Kaur v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Kaur v QBE Insurance (Australia) Limited [2025] NSWPICMP 761
CLAIMANT:	Amarpreet Kaur
INSURER:	QBE Insurance Australia Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	3 October 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s review of Medical Assessment Certificate (MAC) under section 7.26; threshold injury dispute; injuries to neck, lower back, right shoulder, and left knee in dispute; claimant had previous neck and lower back complains; claimant alleged disc protrusions in cervical and lumbar spine and nerve root injuries were caused by the accident; claimant alleged bursitis in right shoulder was not a threshold injury and that undisclosed left knee injury was not a threshold injury; Held – Review Panel not satisfied left knee was injured in the accident; Review Panel found no rupture of tissue in right shoulder and bursitis is a threshold injury; Review Panel found no evidence of radiculopathy at time of re-examination or in the records; Review Panel found disc protrusions in cervical and lumbar spine were not caused by the accident; MAC revoked due to different determination concerning knee injury; no change to the outcome all injuries were threshold injuries.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Home dated 30 April 2025. 2. Certifies that the cervical spine, lumbar spine and right shoulder injuries sustained by the claimant in the accident on 11 May 2023 are threshold injuries for the purposes of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Amarpreet Kaur was involved in a motor accident on 11 May 2023. She was stationary at traffic lights when she says she was hit from behind by another vehicle being driven at 40 kms per hour.
Ms Kaur says she injured her neck, back, shoulder and left knee in the accident and made a claim for statutory benefits with QBE, the third-party insurer of the vehicle that hit her vehicle. Ms Kaur also says she developed a psychological or psychiatric injury resulting in stress that has caused dental problems as a consequence of the accident.
A medical dispute about whether the claimant’s injuries are threshold injuries or not has arisen in the claim and Ms Kaur has referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 30 April 2025, Medical Assessor Home determined that the claimant’s neck, back, shoulder and left knee injuries were threshold injuries. As the claimant was disappointed with that result, she lodged an application for review of that decision. On 18 June 2025, Ms Baba a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and the President’s delegate convened a Panel to conduct the Review.
On 15 July 2025, the President’s delegate convened the current Panel to conduct the Review.
The Panel is aware of two other assessments of the threshold injury dispute as follows:
(a) on 14 March 2025 Medical Assessor Nichols found that a “fractured, chipped tooth caused by bruxism” was not an injury caused by the accident and therefore there was no need to determine whether it was a threshold injury or not. An application for review was lodged in respect of that decision and a delegate of the President determined that the review should proceed and those proceedings have been allocated to a Panel, and
(b) on 2 May 2025, Medical Assessor Jones found that the claimant did not have a post-traumatic stress disorder caused by the accident and that she did not have a psychiatric disorder. An application for review of that decision was also lodged in respect of that assessment however the President’s delegate determined the review should not be allowed.

LEGISLATIVE FRAMEWORK

Jurisdiction

Ms Kaur’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 52 weeks after the accident (for injuries after 1 April 2023).
Claims for lump sum compensation by way of damages can be made in accordance with Part 4 of the MAI Act and there are disentitling provisions and limits to the amount and extent of benefits available in those claims as well. One of the restrictions in a damages claim is that a claimant cannot recover damages if their only injuries are threshold injuries.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
If a person injured in a car accident sustains soft tissue injuries only, then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 10 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.
Section 1.6(4) 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 MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury. So an injury to a nerve is not a threshold injury but in the case of an injury to a spinal nerve root, that injury is a threshold injury unless it manifests in radiculopathy.

Method of assessment

Part 5 of the Guidelines contains the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act[1]. The Guidelines relevantly provide:
“5.6 The assessment of whether an injury caused by the accident is a minor 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, and
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
[1] The current version of the Guidelines is version 10 effective 15 September 2025.
The method of assessment in Part 5 does not appear to be limited to the assessment of minor injury disputes by medical assessors and Panel members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).

ASSESSMENT UNDER REVIEW

Medical Assessor Home examined the claimant on 28 April 2025 and issued his certificate on 30 April 2025. He confirmed at [2] that he was asked to assess:
(a)    whether the injury to the cervical spine - C4/5 disc protrusion, with left C5/6 and bilateral C6/7 foraminal stenosis caused by the motor accident is a threshold injury for the purposes of the Act;
(b)    whether the injury to the lumbar spine - annular bulges along the L4/L5 levels and disc protrusions along the L5/S1 levels;
(c)    there is also reported possible L5 nerve root impingement caused by the motor accident is a threshold Injury for the purposes of the Act;
(d)    whether the injury to the shoulder - right shoulder reported bursitis caused by the motor accident is a threshold injury for the purposes of the Act, and
(e)    whether the injury to the knee - left knee caused by the motor accident is a Threshold Injury for the purposes of the Act.
Medical Assessor Home took a history at [8] – [10] as follows:
(a)    the claimant had “an episode” of neck pain after a motor accident in November 2017 and that she had intermittent pain extending to her right arm; she confirmed attending Dr Bazina, neurosurgeon for these symptoms at that time and residual mild symptoms but was able to work;
(b)    Ms Kaur gave a consistent history of the current accident, said she got out of her car, exchanged details and proceeded to work;
(c)    Ms Kaur said she had persisting neck and right shoulder pain with intermittent paraesthesia described as an “aggravation of her previous complaints” and that she also had lower back pain radiating to the right leg;
(d)    she saw Dr Hussain in Casula and then her regular GP Dr Sachawars in Pemulwuy and received exercises from Dr Rao at the Whiplash centre, and
(e)    Ms Kaur commenced seeing the Workers Doctor Centre in Parramatta as her husband was attending there for his work-related condition. She had physical therapy, saw Dr Khong, neurosurgeon, there was discussion about injections which she declined due to a fear of side-effects and she has seen Dr Chien.
Ms Kaur complained of constant right sided neck pain with lesser symptoms on the left. She has referred pain to the right arm with occasional pain to the right forearm and hand and a feeling of heaviness and altered sensibility in the right upper limb. The claimant also reported constant lower back pain with some radiation to the right thigh and back of the right thigh to the knee. She had an unrelated bladder complaint.
The claimant reported to Medical Assessor Home, sitting and driving tolerances of two hours, walking tolerance of 30 minutes and disturbed sleep. She was generally independent with self-care and said she performs some domestic chores and is supported by family. The claimant reported minor pain in the left knee after the accident which resolved within a few days, and she has had no further symptoms.
On examination of the neck there was no guarding or dysmetria. There was reduced sensibility globally in the right arm but a full active range of motion in the right shoulder and left shoulder. There was muscle guarding in the lower back but no dysmetria and reduced sensation in the whole of the right leg from the hip to the toes in a non-dermatomal pattern.
Medical Assessor Home was satisfied the claimant injured her cervical spine, lumbar spine, right shoulder and left knee in the accident. He considered the bursitis in the right shoulder and left knee injury had resolved.
Medical Assessor Home listed the criteria for radiculopathy and said the claimant did not meet the criteria and there was no evidence of injury to the nerves. Having examined the MRI scans he said there was no evidence of the complete or partial rupture of tissue. He found therefore that the cervical and lumbar spine injuries were soft tissue injuries only.

ISSUES FOR DETERMINATION

Claimant’s submissions[2]

[2] The numbers in square brackets are a reference to the paragraph number in the submissions.

The claimant submits that:
(a)    Medical Assessor Home certified that the claimant had underlying degenerative changes in both the cervical and lumbar spine whereas radiology and the report of Dr Muratore do not record pre-existing degenerative changes in the lumbar spine [4];
(b)    he gave inadequate reasoning for the determination that the right shoulder bursitis had resolved [5];
(c)    his summary of the radiology of 5 July 2023 was incorrect [6] and his summary of the report of Dr Rao is also incorrect [7] and that his summary of the findings of the MRI “does not encapsulate the true severity of the claimant’s injuries [8];
(d)    the report of Dr Siddiqui “confirms” disc protrusions, bursitis and mental health issues relating to grinding teeth [11];
(e)    Dr Chien refers to right shoulder pain radiating from the neck to the hand which is evidence of nerve damage (a non-threshold injury) [12];
(f)    the Medical Assessor did not consider the report of Dr Mo and rejected the radiology and records with regards to the state of the claimant’s neck, back and shoulders [17] – [18];
(g)    the finding that the claimant did not suffer radiculopathy “was not conclusive of whether the claimant had sustained threshold injury only, the Assessor should have considered the alternative conclusion” and explained why the findings on the imaging came outside the definition of threshold injury [20], and
(h) the Medical Assessor failed to properly consider all of the medical evidence which is a breach of procedural fairness [32].
The remaining submissions, including submissions about materiality are matters relevant only to the gatekeeper decision and not to the decision of this Panel which is undertaking an assessment de novo.

Insurer’s submissions

The insurer’s submissions to the President’s delegate says that the Medical Assessor has considered all the evidence referring to pages 4, 7 and 8 [6] – [8].
The insurer points at [10] and [11] to the evidence of there being degenerative changes present in the claimant’s lumbar spine before the current car accident.
The insurer points at [20] to the findings in the decision that indicates there were no current shoulder symptoms and that the claimant’s bursitis had recovered.
The insurer deals at [25] – [30] with the claimant’s allegations concerning Dr Rao and Dr Chien’s evidence and has applied his medical expertise to the assessment of the neck injury.
The insurer submits at [35] and [36] that the Medical Assessor undertook his assessment and failed to find two or more signs of radiculopathy.

Procedural matters

The previous Panel issued directions to the parties on 23 June 2025 for bundles of documents. The claimant provided a bundle of documents comprising 283 pages and the insurer provided a bundle of documents comprising 164 pages.
The Panel met on 14 August 2025 and reported to the parties the next day as follows:
(a)    the Panel confirmed the injuries listed by the claimant and referred for assessment [5];
(b)    in terms of the cervical and lumbar spine injuries the Panel would look for evidence of a spinal nerve root or spinal nerve injury and whether there is radiculopathy. The Panel would also look for whether there is “a complete or partial rupture of tendons, ligaments, menisci or cartilage [6];
(c)    in terms of the right shoulder the Panel would consider the condition of bursitis and whether there is the complete or partial rupture of any tissue in the right shoulder [7];
(d)    in respect of the knee the Panel would look at what the injury to the knee was and whether it is soft tissue or non-threshold [8], and
(e)    the Panel reminded the parties of the decisions of David v Allianz Australia Insurance Ltd[3] and Lynch v AAI Limited t/as AAMI[4] and that we would be looking at the evidence from the date of the injury and would not just be considering how the claimant presents on the day of the re-examination [9].
[3] 2021 NSWPICMP 227.
[4] 2022 NSWPICMP 6.
The Panel sought additional documents including:
(a)    Clinical notes of Dr Hussain and Dr Sachawars;
(b)    a report dated 28 March 2019 from Dr Bodel, and
(c)    Dr Bazina’s records.
The claimant was directed to advise whether she pressed the assessment of the injury to the knee and shoulder.

Response from the parties

On 5 September 2025, the claimant requested all injuries be assessed and provided details of the attempts made to get other medico-legal reports from the claimant’s previous accidents and claims. A bundle of additional documents comprising records from Dr Sachawars, Dr Hussain and Dr Bazina were provided along with the report of Dr Bodel from the 2017 accident and claim.
The insurer obtained a copy of the NRMA claim file from the 2017 accident which includes medico-legal reports from both parties and the assessment by Medical Assessor Harvey-Sutton.
The Panel has determined it is appropriate to allow all of this material into evidence.

REVIEW OF THE EVIDENCE

Claim form and claim documents

Ms Kaur’s claim form was completed on 7 June 2023[5]. The claimant disclosed a previous motor accident claim made against NRMA in relation to an accident on 10 November 2017.
[5] Page 7 of the claimant’s bundle, page 13 of the insurer’s bundle.
The claimant says the insured vehicle hit her car “hard” from behind “at the speed of

40 kmph” and that her head and neck moved rapidly back and forth motion leading to whiplash.”
Ms Kaur listed her injuries as follows:
(a)    neck whiplash – neck pain, stiffness in the neck (pins and needles pain);
(b)    pain in shoulders (especially right shoulder) back, upper arm
(c)    headache, nausea, weakness in injured areas after the accident;
(d)    back pain and
(e)    disorganised communications skills, shock.
The claimant says she was not taken to hospital and was not suffering any illness or injury affecting the same parts of her body at the time of the accident.
The insurer relies on the police report which confirms the claimant attended the station on

24 May 2023 to report the accident[6]. While she had scans done of her “back” she had not yet had treatment. The report gives little in the way of details other than to indicate no vehicles were towed away.
[6] Page 34 of the insurer’s bundle.
Photographs have been provided[7]. It is difficult to see any damage to the two vehicles, in particular the claimant’s vehicle, due to the light and reflections. However, it does appear there is a small dent visible below the number plate but there is certainly no major deformation damage visible. The Panel notes the statement from the insured driver[8] which says at [20] there was no visible damage to his car, and it has therefore never needed repair. He says he was driving at less than 10 kms per hour and the impact was a 1 out of 10 in terms of severity.

Treating medical records and reports

[7] Page 5 of the claimant’s bundle and pages 26 and 27 of the insurer’s bundle.

[8] Page 42 of the insurer’s bundle.

Pre-accident records Casula Central Medical Centre (Casula CMC)

The records of Casula CMC (Dr Sarkar, Dr Hussain and others) were provided by the claimant and commence in 2016. In November and December there is reference to a referral to Dr Dave. On 23 January 2017 Ms Kaur was awaiting nerve conduction studies for her upper limbs due to pain. She returned on 19 July 2017 and was told the study was normal.
On 22 November 2017 the claimant attended and saw Dr Sarkar for review of her cervical spine and shoulder X-rays. The Doctor requested an MRI and prescribed Brufen.
On 24 September 2018 the claimant returned to Dr Sarkar requesting a medical certificate. Ms Kaur gave the following history:
“She said this morning she was going to her Uni, was involved in MVA. She said she was the only person in the car, wearing seat belt. It was 60kmhr, the traffic was heavy, the car in front of her slowed the speed limit, she could not judge and hit the car in front of her. There were only 2 cars involved. She said after the accident they exchanged the details, she drove back home . She said passenger front door cannot be opened, damage. She said she was involved another MVA 2017, on that time sustained injury at neck as well . She said yesterday she was in gym, getting some muscular discomfort for it as well.”

On 27 September 2018 the claimant returned to say her pain was better, but she was worried about the future and requested radiology (MRI) and reference was made to an X-ray on 26 September 2018 which indicated nerve root encroachment on the right at C6/7. The MRI was done, and three recall letters were sent by the GP before the scan was done on

4 October 2018 and a referral to Dr Bazina was given on 15 October 2018.
On 1 May 2019 the claimant saw Dr Sarkar and sought a referral to a neurosurgeon. In August 2019 the claimant attended for epicondylitis (right elbow) pain. The claimant reported neck pain to Dr Hussain on 12 November 2021. There were multiple attendances throughout for abdominal issues and in particular in October 2022 when the claimant was taking Panadeine Forte for right kidney area pain.

Pre-accident records Nelsons Ridge Medical Centre (Nelsons Ridge MC)

Nelsons Ridge MC (Dr Sachawars) records commence in 2014. On 29 December 2016 the claimant attended for right shoulder, right hand and finger pain, and she had seen a rheumatologist Dr Goti-Graham. In early 2017 she was having trouble walking due to feet issues and had pain in the right thigh and leg and wanted surgery.
Dr Sachawars provided a medical certificate to Macquarie University on 6 June 2017 certifying the claimant was affected by a health condition affecting her study between 18 May 2017 and 22 June 2017[9]. The health condition was said to be low back pain, joint pain and foot problems.
[9] Page 151 of the insurer’s bundle.
On 13 November 2017 the claimant attended Dr Sachawars reporting a car accident at 3.30pm when she was hit from behind. The claimant complained of neck pain, bilateral shoulder pain (right worse than the left) with right upper limb pain and numbness of the right wrist and fingers. Radiology was requested.
The consultation note from the records of Dr Sachawars on 22 November 2017[10] refers to right hemi-cranial pain and documents an X-ray of the right shoulder (sclerotic area in the neck of the humerus) and an X-ray of the cervical spine[11] which showed “degenerative changes present” and significant narrowing of the intervertebral foramina at C5/6 on both sides. An MRI was requested due to “cervical radiculopathy R” and Mobic was prescribed.
[10] Page 46 of the insurer’s bundle.
[11] The radiology report of this investigation is at page 138 of the insurer’s bundle.
A report of a CT undertaken on 28 December 2017[12] reported no fractures, uncovertebral joint degeneration C4/5 and C5/6 and severe at C6/7. There was moderate to severe narrowing of the right neural exit foramina and moderate neural exit foramen on the left with possible contact of the C7 nerve. The claimant saw Dr Sachawars on 30 December 2017 to discuss the results and was referred to Dr Ganora, rehabilitation physician on 5 January 2018
[12] Page 47 of the insurer’s bundle.
The claimant had an MRI of her cervical spine[13] in India on 7 February 2018 which reported:
(a)    a mild diffuse disc bulge at C4-C5 indenting the thecal sac,
(b)    a diffuse disc bulge with right and left protrusion at C5-6 indenting the thecal sac and left existing nerve root, and
(c)    a diffuse bulge at C6-7 compressing the thecal sac and both exiting nerve roots causing neural foraminal stenosis on both sides.
[13] Page 156 of the NRMA claim file documents.
The claimant had surgery on both feet in May 2018 and saw Dr Newman, orthopaedic surgeon.
On 13 March 2018 the claimant attended Dr Sachawars complaining of low back pain radiating to her buttocks.
The claimant was referred again to Dr Ganora, on 5 January 2019 by Dr Sachawars[14] for opinion and management of chronic post traumatic pain and paraesthesia of the upper back and shoulders. Further complaints of pain were made to Dr Sachawars on 9 February 2019 and 27 April 2019 and at that time she was referred to Dr Danidie, neurosurgeon.
[14] Page 192 of the NRMA claim file documents.
The claimant saw Dr Bazina, neurosurgeon on 17 May 2019[15] in respect of neck pain and right arm symptoms suggestive of an issue at the C7 level. She refers to the car accident two years before and an ongoing claim. Dr Bazina found no neurological findings and referred the claimant for a C6/7 nerve block but did not recommend surgical intervention but did recommend nerve conduction studies and physiotherapy.
[15] The report is at page 149 of the insurer’s bundle.
Dr Sachawars records right elbow pain due to an incident at the gym on 11 September 2019.
During 2020 the claimant reported stress and anxiety, and the claimant’s abdominal pain issues were a concern.
The claimant had a fall at work on 16 December 2021 landing on her right knee joint and right elbow injuring her right shoulder, knee, right elbow and right ankle[16]. The claimant saw Dr Sachawars on 8 January 2022 and was referred to Dr Dave, orthopaedic surgeon. She had physiotherapy for this condition commencing 19 January 2022.[17] It appears the claimant made a workers compensation clam and there are several references to Workcover certificates at this time. On 7 April 2022 it was reported that Ms Kaur had returned to normal duties.
[16] At page 106 of the insurer’s bundle, page one of Dr Sachawars’ certificate of capacity dated 7 April 2022 is provided.
[17] A report dated 1 March 2021 (it appears this should be 2022) documents this
On 23 July 2022 the claimant had an X-ray and ultrasound of her left shoulder and upper arm[18]. There is no corresponding clinical note in the records of Casula CMC or Nelsons Ridge MC. The referring doctor is said to be Dr Dogra of the Minto Mall Medical Centre. There are no notes from this practice.
[18] Page 157 of the insurer’s bundle.

Post-accident records

The claimant had a telehealth appointment with Dr Hussain on 11 May 2023 at 2.15pm. The note recorded is that the claimant was driving with her seatbelt on when she was hit from behind. She complained of pain in her neck, middle and low back and right shoulder. She was advised to come in for an examination but she said she could not as she was at work, but she would come the next day. She sought a medical certificate and an X-ray. The records do not indicate that the claimant attended the next day.
On 17 May 2023 the claimant had the X-ray of her cervical spine, lumbar spine and right shoulder[19]. The report says:
(a)    no fracture or dislocation in the glenohumeral and acromioclavicular joints with benign area of sclerosis in the proximal right humerus;
(b)    normal alignment of the cervical spine with degenerative disc space changes at C4 - C7 with neural foraminal stenosis at C5/6 an C6/7 on the left and at C6/7 on the right;
(c)    mild degenerative disc space changes in the thoracic spine, and
(d)    mild disc space narrowing at the lumbosacral junction and moderate facet joint degenerative changes in the lower lumbar spine and lumbosacral junction.
[19] Pages 48 and 104 of the insurer’s bundle.
The claimant saw Dr Hussain on 20 May 2023 and was advised there were no fractures. There were no complaints of pain or restriction noted at this consultation.
The claimant saw Dr Sachawars on 24 May 2023 and the records state “reason for visit: CTP” and “history: MVA” but no other details. Imaging requests for MRIs of the neck, lower back and right shoulder were given and a certificate of capacity and fitness provided. The claimant returned for a progress visit on 15 June 2023 but again there is no detail given of her complaints at that time.
On 5 July 2023 the claimant had an MRI at the request of Dr Sachawars. The report dated

6 July 2023[20] covers the cervical and lumbar spines and the findings in the cervical spine were:
(a)    no fractures;
(b)    no abnormal soft tissue oedema to suggest acute ligamentous injury;
(c)    minor posterior midline disc protrusion at C4/5 without contacting or compressing the spinal cord or causing neural impingement;
(d)    small to moderate disc osteophyte complex at C5/6 with moderate left sided foraminal narrowing and possible impingement of left C6 nerve root, and
(e)    moderate broad-based posterior disc osteophyte complex mildly indenting the spinal cord but with no focal cord oedema at C6/7. There was severe foraminal narrowing on both the left and right side but with no neural impingement.
[20] Page 46 and 50 of the insurer’s bundle.
In the lumbar spine the MRI report indicated degenerate changes, a mild bulge at L4/5 and at L5/S1 a mild broad based disc protrusion with facet joint arthropathy on both sides and narrowing and possible impingement on the left side. The conclusion was
“Multilevel degenerative change in the mid/lower lumbar intervertebral and facet joints. Mild to moderate bilateral foraminal narrowing at the L5/S1 level, worse on the left side, with possible impingement of the exiting left L5 nerve root.”
The shoulder MRI noted intact rotator cuff and mild subacromial / subdeltoid bursitis.
The Medical Assist Network reported to the insurer on 20 June, 2 August and 5 September 2023. Doctors Antoun and Foo contacted the claimant’s GP Dr Sachawars on 2 August 2023 and he confirmed the claimant was in pain, the claimant had been referred for a cortisone injection for her shoulder and a psychologist for stress. The claimant was at that time working.
There is a reference to a report from Dr Ray Wallace of the ARC Whiplash Clinic (ARC) on 19 July 2023 in the Casula CMC records. On 29 July 2023 the claimant saw Dr Sachawars complaining of right shoulder and low back pain and stress with work and her financial situation. Similar complaints were made on 2 August 2023. On 9 August 2023 the claimant was referred to a psychologist by

Dr Sachawars.
Dr Rao, sport and exercise physician of ARC undertook a telehealth consultation with the claimant on 17 August 2023[21]. The report indicates the claimant complained of right sided neck and shoulder pain to the elbow and lower back pain after the car accident.
[21] The report is at page 43 of the insurer’s bundle.
The diagnosis made was of a whiplash injury and right shoulder pain consistent with mild inflammation of the subacromial bursal. No diagnosis was given in respect of the lumbar spine, and no mention is made of it in the “opinion” section of the report. Dr Rao recommended a home exercise program and psychological support noting that “at this stage the client has declined receiving support.”
On 22 August 2023 the claimant returned to Casula and saw Dr Hassan reporting pain in the neck and shoulder, and she wanted a medical certificate. There is then no further attendance at Casula until 15 March 2024 when she returned for a foot problem.
On 21 October 2023 the claimant reported “teeth grinding” to Dr Sachawars and a referral to or letter to a dentist was written.
Dr Khan of the Medical Assist Network wrote a report for the insurer on 7 December 2023[22]. The claimant was not examined, and the report was compiled on the basis of a document review and communication with the 5 July 2023 radiologist Dr Cuganesan. Dr Khan sought further clarification in terms of determining whether the change in pathology in the cervical spine was progressive or traumatic and in the lumbar spine he considered the injury was soft tissue unless there was clinical evidence to the contrary.
[22] Page 54 of the insurer’s bundle.
The claimant travelled to India at the end of 2023 or early 2024 and had treatment for a corn on her foot. This became infected and was treated by Dr Sachawars. On 18 July 2024 the claimant complained of right foot pain “after a long walk in snowy mountains.” A similar note was made on 24 January 2025. There are no further accident-related complaints recorded by Dr Sachawars.
The claimant commenced attending the Workers Doctors practice at Parramatta in August 2023. These records show the following attendances:
(a)    Ms Kaur saw Dr Mo, and then the physiotherapist at the practice on 30 August 2023. The claimant’s neck, right shoulder and lower back were examined, and he records a “[positive] slump [test] and reduced sensation on the right leg”. Dr Mo’s record of attendance provides a formatted entry with no details relevant to the claimant inserted;
(b)    Ms Kaur saw Dr Lim on 12 September 2023, and limited detail is provided in this entry;
(c)    the claimant saw psychologist (Mr Nielsen) on 12 September 2023 for “PTSD”. Mr Nielsen provided a report dated 12 September 2023[23]. He has a history of the rear end collision and that the claimant went to work and has continued to work (with reduced hours). The claimant reported disturbing and unwanted memories, avoidance behaviours, negative thinking and difficulties with activities of daily living. He set out the criterion from DSM V (not the text revision version) and gives brief reasons why the claimant satisfied these criteria;
[23] Page 55 of the claimant’s bundle.
(d)    Ms Kaur saw Dr Calvache-Rubio on 26 September 2023 by way of telehealth. He records the claimant has ongoing neck, shoulder and back pain and dysfunction and she says she had started physiotherapy. The claimant was in financial distress and was having difficulty with payments;
(e)    Mr Neilson saw the claimant on 26 September 2023 who said, “I’m grinding my teeth” and the claimant denied past psychological history. The claimant saw him again on 6 October 2023 saying “I have started grinding my teeth”; and it is noteworthy the claimant participated in a telehealth consultation while in her car;
(f)    she saw Dr Calvache-Rubio on 17 October 2023 and reported grinding her teeth. She said she went to dentist, and she had teeth changes and apparently cracked teeth. Dr Calvache-Rubio said he would support this in the certificate of capacity but requires a letter from the dentist and that the claimant will need a mouth guard;
(g)    the psychologist saw the claimant again on 20 October 2023 saying “I have been grinding my teeth and chipped my tooth – I need QBE to pay for it. I have started grinding a lot due to stress”;
(h)    on 17 November 2023, the claimant saw the psychologist again and reported grinding her teeth due to stress and anxiety. “I need a letter from you to support my teeth grinding”;
(i)    Ms Kaur saw Dr Calvache-Rubio on 22 November 2023 complaining of neck, back, somatic symptoms, anxious and stressed says “clunching [clenching] teeth” claimant also had a sore throat and was advised to see her “local GP”;
(j)    Dr Tawadros saw the claimant on 23 November 2023 with reports of grinding teeth, has been to dentist for bruxism, has letter from dentist – going overseas from January to March. “Chipped lower incisors noted”;
(k)    the psychologist saw Ms Kaur on 1 December 2023 where the claimant reported “lost a job, my teeth grinding is really bad”;
(l)    with psychologist on 15 December 2023 saying she had teeth grinding and stress management was provided;
(m)     Dr Mo on 21 December 2023 recorded “PTSD; bruxism – grinding teeth (consequential)” and noted the claimant was struggling with work and had lost two jobs. Dr Mo wrote a referral to Dr Khong[24], neurosurgeon and Dr Chien[25], orthopaedic surgeon;
(n)    Dr Siddiqui saw the claimant on 6 March 2024 and reported “PTSD (Grinding teeth)”, and the claimant had spent six weeks in India;
(o)    Ms Kaur saw Dr Khong on 12 April 2024 and according to the notes from Workers Doctors (Dr Khong practices from the same address) Dr Khong wrote a letter to Dr Lim on that day;
(p)    the claimant saw the psychologist on 12 April 2024 with teeth grinding mentioned “stress from work, my body is in pain”;
(q)    on 24 April 2024 Ms Kaur saw the psychologist again and the claimant said “I am doing a lot of teeth grinding. I have a splint. They are saying my teeth grinding is because of stress, and
(r)    Dr Siddiqui saw the claimant 8 May 2024 referring again to “PTSD (Grinding teeth).”
[24] Page 208 or 215 of the claimant’s bundle.
[25] Page 210 or 217 of the claimant’s bundle.
There is an allied health recovery request (AHRR) completed by Mr Nielsen on

13 September 2023, a psychologist at Insightful Mind. He diagnosed a posttraumatic stress disorder suggesting the claimant was exposed “to psychological traumata threatening serious injury / death” and suggests the claimant sustained serious injuries.
Dr Chien wrote to Dr Mo on 20 March 2024[26]. He had a history of the claimant having her hands on the steering wheel and that after the impact she had neck and right shoulder pain. He noted “the right shoulder pain was globally with no specific point of tenderness. It radiates from the neck to the hand.” The claimant had near full range of motion in the shoulder albeit with some pain and he was of the view “her pain is almost definitely referred from the cervical spine” and he recommended referral to a spinal surgeon. If that failed, he recommended she return for a corticosteroid injection.
[26] Page 57 of the insurer’s bundle.
Dr Khong reported to Dr Lim on 12 April 2024[27] he has a detailed history of the claimant’s complaints and examined both her neck (and upper limbs) and back (and lower limbs). There was global loss of sensation in the right upper limb but no other neurological signs. In the lower limb there was no loss of sensation and no other neurological signs reported relevant to the lumbar spine.
[27] Page 253 of the claimant’s bundle.
He reviewed the MRI images and Dr Khong’s diagnosis was:
“Bilateral neck pain pain worse on the right and right arm pain due to musculoligamentous strain and exacerbation of degenerative changes in cervical spine Lower back pain due to musculoligamentous strain and exacerbation of degenerative changes in lumbar spine.”

Medico-legal reports

The claimant relies on the report of Dr Muratore, sports and exercise physician dated

10 September 2018[28]. This report was commissioned by NRMA in relation to the claimant’s 2017 accident. The claimant reported a rear end impact. Ms Kaur reported immediate pain in the right side of her neck, right shoulder, right arm and lower back pain. She said she “was shocked psychologically.” Dr Muratore has a history from the claimant of “constant back pain” involving the whole of the vertebral column and this pain was aggravated by lifting heavy things. On examination all lower back movements were restricted.
[28] Page 32 of the claimant’s bundle.
Dr Muratore diagnosed soft tissue injuries to the neck and possibly the right shoulder, but he was not convinced about the cause of the claimant’s lower back pain. In respect of the lumbar spine he considered she may have “underlying inflammatory arthropathy” unrelated to the accident.
He considered there was no impairment.
The claimant retained Dr Bodel to provide a report in relation to the claimant’s 2017 accident. In his report of 28 March 2019, he records an injury to the neck, left and right shoulder and the lower back. He has a history of a rear end accident and that her car was driveable and later repaired.
The claimant said she developed increasing head, neck, shoulder girdle pain and lower back pain. She had some treatment, visited India with her husband and had some medication there and resumed treatment back in Australia.
Ms Kaur complained of continuing pain in the neck and over the shoulders as well as pain in the shoulder which could wake her from sleep if she rolled over in bed. She had intermittent lower back pain which “was not a major issue”. Dr Bodel did not examine the claimant’s lower back or lower limbs.
He assessed WPI at 15% for the neck on account of the presence of “mild” radiculopathy, 2% WPI for each of the right and left shoulders. He does not mention any lower back impairment.

Other assessments

Medical Assessor Harvey-Sutton assessed the claimant for the purposes of her entitlement to non-economic loss arising out of the 2017 accident. She was asked to assess the cervical and lumbar spine and both shoulders.
Ms Kaur told the Medical Assessor she had pain in the neck, across the right shoulder and down the right arm with pins needles and tingling in her right arm. She told Medical Assessor Harvey-Sutton she told Dr Sachawars about lower back pain when she first saw him. The claimant’s current symptoms were of continuing pain in the back of her neck and right shoulder and right arm, hand and fingers. The claimant also complained of back pain worse with activity and not as bad as the neck.

On examination of the lower back there was tenderness but no spasm or guarding and no dysmetria although there was restricted motion in the lower back. There were no neurological findings in the lower limbs.
She certified on 4 December 2019 the claimant did not have a WPI of greater than 10% but that she had a cervical spine injury which resulted in 5% WPI and a left shoulder injury which resulted in loss of motion and 1% WPI.
Medical Assessor Jones examined the claimant on 10 April 2025 and issued his decision on 2 May 2025. While he certified that the claimant’s posttraumatic stress disorder was not caused by the accident, a fair reading of his decision is that he did not find the claimant had sustained a posttraumatic stress disorder at all. In particular at [17] he said:
“In my opinion, Ms Kaur reported a narrative and presented at assessment consistent with having no ongoing, active psychiatric disorder. She has some physical limitations and a perception of stress regarding her financial and family situation, including her husband’s injuries, not directly related to the motor vehicle accident. She reported some psychological symptoms related to the motor vehicle accident however, in totality, they are subthreshold with respect to their nature, severity and impact to be considered part of a discrete psychiatric disorder. Specifically, she did not satisfy diagnostic criteria for Post Traumatic Stress Disorder, particularly because the motor vehicle accident was of insufficient severity to meet Criterion A under DSM-5.”
He then said at [18] that while he accepted, she had some symptoms they did not indicate a recognised psychiatric illness was present.
Medical Assessor Nichols examined the claimant on 14 March 2025 and issued his certificate on the same day. The Medical Assessor confirms at [2][29] that he was asked to assess the following injuries “fractured, chipped tooth caused by bruxism” which was apparently clarified by the Commission as:
“Whether the injury to the Teeth – Fractured, chipped tooth caused by bruxism caused by the motor accident is a threshold injury for the purposes of the Act.”
[29] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
The Medical Assessor records the claimant’s submission that she developed a

post-traumatic stress disorder which aggravated her pre-existing bruxism causing a fracture of a tooth.
Medical Assessor Nichols quotes from a clinical note dated 6 April 2022, another dated

21 September 2023 and another dated 22 February 2024 that suggests: “Dentition worn on upper and lower anterior region. Patient aware of nighttime grinding and is interested in getting a splint made.” She was advised to have radiographs and was quoted $600 for a splint.
Medical Assessor has a history of the rear end collision and that the claimant was wearing a seatbelt, airbags did not deploy and that there was no record of any facial or dental injury at the time of the accident.
The claimant told Medical Assessor Nichols that the tooth (43) did not “chip” until three months after the accident and that the stress of the accident caused the dental issues. Medical Assessor Nichols says, “there is no scientific evidence that stress, PTSD or any other psychological condition caused bruxism.”
He records the claimant’s symptoms as minor TMJ discomfort when waking and eating hard foods and that tooth 43 is sensitive to the cold. Ms Kaur now wears an occlusal splint.
Medical Assessor Nichols notes the claimant had a missing tooth 46 (from before the accident), routine fillings and most teeth have occlusal incisal wear and that tooth 42 “has an extensive incisal edge wear facet from bruxing. It has not been fractured.”
He says there is no fracture but wear facets. The Medical Assessors note that facets are the flat polished surfaces that develop on teeth due to bruxism or grinding.
His diagnosis was of “minor TMJ dysfunction” and “major wear facet tooth 43” and says this is caused by a “long history of normal unprotected bruxing.”

RE-EXAMINATION FINDINGS – MEDICAL ASSESSOR GORMAN

Ms Kaur attended the re-examination on 17 September 2025 half an hour late. Medical Assessor David Gorman was able to accommodate her, and the re-examination took about an hour to complete.

History from the claimant

Past History

Ms Kaur is a right hand dominant 47-year-old women. She was born in India and came to Australia in 2009. She is married with two children. She does not smoke.
She started working in the childcare sector in 2010. In the period leading up to the accident she held three jobs which together were the equivalent of a full-time job. She was a lecturer in early child development at Excelsior College, an administration officer for the NDIS and the director of a childcare centre two days per week. She now works part-time as a lecturer at a different college and only occasionally works in childcare.
Ms Kaur gave a history of a previous car accident in 2017 saying that she had an episode of neck pain caused by this accident. She admitted that she had persisting symptoms of neck pain and intermittent pain extending to the right shoulder and arm and that she attended Dr Bazina in 2019 for treatment of these symptoms.
She conceded that although her symptoms improved, she was left with some mild neck discomfort and occasional discomfort and numbness in her right arm in the period leading up to the subject accident. However, her symptoms were of mild severity, and she was able to work. She did not give a history of any lower back or thoracic pain arising from the 2017 accident when asked.
In 2022 she said she had abdominal symptoms which led to a laparoscopy. She had bleeding, possibly a nerve injury and needed her ureter stented and then repaired and she still has pain in the right side of her pelvis which she attributes to this.
When asked about any other injuries or conditions she did not mention any previous lower back, right shoulder of knee complaints.

History of the motor accident

Ms Kaur says that on she was driving her Honda Civic sedan at a slow speed, approaching an intersection on Concord Road. She was on her way to the lecturing job. She was on leave from her childcare role because of her abdominal issues. She says she was wearing her seatbelt.
She reported that a car driving behind her rear-ended her vehicle. She remembers that her neck jerked backwards and forwards but cannot say how fast the other car was going.
After the accident, she pulled her car over to the side of the road, got out and was able to exchange details with the other driver. No airbags deployed in either car. Emergency services did not attend, and she continued on to work and delivered a lecture at Excelsior College.
She remembers feeling pain in her neck after the accident and since then she has had persisting neck and right shoulder pain and intermittent paraesthesia in her right arm. When asked to compare this pain to the symptoms from her previous accident she felt she had “aggravated” her previous condition. She also remembers experiencing lower back pain, radiating to the right leg which she had not had before, and which came on at the same time as her neck pain.
She said she attended a general practitioner in Casula, Dr Hussain, who referred her for

X-rays of the cervical spine and right shoulder, and these were performed 17 May 2023.
In the claim form of 7June 2023 she recorded her injuries as neck whiplash, pain in the shoulders, especially right, back and upper arm, headache, nausea, weakness, back pain. When these were read out to her, she confirmed all of those injuries and symptoms. It was noted there was no knee injury listed.
She was later referred for MRI scans of the spine and right shoulder, but she did not recall when. She remembered having a telehealth assessment with Dr Rao at the ARC Whiplash Centre, who provided advice regarding exercise. She still does these exercises. She later came under the care of Dr Mo at the Workers Doctor Centre in Parramatta. At that medical practice she was referred for physiotherapy which she attended for six months, with some mild benefit. Workers Doctors also referred her to Dr Khong, a neurosurgeon and spinal surgeon and there was discussion about a right C7 injection, but she has declined this treatment. She told me she saw Dr Chien, shoulder surgeon, who advised that her right shoulder problems were primarily referred pain from her neck.

Current symptoms

Ms Kaur has right sided neck pain. She reports some tingling down the right arm but it is not present all the time.
The left knee is no longer symptomatic, and she said she considers it has recovered.
She did not express concern about any lower or upper back symptoms or right shoulder joint symptoms during this part of the examination.
Ms Kaur said that her major pain is now her internal issues and in particular abdominal pain following her laparoscopy. She said she has been grinding her teeth because of this pain. She told me she now has a dental splint which she wears at night to stop this grinding. Ms Kaur confirmed that she does not allege that her abdominal condition is related to the accident.

Current treatment

Ms Kaur says she is not having physiotherapy now. She has continued range of motion stretching exercises. She is currently taking occasional Panadol. She said she no longer takes Panadeine Forte or Endone as she cannot do the paperwork associated with her job if she does.

CLINICAL EXAMINATION

General presentation

Ms Kaur is 167 centimetres and weighing 75 kilograms. She was pleasant and co-operative throughout the assessment answering all my questions and undertaking all movements as requested.
Ms Kaur had been asked to bring any available imaging studies with her but did not do so.

Cervical spine

Examination of the cervical spine reveals normal spinal curvature. There was no muscle spasm. Cervical flexion was performed to three-quarters normal range in all planes of motion (flexion-extension; lateral rotation left and right, and rotation left and right). There was no dysmetria and no muscle guarding.
Neurological examination of the upper extremities reveals normal upper limb power and reflexes. Ms Kaur reported some intermittent “tingling” in the whole of the right arm in a non-dermatomal distribution but there was no loss of sensation on formal pin prick and light touch testing. Nerve root tension signs were negative. There was no muscle wasting and arm measurements at the same place above and below the elbow were the same on both sides.

Right shoulder

There was no localised tenderness over the right shoulder and no loss of shoulder muscle bulk. There was a full range of shoulder motion in all planes (flexion, extension, abduction, adduction, internal and external rotation).

Lumbar spine

On examination of the lumbosacral spine, there was a normal spinal curvature. There was no muscle spasm or guarding. Lumbar flexion was performed to the normal range in all planes (flexion, extension, lateral flexion on both sides). Ms Kaur was easily able to touch her toes. There was no dysmetria.
Straight leg raise was performed to 70 degrees on both sides. Other nerve root tension tests resulted in no abnormal findings.
On neurological examination of the lower extremities there was normal power, sensation and reflexes and no loss of sensation. The circumference of the claimant’s lower limbs at the same point above and below the knee were equal and there was no indication of muscle wasting.

Left knee

Examination of the left knee was entirely normal with no swelling, a normal range of motion from 0 to 130 degrees and no ligamentous instability.

Comments on consistency

Ms Kaur was consistent in her clinical presentation.
There were some inconsistencies in her history for example she thought she attended Dr Hussein in person whereas his records indicate a telehealth examination, and she did not recall any lower back symptoms after her 2017 accident when the records indicate she complained of lower back pain to Dr Muratore, Dr Bodel and Medical Assessor Harvey-Sutton.

CONSIDERATION OF THE INJURIES – THE PANEL

Did the claimant injure her neck, lower back and shoulder in the accident?

The claimant was involved in a motor vehicle accident in 2017. She complained of neck, lower back and bilateral shoulder symptoms. The claimant conceded that she still had some symptoms from this accident in her neck and shoulders present at the time of the current accident. She was examined for the purposes of her claim arising out of that accident and she was found to have a 6% whole person permanent impairment.
Causation of injury involves two questions:
(a) could the accident have caused or contributed to the injury, which is a medical question, and
(b) did the accident cause or contribute to the injury, which is a factual matter.
In the light of the claimant’s previous accident and history, it is the Medical Assessor’s view that Ms Kaur’s spine was vulnerable to further injury and therefore she could have sustained injury in the accident which caused symptoms in her spine and right shoulder.
The Panel notes that the claimant’s original complaints made on the day of the accident to Dr Hussain were in the neck, right shoulder and arm as well as low back and that these were documented in the claim form completed within four weeks of the accident and the initial certificate of fitness completed by Dr Sachawars within two weeks of the accident. The Panel is therefore satisfied that the claimant did sustain an injury to her cervical spine, lumbar spine and right shoulder in the accident on11 May 2023.

Did the claimant injure her left knee in the accident?

The Medical Assessors are aware that the accident involved a rear end collision, and they are of the view it is possible that the claimant could have struck her knee on a part of the car as a result, causing injury.
However, the Panel notes there is little documentation of a left knee injury. For example, a left knee injury was not mentioned to Dr Hussain, is not included in the list of injuries in the claim form or in the first certificate of capacity completed by Dr Sachawars on 24 May 2023. The Panel has been unable to locate left knee complaints in the records of Workers Doctors and the original submissions lodged with the application for medical assessment do not include any reference to any record which would support that a knee injury occurred.
The Panel is not therefore satisfied there was a left knee injury caused by the accident.
If the claimant did injure her left knee in the accident, the Panel notes there is no radiology or other imaging undertaken of that part of her anatomy before the Panel. Ms Kaur told Medical Assessor Gorman her knee was symptomatic for a short period only and the Medical Assessor records the claimant does not have any symptoms now in either knee.
It is the clinical judgment of the Medical Assessors that any left knee injury sustained in the accident, would therefore be a soft tissue injury as there is no evidence of any bone injury or the complete or partial rupture of tissue in the knee.

ARE THE CLAIMANT’S INJURIES THRESHOLD OR NON-THRESHOLD?

Cervical spine

The claimant’s submissions indicate allegations of a nerve (or nerve root) injury and a disc injury.

Does the claimant have a non-threshold cervical nerve injury?

Part 1, cl 4 of the MAI Regulation says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury. Clause 5.8 of the Guidelines provides that radiculopathy is the “dysfunction of a spinal nerve root or nerve roots” and for a finding of radiculopathy this requires “two or more of the following clinical signs to be found on examination”:
(a)    loss or asymmetry of reflexes (see Table 6.8);
(b)    positive sciatic nerve root tension signs (see Table 6.8);
(c)    muscle atrophy and/or decreased limb circumference (see Table 6.8);
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The Medical Assessors note that radiating pain or referred pain from the neck into the shoulders and arms may be a radicular symptom but it is not one of the five signs of radiculopathy.
If there are any nerve or nerve root symptoms caused by the accident, that injury may be manifesting in radicular symptoms (right arm numbness) but it is not manifesting in any of the signs of radiculopathy at the time Medical Assessor Gorman undertook his investigation. The examination conducted by the Medical Assessor did not reveal any loss of reflexes, no nerve root tension signs, no muscle atrophy or limb circumference, no muscle weakness and no reproducible sensory loss.
The Panel has reviewed the reports and records from the claimant’s treating medical practitioners and cannot find any evidence that at any time since the accident the claimant has had two of the five signs of radiculopathy indicating a nerve root injury at any level. The Panel considers it significant that the claimant’s treating neurosurgeon, Dr Khong, did not diagnose cervical radiculopathy.
The Panel is not satisfied that the claimant sustained a non-threshold cervical nerve injury in the accident.

Does the claimant have a complete or partial rupture of tissue in the cervical spine?

The Panel has considered whether the evidence establishes the complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the accident.
An MRI of the claimant’s cervical spine dated 6 July 2023 reported multilevel degenerative changes at C4-5, C5-6 and C6-7. There was no disc bulge or protrusion mentioned at C5/6 or C6/7 but the development of osteophytic complexes at these levels was noted. Osteophytes are bony changes in the vertebra caused over time and do not indicate traumatic injury. Foraminal stenosis was also reported which is commonly caused by the development of osteophytes and the narrowing of the pathway for the nerves exiting the spinal cord.
It was however reported that there was a “minor posterior midline disc protrusion” at C4/5. If this disc protrusion was caused by the accident, it is the Medical Assessor’s view this would be a non-threshold injury as the protrusion of disc material from the nucleus pulposis through the fibro-ligamentous ring of the annulus fibrosis would indicate the partial rupture of ligaments or cartilage. The Medical Assessors are also of the view that a disc bulge is a threshold injury because there is no rupture of tissue involved.
The February 2018 MRI undertaken in India reported a “mild diffuse disc bulge” at C4/5. But that report also noted a disc protrusion at C5/6 and a disc bulge at C6/7 not mentioned in the 2023 scan. In the absence of the actual images of the 2018 and 2023 MRI scans, or a radiological report comparing the two imaging studies, the Medical Assessors cannot be certain there has been any change in the pathology in the cervical spine and in particular at the C4/5 level.
If there is a disc protrusion at C4/5 the Panel is of the view that it was not caused by the accident for the following reasons:
(a)    the claimant has had at least one previous accident in 2017 and complained of similar symptoms to those arising from the current accident both before and after the 2018 imaging study in India. The records from the claimant’s GPs (and the determination of Medical Assessor Harvey-Sutton) suggest there was at least one other accident after the 2018 imaging study that has caused additional neck symptoms;
(b)    the photographs of the claimant’s vehicle and the report from the insured driver suggest the forces involved in the current accident were minor;
(c)    the C4/5 disc protrusion is posterior and midline and is not compressing the nerve or nerve roots and not on the right side where the claimant reports the majority of her radicular symptoms (global numbness and radiating or referred pain);
(d)    the 2023 MRI scan stated there was no soft tissue oedema which, if present, would suggest an acute injury and
(e)    there are changes reported at multiple levels of the spine which is clinically an indicator of degenerative changes and not traumatic injury unless there are significant symptoms, additional injuries and more severe damage to the motor vehicles indicating greater forces involved.

The Panel is not therefore satisfied that there has been the complete or partial rupture of any of the tissues of the claimant’s cervical spine region caused by the accident.

Lumbar spine

The claimant’s submissions indicate allegations of nerve (or nerve root) injuries and disc injuries in the lumbar spine.
When asked about her current symptoms, and on examination by Medical Assessor Gorman, the claimant did not complain of any lower back symptoms.

Does the claimant have a non-threshold lumbar nerve injury?

The Panel has reviewed the clinical notes of the claimant’s treating practitioners and notes that Dr Mo, general practitioner saw the claimant on 30 August 2023 and records a positive slump test and reduced sensation in the lower leg. Dr Mo’s clinical record does not however provide any detail at all of the symptoms produced by the slump test and the Medical Assessors are unable to correlate this information to a particular nerve or nerve root. Similarly, the notation of “reduced sensation” could be a sign of radiculopathy but there is no detail of where on the lower leg this reduced sensation was. The Medical Assessors are unable therefore to determine whether the loss of sensation followed an appropriate dermatomal pattern and if so which nerve root was involved.
The signs of radiculopathy that are present must point to an injury of a particular nerve or nerve root. The two or more signs of radiculopathy must correlate to confirm the injury of the same nerve or nerve root. The Panel accepts that according to Dr Mo there were some neurological symptoms in the lower limbs at some time suggesting a possible nerve or nerve root injury, but the absence of any detail in his clinical findings does not enable the Medical Assessors to make a robust finding of the particular nerve or nerve root that may have been injured.
The Panel notes that Dr Khong did not report any signs of radiculopathy when he wrote his report on 12 May 2024.
None of the five signs of radiculopathy were present during the examination by Medical Assessor Gorman. The claimant had normal power, reflexes and sensation. Sciatic nerve root tension signs were normal and there was no muscle atrophy or difference in limb circumference.
There is therefore no past or current evidence of a lumbar spinal nerve injury manifesting in radiculopathy. The evidence from Dr Mo, a general practitioner does not satisfy the Panel that the claimant has had two of the five signs of radiculopathy at any stage since the accident. The Panel is not therefore satisfied that the claimant has a non-threshold lumbar nerve injury caused by the accident.

Does the claimant have a complete or partial rupture of tissue in the lumbar spine?

The Panel has considered whether there is evidence of the complete or partial rupture of tendons, ligaments, menisci or cartilage in the lumbar spine.
The Medical Assessors note that the report of the MRI of the claimant’s lumbar spine dated

5 July 2023 indicates there are degenerative changes at L3/4, L4/5 and L5/S1. At L5/S1 there is said to be a mild broad based posterior disc protrusion with joint arthropathy on both sides. For the reasons set out above at paragraph 150, a disc protrusion, if caused by the accident would be a non-threshold injury. A disc bulge is a threshold injury.
The Medical Assessors are not satisfied that the disc protrusion at L5/S1 was caused by the accident for the following reasons:
(a)    there are changes at multiple levels which is clinically a sign of degeneration rather than acute changes in the absence of more severe injuries and a significant motor vehicle collision;
(b)    the claimant was restrained by a lap sash seat belt which, when a person is seated, provides in the clinical experience of the Medical Assessors, protection from forces involved in minor collisions. Also important to note is that there was no flexion and twisting motion of the lumbar spine reported in this accident;
(c)    there is barely visible damage to the claimant’s car on the photographs before the Panel, and the insured reported a very low speed collision, the claimant was able to drive away and went to work which is not behaviour consistent with a serious injury to the lower back resulting in a disc protrusion;
(d)    the degenerative changes throughout the claimant’s spine are consistent with her age and her work with small children in childcare;
(e)    the language of the MRI scan report is of a disc protrusion and not an annular tear which would be the language expected from the radiologist if acute injury was suspected;
(f)    there is no report of oedema indicating acute injury, and
(g)    there are past complaints of lower back injury and lumbar spine pain.
While the claimant does have a disc protrusion, the Panel is not satisfied on the records and reports and the claimant’s history and examination that it was caused by the motor accident.

Right shoulder

The MRI of the claimant’s right shoulder dated 6 July 2023 concludes there is an “intact rotator cuff”. There is therefore no evidence of the complete or partial rupture of tendons, ligaments or cartilage in the right shoulder.
The MRI also suggested the claimant had mild bursitis. The Medical Assessors note that bursitis is an inflammatory condition and not often associated with a single incident of trauma. The bursa (a small fluid-filled sac that acts as a cushion between the bones of the shoulder joint) becomes irritated and inflamed. This irritation and inflammation can cause pain and restriction of movement, the inflammation however does not rupture in whole or in part the bursa.
The Panel is satisfied the claimant’s right shoulder injury caused by the accident is a threshold injury.
The Panel also notes that the claimant demonstrated a full range of movement during the examination by Medical Assessor Gorman and while she complained of pain radiating from her neck over both shoulders she did not complain of injury to the joint of the shoulder itself.
The Panel is of the view that any injury to the right shoulder has resolved.

CONCLUSION

The Panel is satisfied that the claimant sustained a soft tissue injury to the cervical and lumbar spine. The injury aggravated what the Medical Assessors have determined to be pre-existing pathology and has caused pain and other symptoms. The injury was not an injury to a cervical nerve manifesting in radiculopathy and was not the complete or partial rupture of ligaments, tendons, cartilage or menisci. The claimant’s cervical spine and lumbar spine injuries are threshold injuries.
The Panel is satisfied that the claimant sustained a soft tissue injury to the right shoulder. The injury did not cause a tear to any of the ligaments, tendons, cartilage or menisci in the right shoulder. The claimant’s right shoulder injury is a threshold injury.
The Panel is not satisfied that the claimant sustained a left knee injury but if she did, says it is a threshold injury.
Although the Panel has come to the same conclusion as Medical Assessor Home, we have come to a different view as to the left knee injury. The Panel is therefore of the view therefore that the certificate should be revoked and a fresh certificate issued.

[2025] NSWPICMP 761

3 October 2025