Insurance Australia Limited t/as NRMA Insurance v Mansour

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Mansour [2023] NSWPICMP 141
CLAIMANT:	Michael Mansour
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Geoffrey Curtin
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	12 April 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act2017; threshold injury dispute; claimant suffered injury in rear end collision in April 2018; long history of neck pain; clinical notes showed radiculopathy developed in February 2019; claimant’s version that radiculopathy developed earlier rejected; opinion that April 2018 CT Scan was not accurately reported as showing a fragmented disc or annular tear regarded as speculative; opinions that motor accident caused herniated disc and onset of radiculopathy based on a history of early onset of radiculopathy rejected; Paric v John Holland Constructions applied; Panel not satisfied that motor accident caused a herniated disc resulting in radiculopathy; claimant only suffered a soft tissue injury; Held – claimant suffered threshold injury; original Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act *2017* The Review Panel revokes the certificate dated 16 July 2022 and certifies that the injury caused by the motor accident is a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Mr Michael Mansour (the claimant) suffered injury in a motor accident on 23 April 2018 when the insured vehicle struck the rear of the claimant’s vehicle (the motor accident). Mr Mansour alleges that he sustained an injury to the cervical spine which was not a threshold injury within the meaning of the Motor Accident Injuries Act 2017 (the MAI Act).
The insurer is liable to pay to Mr Mansour any damages and/or statutory compensation entitlements under the MAI Act for the motor accident.
The issues presently in dispute are whether Mr Mansour’s physical injury is classified as a “threshold injury” within the meaning of the MAI Act.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor McGrath who issued a Medical Assessment Certificate dated 16 July 2022. Medical Assessor McGrath concluded that the motor accident caused radiculopathy in the C7 dermatome.
Whether a person has only suffered threshold injuries caused by a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks[2] if “the person’s only injuries resulting from the motor accident were threshold injuries”.[3] An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[2] 52 weeks if the motor accident occurred on or after 1 April 2023.
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] 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[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[6] 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.[7]
[7] 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.[8]
[8] 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.[9]
[9] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
On 15 March 2023 the Panel issued the following direction:
“The Panel notes:
1.    There is clear evidence of at least two objective signs of radiculopathy in the C7 dermatome (see report of Associate Professor for treatment in March 2019 (claimant’s bundle, p 8) and the examination findings of Medical Assessor McGrath). In these circumstances, consistent with the decision of David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 at [84]-[104] that a non-minor injury can occur at any time, there is no utility in conducting a medical examination.
2.    The Panel understand that the issues in this medical dispute are whether the radiculopathy in the C7 dermatome and/or the herniated disc at C6/7 were caused by the motor accident.
3.    The Panel understand that the relevant notes of treatment by the physiotherapist and the chiropractor in 2018 appear in the Insurer’s bundle at pp 731 - 732 and p 484.
Direction
4.    The Panel indicates that it is necessary to ask some questions of the claimant which can be undertaken by video. In this regard the Panel advises that Medical Assessor Curtin and Principal Member Harris will be present, and the assessment can occur with the claimant at 3 pm on 4 April 2023.”
The direction called for submissions in response to the Panel’s observations.
There was no response by either party to this 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 or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
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 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 minor 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.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[11]
[11] See s 3B(2) of the Civil Liability Act 2002.

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 original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions and original medical assessment were written at a time when the term was “minor injury”. We have used the term in these reasons as it was used by the parties or the Medical Assessor.
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.

SUBMISSIONS

Claimant’s submissions dated 19 April 2021[12]

[12] Claimant’s bundle, p 11.

The claimant referred to the statement in the claim form that his car was hit with “significant force” in the motor accident. He referred to the subsequent treatment including MRI scan dated 21 February 2019 and opinion of Associate Professor Ghahreman that he suffered from radiculopathy in the C7 dermatome.
The claimant accepted that he suffered from “some pre-existing symptomatology in his cervical spine” but that does not mean that he only sustained a minor injury. The claimant also asserted that he aggravated pre-existing symptoms in the lower back.
The claimant referred to the opinion of Dr McIntosh and submitted:
“The claimant fundamentally disagrees with the opinion provided by Doctor McIntosh in his report of August 2019. This matter is being referred to the Assessor for a medical opinion, not a bio-mechanical one. The Assessor is reminded to stay within the field of expertise.”

Claimant’s submissions undated[13]

[13] Claimant’s bundle, p 13.

The claimant referred to the supplementary report of Associate Professor Ghahreman on causation and his further opinion responding to Dr Korber’s opinion. It submitted that Dr Korber’s opinion “does not exclude the clinical formulation of the treating Neurosurgeon”, specifically that the disc injury subsequently herniated into a position that was causing neural irritation.
It was emphasised that Associate Professor Ghahreman opined that a subtle injury such as an annular tear may have been missed in the original CT scan. Further, the decision maker “should be inclined to accept the opinion of the claimant’s treating Neurosurgeon”.
The disc extrusion fell outside the definition of minor injury as it involved a herniation of the disc and alternatively, there was documented evidence of radiculopathy.
The claimant submitted that the opinion of Dr McIntosh should be given minimal weight because:[14]
(a)    his comments are on opinion only;
(b)    he did not inspect the vehicles and had limited property damage information;
(c)    he assessed based on a speed differential without an assessment of absolute speed;
(d)    ignored the claimant’s history in the claim form and had no statement from the insured driver;
(e)    the opinion on likelihood is not justified and does not refer to articles;
(f)    it was acknowledged that a substantial number of relatively low speed collision do not cause lasting injury. The issue is a question of fact whether the claimant suffered a lasting injury, and
(g)    the statistical reality proposed by Dr McIntosh does not mean that this claimant did not experience lasting symptoms.
[14] Claimant’s bundle, pp 14-15.
Dr Korber was advised, in accordance with Dr McIntosh’ opinion that the “collision could not have reasonably led to the overall pattern of injuries”. Caution should be exercised in relation to accepting this opinion.
Dr Korber was incorrectly advised that the claimant pursued a workers compensation claim and that he had a “significant pre-accident medical history”. That conclusion “cannot be logically drawn”.
The claimant otherwise submitted:[15]
“Finally, Doctor Korber is told that the Caringbah Medical & Dental Centre notes record no cervical spine complaints between the date of the accident and February 2019. That is (conveniently) omitted from the documents to Doctor Korber are the clinical notes of Rockdale Physiotherapy and Blakehurst chiropractic which record the claimant’s significant cervical symptomatology during that period.”

Claimant’s submissions dated 8 September 2022[16]

[15] Claimant’s bundle, p 17.

[16] Claimant’s bundle, p 17.

These submissions were filed opposing the insurer’s application to review the medical assessment.
The claimant suggested that the matter be referred back to the Medical Assessor as he did not have all relevant materials.

Insurer’s submissions undated[17]

[17] Insurer’s bundle, p 9.

The insurer filed lengthy submissions. The following is a summary of these submissions.
The accident was minor as evidenced by the photographs. Dr McIntosh opined that the mechanics of the crash could not have led to the overall pattern of injuries, and it was plausible that it caused a whiplash injury but unlikely to have caused any cervical intervertebral disc injury.
The insurer submitted that the claimant sustained injuries in motor accident on
12 November 2009 (lower back and right thigh) and 7 February 2011 (low back, left ankle and left shoulder).
The insurer referred to the following pre-accident medical evidence:
(a)    chronic shoulder pain with surgery and ankle arthroscopy;
(b)    Associate Professor Papantoniou reported on 9 August 2013 that the claimant had neck and back pain with sciatica since the 2009 motor accident;
(c)    Associate Professor Papantoniou reported on 26 March 2015 that the claimant had L4/5 pain with radiation;
(d)    Associate Professor Papantoniou reported on 7 February 2016 that the claimant had back pain with radiation and organised scans which showed pathology in the lower two regions of the lumbar spine;
(e)    subsequent consultations with Associate Professor Papantoniou and Dr Mobbs in 2016 and 2017 of chronic low back pain, and
(f)    report of Dr Bruce Mitchell dated 12 December 2017 reporting chronic back pain since 2009.
The pre-accident evidence pertaining to the cervical spine included:
(a)    CT scan dated 5 December 2009;
(b)    MRI scan dated 15 March 2010;
(c)    Dr Mobbs report dated 6 May 2010;
(d)    reports dated 27 July 2010 and 5 May 2011 (Dr Ibrahim, general practitioner (GP));
(e)    Dr Wallace report dated 15 February 2011;
(f)    Dr Stephenson report dated 10 October 2011;
(g)    Medical Assessor Stephen report dated 3 November 2011 – 2009 motor vehicle accident (5% WPI of the cervical spine) with no evidence of radiculopathy;
(h)    Dr Tan report dated 14 January 2013;
(i)    Dr Home report dated 14 June 2013 (neck pain attributed to the 2009 motor accident);
(j)    Medical Assessor Stephen report dated 17 August 2013 – 2011 motor vehicle accident (5% whole person impairment of the cervical spine with a full deduction);
(k)    statements by claimant dated 3 February 2014 that he suffered neck injuries in the 2009 motor accident and 2011 motor accident;
(l)    Dr Stephenson report dated 10 March 2015 – 5% whole person impairment of the cervical spine due to the 2009 motor accident;
(m)     Associate Professor Papantoniou report dated 7 February 2016 referred to neck pain from the 2009 motor accident aggravated by the 2011 motor accident;
(n)    Medical Assessor Crocker report dated 8 February 2016 – referred to neck pain;
(o)    Elisha Hartley report dated 28 March 2016 referred to neck pain;
(p)    Dr Alauddin Khan report dated 14 April 2016 referred to pain and restricted movement in the neck, and
(q)    email from claimant dated 29 September 20016 that the motor accidents have physically ruined him.
The insurer referred to the treating medical evidence following the motor accident which included:
(a)    attendance at Caringbah Medical & Dental Centre on 23 April 2018 (no reference to neck);
(b)    presentation at Sutherland Hospital on 23 April 2018 (neck pain, no numbness or tingling);
(c)    CT scan of the cervical spine dated 23 April 2018 showed no acute pathology or injury;
(d)    Dr Smith dated 25 May 2018 opined that the claimant presented with bilateral shoulder problems which required further surgery. The claimant had further treatment to the shoulders in 2018;
(e)    the clinical entry of 18 February 2019 referred to numbness and pain down arm and shoulders in the C4/5 distribution;
(f)    the claimant attended his GP and was referred to hospital on
19 February 2019. The hospital notes refer to symptoms in the C6/7 distribution commencing two days previously;
(g)    the MRI scan dated 21 February 2019 showed abnormality at C6/7 with compression of the right C7 nerve root. A certificate of capacity dated
22 February 2019 provided a similar diagnosis;
(h)    Dr Ghahreman provided a report dated 5 March 2018 assessing pain in the C7 distribution;
(i)     an X-ray dated 11 March 2019 showed normal cervical alignment;
(j)    on 12 March 2019 the claimant underwent a right C7 nerve root injection;
(k)    in a report dated 7 May 2019 Dr Ghahreman noted the claimant presented with ongoing C7 radiculopathy secondary to disc herniation with reasonable response and improvement following the injection;
(l)    the MRI scan dated 30 July 2019 showed moderate involution of the acute right side disc protrusion;
(m)     in a report dated 30 July 2019 Dr Ghahreman noted symptoms remained stable with persisting weakness and numbness in the hand;
(n)    on 2 September 2019 the claimant underwent a further right C7 nerve root injection;
(o)    Dr Eric Poon, chiropractor, provided a report dated 9 September 2019 noting that the claimant first presented with radiating right arm pain on 18 February 2019;
(p)    Hassan Muhiddine, physiotherapist provided a report dated 3 October 2019 noting complaints of pain in the C7 distribution;
(q)    on 24 March 2020 Dr Ghahreman noted some improvement in C7 radicular pain with right triceps weakness. In June 2020 Dr Ghahreman did not recommend surgery;
(r)    an MRI scan dated 12 June 2020 noted improvement in the protrusion at C6/7 which had essentially resolved;
(s)    on 1 December 2020 recommended a further C7 nerve root injection which was undertaken on 7 January 2021, and
(t)    an MRI scan dated 24 January 2021 suggested a slight increase in the C6/7 disc protrusion.

The insurer referred to the report of Dr Coroneous, neurosurgeon, dated 14 January 2020 who opined that any cervical soft tissue injury had ceased and that the right arm symptoms which developed were unrelated to injury.
In relation to cervical spine injury the insurer referred to four prior motor accidents and a workers compensation claim. There were chronic prior neck symptoms in the light of a minor accident with an unremarkable examination at the time of the motor accident and a CT scan which did not show acute injury.
The insurer submitted that the opinion of Dr Ghahreman should not be accepted because:
(a)    the doctor was not aware of the significant pre-accident history;
(b)    the doctor was not aware of the minor nature of the collision;
(c)    the doctor has not reviewed the contemporaneous hospital notes which show an unremarkable examination and the scan showing no acute pathology, and
(d)    the doctor was not aware of an absence of neck pain for 10 months and the hospital admission on 19 February 2019 stating that pain occurred two days prior.

Insurer’s submissions dated 17 August 2022[18]

[18] Insurer’s bundle, p 1.

These submissions were filed seeking a review of the medical assessment.
The insurer submitted that the Medical Assessor failed to consider relevant documents including:
(a)    report of Dr Korber dated 17 December 2021;
(b)    further report of Associate Professor Ghahreman, and
(c)    “Additional treating records”.
The insurer submitted that the Medical Assessor failed to review “voluminous medical records” which showed:
(a) injury to the cervical spine in the 2011 motor accident, and
(b) ongoing cervical spine problems after 2015 as evidenced by the records of Rockdale Physiotherapy.
The insurer submitted that the Medical Assessor has failed to engage with the issue of causation raised by it including:
(a)    The minor nature of the motor accident by reference to the photographs and the opinion expressed by Dr McIntosh in a report dated 1 August 2019.
(b)    The symptoms and clinical records following the motor accident, specifically:
(i)absence of complaint of neck symptoms to the GP at Caringbah Medical and Dental following the motor accident;
(ii)presentation to Sutherland Hospital on 23 April 2018 where the examination was unremarkable and radiological investigations showed no acute pathology, and
(iii)A CT scan of the cervical spine dated 23 April 2018 showed no acute intracranial pathology and no injury.
(c)    The timing of radicular symptoms – the claimant made no complaint to his GP of cervical spine symptoms until 19 February 2019 and then attended Sutherland Hospital with C6/7 nerve pain radiating down the right arm which were reported as commencing two days previously.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

The claimant’s pre-accident medical history is extensive in relation to the low back and shoulders and to a lesser degree for the cervical spine. We only intend to summarise some of the evidence noting that the insurer’s submissions on this issue have also been summarised in some detail.
In 2010 Dr Ralph Mobbs, neurosurgeon, noted low back pain probably at L5/S1 and neck pain from the C4/5 to C5/6 region.[19]
[19] Insurer’s bundle, p 176.
The MRI scan of the cervical spine dated 15 March 2010 showed minimal bulging at C4/5 and C5/6 with the remaining discs preserved.[20]
[20] Insurer’s bundle, p 363.
In November 2011 Medical Assessor Stephen assessed the neck at 5% and the back at 0% whole person impairment due to the 2009 motor accident.[21] In August 2013, Medical Assessor Stephen made similar assessments for the neck and the back attributing the neck impairment to the 2009 motor accident.[22]
[21] Insurer’s bundle, p 269.
[22] Insurer’s bundle, p 282.
A statement by the claimant dated 3 February 2014[23] noted he sustained neck, back and shoulder injuries from the motor accident on 12 November 2009 and substantially injured his neck and back in the second accident on 7 February 2011.
[23] Insurer’s bundle, p 109.
In February 2016, Associate Professor Papantoniou, orthopaedic specialist, noted the two prior motor accidents causing neck and low back pain.[24] The doctor noted the claimant continued to suffer from low back pain with sciatica and would eventually require an L4-S1 lumbar fusion.
[24] Insurer’s bundle, p 158.
In February 2016, Medical Assessor Crocker assessed the claimant’s impairment under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4) for the cervical and lumbar spine each at 5%. These assessments were wholly deducted due to the earlier motor accident in 2009.[25]
[25] Insurer’s bundle, p 239.
Clinical notes of the physiotherapist in 2017 refer to neck and back pain.[26]
[26] Insurer’s bundle, pp 726 - 731.
In December 2017, Dr Bruce Mitchell, pain specialist noted a history of chronic low back pain radiating into the buttocks with average pain rated 6/10 and worse pain, 10/10.[27]
[27] Insurer’s bundle, p 150.
A right shoulder ultrasound dated 9 March 2018 showed a posterior full thickness tear.[28]
[28] Insurer’s bundle, p 347.
The clinical note of the GP dated 10 April 2018 noted chronic back pain without any new injury and chronic bilateral shoulder pain with a request for referral to Dr Smith.[29]
[29] Insurer’s bundle, p 338.

Contemporaneous evidence

The claimant attended Dr Errington, GP around 2 pm on the day of the motor accident who referred the claimant to the emergency department. The clinical note of the GP provided:[30]
“MVA today
- Hit from behind
- 60 kmh
- Headache and pain to right shoulder”
[30] Insurer’s bundle, p 493.
The hospital records on admission following the motor accident noted:[31]
“Pt presents from GP with central/right neck pain post being rear ended by a car doing approx 70 km/hr. Considerable damage to car; airbags not deployed C/O headache from neck pain. Nil numbness or tingling to arms legs.”
[31] Insurer’s bundle, p 453.
The CT scan dated 23 April 2018 stated:[32]
“The alignment of the cervical spine is anatomical. Vertebral body heights are preserved. There is no prevertebral soft tissue thickening. Mild lower cervical spine degenerative change predominantly at C5-C6 is noted.”
[32] Insurer’s bundle, p 95.
X-rays of both shoulders dated 24 April 2018 showed degenerative changes throughout the AC joint.[33]
[33] Insurer’s bundle, p 97.
The police report based on the claimant’s version described a rear end collision with the claimant feeling “pain in the back of his neck and shoulders”.[34]
[34] Insurer’s bundle, p 40.
The first physiotherapist attendance following the motor accident was on 17 May 2018. The clinical note recorded:
“-      Pt involved in recent car accident, hit from behind last month
-       Did have neck pain and admitted to hospital
-       Pain and stiffness in neck, with some restriction in ROM
-       Is having difficulty sitting/driving for long periods
-       Has had some intermittent right shoulder pain”
In June the physiotherapist noted some short-term relief from the previous treatment with ongoing pain in the right shoulder affecting sleep. In July the physiotherapist noted ongoing neck pain with little change.[35]
[35] Insurer’s bundle, p 732.
In September 2018 the GP noted right shoulder pain following surgery the previous week and chronic back pain. Examination of the shoulder showed no numbness or swelling.[36]
[36] Insurer’s bundle, p 336.
On 4 October 2018 the physiotherapist noted better range of motion in recent weeks and noted that the claimant had also been treated with chiropractic sessions.[37]
[37] Insurer’s bundle, p 732.
In November 2018 the GP noted restriction of movement of right shoulder following surgery and chronic back ache.[38]
[38] Insurer’s bundle, p 336.
The clinical note of the physiotherapist dated 18 February 2019 provided that the claimant “c/o R sided neck pain since yesterday” when he woke up with pain and went to see his chiropractor”.[39]
[39] Insurer’s bundle, p 732.
The claimant was admitted to hospital on 19 February 2019. The relevant history was:[40]
[40] Insurer’s bundle, pp 463-464.
“47 yo M p/w R sided neck pain at C6-C7 nerve pain that radiates down R arm
PC:
Started about 2 days ago
Been to the chiropractor which did not help
Then went to the physio which also did not help him
Presented to GP who referred patient here
Pain has caused muscle twitching and spasms
Pain starts at C6-C7 on the R side of the neck and down the R arm
Pain at R neck and R shoulder muscles from nerve pain and into R arm
No issues at R shoulder joint or R elbow joint”
The clinical note of the GP on 20 February 2019 provided:[41]
[41] Insurer’s bundle, p 334.
“April 2018 MVA
Had CT C-spine neck - cleared
Started pain in neck again on Saturday
Right side neck pain, radiating to right arm also feeling tingling and numbness and weakness in right arm
Has had MVA April 2018
Recently back from India
Been to ED
Gave him Endone and Panadeine forte
…
?? Disc prolapse.”
The certificate of capacity dated 22 February 2019 referred to C6/7 disc prolapse and C7 radiculopathy caused by the motor accident.[42]
[42] Insurer’s bundle, p 92.
The claimant underwent a right C7 nerve root injection on 12 March 2019.[43]
[43] Insurer’s bundle, p 140.
The claimant underwent bilateral facet joint injections at C5/6 and C6/7 on 3 July 2020.[44]
[44] Insurer’s bundle, p 128.

Chiropractor notes

These notes are contained in the insurer’s bundle and are difficult to read.[45] The notes appear to commence on 4 August 2018 and relevantly specify the following treatment:
(a)    4 August 2018 – back and traps;
(b)    11 August 2018 – back and traps;
(c)    20 October 2018 – shoulder operation; massage neck and back;
(d)    18 February 2019 - (unclear);
(e)    1 March 2019 – massage neck and traps (upper), and
(f)    5 March 2019 Massaged infraspinatus neck and trap (came in with R weakness of triceps and arm).
[45] Insurer’s bundle, p 484.

Medical evidence

Associate Professor Ghahreman, neurosurgeon, initially treated the claimant in March 2019. The doctor noted a history of the development of acute right shoulder pain and upper limb radiating to the upper chest down to the right hand “about 2-3 weeks ago”.[46]
[46] Presumably this is a reference to 2-3 weeks prior to March 2019.
The doctor noted pain in the C7 distribution with myotomes strength and reflex on the right triceps reduced. Other reflexes were normal. The doctor opined that that the claimant had right-sided C7 radiculopathy due to C7 disc herniation
The doctor’s opinion on causation was:[47]
“In relation to causality, I am of the opinion that the motor accident led to disc injury (annular tear and fragmentation of the disc) which following a period of neck pain herniated into a position that was causing neural irritation. This can happen over days following the injury and build up into florid radiculopathy. Usually axial pain is transformed into radicular pain as the disc pressure reduces and disc extrusion occurs. The damage to the integrity of the disc at C6/7 has occurred in the context of the injury sustained in the index car accident. I must add that there is evidence from history provided by Michael to me and records from his general practitioner that he has had scapular, neck and shoulder pain, definitely signs of at least partial radicular irritation right from the outset. So Michael has definitely had a disc injury and neural irritation symptoms from the beginning to the best of my judgement.”
[47] Claimant’s bundle, p 8.
In a further report dated 28 January 2022,[48] Associate Professor Ghahreman note that a cervical disc injury may be followed by neck pain and headaches before leading to upper limb symptoms, that CT scanning at hospital may miss a subtle disc injury such as an annular tear. An annular tear may subsequently extrude over days, weeks or months leading to disc protrusion and unbearable arm pain.
[48] Claimant’s bundle, p 10.
A report from Blakehurst Chiro dated 9 September 2019 noted that Mr Mansour presented on 18 February 2019 with neck and shoulder pain described as sharp shooting pain radiating to the right shoulder into the deltoid and triceps muscle.[49]
[49] Insurer’s bundle, p 104.
A report from Rockdale physiotherapy dated 3 October 2019 noted that Mr Mansour attended physiotherapy for the neck following the motor accident and acute referred pain to the right upper shoulder and right hand developed “earlier this year”. Pain distribution was in the C7 distribution.

Dr Smith

The claimant first consulted Dr Geoffrey Smith, orthopaedic surgeon, on 25 May 2018.[50] Dr Smith noted a prior history of two motor accidents, with left shoulder surgery in 2015. Following surgery, the claimant had what was described as a good result returning to swimming with the right side subsequently becoming sore and weak and the left side latterly. Pain was felt anteriorly and radiating into the biceps.
[50] Insurer’s bundle, p 149.
Dr Smith noted that the claimant was a keen weightlifter with a sedentary job. Examination showed a well-muscled gentleman with a weak subscapularis. The doctor diagnosed bilateral subscapularis tears with biceps subluxation which required surgery.
The claimant underwent right shoulder arthroscopy and subscapularis repair and subacromial decompression performed by Dr Smith on 27 August 2018.[51]
[51] Insurer’s bundle, p 145.
On 9 October 2018 Dr Smith recorded that the shoulder “pain is settling” and he could come out of the sling.[52]
[52] Insurer’s bundle, p 143.
On 27 November 2018 Dr Smith stated that the claimant was 12 weeks post right shoulder surgery with good range of motion and can start strengthening exercises.[53]
[53] Insurer’s bundle, p 142.
In a report dated 16 April 2019, Dr Smith noted the claimant was six months post right shoulder surgery with full range of motion and no pain. The doctor observed that the claimant had “some C7 issues” which would hopefully settle down.[54]
[54] Insurer’s bundle, p 139.

Radiology

The MRI scan of the cervical spine dated 20 February 2019 showed a moderate acute right foraminal disc protrusion at C6/7 compression of the right C7 nerve root.[55]
[55] Insurer’s bundle, p 121.
The MRI scan of the cervical spine dated 30 July 2019 noted a moderate involution of the acute right side disc protrusion at C6/7 in comparison with the scan performed in
[56] Insurer’s bundle, p 123.
February 2019.[56]
The MRI scan of the cervical spine dated 12 June 2020 note that the right paracentral disc protrusion had “essentially resolved with a residual more circumferential generalised disc bule and disc osteophyte complex at this site”.[57]
[57] Insurer’s bundle, p 124.
The MRI scan dated 24 January 2021 noted a slight increase in the size of the right sided disc protrusion at C6/7.[58]
[58] Insurer’s bundle, p 126.

Claim

The claim form completed by the claimant dated 26 February 2019 noted prior shoulder and back injuries.[59] The claimant described the accident as occurring in the following circumstances:[60]
“[I] was the 3^rd vehicle in the queue, at a red traffic light …. The traffic light change to green and as I took my foot off the brake pedal to accelerate, I heard skidding coming from behind me and I was hit from the rear of my car with significant force … which jolted me forward to hit a trailer in front.”
[59] Insurer’s bundle, p 33.
[60] Insurer’s bundle, p 34.
The claimant reported that he sustained “immediate neck and upper shoulder pain”.

Photographs

The photographs show indentation damage in the middle rear of the claimant’s vehicle.[61]
[61] Insurer’s bundle, p 43.

Qualified doctors

Dr John Sheehy, neurosurgeon, was qualified by the claimant and provided a report dated 20 October 2021.[62] Dr Sheehy recorded a history of upper anterior chest wall pain since early 2018 with development of pain in the right and forearm with radiation to the 3^rd and 4^th fingers developing in October 2018.
[62] Claimant’s bundle, p 2.
Both on Zoom examination and confirmed by history, the doctor opined that there was wasting of the right triceps and fasciculation of this muscle.
Dr Sheehy opined that the claimant was symptomatic from the C7 nerve root compression since the date of the motor accident.
Dr McIntosh, bio-mechanical engineer, was qualified by the insurer and provided a report dated 1 August 2019.[63]
[63] Insurer’s bundle, p 49.
After reviewing various materials including the photographs, Dr McIntosh opined that the collision speed was in the range of approximately 10 to 20 kmph and the range of change in velocity of the claimant’s vehicle was between 6 and 12 kmph.
Dr McIntosh opined that it was very unlikely that the motor accident caused lumbar spine or shoulder injuries, was plausible that that the incident caused a whiplash disorder of less than one month, and it was unlikely that the claimant would suffer any disc injury.[64]
[64] Insurer’s bundle, p 52.
Dr Michael Coroneous, neurosurgeon, provided a report dated 14 January 2020.[65] The doctor obtained a history of immediate neck and lower back pain with no upper or lower limb symptoms.
[65] Insurer’s bundle, p 69.
Dr Coroneous opined that the right upper limb symptoms were not causally related as they arose nearly 10 months after the motor accident. The doctor did not believe that the claimant, from a neurosurgical perspective, was stable at that time.
In a further report dated 25 February 2020, Dr Coroneous noted that no new material had been supplied and he confirmed his previous findings.[66] The doctor noted that he had not been supplied with Sutherland Hospital notes including CT scans, physiotherapy records and records of Dr Smith and Dr Ghahreman.
[66] Insurer’s bundle, p 88.
Dr John Korber, radiologist, provided a report dated 17 December 2021.[67] The doctor noted the following scans for the cervical spine:
(a)    5 December 2009 – hard copy film – No significant abnormality at C6/7;
(b)    15 March 2010 – hard copy film – No significant disc herniation at any level;
(c)    23 April 2018 – report only – essentially normal apart from C5/6 degenerative changes;
(d)    21 February 2019 – report only – moderate acute right foraminal disc protrusion with compression of right C7 nerve root, and
(e)    12 June 2020 – right paracentral disc protrusion at C6/7 has essentially resolved.
[67] Insurer’s bundle, p 130.
Dr Korber opined that the right C6/7 disc herniation occurred sometime after the accident in conjunction with severe right sided symptoms.

RE-EXAMINATION

The Panel determined that Mr Mansour be assessed by Medical Assessor Curtin and Principal Member Harris on 4 April 2023. The parties were advised of this course. As we previously noted, there was no response to that direction.
The re-examination report is as follows:
“Mr Mansour attended the examination on video link. The reception was clear.
Mr Mansour described the motor accident when he was waiting to turn right at lights when the insured vehicle collided with his vehicle causing it to impact the vehicle in front. He immediately noticed sharp pain in the neck, right shoulder and at the top of the back. He stated that the insured driver admitted that her thong got caught in the accelerator and that is what she could not stop her vehicle in time.
Mr Mansour stated that his vehicle was brand new and it sustained significant damage to the rear as well as some damage to the front when it hit the trailer from the secondary impact.
Later Mr Mansour agreed that he did not see the insured vehicle before the collision and did not know what speed the other vehicle was travelling. He said that the suggestion in the hospital notes that the collision occurred at 60 km/h was based on his estimate from the size of the impact. He agreed that the airbags in his vehicle were not deployed.
Mr Mansour described the pain as mainly in the neck with sharp pain down the right arm. He also described symptoms in his hand including tingling in the inside of the thumb and numbness in the fingers.
Mr Mansour initially stated that he had immediate chiropractic and physiotherapy treatment because of the severity of the symptoms. He said he was on heavy painkillers at the time of the motor accident because he was due to have right shoulder surgery which eventually occurred two months before the deterioration in the right arm symptoms in February 2019. Mr Mansour stated that he always had right arm/hand symptoms and the pain killers masked his arm symptoms which got substantially worse when he went off the pain killers about two months after the shoulder surgery.
Mr Mansour was then shown various documents which were inconsistent with this version. Mr Mansour agreed that his history of when the right shoulder surgery occurred was wrong and accepted that it was probably in August 2018. It was also suggested to Mr Mansour that he first saw the shoulder surgeon in May 2018, that is after the motor accident. He said he was unclear of when this first occurred.
Mr Mansour agreed that he would have seen the shoulder surgeon regularly after the surgery and did not dispute the histories recorded by Dr Smith of improving shoulder symptoms in the months following the surgery. He agreed that the right arm came out of the sling about six weeks after surgery and the shoulder pain was then settling.
Mr Mansour agreed that that he had a successful outcome from the shoulder surgery and did not disagree with the history of reduction in pain and then commencing exercises 12 weeks after the surgery. He said that these exercises were not with weights, but the strengthening was undertaken with stretching by a theraband.
We read out to Mr Mansour that Dr Smith had no history of right arm radiculopathy until April 2019 when symptoms were mentioned in the C7 dermatome. Mr Mansour agreed that the doctor asked him about right arm symptoms during the various consultations. He also said that he remembered having a discussion about the right-hand symptoms with Dr Smith because he thought that they may be due to the shoulder surgery.
Mr Mansour stated that Dr Smith then advised him that those symptoms were due to the neck and not due to the shoulder surgery.
Mr Mansour was told that the chiropractic notes appeared to commence in August 2018. He agreed with that and explained why they started at that time. He repeated that the physiotherapy treatment commenced immediately following the motor accident. Mr Mansour was also asked about the reference to “traps” in the chiropractic notes and said that he had treatment indicating the back of his shoulder blades.
The notes of the physiotherapist were then discussed with Mr Mansour, specifically that there was an absence of record of right arm and hand symptoms in 2018 and that the record of the physiotherapist was that they commenced in 2019.
Mr Mansour agreed that he was examined at hospital on the day of the motor accident and asked various questions about symptoms. He remembered being placed in a neck brace. It was suggested that there was a reference in the noted to no tingling or numbness in the arms. Mr Mansour said that he could not recall.
The various notes of the physiotherapist, chiropractor, GP and hospital in February 2019 which noted the onset of right arm pain commencing at that time were all read out to Mr Mansour. Mr Mansour said that he always had the arm and hand pain and numbness, and it got worse at that time because, in his view, he then reduced his pain medication.
Mr Mansour stated that he was not doing anything in February 2019 that could explain the onset of symptoms save that he emphasised the reduction in consumption of painkillers.
Mr Mansour was asked whether he wanted to add or clarify anything. He said that he had a neck injection in January this year and was advised by his specialist that he may need neck surgery at some future point. He also stated that he was only following process for the motor accident.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[68] and Insurance Australia Ltd v Marsh.[69]
[68] [2021] NSWCA 287 at [40], [41] and [45].
[69] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[70] that radiculopathy can be present at any time to establish a non threshold injury for the purposes of the MAI Act.
[70] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[71] 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.
[71] [2022] NSWPICMP 6 at [44]-[62].
The Panel adopts the examination report and adds the following reasons.
We do not accept that the insurer’s submissions that the previous chronic low back condition is relevant to a neck injury. However, we also note the claimant’s concession in his submissions that the cervical spine was symptomatic at the time of the motor accident.[72]
[72] See [34].
The claimant’s submission that the Medical Assessor’s role is purely a medical opinion and “is reminded to stay within the field of expertise” is legally wrong. As Wright J noted in Briggs v IAG Ltd[73] the determination of causation of a minor and non-minor injury (now threshold) is not just a medical question but a “a non-medical informed judgment”.[74]
[73] [2022] NSWSC 372 (Briggs).
[74] Briggs at [77].

Cervical spine injury

The insurer’s submissions on an absence of neck pain following the motor accident in 2018 is wrong as it relies only on an absence of record by the GP. There are mentions of neck pain to the physiotherapist in 2018.
We otherwise do not accept the insurer’s submission of an absence of neck symptoms recorded by the GP in a brief note on the day of the motor accident is significant. The claimant clearly mentioned neck pain when he arrived at the hospital hours later.
We do not accept the claimant’s version that he had right arm/hand symptoms since the motor accident only became debilitating when he went off medication in February 2019. We reject the claimant’s version for a number of reasons.
We are conscious that the absence of record is relevant but not determinative of the question of causation: AAI Ltd v McGiffen.[75] However, there is not only an absence of record, but positive statements within the various records contrary to the claimant’s version provided to the Panel of an immediate onset of arm/hand symptoms.
[75] [2016] NSWCA 229 at [64]-[66].
First, we do not accept Mr Mansour was an accurate historian. His recollection of the timing of right shoulder surgery and the improvement in the shoulder symptoms is clearly inconsistent with the contemporaneous records of Dr Smith. When questioned about these records Mr Mansour agreed that he was unsure of timing. Mr Mansour also agreed that he had a successful outcome from shoulder surgery with improvement in pain levels and was undertaking strengthening exercises 12 weeks following surgery. That history is inconsistent with a reduction of pain medication six months after successful shoulder surgery where exercises had been commenced three months earlier.
The fact that the right shoulder surgery was successful, as accepted by Mr Mansour is indicative that the right shoulder symptoms were properly treated by surgery. It does not support a view that the right shoulder symptoms were symptoms emanating from the cervical spine.
Secondly, Mr Mansour agreed that during the various consultations, Dr Smith asked him about right arm symptoms. It is extremely likely, consistent with sound medical practice and the claimant’s evidence, that Dr Smith would have questioned Mr Mansour about right arm/hand symptoms in the various consultations in 2018 and 2019. Dr Smith’s first report in May 2018 confirms that the examination showed shoulder pathology. At that time there was no suggestion of arm symptoms coming from the cervical spine.
There is no mention of C7 radiculopathy by Dr Smith until he examined the claimant in
April 2019. The emergence of C7 radiculopathy in Dr Smith’s April 2019 report is consistent with the histories elsewhere that the radiculopathy commenced in February 2019.
Thirdly, the history by Mr Mansour that there was immediate radiculopathy is inconsistent with the hospital notes on the day of the motor accident that there was nil numbness or tingling in the arms. Mr Mansour was then discharged, and the next treatment occurred with a physiotherapist some weeks later. The suggestion of onset of radiculopathy is inconsistent with the CT scan undertaken at that time which was essentially normal save as too some degeneration at C5/6, the discharge and the absence of immediate follow up treatment.
As we noted, there is a positive record within the hospital records of no tingling or numbness in the arms.
Fourthly, Mr Mansour’s history of early onset of arm/hand symptoms is inconsistent with the various histories recorded in February 2019 that these symptoms commenced at that time. The clinical notes of the GP, physiotherapist and the hospital are specific and provide that there is a recent acute (two day) history of arm symptoms. This history was otherwise confirmed by the physiotherapist in a report dated 3 October 2019 that the acute referred pain to the right upper shoulder and right hand developed “earlier this year”. These notes are precise, come from three sources within days of the acute onset and contradict the claimant’s account. The claimant could not provide any explanation for the inconsistency between those notes and his version provided to the Panel.
Fifthly, Mr Mansour was not referred by any medical practitioner in 2018 for an MRI or similar scan. The absence of referral during this period suggests that no radicular symptoms were mentioned by the claimant to any health practitioner. When these symptoms were mentioned in February 2019 the claimant immediately had an MRI scan which identified the herniated disc.
The fallibility of human recollection and the importance of contemporaneous records are referenced in numerous cases including Coote v Kelly,[76] Onassis v Vergottis,[77] Gestmin SGPS S.A. v Credit Suisse (UK) Limited,[78] Campbell v Campbell[79] and Watson v Foxman.[80]
[76] [2016] NSWSC 1447.
[77] [1968] 2 Li Rep 403 at 431.
[78] [2013] EWHC 3560 (Comm) at [15]-[22].
[79] [2015] NSWSC 784 at [73]-[76].
[80] (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
Whilst we accept that sometimes clinical records may not be accurate,[81] the record of onset of symptoms is entirely consistent in the various records for the 12 months following the motor accident. We otherwise observe that Mr Mansour asking Dr Smith in April 2019 whether the hand symptoms were related to the shoulder surgery is inconsistent with his statement that the hand symptoms immediately commenced following the motor accident and predated the shoulder surgery.
[81] See the discussion in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35].
For these reasons the Panel does not accept Mr Mansour’s statement that the hand/arm symptoms developed prior to February 2019.

The nature of the cervical spine injury

The Panel accepts that the C6/7 disc herniated at the time of the onset of radiculopathy in February 2019. As we noted to the parties, there is clear evidence of radiculopathy within the meaning following that time and confirmed by Medical Assessor McGrath in the original assessment.
We also accept that a herniated disc would involve complete or partial rupture of tendons, ligaments, menisci or cartilage as defined as it is a rupture of the outer disc layer comprised of cartilage ligamentous material.
We agree with Dr Korber that the C6/7 herniated at the time of onset of symptoms, that is around 18 February 2018.
The present issue, as we identified to the parties in the direction, is whether the motor accident caused or contributed to the herniated disc which in turn caused the C7 radiculopathy.
The claimant accepted in his written submissions that he had pre-existing symptomatology in the cervical spine.[82]
[82] See {34] herein.
We accept that the claimant had ongoing neck pain following the motor accident in the context that it was accepted that he was symptomatic prior to the motor accident. The physiotherapy records in May, June and July 2018 corroborate Mr Mansour’s complaints of ongoing neck pain.
We are not satisfied that the motor accident involved a rear end collision at or anywhere near 60 kmph. The claimant conceded that he did not see the collision and based that history on the size of the impact. To the extent that Dr McIntosh’s opinion is relevant, we accept that the collision was at a much lower speed. Whilst Dr McIntosh’s expertise on the extent of the injuries arising from a motor accident is questionable, he clearly has expertise to comment on the speed of the collision.
Dr McIntosh expressed a view that the collision occurred at a much lesser speed primarily based on the absence of airbag deployment and the extent of the damage shown in the photographs. We otherwise note Mr Mansour’s evidence that his vehicle was brand new. As a matter of common sense, it is more likely than not that a new vehicle had properly fitted air bags.
As a matter of medical expertise, a motor accident at higher speeds is more likely to produce a more severe whiplash injury than a motor accident occurring at much lesser speeds. That is a general proposition and, as the claimant submitted, was subject to the individual circumstances. However, to the extent that it is relevant, we are not satisfied that the motor accident occurred when the insured driver was traveling anywhere close to 60 kmph.
The claimant relied on the opinion expressed by Dr Sheehy, neurosurgeon. Dr Sheehy noted a history of radicular symptoms of upper anterior chest wall pain since early 2018 with development of pain in the right and forearm with radiation to the 3^rd and 4^th fingers developing in October 2018. We do not accept that history. The reliance by Dr Sheehy on an incorrect history greatly undercuts the value of the opinion as it is not based on a fair climate.[83]
[83] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
The clinical records of the physiotherapist and chiropractor in 2018, whilst ignored by the insurer have been overstated by the claimant.
As we noted, the physiotherapist record neck treatment in May, June and July 2018. The consultation in October 2018 appears to relate to the shoulder. The next treatment was on 18 February 2019 following the recent onset of neck pain.[84]
[84] Insurer’s bundle, p 732.
The clinical notes of the chiropractor are brief. They do not indicate treatment to the neck save as to a reference to a massage on 20 October 2018 in the context of other treatment to the back and traps. The other chiropractic treatment refers to treatment to the back and traps. As is evident from the various pre-motor accident records, the claimant also had a chronic history of low back pain.
Whilst there is evidence of physiotherapy treatment to the cervical spine following the motor accident, there is a lack of reference of treatment to the cervical spine in the four-month period leading up to the sudden onset of right arm symptoms in February 2019.
Associate Professor Ghahreman provided an opinion on the relationship between the motor accident and the onset of right arm symptoms caused by the herniated disc. That opinion is based in part on the conclusion that the motor accident caused an annular tear and fragmentation of the disc which herniated some 10 months later. The view is dependent upon the radiologist not correctly reporting that pathology in the April 2018 CT scan.
Whilst it is possible, it is unlikely that the radiologist did not accurately record the CT findings. We do not have the radiology and in our view the opinion that the radiologist misread the scan is speculative. We do not accept that it is likely on the balance of probabilities that there was an annular tear or fragmentation of the disc in April 2018. Such a conclusion is otherwise inconsistent with the absence of recorded neurological signs at hospital.
Associate Professor Ghahreman otherwise expressed a view on causation based on
Mr Mansour’s history “and records from his general practitioner that he has had scapular, neck and shoulder pain, definitely signs of at least partial radicular irritation right from the outset”. As we noted, we do not accept Mr Mansour’s history. We otherwise do not read the records of the GP relating to right shoulder symptoms other than that they relate to the right shoulder.
The documentation shows that a sudden and acute deterioration of his neck occurred on or around the 17^th of February 2019. Mr Mansoor attended the Australian Healthcare Centre about once a month, and the Caringbah Medical Centre only occasionally. He attended Hospital on 19 February 2019 and there is a note stating that he had radicular symptoms in his right arm and needed urgent pain management. The following day he attended the Medical Centre and there is a note stating that pain in his neck with tingling and numbness in his right arm started the previous Saturday. The physiotherapy statement dated 3 October 2019 stated that after treating Mr Mansour for neck pain during 2018, there was a change in early 2019 with the development of radicular symptoms in the right arm.
It is unclear why this sudden deterioration occurred. The physiotherapy notes refer to neck symptoms going back as far as November 2016 and other evidence shows neck symptoms since 2010. In our view there is insufficient evidence to link the deterioration in February 2019 with the motor vehicle accident which occurred 10 months previously.
There is no clear medical reason why the disc herniated whilst the claimant was asleep in February 2019, and clinical symptoms were noticed on awakening. However, the claimant must establish his case on the balance of probabilities that the herniation was due to the motor accident.
On the material and our findings, we are not satisfied that the motor accident caused the disc herniation and consequential radiculopathy.
Whilst we are satisfied that the motor accident caused an injury to the cervical spine, we are not satisfied that the injury was anything more than a soft tissue injury as defined in the MAI Act.

CONCLUSION

For these reasons the Panel concludes that the certificate issued by Medical Assessor McGrath is revoked. The new certificate is attached at the commencement of these Reasons.

[2023] NSWPICMP 141

12 April 2023