Insurer’s bundle, p 312.
[27] Insurer’s bundle, p 314.
On 17 April 2021 the GP noted complaint of chronic back pain and prescribed Panadeine Forte.[28]
Post- accident medical records
[28] Insurer’s bundle, p 171.
On 21 April 2021 the GP recorded:[29]
[29] Insurer’s bundle, p 168.
“MVA yesterday
Hit from the back
Neck/back pain
Whip lash inj
Tender muscles
Abd tender R pelvic region
Lower back pain
Neurovascular NAD
R calf & achilles pain”
An ultrasound of the right lower leg dated 22 April 2021 showed an intact achilles tendon with a soleus muscle belly tear.[30]
[30] Insurer’s bundle, p 221.
The CT scan of the cervical spine dated 22 April 2021 showed multilevel degeneration most marked at C3/4 and C6/7. The C6/7 disc showed broad based posterior disc osteophyte complex and joint degeneration. No acute cervical spine pathology was demonstrated.[31]
[31] Insurer’s bundle, p 221.
The CT scan of the lumbar spine showed broad based bulge at L4/5 with anterior disc degeneration and no acute lumbar spine pathology identified.[32]
[32] Insurer’s bundle, p 222.
On 28 April 2021 the GP noted pain and stiffness in the neck and back and tenderness in the lower leg.
A certificate of capacity dated 29 May 2021 referred to the motor accident causing a soleus muscle tear and soft tissue injuries to the neck, shoulder and lower back.[33] Back pain was listed as pre-existing factor. Subsequent certificates repeated the diagnosis.[34]
[33] Insurer’s bundle, p 145.
[34] Insurer’s bundle, p 150, p 154.
The claim form dated 4 June 2021 referred to the motor accident causing injury to the back, calf muscle, both shoulders, neck and psychological injury.[35] The claimant stated that she was suffering from a “degenerative back and neck condition” at the time of the motor accident.[36]
[35] Insurer’s bundle, p 119.
[36] Insurer’s bundle, p 120.
An Allied health recovery request dated 7 July 2021[37] diagnosed grade 2 whiplash injury to the cervical spine, bilateral lumbar spine and right gluteal pain, bruising to hip and back causing muscular spasm.
[37] Insurer’s bundle, p 157.
Dr New, orthopaedic surgeon provided a report dated 26 July 2021.[38] The doctor noted past history of cervical and lumbar pathology with pain without radicular symptoms. Present symptoms related to cervical and lumbar pain and right calf. Neurological examination of the upper and lower limbs was normal.
[38] Insurer’s bundle, p 317.
The bone scan dated 4 August 2021 was suggestive nonspecific discogenic changes at C6/7 and L4/5 and active synovitis at C3/4.[39]
[39] Claimant’s bundle, p 217.
The MRI scan of the cervical spine dated 11 August 2021 showed no cord lesion.[40] The radiologist concluded that there was a “C5/6 disc osteophyte complex associated with annular tear” and foraminal stenosis at multiple levels affecting the left C4 and right C5 and C7 nerve roots.
[40] Claimant’s bundle, p 215.
The MRI scan of the lumbar spine showed L4/5 disc bulge abutting the right L4 nerve root and L5/S1 disc dessication not associated with neural compression.[41]
[41] Claimant’s bundle, p 216.
In a further review on 20 August 2021 Dr New noted that Ms Hmaydan had cervical spondylosis from C3 to C7, most marked at C6/7. Neck pain was worse than back pain without any radicular pain.[42]
[42] Insurer’s bundle, p 316.
A further Allied health recovery request dated 24 August 2021 noted grade 2 whiplash injury to the cervical spine with questionable aggravation of C5/6 disc, bilateral lumbar and right gluteal pain and questionable irritation of L4 nerve root due to L3/4 disc bulge and stenosis.[43]
[43] Insurer’s bundle, p 162.
Photographs
Photographs show substantial damage to the boot of the claimant’s vehicle.
Medical literature
The insurer included a number of articles. We provide a brief summary of some of these articles which provided a sufficient basis for the insurer’s submission that findings of abnormality on scans are likely to be degenerative.
What is Intervertebral Disc Degeneration, and What Causes It?[44]
[44] Insurer’s bundle, p 30.
Factors, such as genetics, aging, and impaired metabolite transport, can weaken the disc and make it more vulnerable to damage, but do not necessarily cause degeneration on their own. The authors also note that mechanical loading, such as compression, bending, and torsion, can cause all of the major structural features of disc degeneration, and that injury or wear-and-tear can contribute to the process.
Abnormal Magnetic-Resonance Scans of the Lumbar Spine in Asymptomatic Subjects[45]
[45] Insurer’s bundle, p 41.
The study focused on the prevalence of abnormal findings on magnetic resonance imaging (MRI) of the lumbar spine in asymptomatic individuals. The study found that about 30% of the asymptomatic population had a major abnormality on MRI, and that the incidence of abnormalities on MRI is age dependent. The study also suggests that relying solely on diagnostic tests such as MRI, without clinical information, is dangerous and can lead to inappropriate surgical interventions. The study also discusses the prevalence of bulging and degenerated lumbar intervertebral discs seen on MRI in asymptomatic individuals, and how these findings are part of a normal, or at least common, aging process.
Incidence, Evaluation and Classification of lumbar spine MR abnormalities in asymptomatic individuals[46]
[46] Insurer’s bundle, p 47.
An annular bulge represents broad-based annular laxity due to annular Sharpey fibre loss of lamellation and tearing or fissuring, due to degeneration with associated nuclear desiccation and facet OA changes. A focal protrusion of the annulus with the length of the height exceeding that of the base is more properly termed a 'prolapse' or 'herniation'. The 'prolapse' or 'herniation' represents a full-thickness annular defect with nucleus pulposus herniation into the annulus, sub/intraligamentous or epidural spaces. It is also more commonly due to degeneration but can also have a traumatic aetiology.
Annular Tears and Disc Herniation: Prevalence and Contrast Enhancement on MR Images in the Absence of Low. back pain or sciatica[47]
[47] Insurer’s bundle, p 52.
This study suggests that annular tears in the spine are frequently found in asymptomatic individuals, with a reported prevalence of 40-75% in those between the ages of 50 and 70 years. While tears may not always be symptomatic, they can potentially irritate nerve endings and cause pain. The study suggests that high-signal-intensity zones on T2-weighted MR images are a reliable marker of discogenic pain, with a 86% positive predictive value for painful discography in symptomatic patients. However, the study also found a high prevalence (47%) of hyperintense annular tears on T2-weighted images in their asymptomatic population, suggesting that the relationship between this finding and symptoms is dubious.
The study also found that contrast enhancement in the central part of the annular tear was recognized in 96% of the 28 discovered annular tears, suggesting that this finding is likely to be an incidental finding in symptomatic patients. Enhancement of the annuloligamentous complex was suspected in one (4%) of the 28 cases of discovered annular tears. The study found no correlation between the discovery of annular tears and the history of low back pain or sciatica.
Systematic Literature Review of Imaging Features of Spinal Degeneration in Asymptomatic Populations[48]
[48] Insurer’s bundle, p 59.
Imaging findings of degenerative changes in the spine, such as disc degeneration, disc signal loss, disc height loss, disc protrusion, and facet arthropathy, are generally part of the normal aging process rather than pathologic processes requiring intervention. The text also indicates that degenerative changes observed on imaging, such as CT and MR imaging, are often seen with normal aging and are not necessarily associated with the degree or the presence of low back pain.
Shock Over Disc Degeneration in 10-Year Olds—But Are Disc Abnormalities in This Age Group Surprising?[49]
[49] Insurer’s bundle, p 65.
This article discusses a study conducted in Scotland that found degenerative changes in the lumbar discs of asymptomatic 10-year-old children. The study revealed that 9% of the children had a disc abnormality, and 14 of the children showed one abnormal disc at either the L4/5 or L5/S1 levels.
Lumbar disc nomenclature: version 2.0 Recommendations of the combined task forces of the North American Spine Society, the American Society of Spine Radiology and the American Society of Neuroradiology[50]
[50] Insurer’s bundle, p 68
The authors argue that the term "tear" should be discouraged because it can be misunderstood as indicating injury, whereas "fissure" is a more appropriate term. They define herniation as a localized or focal displacement of disc material beyond the limits of the intervertebral disc space, which may be classified as protrusion or extrusion based on the shape of the displaced material.
The document also discussed various forms of loss of integrity of the annulus, such as radial, transverse, and concentric fissures. It notes that annular fissures are present in nearly all degenerated discs and should be described as such rather than "tears," which could be misconstrued as implying a traumatic aetiology. The classification of "degenerated disc" includes all changes associated with pathologic degenerative processes in the disc and does not differentiate between these changes and those of normal aging.
There are features that assist in differentiating an acute traumatic annular tear from a degenerative tear.
Acute traumatic annular tears are caused by trauma or injury, such as a motor vehicle accident, and typically appear as a full-thickness tear on imaging. In contrast, degenerative annular tears are caused by the aging process and may appear as partial-thickness tears on imaging. Additionally, degenerative tears often occur at multiple levels, whereas acute traumatic tears tend to occur at a single level.
Pattern of tear
Acute tears tend to have a “radial” pattern, with multiple linear fissures radiating from a central point. Degenerative tears, on the other hand, tend to have a more “circular” or “annular” shape.
Shape of tear
The shape of an acute tear is usually sharp, with an abrupt change in the orientation of the annular fibres. In contrast, the shape of a degenerative tear is more rounded, with a gradual change in the orientation of the annular fibres. This information can be found in the article,
Location of tear
A traumatic tear is typically located in the outer third of the annulus, while a degenerative tear is typically located in the inner two-thirds of the annulus. Traumatic tears typically involve larger fragments than degenerative tears.
Other signs of trauma or degeneration
Radiological signs of an acute traumatic tear, such as an annular tear of the C5 disc, include swelling around the affected area, fluid build-up, and changes in the shape and size of the affected area. Degenerative changes, such as disc desiccation, are typically characterized by narrowing of the disc space, loss of disc height, and decreased signal intensity on imaging.
RE-EXAMINATION
Ms Hmaydan was examined by Medical Assessor Assem on 16 June 2023. The examination report is as follows:
“Ms Hmaydan attended as arranged and was unaccompanied to the assessment.
Pre-accident Medical History and Relevant Personal Details:
Ms Hmaydan is a 49-year-old woman who was born in Lebanon. She married and immigrated to Australia with her husband in 1992. After moving to America in 2005 and subsequent divorce, she returned to Australia 3 March 2011 and pursued a career in Human Resources. Currently, she lives with her two younger daughters aged 26 and 24, in a rented townhouse. Her eldest daughter resides with her father.
Work History:
Ms Hmaydan studied Human Resources at TAFE and worked as a safety officer with various companies. At the time of the subject motor vehicle accident, she was employed by RPC Tech, a plastic pipe manufacturer, as a HR and Safety. She did not lose any time off work due to the injuries she sustained in the motor vehicle accident. On 26 April 2022, she commenced full-time work as a safety advisor at Downer/ Confluence Water. Aer duties involve driving a utility vehicle within the Sydney Metropolitan region to inspect wastewater treatment plants.
Pre-existing Conditions:
17 November 2015: Lumbo-Sacral Spine X-ray and Right SI Region Ultrasound were conducted due to chronic tight SI joint pain. The X-ray showed minor scoliosis and early marginal osteophyte formation. No significant abnormality was identified in the ultrasound.
6 December 2016: A CT scan of thoracolumbosacral spine indicated degeneration in the thoracic spine and the L4/5 disc.
22 August 2018: Dr. Geoffrey Needham examined Ms Hmaydan and noted her report of longstanding neck and lower back pain. Past investigations showed mild thoracic degenerative changes and degeneration of the L4/5 disc with associated disc herniation. He referred her for an MRI scan of her cervical and lumbar spine for further investigation, and suggested she continue with physiotherapy treatment and also take one or two Panadeine Forte at night as analgesic treatment together with Mobic on an episodic basis.
15 September 2018: An MRI scan of Ms Hmaydan cervical spine was performed. It showed no central canal stenosis or foraminal compromise at the C4/5 and C5/6 levels.
3 October 2018: Dr. Needham reported on Ms Hmaydan recent cervical and lumbar spine MRI scans which showed minimal structural abnormality.
26 November 2019: Dr. Varatharajan's clinical note reported, “recurrent back pain/neck pain”.
Upon reviewing the above medical history with Ms. Hmaydan, she reported that her previous neck and back complaints had subsided. She had stopped all her medications and had adopted a regimen of running and gym-based exercises, including high-intensity interval training (HIIT) and star jumps in December 2020. This is in line with a report dated 11 December 2020 by Simon Woodhouse (senior physiotherapist), who observed that she made an excellent recovery in the past four months. She is focusing on strengthening exercises at the gym but hasn't yet returned to plyometric exercises. She plans to initiate a progressive jogging program in the upcoming year. However, her general practitioner prescribed Amytriptyline and Panadeine Forte on 17 April 2021 (three days before the mva) to manage persistent lower discomfort. She was surprised by this and responded, ‘that's strange.’
History of Injury:
On 20 April 2021, Ms Hmaydan was a front seat passenger in a Ford Falcon, she was en route to a presentation with her manager and a fellow worker when their vehicle was struck from behind while stationary on the James Ruse Drive exit off the M4 at Granville. The impact resulted in Ms Hmaydan hitting the back of her head against the headrest causing a whiplash injury to her cervical spine and her right lower calf against a bar under the seat. She was limping due to pain in her right calf. The police attended the scene but not the ambulance. Their vehicle was towed away and later written off for insurance purposes. They managed to secure a rental car and drive to the presentation later that morning.
Early Treatment Received Including Investigations:
The day after the accident, Ms Hmaydan visited her local medical officer, Dr. Varatharajan at Living Waters Family Practice. She reported pain in her neck, back, and right calf. Dr. Varatharajan arranged an ultrasound examination and diagnosed a soleus muscle tear and soft tissue injury of the neck, shoulder, and lower back radiating to her hips due to the accident. Ms Hmaydan was treated with NSAIDs and analgesics and referred for physiotherapy.
She states that her neck and back symptoms were worse than what she previously experienced. She reiterated that she was participating in regular high intensity interval training in the gym but now limited to walking on the treadmill.
Subsequent Progress:
She consulted a pain specialist at Blacktown who apparently advised her that there was nothing wrong. She received 16 physiotherapy treatment without any significant benefit. She consulted Dr. Charles New (orthopaedic surgeon), who MRI studies of her cervical and lumbar spines and a technetium bone scan. The MRI results indicated cervical and lumbar spondylosis, more severe at C6/7 and L4/5, respectively. Dr. New recommended conservative treatment focused on pain management.
Ms Hmaydan managed to continue working throughout her treatment. Despite the persisting symptoms, she reported no time off work after the accident. She left her job at RPC Tech on 18 April 2022 due to workload and began working as a safety advisor for Downer on 26 April 2022. She stopped going to the gym and found it difficult to continue her regular yoga routine.
Current Symptoms:
She complains of intermittent neck discomfort and stiffness. The pain sometimes radiates to her shoulders and the dorsal aspect of her left upper arm. There was no discrete injury reported to her shoulders and no associated paraesthesia or weakness.
She states that her back symptoms have improved. She now experiences intermittent discomfort in the left lumbar region that sometimes radiates to her hips. She proceeded to demonstrate that she was now able to touch her foot with her legs extended to tie her shoelaces. Her symptoms are worse after driving for more than 30 minutes. Her treating physiotherapist has provided her with instructions on a strengthening exercise program for her left calf as she continues to experience ‘knotting/cramping sensation’ every morning that limits her activities.
Examination:
Ms Hmaydan appeared well and in no apparent distress. She sat comfortably during the interview. she ambulated with a normal gait. Her height was 155 cm and she weighed 60 kgs.
She was informed at the time of the examination, not to engage in any manoeuvre beyond what she could tolerate, or which may cause harm or injury.
Cervical Spine
There was tenderness on palpating the spinous process of cervical vertebra. Cervical movements were normal apart from a slight restriction on rotation and lateral flexion to the right. Power, tone, and sensation were normal. Biceps, triceps, and supinator jerks were present and equal. There was no wasting of the muscles of the upper limbs. Neural tension signs were negative.
She had a slight second restriction in shoulder motion due to pain arising from cervical spine and upper thoracic region as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
160°
160°
Extension
50°
50°
Adduction
50°
50°
Abduction
170°
170°
Internal Rotation
80°
80°
External Rotation
60°
60°
Lumbar Spine
She had a normal lumbar lordosis. There were no scars of deformities. There was mild tenderness on palpation but no muscle guarding or spasm. In forward flexion she was able to reach her toes. Extension, lateral flexion and rotation were normal.
She did not have any difficulty climbing on or off the examination couch. Active straight leg raising in a supine she was 90° bilaterally. Neural tension signs were negative. Neurological examination was normal power tone and sensation reflexes. There was also normal pain free movement to both hips and no tenderness on palpation of the greater trochanter. There was no measurable difference in the circumference of her calves.
Consistency
There were no inconsistencies in her physical presentation.
Points of discussion
The primary dispute concerns whether the annular tear identified at the C5/6 level constitutes a threshold injury under the Act.
Ms. Hmaydan had a documented history of neck complaints; however, her symptoms had largely subsided by December 2020, and there were no further complaints until the motor vehicle accident. After the accident, there was a substantial deterioration in her physical capabilities. For instance, before the accident, she was able to participate in high-intensity interval training, whereas now she is limited to walking on the treadmill.
The 2018 MRI scan of the cervical spine revealed mild disc bulges at the C4/5 and C5/6 levels. Disc bulges are quite common and can be asymptomatic or cause varying degrees of pain or discomfort. They occur when the soft, gel-like interior of the disc (nucleus pulposus) pushes outward against the outer ring of the disc (annulus fibrosus).
On the other hand, the 2021 MRI scan post-accident identified an annular tear at the C5/6 level. An annular tear happens when the outer layer of the intervertebral disc, the annulus fibrosus, rips or tears. This condition is often more severe than a disc bulge, and it can be associated with more significant pain and symptoms, particularly if the tear allows the nucleus pulposus to leak out, which can irritate nearby nerves.
While both conditions involve degenerative changes to the intervertebral discs, an annular tear is generally considered more severe and symptomatic than a disc bulge. It's also worth noting that, given Ms Hmaydan's history and the timing of her symptoms, it's plausible that the trauma from the accident could have contributed to the development or worsening of the annular tear.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The medical assessment related to the injuries sustained in the motor accident were minor or non-minor (now threshold or not threshold) as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[51] and Insurance Australia Ltd v Marsh.[52]
[51] [2021] NSWCA 287 at [40], [41] and [45].
[52] [2022] NSWCA 31 at [11], [21] and [64].
We adopt the reasoning in Lynch v AAI Ltd[53] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
[53] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report of Medical Assessor Assem supplemented by the following reasons.
Lumbar spine
There was a chronic history of lumbar spine pain which, consistent with the notes of the GP and inconsistent with the claimant’s history to Medical Assessor Assem, probably continued up until the motor accident. The clinical note that the claimant was prescribed Panadeine forte for back pain three days prior to the motor accident suggests the claimant’s history of a full recovery is incorrect. To the extent that the claimant gave a contrary history, we believe that reflected a lack of memory rather than a dishonest history.
There is no evidence of radiculopathy from the lumbar spine at any stage. Complaints of referred pain are not objective signs of radiculopathy as they do not satisfy the test in cl 5.8 of the Guidelines.
The post-accident scans of the lumbar spine shows degenerative changes. No traumatic changes were shown in these scans. There is no basis to conclude that there was a lumbar spine injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Based on the mechanism of the accident and the absence of support of changes shown in radiological materials, we are not satisfied that any lumbar spine injury was other than a soft tissue injury.
Cervical spine
The claimant was 47 years of age at the time of the motor accident.[54] The medical literature included by the insurer supports the proposition that annular tears can be degenerative and occur over time.
[54] Insurer’s bundle, p 118.
The 2018 MRI scan of the cervical spine did not refer to an annular tear but otherwise showed mild posterior bulging at multiple levels indicating degenerative changes throughout the cervical spine.
The claimant clearly had a pre-existing degenerative condition of the cervical spine. That pre-existing condition was more susceptible to further whiplash injury from the nature of the motor accident where there would have been sudden flexion and extension of the cervical spine. It is medically plausible that the sudden forces could have aggravated pathology in the cervical spine and caused an annular tear.
The difficult question is whether the motor accident did in fact, on the balance of probabilities, cause or aggravate the annular tear.
The annular tear was not referenced in the 2018 MRI scan which only referred to disc bulging without canal stenosis or foraminal compromise at C5/6.[55] The CT scan dated
22 April 2021 referred to pathology at C3/4 and C6/7 with “no significant focal disc pathology, canal or foraminal stenosis elsewhere”.[56][55] Insurer’s bundle, p 302.
[56] Insurer’s bundle, p 221-2.
However, the MRI scan dated 11 August 2021, only four months after the previous CT scan, noted at C5/6:[57]
“… disc dessication and a small disc bulge with a focus of annular high signal in keeping with annular tear. No neurocentral compression or foraminal stenosis is seen.”
[57] Claimant’s bundle, p 215.
The absence of reference to pathology in the 2021 CT scan when compared to the findings in the 2021 MRI scan is likely explained by the significantly higher quality imaging from an MRI scan. Further, the 2018 MRI scan showed some findings at C5/6 which were not reported in the 2021 CT scan. For these reasons we find that the 2021 CT scan is of minimal and probably no significance given the far more precision provided by both the 2018 and 2021 MRI scans.
The insurer submitted that the tear was a fissure relying on generalised comments in the literature. The radiologist in August 2021 reported the scan as showing “a small disc bulge with a focus of annular high signal in keeping with an annular tear”. In the absence of other specific evidence, we accept the opinion of the radiologist that he accurately reported the scan findings.
Accordingly, it is extremely likely that at some point between September 2018 and
August 2021 the claimant developed an annular tear at C5/6.We note that there was no report of annular tears at any level other than at C5/6. This may be suggestive of trauma because the tear is at a single level.
However, the annular tear at C5/6 was present at a level with disc desiccation and a small disc bulge. The disc bulge was otherwise present in 2018.
Th C5/6 level is consistent with the whiplash type injury as the flexion/extension will be more prominent in the lower cervical spine.
Unlike the recorded complaints of ongoing back symptoms prior to the motor accident, the recent pre-accident clinical notes do not refer to neck pain. The last reference we could find to neck pain was in February 2020 and, as we noted earlier, the clinical note three days before the motor accident refer to the prescription of Panadeine Forte for back pain. The clinical notes after the motor accident regularly refer to neck symptoms.
Accordingly, we accept that there was a recovery of neck symptoms prior to the motor accident and a neck injury caused by the motor accident resulting in a further onset of neck symptoms. This neck symptoms were of sufficient severity to require referral for a CT scan and eventually led to the requirement for an MRI scan.
As the Review Panel in Marques v QBE Insurance (Australia) Ltd[58] noted and we agree:
“The outer layer of the vertebral disc is known as the annulus fibrosus. The annulus fibrosus is a ring of cartilage and ligamentous fibres which contains nerve receptors.
An annular tear is a tear of the annulus fibrosus which, due to the presence of nerve fibres, can result in significant back pain.”
[58] [2022] NSWPICMP 302
These comments equally apply to the cervical spine.
We accept that the resolution of this issue is difficult. However, we have concluded, upon confirmation with Medical Assessor Assem who examined the claimant, that the complaints of pain were in the C5/6 region and consistent with pain from the disc irritating adjoining nerves. Given our acceptance that the claimant was asymptomatic in the cervical spine in the period prior to the motor accident, we accept that the present symptoms are probably explicable by irritation at the C5/6 disc referable to an annular tear.
Given the consistency of ongoing cervical spine symptoms, we are satisfied on the balance of probabilities that the motor accident caused the annular tear at C5/6.
The injury to the annular tear at that point is a partial tear of a ligament and cartilage and falls outside the definition of a soft tissue injury as defined in the MAI Act. Accordingly, the motor accident caused a non-threshold injury.
Right calf
The motor accident caused a tear of the soleus muscle which is supported by contemporaneous complaints and the claimant’s description of how the injury occurred.
The definition of soft tissue injury includes a muscle tear as defined in s 1.6(2) of the MAI Act. The claimant’s submission that this was a non-minor (now non-threshold) injury ignored the clear words of the definition and are rejected.
Other injuries
Injuries to the shoulders are not mentioned in the contemporaneous materials although reported in the claim form. There is no scan evidence of either shoulder showing injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The mechanism of injury to either shoulder from a rear end collision is not explained in the medical evidence although there may have been some indirect injury to the left shoulder through the seatbelt as the claimant was a front-seat passenger. The nature of the forces causing trauma in this manner would not have been great.
The claimant otherwise failed to explain how she could have injured her right shoulder.
Medical Assessor Assem noted a slight restriction in shoulder motion due to pain arising from cervical spine and upper thoracic region. However, there was no findings on examination of shoulder injury. We otherwise note that Medical Assessor Truskett recorded full range of shoulder movement.
There is no radiological evidence of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
We are not satisfied that the claimant injured her shoulders. There is reference in the clinical notes to shoulder symptoms which, consistent with Medical Assessor Assem’s examination findings, were probably referred pain from the cervical spine.
There is reference to bruising to the hip although the medical records generally do not refer to that body part. The hip(s) is otherwise not referenced in the claim form. There is no radiological evidence of any trauma which would mean that any hip injury was not a soft tissue injury. Whilst it is plausible that the claimant bumped her hip, there is no basis to conclude that the injury was anything other than a soft tissue injury which resolved within a short period.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Truskett is confirmed. As we noted at the commencement of these Reasons, no review was filed for the medical disputes relating to treatment and care.
A new certificate is attached at the commencement of these Reasons which is slightly amended by using the term threshold injury as opposed to minor injury and referenced to the annular tear as opposed to the soleus muscle tear.
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