Kennedy v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Kennedy v Allianz Australia Insurance Limited [2024] NSWPICMP 498
CLAIMANT:	Jeffrey Kennedy
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Leslie Barnsley
DATE OF DECISION:	23 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; claimant alleged injury to neck and back in bus accident; claimant trainee standing up observing bus driver; claimant had back surgery and argued surgery “converted” what may have been a minor injury to a non-threshold injury; claimant also alleged presence of cervical and lumbar radiculopathy and the bulging of discs caused by the accident; causation; Briggs v IAG Limited t/as NRMA Insurance followed, Blacktown City Council v Hocking referred to; Held – accident could have caused injury to neck and lower back; accident did cause injury to neck, but Panel not satisfied accident did cause injury to back; injury to neck is a threshold injury as no fracture or complete or partial rupture of tissue and no cervical radiculopathy present on examination or evidence in the records; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate issued by Medical Assessor Herald dated 28 August 2023. The claimant’s injuries caused by the accident on 11 July 2019 were threshold injuries within the meaning of s 1.6 of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

Threshold injury dispute

Jeffrey Kennedy was involved in a motor accident on 11 July 2019. He was, at the time 64 years of age, he is now 69 years of age.
Mr Kennedy says he injured his back and neck in the accident and made a claim for statutory benefits with Allianz, the third-party insurer of the vehicle that he says caused the accident.
A medical dispute about the nature of Mr Kennedy’s injuries has arisen in connection with that claim. On 17 December 2021 Mr Kennedy referred that dispute to the Personal Injury Commission (the Commission) for assessment (proceedings numbered 10476210/21).[1]
[1] At the time the dispute arose, the terminology in the legislation required a finding as to “minor” or “non-minor” injury. As at 1 April 2023 the terminology was amended to “threshold” injury. For simplicity the Panel will refer to the dispute as a threshold injury dispute throughout these reasons.
In those proceedings the following decisions have been made:
(a) on 16 July 2023, Medical Assessor Fukui determined the claimant’s psychiatric injury caused by the accident was a threshold injury, and
(b) on 28 August 2023 Medical Assessor Herald determined the claimant’s physical injuries were threshold injuries.
The claimant lodged an application with the Commission seeking a review of Medical Assessor Herald’s decision. No review has been lodged in respect of Medical Assessor Fukui’s decision.
On 27 November 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment by Medical Assessor Herald and has allowed the Review and on 1 December 2023 the President’s delegate convened this Review Panel to conduct the Review.

Other medical disputes

It should be noted that the claimant had also lodged an application in respect of treatment and care on 21 January 2022 being proceedings numbered 10477585/21. That dispute was about consultations with the claimant’s General Practitioner (GP) Dr Lim and neurosurgeon Dr Khong and the proceedings were also referred to Medical Assessor Herald. He determined on 16 June 2023 the treatment to be related to the accident, reasonable and necessary and would improve the recovery of the injured person.
The insurer has not lodged an application for review in respect of those decisions.
On 10 August 2022, the claimant lodged a dispute about the degree of his whole person impairment (WPI) being proceedings numbered 10527066/22. On 16 June 2023, Medical Assessor Herald determined the degree of the claimant’s WPI was 10% which is of course not greater than 10%.
No application for review has been lodged by the claimant in respect of that decision.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Kennedy’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 and compensation 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 26 weeks after the accident (for injuries before 1 April 2023) and cannot recover damages.

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) (emphasised 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.
Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
In summary, if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless the particular nerve injury manifests in two of the five signs of radiculopathy.
Clause 5.8 of the Guidelines defines radiculopathy as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes …;
(b)positive sciatic nerve root tension signs …;
(c)muscle atrophy and/or decreased limb circumference …;
(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.”

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act.[2] In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
[2] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess minor injury.
5.5    A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a 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
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
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).

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[3]
[3] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Herald’s, further medical assessments and the Review of medical assessments by this Panel.[4]
[4] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

While Medical Assessor Herald was referred all three medical assessment proceedings (threshold injury, treatment disputes and WPI), he issued two separate documents. It is the separate certificate of assessment of the medical assessment matter concerning threshold injury that is the subject of the current application for review.
Medical Assessor Herald conducted an examination on 6 April 2023 and issued his reasons on 28 August 2023. He confirms at [2] that he was asked to assess the claimant’s cervical spine and lumbar spine.
Medical Assessor Herald takes the following history:
(a)    the claimant had a lumbar spine injury in 1998. He said he had no treatment but did have six week’s off work;
(b)    he was working as a trainee bus driver and was standing on a bus at the time of the accident. The driver of the bus braked sharply, and the claimant said he was thrown forward and back aggravating his neck and back;
(c)    he finished his shift but a few days later could not work and saw his doctor. Imaging was done and he had acupuncture and physiotherapy;
(d)    he changed doctors and saw Dr Lim who referred him to a neurosurgeon Dr Khong, and
(e)    Dr Khong gave him cortisone injections and then recommended L5/S1 microdiscectomy surgery which was done on 5 December 2022. He did not recover well and had physiotherapy, but he has had flare-ups of his pain.
The claimant has continuing neck and back pain. The neck pain radiates to both shoulder blades and his back pain radiating to his buttocks. He takes Panadol Osteo and has physiotherapy. He was concerned he may require a fusion.
The claimant’s neck was stiff, there was some tenderness and restriction of movement. Neurological examination was said to be normal.
The claimant’s lower back was tender and stiff with restriction of movement. There were no neurological signs of sensory loss or muscle wasting and no issue with knee reflexes noted.
While there were radicular symptoms, there was no radiculopathy. Medical Assessor Herald considered there was evidence of exaggeration.
At [22] Medical Assessor Herald diagnosed a soft tissue aggravation of underlying cervical and lumbar spondylosis which he found at [23] to be a threshold injury.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant argues that there is inconsistency in the Medical Assessor’s decision in that he certified the claimant’s injuries were threshold injuries but then says at the conclusion “A decision as to whether these are injuries are a threshold injury is not required.”
In addition, the claimant says the Medical Assessor has not engaged with the issue concerning the effect of surgery. The claimant has had lumbar discectomy surgery and had argued that, on the basis of Reed v Allianz Australia Insurance Limited,[5] surgical intervention following an aggravation of an underlying condition was a non-threshold injury.
[5] [2022] NSWPICMP 287.

Insurer’s submissions

The insurer submitted that the inconsistency in the Medical Assessor’s certificate could have been corrected by way of the obvious error correction procedure.
The insurer does not engage with the Reed decision and says the Medical Assessor was not referred a dispute about surgery but a dispute about threshold injury.

First directions from the Panel

On 7 December 2023 the Panel issued directions to the parties noting there were three medical assessment matters referred to Medical Assessor Herald for assessment and that no application for review had been lodged in respect of two of them and that the only medical assessment matter the Panel would be considering was the threshold injury dispute.
The Panel referred to the cases of Reid v Allianz Insurance Limited and Mandoukos v Allianz Australia Insurance Limited,[6] noting that the latter was currently on appeal.
[6] [2023] NSWSC 1023.
The claimant was directed to provide a bundle of documents by 19 January 2024 and the insurer by 9 February 2024. The claimant’s bundle was filed on 8 February 2024 and the insurer’s bundle on 9 February 2024.

First preliminary conference, report and second directions from the Panel

The Panel met on 26 February 2024 to discuss the matter and reported to the parties on 28 February 2024. The Panel:
(a)    confirmed the Panel would only be considering the threshold injury dispute and assessment of Medical Assessor Herald;
(b)    noted the injuries concerned were to the cervical and lumbar regions of the claimant’s spine;
(c)    identified as the issues in the dispute:
(i)whether the claimant has, or has had, two of the five signs of cervical radiculopathy within the meaning of cl 5.8 of the Guidelines;
(ii)whether the claimant has, or has had, two of the five signs of lumbar radiculopathy within the meaning of cl 5.8 of the Guidelines;
(iii)whether the claimant has a total or partial rupture of tissue such as the ligamentous tissue of any of the claimant’s lumbar or cervical discs, and
(iv)the impact of the claimant’s lumbar spine surgery and, if the need for surgery was caused or materially contributed to by the accident, does that surgery “transform” a threshold injury into a non-threshold injury.
Further directions were issued to the parties. The claimant was directed to respond by 26 March 2024 and the insurer by 9 April 2024. The parties were advised the Panel would be re-convening on 22 April 2024.

Parties’ further submissions

The claimant did not lodge any submissions as directed by the Panel.
The insurer provided the Panel with a letter its solicitors had sent to the claimant’s solicitor on 2 April 2024 noting the claimant’s failure to respond to the Panel’s directions and requesting their attention to the matter. The insurer’s solicitor advised the Panel via a message in the portal that he had not received a response to that letter.
The insurer lodged submissions on 9 April 2024. The insurer identifies at [4] in a table, the evidence supporting pre-existing lower back symptoms and the references in the post-accident medical records to the claimant’s lower back symptoms.
The insurer refers at [5] to the Court of Appeal’s decision in Mandoukos v Allianz Australia Insurance Ltd[7] and suggests at [7] that the claimant’s application for further assessment in Mandoukos was based on surgery having occurred and him suffering from radiculopathy. The insurer notes that the real issue in dispute before the Court of Appeal was the “nature and scope of the medical dispute referred for assessment” and whether the foraminotomy surgery was a non-minor injury [11]. The insurer noted at [14] that the argument was first raised after the application for review had been filed by Mr Mandoukos.
[7] [2024] NSWCA 71.
The insurer cited [75], [96] and [97] of the Court’s decision and said that there was no obligation for the Medical Assessor to consider whether the foraminotomy procedure meant Mr Mandoukos’s injury was non-threshold.
The insurer then noted at [20] the following paragraph of the decision where Stern JA said:
“[99] My provisional view is that would be a ‘different’ injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos’ symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.”
The insurer notes at [23] the dispute before Medical Assessor Herald was a minor injury dispute where the surgery and radiculopathy were identified as issues. The insurer also notes at [25] that the claimant has had the surgery and at [26] that the surgery was paid for by the workers compensation insurer and at [27] that the claimant had submitted to Medical Assessor Herald that the need for the surgery was causally related to the injuries. The insurer says, “that is not the dispute referred for assessment.”
The insurer submits at [28] that Mr Kennedy’s claim is “indistinguishable” from what happened in Mr Mandoukas’ claim.
The insurer appears at [29] to consider it significant that it had no role in the funding of the claimant’s surgery and at [30] that the issue always has been whether the injury caused a threshold or non-threshold injury.
The insurer identifies at [32] the four medical assessment matters identified in Schedule 2(2) that can be referred for medical assessment (whole person impairment, treatment, earning capacity and threshold injury).
The insurer then submits at [33] that [99] of Mandoukos is “seriously considered dicta” and at [34] that the Panel must follow it and at [35]:
“The result is that in the current dispute the scope of the medical assessment matter referred for determination does not include the question of whether the post-accident surgery is an injury caused by the subject accident.”

Claimant’s further submissions

The claimant lodged further submissions dated 11 April 2024.
The claimant was asked to point to the evidence supporting a finding of any of the five signs of radiculopathy since the accident and identified:
(a)    an MRI of 6 May 2020 noting lumbar lordosis and disc bulges causing compression of right and left L4 nerve roots and left S1 nerve root;
(b)    Dr Lim’s diagnosis of cervical and lumbar radiculopathy, and
(c)    dysmetria and guarding recorded by Dr Dalton on 14 October 2019.
The claimant says that the facts of the Mandoukos case were that Mr Mandoukos had cervical foraminotomy surgery because of the presence of radiculopathy before his medical assessment and the only issue raised by that claimant at the time he was assessed was that the radiculopathy meant he had a non-minor injury. The issue of surgery “converting” or “transforming” the injury to a non-minor injury was not raised with the original medical assessor but was only raised as a matter in the application for review of the Medical Assessor’s original decision.

The claimant says in his case, the decision of Reed and the impact of the surgery, was the subject of submissions put before Medical Assessor Herald. The claimant had submitted that the surgery itself was evidence of a non-minor injury and Medical Assessor Herald had not dealt with that argument.
The claimant says that unlike in Mandoukos:
“The ambit of the actual medical dispute that was referred to Medical Assessor Herald for determination was clearly defined, and included whether the surgery itself was a non-threshold injury”.
The claimant says in answer to the insurer’s submission that its position is strengthened by the absence of a “treatment dispute” concerning the need for surgery or the insurer having funded the surgery is “absurd”. The surgery had been funded by the workers compensation insurer and s 3.35 of the MAI Act disentitled a claimant from receiving statutory benefits (including treatment benefits) if workers compensation benefits were payable.
The claimant argues therefore that the scope of the dispute before the Panel includes “whether the L5/S1 discectomy surgery is a non-threshold injury” resulting from the injuries caused by the motor accident.

Second preliminary conference, report and directions from the Panel

The Panel met again on 22 April 2024 and reported to the parties the next day.
The Panel confirmed receipt of the submissions from the parties and stated that in the Panel’s views, these were the issues in dispute:
(a)    whether the claimant has, or has had at any time since the accident two or more of the five signs of cervical radiculopathy within the meaning of cl 5.8 of the Motor Accident Guidelines;
(b)    whether the claimant has, or has had at any time since the accident two or more of the five signs of lumbar radiculopathy within the meaning of cl 5.8 of the Motor Accident Guidelines;
(c)    whether the claimant has a total or partial rupture of tissue such as the bulging discs identified in radiology of 6 May 2020 and the operation report which identifies a large fragment of disc removed in the claimant’s lumbar spine surgery, and
(d)    the impact of the claimant’s lumbar spine surgery which has been the subject of submissions following the Court of Appeal’s decision in Mandoukos.
The Panel requested the following additional records:
(a)    any workers compensation claim form or report of injury form completed by the claimant to his employer following the motor accident;
(b)    Dr Chara’s records from October 2016 or earlier noting that, at page 77 of the insurer’s bundle there was an X-ray of the claimant’s thoracolumbar spine, pelvis and left knee dated 11 October 2016. A copy of that report was provided to Dr Chara (presumably the Dr Chara of Immex Waterloo) but no records from Dr Chara (or Immex) have been produced from October 2016 or earlier;
(c)    Dr Trevor Francis-Jones – the Panel notes the 2016 lumbar X-ray was done on referral by Dr Francis-Jones who the Panel understood was a chiropractor from the Central Coast;
(d)    Wyoming Medical and Dental Centre (Dr Sutherland) had produced records which included referrals to a Umina Physiotherapy practice;
(e)    osteopath – at page 664 of the claimant’s bundle was an email from the return to work coordinator Ms Pitt to Dr Iboyan which refers to the claimant seeing an osteopath, and
(f)    acupuncture – at page 666 of the claimant’s bundle was a facsimile from Dr Yong An to icare workers care program requesting six more acupuncture visits for neck and lower back symptoms.
The parties were advised of the medical re-examination to be conducted on 22 May 2024 by both Medical Assessors Dixon and Berry.
Upon the sudden retirement of Medical Assessor Berry, the Panel was reconvened. As Medical Assessor Barnsley was not available on 22 May 2024, the Panel determined the re-examination would proceed but with only one Medical Assessor present.

Insurer’s final submissions

The insurer lodged submissions in answer to the claimant’s submissions.
The insurer documents at [5] the steps taken to obtain the documents requested by the Panel. The insurer requested the Commission issue directions for production.
The insurer submits at [9]-[20] that the claimant’s submissions and the documents referred to do not establish that the claimant had two of the five signs of radiculopathy at any time within the meanings of cl 5.8 of the Guidelines.
The insurer submits at [21]-[26] that the Commission has no jurisdiction to determine whether the surgery constitutes a non-threshold injury (or any injury at all) because the insurer was not asked to concede the surgery was non-threshold, no decision has been made about it and no internal review of any decision has occurred.
In the event the Commission determines it does have jurisdiction to determine the matter, the insurer submits at [27]-[37] the surgery was performed to deal with issues concerning the claimant’s degenerative spinal condition. The insurer says the “incident [accident] was trivial … and could not have caused an injury at all let alone one which would cause a person to … require treatment including surgery.” The insurer notes the time (two years and two months) from accident to surgery.

Response from the claimant

After the production of the various records in response to the directions for production, the Panel gave the claimant the opportunity to provide any further submissions. On 19 July 2024 the Panel was advised the claimant did not wish to make any further submissions.

REVIEW OF THE EVIDENCE

Workers compensation records

The motor accident claim was not made until March 2021, 20 months after the accident.
Mr Kennedy had made an earlier workers compensation claim. The insurer therefore arranged for a direction to be issued to iCare for provision of relevant (and limited) workers compensation records.
Christopher Field, accredited exercise physiologist completed a pre-employment medical certificate for the claimant on 22 May 2019.[8] This report includes:
(a)    the claimant disclosed hypertension, previous surgeries, current smoking habit and a need for prescription glasses;
(b)    under a heading significant clinical findings, the claimant’s blood pressure was normal, his vision was normal with his glasses on and his “range of movement was reduced for internal rotation of both shoulders and hip flexion for both sides (straight leg raising)”;
(c)    under body measurements, there was no sciatica or lower back pain with movement but muscle tightness in the quadriceps;
(d)    the claimant was advised to “engage in regular exercise and a stretching routine” to improve movement and reduce risk of injury, and
(e)    the overall assessment was mild risk of physical injury.
[8] Page 40 of the bundle of icare documents.
The workers compensation documents include a report of injury form[9] signed by the claimant for an incident on 29 July 2019 (two weeks after the subject accident). It occurred at around 3.00pm at Brooklyn and the injured body location was indicated to be “neck” which was “muscular / ligament / tendon” and “sprain /strain.” The description of the incident was “buddy driving bus 4503 Brooklyn to Mooney Loops. Both front airbags broken bounding and banging bus increased agitation of already injured neck and back.”
[9] Page 46 of the bundle of icare documents.
The claimant gave a lengthy statement to the workers compensation insurer’s investigator on 13 May 2020. The statement includes the following relevant information:
(a)    he sustained an injury when the trainee driver [Steve Boeme] stopped at a stop sign, accelerated then slammed on the brakes [13];
(b)    he was hanging on with two hands hanging onto the handrails [21]-[22];
(c)    when the bus stopped his body was “thrown forward” [28] and his “head went forward and back” [29];
(d)    he sustained a neck injury [36];
(e)    he did not report the injury for five days because while he was in pain “I didn’t want to risk my job.” [38];
(f)    five days later he could not get his head off the pillow [47];
(g)    after the incident he was in pain but didn’t tell anyone and he “was rubbing my neck all the time.” [50];
(h)    his fellow trainee on the bus Gary said he had hit his head and didn’t want to tell anyone because he too had only just started the job [51];
(i)    the claimant thought the accident happened on a Thursday, he worked the whole day and then the Friday and then on Monday or Tuesday he told work that he could not work and his neck was killing him [59];
(j)    the claimant went to Transdev’s doctors first in Parramatta but got sick of going to Parramatta so went to a medical practice in Hornsby who referred him for acupuncture;
(k)    the claimant had a fall out with Dr Sutherland because he did not like doing workers compensation work [105];
(l)    the claimant’s lawyers sent him to Dr Lim [114];
(m)     the claimant wants to get better but is concerned at the age of 65 with a bad neck and bad back [115];
(n)    the claimant also had pain in the back which he had “for a long time” [117] and [118];
(o)    the acupuncturist told the claimant it doesn’t just affect your neck and his back is worse since the accident [121], and
(p) the claimant had never injured his neck before [122]. He had chiropractic treatment before, and he may have had his neck adjusted before the accident [125].
Stephen Boeme gave a statement on 19 May 2020. He was the trainer at the time of the accident. He said the bus lurched when it braked. He says that the claimant made no complaint of injury at the time, drove the bus later that day and did not complain that time or for the rest of the week.
There is a statement from Gary Osgood who commenced as a trainee bus driver at the same time as the claimant. He provided a statement on 19 May 2020 about the incident and said no one in the bus complained about an injury at the time and the claimant did not complain about an injury for the remainder of the week. He denies sustaining any injury in particular he denied hitting his head.
The workers compensation investigators, Farrell’s provided a report dated 26 May 2020. It summarises the statements and other material and information obtained. The following points are relevant:
(a)    the investigator comments on the film noting “there is no significant forward / backward movement of the head” and there is bending of the hips and knees. After the incident the claimant “appears unfazed” and he was not restricted showed no pain and did not rub his neck;
(b)    the report of injury was made on 16 July 2019 and consulted Dr Iboyan at Hornsby and saw his chiropractor at Spinal Symmetry;
(c)    Vanessa Pitt was the return-to-work co-ordinator. She reported to Farrell’s that the claimant asked for a cortisone injection (to his neck) and at that stage indicated he had a history of back pain. Farell’s record he, “did not report back pain at all until the more recent medical certificates from Dr Lim.”;
(d)    the claimant returned to work on 17 July 2019 but could not continue. He had chiropractic treatment the next day and saw Dr Iboyan on 19 and 25 July 2019 and was referred for acupuncture by Yong An in Hornsby;
(e)    the claimant aggravated his neck pain in an incident on 29 July 2019 and had to be put off the bus and he alleged his pre-existing back injury had been aggravated;
(f)    Dr Ma, Dr Chara and Dr Dalton were doctors arranged by the insurer;
(g)    the claimant returned to bus driving on 6 January 2020 but complained of shoulder pain and neck pain and was returned to clerical duties;
(h)    the claimant started seeing Dr Sutherland in January 2020;
(i)    the claimant ceased all work on 12 March 2020 as there were no suitable duties, and
(j)    the claimant changed doctors again and started seeing Dr Lim at the suggestion of his solicitors.
In the bundle of documents from 6S Health physiotherapy are copies of the following workers compensation documents:
(a)    a Certificate of Capacity dated 19 August 2019 diagnosing a “neck strain (whiplash)”. The injury was described as:
“…travelling on a bus as a bus trainee, he was standing and holding on bars, the bus pulled off from red light at slow speed and braked suddenly when a car cut across the path. Reported having mild pain left side of neck and pain worse 5 days later.”
Mobic had been prescribed and referred for X-ray of cervical and thoracic spine and physiotherapy were noted;
(b)    a further certificate of capacity and fitness dated 29 August 2019 was completed by Dr Aji Chara for Dr William Ma and is in similar terms, and
(c)    an Allied Health Recovery Request (AHRR) directed to the workers compensation insurer dated 17 September 2019 for “whiplash style injury cervical spine / mid thoracic”. Current signs and symptoms included pins and needles and numbness in the hand, pain in the right shoulder and right-hand pain down into the left hip. Pre-existing factors were noted as “?OA in lower left hip. Nil noted back history.”

Claim form, claim documents and insurer decision making

The claimant’s application for motor accident personal injury benefits was signed and dated 8 March 2021.[10] The accident is described as follows:
“Passenger on a bus standing up holding one in each hand the handles that hang from a chain, facing forward. The bus stopped at a stop sign, then accelerated and then suddenly slammed the brakes on.”
[10] Page 44 of the insurer’s bundle.
The claimant says he sustained a whiplash injury to his neck, pain between the shoulder blades and shoulder pain as well as lower back pain.
The claimant says he was not “suffering an illness or injury affecting the same or similar parts of [his] body at the time of the accident.”
QBE wrote to the claimant on 15 October 2021[11] advising him of their decision he had a “minor injury”. After an application for internal review, QBE affirmed the decision in a certificate of determination dated 8 November 2021[12].
[11] Page 53 of the claimant’s bundle.
[12] Page 61 of the claimant’s bundle.
Dr Lim and the other doctors in his practice have provided a number of medical certificates of fitness the first dated 28 April 2020 which refers to cervical spine radiculopathy, lumbar spine radiculopathy and post-traumatic stress disorder (other later ones note major depression).

Treating and insurer medical records and reports

Osteopath

Records from Malcolm Jack of Spinal Symmetry (osteopath) were produced following a direction for production being issued by the Commission’s Division Head.
The first attendance by the claimant was on 24 April 2015. The claimant reported lower back pain with referral down the left posterior and lateral thigh with associated acute left hip pain. The claimant attributed the onset to golf, the pain was subtle and began two weeks ago but had become “really bad” a week ago. The pain was sharp aggravated by movement and the claimant had an antalgic gait. A further treatment occurred on 15 May 2015 and another on 6 June 2016, but the notes are difficult to interpret.
The claimant attended on 16 July 2019 after the accident with the claimant complaining of cervical and upper trapezius tightness although there is a note of “R Sij” and “L Hip” which the Panel interprets as right sacroiliac joint and left hip respectively. On 19 July 2019 the claimant attended again noting the pain subsided a bit after treatment “the pain was more in neck and shoulder, lower back was much better.” The notes suggest that treatment was provided only to the neck and upper back area. Mr Kennedy was advised to “come back when needed.”
There are no further attendances.

Physiotherapy

6S Health physiotherapy of 276 West Street has provided notes following a direction for production issued by the Division Head.
The claimant registered as a new patient on 9 January 2017 noting “hip / lower back, right foot” pain identified as a stabbing pain at an intensity of 6 out of 10.
The claimant was seen only once, at Ettalong on 9 January 2017 and he cancelled an appointment on 16 January 2017. The claimant then attends at the Umina clinic after the accident on 3, 6, 10, 13 and 17 September 2019. An appointment on 21 September 2019 was cancelled and correspondence suggests the claimant “has opted to go to another physio clinic”.
The entry on 9 January 2017 reads:
“Jeff attended today with chronic L LSP pain [left lumbar spine pain]. He also reports bilateral hip [osteoarthritis], left knee [osteoarthritis] and spinal degeneration as shown with previous imaging. He has been a taxi driver for over 30 years and still does this on weekends. He finds long hours in the car his most aggravating activity. He has previously seen chiropractors who gave him temporary relief but is after a more long-term approach.”
The first attendance after the accident occurred on 3 September 2019. The physiotherapist on that occasion has a history of acute cervical and thoracic pain “which has progressively gotten better with acupuncture.” The claimant was working part time as a ticket checker and wanted to return to driving buses and playing lawn bowls and golf. The claimant’s pain was documented as being between his shoulder blades and there were “nil pins and needles or numbness” noted.
On 6 September 2019 is a note “left iliolumbar area pain, present for years – notes other physios have observed shorter leg.” There is then a note which suggests the claimant’s left leg is 2cm shorter than the right. Treatment was given to the neck.
On 10 September 2019 the claimant was provided with further cervical and thoracic treatment, and he was noted to be “sore around hips ongoing … was around prior to accident.”
On 13 September 2019 the claimant had additional laser treatment to the neck and upper thoracic area, and he was said to be moving house.

Chiropractic

Dr Francis Jones of Central Chiropractic has provided his records. The records include a new patient registration form dated 10 October 2016. The reason for seeking chiropractic assistance was said to be “back pain.” The claimant says in answer to a prompt to “list any past accidents/injuries - “35 years ago as wardsman lower back; 19 years ago, bus driver lower back.” A pain diagram was completed with lower back on the left side circled.
The first entry in the records notes left lumbar spinal pain “worse past 12 months constant [pain] was [right] side previous.” And it was said to be worsening. There is a reference to back pain having been on and off over the last 35 years and osteopathy and an MRI which showed no abnormality.
The claimant was seen again on 18 and 24 October 2016, 1, 8, 17 November and 15 December 2016.
The next attendance was on 29 March 2018.
On examination it is recorded there was no abnormality in reflexes, myotomes or sensation but straight leg raise, Elys and the Faber test were positive producing lower back pain.
In a letter to the claimant’s GP (Dr Hussain of Short Street, Morisset), Dr Francis-Jones reports mainly left sided lower back pain, with painful restriction of movement in the lower back. He noted there was no radiculopathy but that the facet joints at L4/5 and L5/S1 were likely to be involved along with the claimant’s osteoarthritic hips.

Acupuncture

Yong (Linda) An emailed the insurer with her records and a covering note that says the claimant first attended for treatment on 26 May 2021 and attended four times in total.
The first visit complaint is recorded as “Neck pain, lower back pain, since middle of 2020, and had to stop playing lawn bowls. The GP gave an injection at L4-L5 to stop pain.” She also records all back muscles were tight and there was strong pain over C3-C7 and T1-T5. She provided manual acupuncture, cupping and electronic pulse acupuncture.
On 9 June 2021 the claimant attended again for right hip pain, inability to turn around, chest and rib pain, left knee pain. There was pain on palpation of the thoracic spine.
On the third visit on 17 June 2021, the claimant complained of neck and back pain but attention appears to have been paid to only the cervical spine (C5-7) and thoracic spine
(T1-5).

At the fourth visit on 23 June 2021 the claimant complained of “middle back sharp pain when getting up in the morning.” Only the thoracic spine is mentioned in the note (T1-T5).

GP notes

The GP notes provided are as follows:
(a)    15 November 2018 – June 2021 Wyoming Medical and Dental Centre – Dr Sutherland;[13]
(b)    16 July 2019 – 12 August 2019 – Hornsby Whitehouse Medical Centre primarily Dr Iboyan;[14]
(c) 21 August 2019 – 10 February 2020 Immex Waterloo – Dr Chara and Dr Ma,[15] and
(d)    24 April 2020 – June 2021 Workers Doctors or Wyong Doctors Parramatta – Dr Lim, Dr Khong, Dr Mo.[16]
[13] Page 501 of the claimant’s bundle.
[14] Page 632 of the claimant’s bundle.
[15] Page 671 of the claimant’s bundle.
[16] Page 235 of the claimant’s bundle.
The Panel notes the October 2016 X-ray of the lower back, pelvis and knees performed at the request of Dr Francis-Jones and sent to a Dr Chara. There is a Dr Chara in practice at Waterloo but no records from 2016 (or in fact before 2019) have been provided by that practice. Whether the Dr Chara referred to in October 2016 and the Dr Chara who saw the claimant after the accident in 2019 are the same is not clear.
Dr Sutherland referred the claimant to Nikki a physiotherapist on Ocean Beach Road in Umina Beach for “continued care of his back” on 15 November 2018[17] and “long term issues with back” on 28 February 2019[18]. This was part of a GP management pain said to improve the claimant’s mobility, provide pain relief and pain management. The corresponding note from Dr Sutherland on 15 November 2018 reads “flare of chronic back condition” and on 28 February 2019 “continuing issue with back.”
[17] Page 95 of the insurer’s bundle.
[18] Page 55 of the insurer’s bundle.
Dr Iboyan saw the claimant on 16 July 2019. His records note “presentation with neck pain noted 3 days ago no trauma similar episode previously.” The claimant is said to have pain at the C4/5 area which was mild and there were no neurological signs, no pins and needles and able to walk freely. His impression was stated to be “non specific low back pain” but then he completed a Certificate of Capacity which mentions only neck pain. On 19 July 2019 there was said to be improvement after seeing the chiropractor. On 25 July 2019, Dr Iboyan reviewed the X-rays with the claimant, advised he have massage and physiotherapy and requested an MRI of the cervical spine and prescribed Mobic. On 6 August 2019 the claimant was said to be improving and asked for a few more sessions of acupuncture. The next day the claimant attended Dr Torrado complaining of upper back pain which was tender to touch.
The entry in Dr Iboyan’s records of 12 August 2019 noted no improvement or short lasting improvement only, “asking that possibly thrown around bus during incident? Transferred pain – information was not provided before”. The response to that was to book X-rays and ultrasound of the left and right shoulder and X-ray of the thoracic spine. A letter to Dr Shaun Gambhir, neurosurgeon was provided.
The claimant mentioned a neck injury to Dr Sutherland on 5 September 2019 but did not mention any back injury or complaint.
The Immex records make to reference to upper or lower back pain and only mention neck complaints.
On 13 January 2020, Mr Kieng Morgan, exercise physiologist wrote to the insurer[19] about the claimant’s program. This report refers only to neck pain and neck symptoms. A further report dated 17 February 220 also refers to cervical spine pain only but did record improvement. A final report of 18 June 2020 which again referred only to neck issues and said on 6 May 2020 the claimant was advised to cease the program for further X-rays and cortisone injection.
[19] Page 59 of the insurer’s bundle.
On 30 April 2020, Dr Kumagaya reported to Dr Lim[20] that the claimant was depressed having had “a significant pre-injury medical and surgical background” including a prior lower back injury. The claimant told Dr Kumagaya he had an injury to his neck and lower spine when at work as a trainee bus driver. He says the claimant was standing and “remembered violently losing his balance.”
[20] Page 70 of the insurer’s bundle.
The claimant was reviewed against on 21 May 2020. In a report to the workers compensation insurer dated 24 May 2020 Dr Kumagaya notes that it was Dr Lim (a GP) who included post-traumatic stress disorder in the Certificate of Capacity. He confirmed his diagnosis of a major depressive disorder.
On 27 May 2020, Dr Khong wrote to Dr Calvache-Rubio[21] thanking him for the referral. He has a history of the claimant going forward and backwards in the bus and having some neck pain then after five days being unable to get his head off his pillow. The claimant reported “ongoing neck pain – left sided paraspinal, radiates to both shoulders, sometimes to midline thoracic spine.” There was no radiation down the arms, and it did wake him in the night, and he could not play golf or lawn bowls.
[21] Page 80 of the claimant’s bundle.
Dr Khong also records lower back pain after the accident which was worse. The claimant reported right knee pain but no radiation. There was no numbness or pins and needles or tingling.
Dr Khong’s examination revealed no neurological abnormalities in the upper limbs and reflexes were positive. In the lower limbs neurologically, the claimant was normal other than there being no reflexes in the knees and ankles on both sides.
On 26 June 2020 Dr Khong wrote to Dr Calvache-Rubio again and little had changed. Dr Khong advised conservative treatment of the neck pain and a perineural injection for the lower back pain noting the results of the MRI suggested a left S1 compression. Right knee pain
On 28 August 2020, Dr Khong wrote again noting that the claimant had a good response to the injection and considered if the pain returned the claimant would be a “good candidate” for a microdiscectomy and decompression. On 11 September 2020 when examined, the pain had returned, and the doctor advised he would request the surgery.
On 13 November 2020 the claimant was complaining of left sided lower back pain into the let buttock and radiating to the front of the left knee.
Dr Coughlan, neurosurgeon wrote to Dr Calvache-Rubio on 27 February 2021 he noted the claimant’s work injury in 1999 and “significant discopathy at L5/S1 with S1 nerve compression” he noted the apparent success of the cortisone injection and that most of the symptoms were in the left side and gluteal region. Dr Coughlan noted the claimant was quite active and keen to get back to golf.
Dr Coughlan, wrote to the claimant’s GP in Parramatta, Dr Calvache-Rubio on 15 August 2022. He had a history of no previous significant or severe neck pain and thought conservative management. He supported the lower back pain surgery.
Ms Venter wrote to Dr Coughlan on 17 October 2022 concerning her provision of exercise physiology treatment to the claimant.
The operation report of Dr Coughlan noted there was a midline incision, a left L5/S1 laminotomy and left S1 decompression with a “large fragment retrieved.”

Dr Dalton

Dr Dalton’s records[22] include a number of letters to Dr Chara at Paramatta as follows:
(a)    14 October 2019 – Dr Dalton had a consistent history of the accident saying the claimant was thrown forwards, did not fall and was “jolted” and soon after developed left sided neck pain. The claimant denied any previous neck complaints. Acupuncture had provided little benefit and he had some physiotherapy but has since changed physiotherapists. Cervical movements were restricted but he had full movement in both shoulders. Dr Dalton says there are “no signs of radicular symptoms or any neurological deficit in his upper limbs.” Dr Dalton expressed the view the claimant had “facet joint arthropathy.” He recommended physiotherapy with mobilisation.
(b)    6 January 2020 – physiotherapy and acupuncture gave some relief, still quite guarded with cervical movements but when observed the claimant’s movements were greater. The claimant said he was not sleeping well. The claimant reported financial stress and wanted to go back to work and “he drives his car without any difficulty.”
(c)    16 February 2020 – the claimant’s pain and cervical movements were improving, he was doing supervised exercises and working 22 hours a week and a graduated return to full hours was suggested with appropriate support.
(d)    5 March 2020 – Dr Dalton had been provided with the closed circuit television (CCTV) footage from inside the bus. He notes “no significant flexion-extension or rotational injury to the cervical spine” and there is no “visible discomfort” shown immediately after the accident. On the topic of causation, Dr Dalton says:
“In terms of causation the mechanism of injury would not, in my view, have caused an injury to the cervical spine and there is no indication that significant aggravation occurred at that time. I consider it highly unlikely that this incident was the cause of Mr Kennedy’s ongoing neck problems and I note that Mr Kennedy first reported the injury five days later on the 16^th July. I also note that at that time he was packing and moving himself to a new bedsit.”
[22] Page 23 of the insurer’s bundle.
Dr Dalton made recommendations for treatment noting that facet joint injections might have been an option but that it was difficult to isolate a symptomatic level and that any injections would be diagnostic not therapeutic.

Radiology

X-rays of the claimant’s lumbar spine and pelvis were done at the request of Dr Francis-Jones, chiropractor and a copy was provided to Dr Chara, on 11 October 2016 due to low back pain.[23] Bilateral osteoarthritis was seen in the hips.
[23] Page 77 of the insurer’s bundle
An X-ray of the left knee was also undertaken with no effusion or loose body seen. Joint compartments were preserved and there was some degeneration.
At the request of Dr Iboyan, the claimant had an MRI of his cervical spine on 31 July 2019[24] with the clinical history stated as “episode of whiplash, pain and discomfort.” There was degenerate change noted and endplates of C4 and C5 signal described likely to be degenerative in nature.”
[24] Page 52 of the insurer’s bundle.
An X-ray of the cervical and thoracic spine was done on 28 August 2019[25] showing degenerative changes but no acute injury. In the thoracic spine there was no evidence of acute injury.
[25] Page 54 of the insurer’s bundle.
On referral from Dr Lim, the claimant had an MRI of his cervical and lumbar spine on 6 May 2020.[26] This report noted disc and endplate degenerative changes at C4/5, C5/6 and C6/7 with quite significant foraminal narrowing on both sides. In the lumbar spine there were bulges at L4/5 and L5/S1 compromising the exiting left L5 nerve and left S1 nerve.
[26] Page 76 of the claimant’s bundle.
A bone scan was performed on 24 June 2020 due to neck and low back pain.[27] There was discovertebral degenerative activity at C4/5 and C5/6 with mild active facet joints at C3/4 and C4/5. There was mild to moderate active facet joints in the lumbar spine at L2/3, L3/4, L5/6 and L5/S1.
[27] Page 76 of the insurer’s bundle.
A perineural injection at S1 was done on 14 July 2021.

Medico-legal reports

Dr Davies wrote a report for the workers compensation insurer dated 12 March 2021.[28] Dr Davies has a consistent history of the accident. The claimant told Dr Davies that because he was newly employed, he did not want to make a complaint about injury but said his symptoms got worse over time and he reported his accident to his employer on 16 July 2019.
[28] Page 33 of the insurer’s bundle.
Dr Davies took a history from the claimant of him hurting his back in the accident and:
“He told me he had a previous low back injury in 1999, when he was also working as a bus driver. He said he only had a short time off work at that time and that his back symptoms settled and he had no further back problems in the lead up to the incident in July 2019.“
The claimant had a history of being treated by Dr Lim and Dr Khong, neurosurgeon who advised him to have a L5/S1 microdiscectomy and the claimant sought a second opinion from Dr Coughlan, neurosurgeon who also gave that advice.
The claimant reported to Dr Davies pain in the left lower back radiating into the buttock and around the left knee. The claimant had left sided neck pain radiating down between the shoulder blades but not into the upper limbs. The claimant denied previous neck symptoms.
Dr Davies appears to have reviewed notes or records suggesting previous neck complaints and previous back complaints.
On examination of the cervical and lumbar spine, Dr Davies could not elicit any reflexes in the upper or lower limbs, but tone, strength and sensation were normal.
Dr Davies considered the CCTV footage and said there was no evidence of a flexion extension injury to the neck and that there was no record of lower back complaints until May 2020.
The claimant was seen by Dr Gehr, orthopaedic surgeon on 28 September 2021. After summarising the records he has seen, he records at page 18 the claimant’s past history of an injury to his back at work in 1999 but then a full recovery and “no other problems with cervical spine, upper extremities or lower extremities.” Later there is a record of “he tells me he had a twinge of lumbar spine pain leading up to subject accident, but had not really stopped him from doing anything.”
Dr Gehr has a history of Mr Kennedy having pain in his back after the car accident as well as in his neck and that the neck pain was worse than the back. The claimant reported current neck and back pain, thoracic spine pain and pain in the left knee.
On examination there were no neurological signs detected. In the lower limb there were no neurological signs but absent tendon reflexes on both sides.
Dr Gehr looked at the CCTV film and thought there was jolting of the lower back and more subtle bending of the neck.

Psychiatric injury

Both the insurer and the claimant rely on medico-legal psychiatric assessments (Dr Vickery for the insurer and Dr Rastogi for the claimant).
On 16 July 2023, Medical Assessor Fukui determined a dispute about a single consultation with Dr Lim in November 2021. She documents “notable pain behaviour”. She diagnosed an adjustment disorder with mixed anxiety and depressed mood and found that a consultation with Dr Lim was causally related to the accident and reasonable and necessary because it enabled him to seek treatment from a psychologist and psychiatrist.

RE-EXAMINATION FINDINGS

Mr Kennedy attended Medical Assessor Dixon’s Hornsby rooms on 22 May 2024.
This 69-year-old claimant was a trainee bus driver working with Transdev. Video footage of the accident shows him standing in a bus holding onto handles hanging down from rails on the ceiling of the bus, while facing towards the front of the bus. The driver of the bus appears to have accelerated and then slammed his brakes on quite suddenly. The claimant says he sustained a whiplash injury to his neck and a low back strain injury.
Mr Kennedy says that initially the pain he experienced was more marked in his neck with left shoulder and arm pain with trapezial muscle pain and then later on in the day his lower back became more painful and was associated with left buttock sciatica. He finished his shift but within days, he said he was unable to continue working as a trainee bus driver and he saw a local doctor. This doctor referred Mr Kennedy for imaging and physiotherapy and acupuncture. He then went to see another doctor, Dr Lim, who referred him for further imaging and review by a neurosurgeon, Dr Khong.
Mr Kennedy says after the accident his main problem was left sided neck pain but subsequently then his low back pain became more severe. Mr Kennedy said he had cortisone injections without any sustained benefit and his neurosurgeon, Dr Khong, recommended L5/S1 microdiscectomy.
He obtained a second opinion from Dr Marc Coughlan, and then proceeded to have microdiscectomy on 5 December 2022. Mr Kennedy says he made a full recovery following this procedure but despite physiotherapy, he continues to have flare ups of pain in his back with left buttock sciatica. Dr Khong has seen him more recently and has recommended a lumbosacral fusion and he has had a recent MRI just after Easter this year.
Mr Kennedy says his neck pain gradually improved although he had some residual stiffness, particularly looking to the right and had left shoulder and arm pain with trapezial muscle pain.

Past history

Mr Kennedy said he had a past history of a back strain injury when he was working as a taxi driver in 1998. He had bent down to assist an elderly gentleman to lift the man’s heavy groceries in a wheeler and he experienced low back pain. Mr Kennedy says this settled over a month and he was quite clear that he was asymptomatic until the subject of motor vehicle accident.
Mr Kennedy had his gall bladder surgery and has had varicose veins removed. He also described treatment for raised blood pressure.
Mr Kennedy reported no previous whiplash injuries to his neck or significant motor vehicle accidents while driving taxis over a 30 year period.

Current Treatment

Mr Kennedy says he takes Pregabalin for neuropathic pain and Celebrex as an anti-inflammatory. He no longer has physiotherapy. He sees the local doctor regularly and sees Dr Peter Khong as referred.

Work history

Mr Kennedy is no longer working as a bus driver, having been given light duties after the subject accident marshalling and putting passengers on buses at Hornsby railway station. He stopped working altogether during Covid and has not returned to work since.

Examination

Mr Kennedy was 181cm tall and weighed 86kg. He reports he has lost weight since the accident.
He presented in a straightforward manner without embellishment.

Cervical spine

On examination of the cervical spine there was stiffness of his cervical spine with flexion decreased by one quarter and neck extension by one third, associated with pain, lateral rotation to the right was decreased by one half and that to the left by one third. Lateral flexion to the right was decreased by one half, associated with left trapezial muscle pain and one third to the left.
He had a positive Spurling’s test (radicular pain was reproduced) and there was tenderness of the left trapezius muscle and left supraclavicular brachial plexus. There was no neurological deficit in either upper limb: reflexes were present and symmetrical; power was grade five out of five and there were no sensory changes present on testing. There were Dupuytren’s changes affecting the little and ring fingers of both hands. There was no evidence of any significant muscle atrophy relevant to a specific nerve root. The claimant’s left upper arm and forearm were about 1cm less in circumference than the right which is not clinically significant as the claimant is right-handed.
There was a full symmetrical range of motion in both shoulders.
There was tenderness of the mid and upper cervical facet joints on the left and tenderness of the lower cervical spinous processes.

Lumbar spine

There was stiffness of Mr Kennedy’s lumbar region with flexion decreased by one third with slow and jerky recovery. There was erector spinae muscle spasm with pain on back extension which was decreased by one half. Lateral flexion to the left was reduced by one half and to the right by one quarter. He had tenderness at the L5 level in the midline and the adjacent lumbosacral facet joint on the left.
His straight leg raise on the left was 50 degrees and there was a positive sciatic nerve root stretch test. Straight leg raise on the right was 70 degrees and associated with some low back discomfort.
The left thigh was the same circumference as the right, however the claimant’s left leg below the knee was one centimetre smaller than the right. His power was grade five out of five. Mr Kennedy’s left ankle jerk was not able to be elicited and his knee jerks and medial hamstring jerks were symmetrically depressed. There was no sensory loss over any part of the lower limbs on testing.

Relevant investigations

The relevant investigations include an MRI of the claimant’s cervical spine on 31 July 2019 which showed cervical spondylosis (age related degenerative changes) at C4/5, C5/6 and C6/7.
An MRI of the lumbar spine on 6 May 2020 showed an L5/S1 left paracentral disc protrusion impinging on the left L5 and S1 nerve roots with degenerative changes at both the L5/S1 and L4/5 levels.
A CT scan of 14 July 2020 showed the left S1 perineural cortisone injection.

FURTHER HISTORY TAKEN ON 23 JUNE 2024

On 23 June 2024, Medical Assessor Dixon spoke further with the claimant to put to him some concerns the Panel had about the history given by Mr Kennedy at the re-examination in May in the light of the additional documents produced by the insurer.
Mr Kennedy was taken to the pre-accident records that had been produced at that stage (the osteopath, the chiropractor and the physiotherapist). Mr Kennedy did not remember seeing Dr Sutherland about his back in November 2018 or having an X-ray and being referred to a physiotherapist. He did remember changing GPs and that it was Dr Lim who referred him to a neurosurgeon, and he was advised to have surgery. Mr Kennedy did recall having a chiropractic adjustment with good result in March 2018 but was adamant that his back was asymptomatic at the time of the accident and that was why he was re-training as a bus driver.
Mr Kennedy was asked why it was there was an absence of recorded complaints about his lower back for nine months after the accident. Mr Kennedy said he had initially discussed his neck with Dr Sutherland and confirmed that he had not complained about his lower back to any health professional until he saw Dr Lim at the end of April 2020.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

Mr Kennedy told Medical Assessor Dixon at the re-examination that he had a 1998 back injury and fully recovered from it and was asymptomatic at the time of the accident. Mr Kennedy told Medical Assessor Dixon when he was subsequently contacted that he did not recall treatment in 2018 apart from a chiropractic adjustment.
The Panel notes that the records produced to the Commission suggest that the claimant had episodes of back pain requiring treatment in 2015, 2016, 2017, 2018 and 2019 before the accident. In terms of treatment the claimant had seen a chiropractor as he said, but also an osteopath, a physiotherapist, and his GP. He had described his back pain before the accident as “chronic.”
The claimant has also denied previous neck pain although the first consultation with Dr Iboyan after the accident on 16 July 2019 suggests this may be incorrect and he had at least one previous episode of neck pain.
The claimant told Medical Assessor Dixon that he had neck pain immediately after the accident and developed back pain later that day. He repeated that he had both neck and back pain since the accident. There is no consistent record in the material from the claimant’s medical or allied health practitioners after the accident of lower back pain and it is not included in the certificates of capacity issued in respect of the workers compensation claim until April 2020. The claimant now concedes that he did not mention any back pain to anyone until he saw Dr Lim in April or May 2020.
It is five years since the motor accident and the Panel does not expect Mr Kennedy to remember all of his pre accident details or how he felt and what he was experiencing on any given day after the accident.
The Panel has concerns about the reliability of the claimant’s evidence about his pre-accident history in particular, and will approach it with caution preferring the documentary record where there is conflict.

What injuries were caused by the accident?

Justice Wright in Briggs v IAG Limited t/as NRMA Insurance[29] said in a judicial review application concerning a medical review of “minor” injury:
“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 principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[29] [2022] NSWSC 372 Briggs (no 2).
The Panel is of the view that the question to be answered is whether Kennedy’s injuries “caused by the accident” are threshold or not threshold injuries. The approach to answering that question should be, as per Briggs consistent with cl 6.6 of the Guidelines consideration of the following two questions:
(a) could the accident have caused the injury alleged to be non-threshold (medical determination), and
(b) did the accident in fact cause the injury alleged to be non-threshold (non-medical determination).
The Panel has watched the video footage from inside the bus. The Panel is aware that appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. Video must, in the Panel’s view also be approached with caution.
The incident can be clearly seen. Mr Kennedy is seen standing up holding onto the straps, behind the driver. Contrary to Dr Gehr’s opinion, the main movement of the claimant’s body appears to be flexion at the knees, not the lumbar spine, when the brakes are applied. There is no apparent rotational force applied to the lumbar spine and virtually no movement in the neck. There does not appear to be any immediate indication of any acute onset of symptoms and the claimant is not seen rubbing his neck at any stage. The Medical Assessors are of the view that the incident on the bus is extremely unlikely to cause a disc rupture in the lumbar spine or any significant nerve root injury in the neck or lower back. Lumbar discs are susceptible to injury with forced or prolonged flexion, particularly with additional rotational forces and there is none of that clearly seen in the video.
While the Panel has expressed the view injury is highly unlikely, the Panel cannot say that some form of injury is impossible. It is therefore the Medical Assessors’ view that the accident could have caused an injury to the claimant’s neck and lower back.

Did the claimant injure his lower back in the accident?

The Panel does not accept the claimant injured his lower back in the accident.
The claimant conceded in the subsequent consultation with Medical Assessor Dixon that he did not mention back pain to any health professional until he saw Dr Lim nine months after the accident.
The claimant’s statement of 13 May 2020 (see paragraph 73) refers to him sustaining a neck injury in the accident and that he had pain in his back which he had for a long time.
Dr Iboyan’s first note on 16 July 2019 (see paragraph 109 above) says there is an impression of non-specific lower back pain. However nowhere else in the records is there any suggestion of lower back complaints. Neck pain was the subject of the consultation, and the neck was examined, and findings in respect of the neck recorded. The Panel is of the view that the reference to non-specific back pain appears to be an error and what Dr Iboyan meant to record was non-specific neck pain. Alternatively, the reference could be to the claimant’s pre-existing lower back complaints.
The Panel notes the osteopath’s records have an attendance on 19 July 2019 where it is said that the “lower back was much better” however the attendance on 16 July 2019 does not mention the lower back and treatment was only provided to the neck and upper back areas.
There is no other contemporaneous medical or allied health report of lower back pain until April 2020 and the Panel notes the report from Dr Dalton, rehabilitation physician does not mention back pain in October 2019.
If Mr Kennedy had sustained a lumbar spine injury including a disc prolapse on 11 July 2019, the Medical Assessors would have expected him to develop symptoms shortly thereafter and those symptoms would be severe. The Panel would therefore expect there to be some record in the treating GP’s notes or Dr Dalton’s reports of back complaints. The absence of complaints leads the Panel to conclude that the claimant did not injure his lower back in the accident.
As the Panel has formed the view that the claimant did not injure his back in the accident it follows that there is no need to consider whether he has or does not have radiculopathy within the meaning of the Guidelines, whether the disc bulges in his lumbar spine are a complete or partial rupture of soft tissues or the effect of the lower back surgery that has been performed in terms of “turning” or “converting” any possible threshold injury to a non-threshold injury.
In the workers compensation records, there is a report of a further injury on 29 July 2019. The claimant says in the report of injury form that this aggravated his already injured neck and back. This record did not come to light until after the re-examination and further interview with the claimant and therefore has not been put to the claimant. This second “incident” does not feature in the medical records available to the Panel and it does not alter the fact of the absence of back complaints in any of the treating medical or allied health records available to the Panel before April 2020. This supports the Panel’s view that if the claimant did injure his lower back on 11 July 2019, it was not a significant injury and that the 29 July 2019 incident aggravated his long term back problems before 11 or 29 July 2019.
If the claimant did injure his lower back in the bus accident, the Panel is of the view this was a soft tissue minor and short-term exacerbation of the previous long-standing chronic condition not serious enough to warrant specific complaint to any of the claimant’s pre-accident treatment providers. That injury, if it did occur, did not cause any complete or partial rupture of tissue or contribute in any way to the need for the lumbar spine surgery.
The development of lumbar radiculopathy, the bulging of discs and the need for surgery reflects, in the Medical Assessors’ view the progression of what appears to be a well-established degenerative disease in the lumbar spine of a person close to 70 years of age.

Did the claimant injure his neck in the accident?

The Panel has reviewed the file and notes there is no indication in that film of any immediate neck injury (no grimacing or touching or holding the neck). The claimant’s workmates were not convinced the claimant sustained injury. The Panel also notes it was five days between injury and the claimant’s first visit to Dr Iboyan.
The claimant explains the gap in time between the accident and first seeking treatment as due to his reluctance to make a workers compensation claim so soon after obtaining the traineeship. The Panel accepts this explanation as a natural reaction from someone keen to not lose their job.
Thereafter, Mr Kennedy has consistently referred to the onset of neck pain soon after the accident. It is mentioned in a certificates of fitness from August 2019 and in the contemporaneous GP records of 16 and 19 July 2019 and was the subject of early radiological investigation.
The Panel accepts the claimant’s explanation for the absence of initial complaints and the documentary evidence and is satisfied therefore that the claimant sustained a neck injury in the accident.

What is the nature of the claimant’s neck condition?

The Panel is of the view that the nature of the claimant’s neck injury is a soft tissue injury on a background of degenerative changes.

Has there been a complete or partial rupture of tissue?

Radiology reveals the claimant has significant degenerative changes in his cervical spine, which are likely to have been aggravated by the accident.
The Medical Assessors are of the view that the claimant’s radiology does not provide evidence of the complete or partial rupture of tissue caused by the accident because:
(a) there is no report of any fracture or bony injury, and
(b) there is no report of any disc tears or protrusions.

Does the claimant have or has the claimant had cervical radiculopathy?

The claimant was asked by the Panel to point to the evidence supporting a finding of any of the five signs of radiculopathy since the accident and he identified (relevant to the cervical spine):
(a) Dr Lim’s diagnosis of cervical radiculopathy, and
(b) dysmetria and guarding recorded by Dr Dalton on 14 October 2019.
Dysmetria and guarding are musculoskeletal signs which, in the Guidelines, distinguish between a diagnostic related estimate category II and III for the purposes of WPI. Dysmetria and guarding are not one of the five signs required by clause 5.8 to be present for a finding of radiculopathy to be made (see paragraph 18 above).
Dr Lim has included in his certificates of fitness a diagnosis of cervical radiculopathy, but his records do not indicate that he has undertaken an assessment that would fulfil the criteria required by cl 5.6 of the Guidelines (see paragraph 11). In particular, he does not have a complete and accurate record of the claimant’s pre-accident medical history and he did not have all of the records now before the Panel. There is also no record of what, if any, tests he may have conducted in any examination of the claimant to arrive at the finding of cervical radiculopathy.
Dr Khong did not find any signs of cervical radiculopathy when he examined the claimant after April 2020 and Dr Gehr also did not find any signs of cervical radiculopathy during his examination (via Zoom) on 28 September 2021.
Medical Assessor Herald records a positive Spurling’s test to the left upper limb but no other signs of radiculopathy.
Medical Assessor Dixon also found a positive Spurling’s test, but none of the other four signs of radiculopathy.
The Panel is not therefore satisfied that the claimant has had, at any time since the accident, two or more of the five signs of radiculopathy.

CONCLUSION

The Panel has found the claimant did not sustain any back injury in the accident. Alternatively, the claimant suffered a soft tissue injury being the aggravation of a well-established degenerative condition, where this aggravation had a negligible effect on the underlying disorder.
The Panel has also found that Mr Kennedy’s neck injury is a soft tissue injury because:
(a) there is no complete or partial rupture of tissue in accordance with s 1.6(2) of the MAI Act, and
(b) any injury to any nerve root has not manifested in two of the five signs of radiculopathy within the meaning of Part 1, cl 4 of the MAI Regulation and cl 5.8 of the Guidelines.
As the Panel is satisfied that the claimant’s injuries sustained in the car accident were soft tissue injuries, the Panel finds that the claimant’s injuries caused by the motor accident are threshold injuries.
It follows therefore that the Panel must confirm the certificate of Medical Assessor Herald dated 28 August 2023 in original proceedings M10476210/21.

[2024] NSWPICMP 498

23 July 2024