Kelly v Insurance Australia Limited t/as NRMA Insurance; Kelly v RACQ Insurance Ltd
[2025] NSWPICMP 265
•16 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Kelly v Insurance Australia Limited t/as NRMA Insurance; Kelly v RACQ Insurance Ltd [2025] NSWPICMP 265 |
CLAIMANT: | Peter Kelly |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
CLAIMANT: | Peter Kelly |
INSURER: | RACQ Insurance Ltd |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 16 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of threshold injury and permanent impairment disputes; first insurer (NRMA) denied statutory benefits beyond 26 weeks on basis that all of claimant’s injuries are threshold injuries; second insurer (RACQ) admitted liability for the damages claim but did not concede that the claimant’s accident-related impairment exceeds the 10% threshold; Medical Assessor (MA) did not assess whole person impairment (WPI); found that all referred injuries were threshold or not caused by the subject accident; Review Panel found two signs of radiculopathy in lumbar spine and lower limbs; Held – MAC revoked and new certificate issued; assessed 11% WPI for lumbar spine and right ulnar neuritis. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 27 May 2024 and issues a new certificate determining that: (a) The following injury caused by the motor accident: (i) shoulder – right shoulder soft tissue injury, is a THRESHOLD INJURY for the purposes of the Act. (b) The following injuries caused by the motor accident: (i) lumbar spine – L5 protruded disc with pain daily lumbosacral disc lesion and left leg radiculopathy; (ii) arm – right ulnar nerve neuritis; (iii) leg – pain radiating all the way down at the left leg to the foot, numbness and tingling in the left foot, and (iv) leg – sciatic pain mostly left, occasionally on right, is not a THRESHOLD INJURY for the purposes of the Act. (c) The following injuries referred to the Review Panel for assessment have been assessed and determined to be not caused by the motor accident: (i) colorectal – intermittent bowl disturbance, and (ii) knee – bilateral knees pain. A decision as to whether these injuries are a threshold injury is not required for the purposes of the Act. CERTIFICATE REVIEW PANEL ASSESSMENT OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Act 2. The Review Panel revokes the certificate dated 14 May 2024 and the Combined Certificate dated 30 August 2024 and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 11% and is GREATER THAN 10%: (i) lumbar spine, and (ii) right ulnar neuritis. |
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STATEMENT OF REASONS
INTRODUCTION
On 8 May 2019, Peter Kelly (the claimant) was the seat-belted driver of a utility vehicle in the course of his employment. He was driving between depots. As he came to an intersection in the centre of Tamworth, the insured vehicle came from his left, failing to obey a ‘Give Way’ sign. The insured vehicle struck the left front guard and wheel of the claimant’s vehicle which was badly damaged. It was towed from the scene and subsequently written off for insurance purposes.
Ambulance and police officers attended the scene. The claimant was assessed but not taken to hospital. He attended the Emergency Department at Tamworth Base Hospital two days later. He was complaining of pain in the neck, back and right arm. He ceased work for three months on worker’s compensation benefits.
NRMA (the first insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
The first insurer denied liability to pay statutory benefits beyond 26 weeks on the basis that all of the claimant’s alleged injuries relevantly are threshold injuries for the purposes of the Act.
RACQ Insurance (QLD) (the second insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay the claimant damages under the Act. The insurer admitted liability for the claim but did not concede that the claimant’s accident-related impairment, arising from injuries sustained in the accident, exceeds the 10% whole person impairment (WPI) threshold.
ASSESSMENT UNDER REVIEW
There is a dispute between the parties about:
· the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, and
· whether the injury caused by the motor accident is a threshold injury under Schedule 2, cl 2(e) of the Act.
Medical Assessor Ian Cameron certified on 27 May 2024 as follows:
The following injury caused by the motor accident:
· Lumbar spine – degenerative spinal disease with soft tissue injury L5 protruded disc with pain daily, lumbosacral disc lesion and left leg radiculopathy
· Lower digestive system – Intermittent bowel disturbance
· Right arm – soft tissue injury
· Left and right knee – soft tissue injury
· Right shoulder – soft tissue injury
is a THRESHOLD INJURY for the purposes of the Act. An assessment of the degree of permanent impairment of these injuries is therefore not required.
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
· Left leg – sciatic pain mostly left, occasionally on right
· Right leg – sciatic pain mostly left, occasionally on right
· Left leg – pain radiating all the way down the left leg to the foot, numbness and tingling in the left foot
A decision as to whether these injuries are a threshold injury is not required for the purposes of the Act.
OTHER ASSESSMENTS
Medical Assessor Edward Korbel certified on 4 July 2024 as follows:
The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:
· Intermittent Bladder Disturbance
A decision as to whether these injuries are a threshold injury is not required for the purposes of the Act.
Medical Assessor Alexey Sidorov certified on 27 June 2024 as follows:
The following injury caused by the motor accident:
· Adjustment Disorder with Mixed Anxiety and Depressed Mood
is a THRESHOLD INJURY for the purposes of the Act. An assessment of the degree of permanent impairment of these injuries is therefore not required.
Medical Assessor Edward Korbel issued a combined certificate on 30 August 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10%:
· Lumbar spine – degenerative spinal disease with soft tissue injury L5 protruded disc with pain daily, lumbosacral disc lesion and left leg radiculopathy
· Lower digestive system – Intermittent bowl disturbance
· Right arm – soft tissue injury
· Left and right knee – soft tissue injury
· Right shoulder – soft tissue injury
and
Of the injuries referred for assessment nil injuries are related to the motor accident and therefore the permanent impairment IS NOT GREATER THAN 10%:
· Intermittent bladder disturbance
· Left leg – sciatic pain mostly leg, occasionally on right
· Right leg – sciatic pain mostly leg, occasionally on right
· Left leg – pain radiating all the way down the left leg to the foot, numbness and tingling in the left foot
THE REVIEW
The claimant sought a review of Medical Assessor Cameron’s certificate on the basis that the assessment was incorrect in a material respect, within the meaning of s 7.26 of the Act, having regard to the particulars set out in the application.
The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted there is an internal inconsistency in Medical Assessor Cameron’s certificate and findings pertaining to radiculopathy in the lumbar spine. Medical Assessor Cameron found no evidence of radiculopathy, nor tendon or ligament rupture. However, he also found that left leg radiculopathy was caused by the motor accident.
The claimant also submitted that Medical Assessor Cameron’s determination of a threshold injury was incorrect, a Review Panel ought to determine that the claimant has not sustained a threshold injury, and an assessment of his WPI ought to be conducted.
In relation to those injuries which Medical Assessor Cameron found were not caused by the motor accident, the claimant submitted that Medical Assessor Cameron had failed to apply cls 6.5 to 6.7 of the Guidelines, in that the accident only needs to be a contributing cause to those injuries, that was more than negligible.
The first insurer notes the claimant’s grounds for review are:
(a) radiculopathy was present;
(b) causation, and
(c) failure to assess WPI.
The first insurer disagrees with each specified ground and particularises its objections as follows:
“Radiculopathy was present with respect to the lumbar spine
The first insurer submits the clinical examination findings of the Medical Assessor do not show radiculopathy in line with the Motor Accident Guidelines (Guidelines).
The first insurer submits the Medical Assessor diagnosed a soft tissue injury to the lumbar spine as a result of the subject accident.
The first insurer further submits the Medical Assessor clearly stated that radiculopathy, as per the Guidelines, is not currently present, nor has it been present since the accident.
The first insurer submits there is no medical evidence to establish the presence of radiculopathy, as a result of the subject accident, and the Medical Assessor has not erred in his determination.
Causation
The first insurer submits the Medical Assessor clearly advised that the injuries described in relation to the right and left legs were actually symptoms arising from the lumbar spine and not the legs themselves.
The first insurer submits there were no clinical findings on examination of the lower limbs that could be ascribe to a separate injury of the legs.
The first insurer submits the Medical Assessor correctly attributed the reported symptoms to the lumbar spine in his assessment.
Failure to assess WPI
The first insurer submits the WPI assessment (for which the second insurer is on risk) has no bearing on the threshold injury dispute.”
The claimant’s review application was opposed by the second insurer on various grounds. It is not necessary to deal with those grounds in detail, as they were not accepted by the President’s delegate. Briefly, the second insurer submitted that Medical Assessor Cameron’s clinical examination findings do not show radiculopathy, as prescribed by the Medical Assessment Guidelines. The second insurer submitted that the Medical Assessor diagnosed a soft tissue injury to the lumbar spine as a result of the subject accident. The second insurer submitted there is no medical evidence to establish the presence of radiculopathy as a result of the accident. In relation to causation, the second insurer submitted that the Medical Assessor found that the referred injuries in the right and left legs were actually symptoms arising from the lumbar spine, and not injuries to the leg themselves.
President’s delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 10 July 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the particulars relating to an internal inconsistency within the Medical Assessor’s findings on whether radiculopathy was present arising from the lumbar spine injury.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to re-assess all of the injuries referred to Medical Assessor Cameron, unless the parties otherwise agree.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] 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.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Briggs v IAG Limited t/as NRMA Limited,[4] see also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Review Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This require, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1)a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2)a review of all relevant records available at the assessment;
(3)a comprehensive description of the injured person’s current symptoms;
(4)a careful and thorough physical examination;
(5)diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
THRESHOLD INJURY
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, 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 constitute a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
a.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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
Doc No.
Document
Date
Page No.
A1
Claimant’s submission on review application
14/06/2024
2
Previously summarised.
A2
Report by Dr T Mastroianni, consultant occupational physician, to the claimant’s lawyers
6/07/2023
10
INVESTIGATIONS
No X-rays were reviewed. The following MRI report was on file:
MRI lumbosacral spine, 3/6/2019, Dr Woodward.
Disc degenerative change and small disc protrusion from L3 to the sacrum. At L5/S1 right paracentral disc protrusion abuts but does not compress or displace the traversing right S1 nerve root. Probable degenerative changes at the right S1 joint.
OPINION
As a result of the subject accident, the claimant sustained a soft tissue injury to the cervical spine from which he has recovered. He also injured the right arm and has ulnar nerve neuritis. In the lumbar spine, he aggravated pre-existing asymptomatic lumbar spondylosis and sustained a lumbosacral disc lesion. He has back pain and left leg sciatica and radiculopathy. My clinical diagnosis is:
· Lumbosacral disc lesion with left radiculopathy
· Right ulnar nerve neuritis
The claimant has suffered a non-minor, non-threshold injury. He has sustained nerve injury causing radiculopathy and has also sustained a disc protrusion in the lumbar spine, being a complete or partial rupture of the fibrocartilaginous tissue and he therefore makes the criteria of a non-threshold injury as a result of both conditions. The injury to back and arm are the result of the subject accident. Prognosis is guarded.
A3
Dr Mastroianni – WPI assessment report
6/07/2023
16
The claimant has a lumbosacral disc lesion with left leg radiculopathy. He falls into DRE III (AMA 4, page 110, Table 2). This equates to 10% WPI.
He has right ulnar nerve neuritis and I assess grade 4 sensory deposit, 25%. The ulnar nerve equates to 7% upper extremity impairment for sensory deficit (AMA 4, Table 15). 25% of 7% is 1.7% which equates to 2% upper extremity impairment, which equates to 1% WPI.
The combined total is 11% WPI as a result of injuries sustained in the subject accident.
A4
Report of Dr James Bodel, orthopaedic surgeon, to the claimant’s lawyers
13/04/2022
17
There were no X-rays or other tests available for review today. I have carefully perused the local doctors continuation notes which are consistent with the ongoing medical management of this gentleman’s injury. He has significant disc pathology principally at the L5/S1 level with compression of the S1 and L5 nerve roots to the right hand side. His clinical symptoms today appeared to be mainly L5 and not S1. The knee and ankle reflexes are diminished slightly.
The local doctors continuation notes from the time of the accident confirm that he presented after the accident during work. There is an extensive treatment from the local doctor at that time….. the doctor does report that there was a previous back injury 20 years earlier with left sided sciatica which settled within a few weeks. I was not given that history but that is not unreasonable.
Following the injury, he had various medications. He later did have the further tests including the MRI scan showing the disc pathology and he was then referred to see the physios only. He has never been referred to a neurosurgeon or to any other specialist for review in spite of the history of numbness over the dorsum of the foot and possible cauda equina symptoms. He does not have any hyper-reflexia or other abnormality neuron signs that I can identify here today but he really should be assessed by a neurologist or medico-legal purposes and by a neurosurgeon from a treatment point of view.
The injury to the back was caused by the motor vehicle accident. He has some pre-existing degenerative change but he was asymptomatic and working without difficulty until that event. The body part involved is the lower part of the back with left-sided sciatica.
Dr Bodel says that the claimant has been left with a permanent impairment but is whole person impairment assessment is not in evidence.
A5
Report by Dr Amanda Woodward for MRI lumbosacral spine
3/06/2019
23
Findings
Vertebral body alignment is normal. No evidence of congenital canal stenosis or boney anomaly. Distal spinal cord is unremarkable with the tip of the conus at mid L1.
Disc height, hydration and contour are within normal limits from T12 to L3 and the intervening nerve roots exit normally.
L3/L4: mild loss of disc height, disc desiccation and mild broad based disc protrusion. No evidence of focal lesion of concern. Exiting and traversing nerve roots are normal.
L4/L5; disc desiccation, mild broad based disc protrusion. No significant canal stenosis, existing and traversing nerve roots are normal.
L5/S1: disc desiccation, mild loss of posterior disc height, small right paracentral disc protrusion. This abuts but does not compress or displace within traversing right S1 nerve roots. L5 nerve roots exit normally.
Throughout the lumbar spine, there is no evidence of acute boney injury or paravertebral soft tissue abnormality.
There is a small focus of subchondral bone marrow oedema in the right margin of the sacrum at the sacroiliac joint at the S2 level. This may reflect some degenerative change. No definite evidence of fracture. Left S1 joint is unremarkable. Elsewhere sacral architecture is normal without evidence of boney or soft tissue abnormality. Pre-sacral soft tissues are normal.
Impression
Disc degenerative change and small disc protrusions from L3 to the sacrum. At L5/S1 right paracentral disc protrusion shuts but does not compress or displace the traversing right S1 nerve root. Probable degenerative change at the right S1 joint.
person impairment assessment is not in evidence.
A6
MRI lumbar spine
27/04//2023
25
Findings
The spine has been imaged from the inferior end plate of T11 to S2. There are five conventional lumbar-type vertebral bodies. The vertebral body heights are preserved. No fracture identified. No osseous lesion. There is Modic type 2 changes noted along several end plates.
There is multi-level disc height loss with reduced signal intensity in keeping with the degenerative disc disease and disc desiccation. There are end plate osteophytes seen at each of the lumbar levels most pronounced at L2/L3 and L3/L4.
No pre-vertebral soft tissue swelling. The posterior paraspinal musculature outlines normally.
The conus medullaris terminates at L1. The partially imaged cord is normal in size and signal intensity. There is normal configuration of the cauda equina nerve roots.
T12/L1: no disc bulge or focal herniation. Mild right facet degenerative changes.
L1/L2: mild loss of disc height with mild annular bulging. No significant canal for foraminal stenosis. Mild facet degenerative changes.
L2/L3: There is mild disc height and generalised disc osteophyte complex which indents the anterior thecal sac and narrow scalateral recesses. It appears to contact the descending L3 nerve roots without evidence of displacement or impingement. There is mild bilateral foraminal stenosis. The light lateral portion of the disc osteophyte complex also appears to contact but not displace or compress the (report end).
The second insurer relied upon the following material which the Review Panel has considered:
R2Second insurer’s submissions dated 10 October 2024 in reply to review application.
a.The second insurer noted there are two review applications on foot, one in relation to the threshold injury determination of Medical Assessor Cameron and the other, in relation to his permanent impairment assessment. The second insurer submitted that the threshold injury review application should be dealt with first, noting that Medical Assessor Cameron made no assessment of permanent impairment, in light of his threshold injury determination.
b.The second insurer notes that all of the alleged errors identified by the claimant are in relation to the threshold injury determination, not the permanent impairment determination. The second insurer addresses each of the errors asserted by the claimant in turn as follows:
Failure to conduct assessment pursuant to the Guidelines
c.In relation to the claimant’s allegation of inconsistency in the medical assessment certificate and findings regarding the lumbar spine and radiculopathy, the second insurer submits that it is clear the Medical Assessor determined there was no radiculopathy at the lumbar spine, and that the references to radiculopathy by the Medical Assessor are obvious errors, as opposed to material errors. Particulars are given in support of that submission.
Failure to take into account/consider relevant considerations
d.The second insurer submits the claimant has provided no explanation as to how the Medical Assessor failed to consider relevant considerations or exercise jurisdiction. The second insurer emphasises that the Medical Assessor specifically refers to the Guidelines and confirms that radiculopathy, as defined in the Motor Accident Guidelines, was not present.
Failure in determining the left and right leg injuries were symptoms, not injuries
e.In relation to the claimant’s submission that the Medical Assessor ought to have determined that the issues in both legs were injuries, not merely symptoms. The second insurer submits the Medical Assessor did acknowledge that such leg symptoms were caused by the accident, but found that these were descriptions of symptoms and were assessed with reference to the lumbar spine which was the cause of the symptoms. The second insurer says that the Medical Assessor assessed the lumbar spine and addressed the lower extremities as part of the same, as he was required to do in his assessment of radiculopathy, pursuant to the Guidelines.
f.The second insurer further submits there is no evidence to suggest that the symptoms in the legs constituted “not soft tissue injuries”, to warrant a different assessment in relation to threshold injuries, circumstances where such symptoms were regarded as injuries.
g.The second insurer also submits that each of the alleged leg injuries are described in the application form in terms of pain. The second insurer notes that, pursuant to s 1.38 of the Guidelines, Medical Assessors must not make separate allowance for permanent impairment due to pain.
The second insurer finally submits that there is no error in the certificate and no reasonable cause to suspect there are any material errors in the certificate as alleged by the claimant.
EXAMINATION REPORT
The report of Medical Assessor Christopher Oates is as follows:
Examination report of Peter Kelly
Date of Accident: 8/5/2019
Date of Birth: 4/7/1964
Date of Examination: 14/2/2025 at PIC Medical Suites, Sydney
REASONS
Details of who attended the Assessment
Mr Kelly attended unaccompanied.
HISTORY
Pre-accident medical history and relevant personal details
Mr Kelly stated he was left-handed.
He said he now lives alone in his house in Tamworth. At the time of the motor vehicle accident, his father lived with him in the same house. He has since passed away.
At the time of the accident, he worked as a chef and courier driver but in late 2018 he gave up chef work because of needing to look after his family members in the evenings.
Regarding past back complaints, he said in 2012 he picked up his 350kg Harley Davidson motorcycle which had fallen on its side, and developed low back pain and sciatica in the left leg as far as the calf. He had two or three sessions of physiotherapy and thereafter did home exercises. There was no numbness in the leg. He was working as a hotel chef at the time but doesn’t recall having any lost time from work. This episode settled.
He has had gout in the past affecting the left hallux and is treated with Allopurinol. He has a Baker’s cyst at the right knee which seemed to resolve itself.
He has a history of GORD (gastro-oesophageal reflux disease) and has taken Somac for some years.
He drinks alcohol on the weekends and smokes roll-your-own cigarettes.
He doesn’t recall any previous problems to the neck, right shoulder or right wrist.
History of the motor accident
Mr Kelly said on 8/5/2019, he was driving his own utility vehicle with no passengers. He was driving to a depot at Quirindi to pick up the courier vehicle. A car came through a Give Way sign on his left and hit the left side of his vehicle in a T-bone fashion. It destroyed the left front mag wheel on his vehicle and stoved in the left front panel.
The airbag deployed and hit him in the face and forced his head back. His car was written off. He was wearing a seatbelt at the time. He was holding the steering wheel and at the time of the impact the wheel moved forcefully to the left, wrenching his right hand and forearm around to the left.
Ambulance and Police Officers attended. He was assessed by the paramedics. He was complaining of some soreness in the right arm and neck and told to follow-up with his medical practitioner as required.
History of symptoms and treatment following the motor accident
He developed low back pain a couple of days after the accident. He noticed this after he had got up to walk to work at the local depot on 11/5/2019, and had central stabbing low back pain but no leg pain at that time. After he had arrived at work, his foreman drove him to Tamworth Base Hospital. The low back pain was excruciating that day. He even had difficulty lying on the plinth to have a CT scan done. He was certified unfit for work and given Oxycontin and referred back to his GP for follow-up.
He saw the GP on 16/5/2019 for the first time since the accident, after the visit to Tamworth Base Hospital.
A MRI scan which was done on 3/6/2019 because of complaints of left leg pain, low back pain, and numbness in the lateral left leg and to the dorsum of the left foot. He was treated with medications and referred to physiotherapy with Ms Caroline Davie.
He remained off work for two or three months. He then returned to work on light duties driving a table top truck to and from Bunnings doing deliveries, consisting of pallets of goods which were forklifted on and off the truck. He had difficulty reaching down to ratchet up the straps to secure the pallets and had to cease this work after a week. He was off work another month whilst continuing physiotherapy.
He then returned to work driving a light courier van to Murrurundi. He lasted a few months but had increasing problems with bending and lifting, which was required repeatedly with the courier parcel deliveries. His sciatica was stirred up.
He had to quit this job and then joined 13Cabs in 2021 and is still driving cabs between five and nine hours a day, up to five days per week.
He then seemed to improve until he had a recurrence of low back pain and left sided sciatica after lifting his 80-year-old father who had fallen on the floor at home on 17/8/2020. He attended Tamworth Base Hospital at the time.
The physiotherapist there would not treat him, so he attended Proactive Physiotherapy for three visits and was given a set of Therabands and shown exercises, after which he was able to self-manage his condition using the Therabands. He now uses the bands for a couple of days, up to twice a day, when his sciatica flares up and is able to control it successfully.
A few months after the accident, he developed ED (erectile dysfunction) and urgency of bladder and bowel action if he cannot make it to a toilet on time. He saw a GP in November 2020 and was referred to a urologist, Dr Smith, who gave him Cialis for the ED, but in the meantime, he lost his relationship. He also ordered a urinary ultrasound investigation but Mr Kelly was too embarrassed to proceed with this test.
In the meantime in 2019, he had been referred to a neurosurgeon, Dr Dandie, visiting Tamworth, regarding his lumbar spine condition but he did not follow through, as he didn’t want to have surgery on his back.
When asked about the wrist, he says he never had treatment for the right wrist as it was manageable within a few days after the accident. He would just notice the occurrence of intermittent numbness at the volar aspect of the right wrist but not into the hand.
His right shoulder is fine. He says his knee condition affecting both knees are nothing to do with the accident. He opens his bowels when he wakes up in the morning and needs to go again half an hour after lunch. Some days he moves his bowels two or three times a day and the motions are normal.
He plays lawn bowls but uses an extendable arm to roll the bowl along the green, so he doesn’t have to bend down, because of back problems. He has four schooners after bowls and the club is about 200m from his home, and he sometimes can’t make it home in time to the toilet.
Current and proposed treatment
He takes turmeric, glucosamine and chondroitin sulphate supplement combination, one twice a day; Panadol Osteo, two tablets three times a day; and Nurofen two tablets in the morning.
He has escitalopram for his anxiety and Ramipril for high blood pressure, which he has had since age 40, allopurinol for gout and Somac for GORD.
He also takes Mirtazapine, one at night, to help him get to sleep.
He is under the care of his GP, Dr Tapim at Tamworth.
Current symptoms
He gets recurrent exacerbations of low back pain and referred symptoms to the right lower extremity. His right wrist and right shoulder conditions have resolved. His knee conditions are not related to the accident.
CLINICAL EXAMINATION
General presentation
He was left-hand dominant, 192cm in height and weight 138.6kg. He was of tall, solid build.
Lumbar spine
There was tenderness in the lower back centrally and to the right and left in the mid-line. There was muscle tightness bilateral paraspinal muscles.
Flexion one-half, extension one-third, lateral flexion to the right two-thirds and to the left one-half. Rotation to the right was full and to the left three-quarters of normal.
Reflexes and power in the lower limbs were normal. Plantar responses were both flexor. Sensation in the right leg was normal and in the left leg was partially reduced to light touch and pin prick in the lateral left thigh and calf to the foot in a dermatomal distribution (S1).
Supine straight leg raising was negative on the right and showed a positive stretch test on the left.
Thigh girth; right 58cm, left 57cm at 10cm above the superior patellar pole.
Left girth; right 47.5cm, left 46.5cm at 18cm below the inferior patellar pole (maximal circumference).
Upper extremity
Right and left shoulder showed full range of movement in all six planes. There was full range of movement of both elbows, wrists and hands.
Sensation was decreased to light touch and pin prick in the ulnar border of the right hand and little finger. There was no wasting and no clawing of the hand. Grip was strong bilaterally.
Tinel’s sign was negative over the ulnar nerve bilaterally at the elbow and the wrist.
Right and left knees
Active range of movement measured with a goniometer. Right knee 0-130° of flexion with crepitus present but no patellar tenderness on compression. Left knee 0-120° of flexion with some crepitus present in the patellofemoral joint but no patellar tenderness on compression.
He walked with some limp on the left leg.
Consistency of presentation
The claimant presented in a consistent manner.
IMAGING
Reports from the file.
3/6/2019 – MRI lumbar spine – A Woodward – Desiccation and mild loss of posterior disc height at L5/S1 with small right paracentral disc protrusion abutting but not compressing or displacing the traversing right S1 nerve root. The L5 nerve roots exit normally. Note – This is not concordant with the clinical history of lower back and left-sided leg pain with numbness on the dorsum of the left foot being unable to mobilise without a stick.
27/4/2023 – MRI lumbar spine – muti-level disc height loss with reduced signal intensity in keeping with degenerative disc disease and disc desiccation. There is a mild broad based L4/L5 posterior disc bulge. With disc osteophyte complexes laterally. Appearing to contact but not displace or compress the descending left L5 nerve root. No nerve root impingement. There is a left L5/S1 posterolateral disc osteophyte complex, which appears to contact the extra-foraminal segment of the exiting L5 nerve root without evidence of displacement or compression.
OPINION
THRESHOLD INJURY
Diagnosis, causation and reasons
The diagnosis is
(i)lumbar spine soft tissue injury, with aggravation of a pre-existing lumbar spine condition with left leg sciatica which was briefly symptomatic in 2012, but had then settled rapidly with conservative treatment;
(ii)right upper arm and forearm soft tissue injury, involving the ulnar nerve clinically, and including the right shoulder; and
(iii)possible cervical spine soft tissue injury.
The cervical spine condition resolved in short order after the accident.
Also referred were radiating symptoms down the left leg and right leg, a right shoulder soft tissue injury, intermittent bowel disturbance and bilateral knee pain.
The right ulnar nerve forearm problem is related to the accident, as this is mentioned in the Claim Form and in the early GP record.
The bilateral knee pain is not related to the accident, as there is no mention of this condition until November 2020 in the GP records, reported to have occurred after the past few weeks of truck driving after he had quit his job as a chef. Because of the 18-month delay between the mention of knee pain in the contemporaneous medical record and the accident, the accident is not considered to be a cause of bilateral knee pain or knee injury.
The radiating symptoms to the right and left leg (mainly) are the result of nerve root irritation, presumably at the L5/S1 level of the lumbar spine and are part of the lumbar spine injury and are not separate injuries.
The right shoulder soft tissue injury is considered to be caused by the accident, as it is mentioned in the early GP record.
The intermittent bowel disturbance has not been diagnosed or investigated. From talking to the claimant, it appears to be more a condition of anxiety related to lack of a readily available toilet when there is urgency of defecation, rather than being an organic disorder. There is no information available which relates the effects of the motor vehicle accident to a bowel disturbance of urgency of defaecation.
Opioid medication, which is prescribed for strong pain following accidents of this sort, would be expected to cause constipation and hypomotility of the intestinal tract rather than urgency, a symptom of hypermotility.
THRESHOLD DISPUTE
Lumbar spine including sciatic pain to left leg mainly and occasionally right leg is a non-threshold injury, as there are two signs of radiculopathy on clinical examination, namely dermatomal sensory changes and a positive nerve root tension sign on the left side.
As mentioned, the MRI scan report of 2019 indicates a right-sided disc lesion with the potential for right-sided nerve root irritation and the follow-up MRI scan of 2023 suggests the potential for left lower lumbar nerve root irritation..
The right forearm ulnar nerve neuritis is diagnosed as a soft tissue injury, and as referred, likely involving the ulnar nerve, making this a non-threshold injury.
The right shoulder soft tissue injury is a threshold injury. There is no indication that investigations have been performed at this part which would demonstrate a complete or partial rupture of tendons, ligaments, menisci or cartilage in the shoulder.
The lower digestive system intermittent bowel disturbance and right and left knee injuries are not causally related to the accident and therefore a determination of threshold injury is not required.
The bilateral knee condition is not related to the accident and therefore a determination of threshold injury is not required.
PERMANENT IMPAIRMENT DISPUTE
Lumbar spine – the presence of radiculopathy places the claimant in DRE lumbosacral impairment category III, which gives 10% WPI.
Although there was a prior history of sciatic symptoms in the left lower extremity, representing non-verifiable radicular complaints, and therefore a potential DRE category II giving 5% whole person impairment seven years before the index accident, there was no evidence that this condition was symptomatic at the time of the index accident. Hence there are no grounds for subtracting a deduction from the assessed permanent impairment.
Right ulnar nerve neuritis - There is decreased sensibility, with or without abnormal sensation or pain forgotten during activity, giving the claimant a grade 2 sensory deficit of the ulnar nerve above mid forearm. This is assessed as 25% of the maximum sensory deficit. This ulnar nerve sensory condition gives a maximum of 7% upper extremity impairment, at either above or below mid-forearm levels. 25% of 7% is 1.75%, rounded to 2% upper extremity impairment. 2% upper extremity impairment is equivalent to 1% whole person impairment.
Right shoulder-There was full range of movement in all six directions at the right shoulder, hence no assessable permanent impairment.
The combined whole person impairment, arising from injuries related to the accident: 10% combined with 1% giving 11% whole person impairment.
References: AMA4 chapter 3, table 72, p110; table 3, p20, table 11, p48, table 15, p54: combined values chart. Motor Accident Guidelines 6.138, 6.31.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the examination findings of Medical Assessor Oates with which Medical Assessor Gibson concurs. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7]
[6] Section 7.26(6) of the Act.
[7] Allianz Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Allianz Insurance Australia Group v Marsh [2021] NSWCA 31.
The Review Panel Medical Assessors have come to different conclusions and findings to those of Medical Assessor Cameron in relation to causation, threshold injury and WPI. Their conclusions are based on a careful consideration of the available evidence and the history taken and clinical examination findings on the date of the Review Panel’s re-examination and explained in that section of the Review Panel’s certificate.
CONCLUSION
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Ian Cameron on 27 May 2024 should be revoked. The new Certificate appears at the commencement of these reasons.
For the above reasons, the Review Panel concludes that the Combined Certificate issued by Medical Assessor Edward Korbel on 30 August 2024 should be revoked.
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