Khan v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Khan v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 782
CLAIMANT:	Shoab Khan
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	9 October 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; physical injury; threshold dispute; application of principles in David v Allianz Australia Ltd (David); David applied by Supreme Court in Allianz Australia Insurance Ltd v Susak; no evidence claimant suffered radiculopathy at any time; allegation of herniated disc caused by motor accident; absence of early complaint relevant but not determinative of causation; Norrington v QBE Insurance (Australia) Ltd applied; accident not likely to have caused or aggravated herniated disc in low back; clinical record at hospital suggested pelvic fracture was based on photocopy of records; conclusion that photocopy missed words; matter brought to parties attention; further records not produced; suggestion of pelvic fracture inconsistent with other clinical notes and nature of accident; Held – claimant only suffered threshold injuries; original assessment confirmed.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel assessment of threshold injury Replacement certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 14 December 2024. Medical Assessment –Treatment and Care Review Panel Assessment of Treatment and Care Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 14 December 2024.

REASONS

BACKGROUND

Mr Shoab Khan (the claimant) suffered injury in a motor accident on 2 September 2022 when the insured vehicle rear-ended the claimant’s vehicle. The claimant described the truck coming at “a fast speed” pushing his vehicle into the vehicle in front.[1]
[1] Claimant’s bundle, p 124.
The insurer is liable to pay to Mr Khan any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act and whether an MRI scan of the left hip is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act” and disputes about treatment and care.
The following injuries were referred in the medical dispute:
(a)    cervical spine;
(b)    lumbar spine;
(c)    left arm;
(d)    left wrist;
(e)    abdomen injury;
(f)    left leg;
(g)    head/brain injury, and
(h)    pelvis fracture.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a Review Panel (the Panel).
[2] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[3]
[3] Section 4.4 of the MAI Act.
The medical dispute about treatment before the Panel is whether an MRI scan of the pelvis is reasonable and necessary in the circumstances and whether that scan relates to the injury caused by the motor accident.

STATUTORY AMENDMENT

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
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26-weeks to 52-weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-weeks or 52-weeks limitation period.

ORIGINAL MEDICAL ASSESSMENT

The medical dispute was referred to Medical Assessor Cameron who issued a medical assessment certificate dated 14 December 2024 (the medical assessment certificate).[4]
[4] Claimant’s bundle, p 39.
The Medical Assessor found no objective neurological deficit in the upper or lower extremities but found lower extremity symptoms consistent with non-verifiable radicular complaints. There was moderately and symmetrically reduced range of motion in the thoracic and lumbar spine with no muscle spasm, no muscle guarding and no dysmetria.
The Medical Assessor concluded that the motor accident caused soft tissue injuries to the cervical and possibly lumbar spine and the abdomen. The Medical Assessor concluded there was no evidence of brain injury or a fracture to the pelvis
The Medical Assessor opined that the findings in the pathology are common in asymptomatic people, there was no evidence of radiculopathy as defined in the Guidelines, no evidence of injury to the brain such as a medically verified abnormality of the Glasgow Coma Scale,
post-traumatic amnesia or brain imaging abnormality.
The Medical Assessor concluded there was no fracture of the pelvis as there was a careful assessment including appropriate imaging after the motor accident and a fracture was not detected. Considering these findings the Medical Assessor concluded that the treatment did not relate to the injuries caused by the motor accident and was not reasonable and necessary in the circumstances.

THE REVIEW

The application for referral of the medical assessment to the Panel was made by the claimant within 28 days after the parties were issued with the medical assessment certificate.
The President’s delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide[5] that the Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] 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.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration. On 6 May 2025 the Panel issued the following direction:
“The Panel refers to the clinical records of Liverpool Hospital and makes the following preliminary observations with leave to the parties to make any submissions in response and provide further materials and access to the scans. The Hospital clinical notes refer to various scans and specifically the CT thoracic aortogram with various conditions such as:
Dissection flap
Pulmonary embolus
Fracture
Pelvis or upper femur fractures
There is a black line on the lower left-hand side of the page indicative that the clinical notes were copied.
We observe that if the claimant was diagnosed with a pulmonary embolus and/or dissection flap then there would have been urgent medical treatment for these life-threatening conditions rather than simple discharge for review by the GP in ‘3-5 days’ to review progress and to monitor the thyroid nodule.
The comment ‘pelvis or upper femur fractures’ is otherwise non sensical as it implies that the radiologist could not identify whether the fracture occurred in the pelvis or the upper femur.
The parties are on notice that, subject to the Panel being provided with a clean copy of the records and access to the scans, we are of the preliminary view that there are missing words from the clinical notes that have not been properly copied, particularly we believe the word ‘No’ probably appears at the beginning of each line.
The parties are directed to provide a proper copy of the records, and the claimant is to be provide the means for which the Panel to access the scans taken at hospital by close of business, 6 June 2025.”
The matter was delayed in part due to non-attendances at the medical examination on two occasions by the claimant. This required the rescheduling of the medical examination. The matter was also delayed because the legal Member on the Panel was away for substantial periods in August and September.
On 6 August 2025 the claimant’s lawyers sent the following message through the Commission’s portal:
“We refer to the below message and advise that we are yet to be provided with the clinical notes requested from Liverpool Hospital.
We have been actively following up our request, however to no avail, and we do not have an expected timeframe for receipt.
Can you kindly advise whether the medical appointment will go ahead as scheduled on 7 August, or whether the clinical notes are required prior to the appointment and thus needing to be rescheduled.”
No further information was provided by the parties. The medical examination proceeded on 19 August 2025.
The Panel reconvened on 7 October 2025 to discuss the examination findings. The claimant who bears the onus of proof, was provided with ample time to supply the hospital records in the context of being warned of our preliminary interpretation of the copied records.

STATUTORY PROVISIONS

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric 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.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 10 of the Guidelines commenced on 15 September 2025 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)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[9]
[9] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”

SUBMISSIONS

Claimant’s submissions dated 9 August 2024[12]

[12] Claimant’s bundle, p 3.

The claimant alleged that the motor accident caused soft tissue injuries to the cervical spine, left arm, left wrist, abdomen and left leg. The claimant asserted that he sustained a pelvic fracture and various protrusions to the lumbar spine as well as a concussion and psychological injury.
The claimant referred to the contemporaneous records including the attendance at Weatherall Park Medical Centre, the hospital admission and the claim form.
The claimant submitted two years post-accident he was experiencing pain all over the body, specifically in the lumbosacral spine and the pelvis with compression of the descending left S1 nerve root.

Claimant’s submissions dated 15 January 2025[13]

[13] Claimant’s bundle, p 156.

These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the Medical Assessor failed to adequately consider the findings of the MRI scan dated 17 May 2024 which showed a left posterolateral disc protrusion. It was submitted that the disc is a cartilaginous structure, and a protruding disc is a partial rupture of cartilage which constitutes a non-threshold injury.
The claimant submitted that the Medical Assessor erred by failing to adequately consider and address the findings of the CT scan of the pelvis dated 2 September 2022 which found a pelvis or upper femur fracture.
The claimant submitted that the CT scan of the pelvis dated 2 September 2022 showed a pelvic fracture related to the motor accident and the Medical Assessor did not properly address causation when dealing with this submission.
It was submitted that the Medical Assessor dismissed the possibility of the injury to the claimant’s lumbar spine being non-threshold solely based on the absence of radiculopathy. This approach was flawed and misdirected as it failed to consider the statutory exclusion of cartilage injuries from the definition of threshold injury.
It was otherwise submitted that the reasons dismissing the MRI scan findings were “very economical” and the Medical Assessor did not explain the reasoning process in reaching the conclusion on causation.

Insurer’s submission dated 28 August 2024[14]

[14] Insurer’s bundle, p 11.

The insurer noted the motor accident in the claim form dated 1 November 2022 which referred to pre-existing injuries.
The records of the general practitioner (GP) practice referred to left wrist pain in February 2020 and psychological symptoms in March 2022 with lower back pain.
The insurer noted that the word “fracture” was included in the various scans, but it was “not specified nor verified” inconsistent with the fact that the claimant was discharged home without follow-up.
The insurer noted that the medical records from Wetherill Park Medical Centre documented an attendance on 2 September 2022 when the claimant reported the motor accident reporting that his head hit the steering wheel and that there had been abdominal pain since midday.
The insurer noted the clinical records from Pitt Street Merrylands Medical and Dental Centre dated 18 September 2022 which noted the motor accident and that the claimant complained of being “sore all over his body.”
The insurer referred to the certificate of capacity dated 1 November 2022 which diagnosed the claimant with neck pain, headache, arm and leg pain. A further certificate of capacity dated 27 April 2023 referred to neck pain, low back and leg pain. The claimant was then referred for physiotherapy for the neck and back pain although it is unclear whether this went ahead.

A certificate of capacity dated 18 June 2022 diagnosed the claimant with neck pain, headache, arm and leg pain.
In September 2023 the GP referred to low back pain radiating towards the back of the thigh and organised an MRI scan of the lumbosacral spine. The MRI scan dated 19 October 2023 identified a left posterolateral disc protrusion at L5/S1 causing impingement of the left S1 nerve root. The scan dated 17 May 2024 demonstrated the same findings.
The insurer submitted that whilst the word “fracture” appears in the clinical records of the hospital, in the circumstances with the claimant discharged home with simple paracetamol and Ibuprofen for pain relief, it is unlikely that the claimant sustained any fractures. The other injuries to the spine, lower back, head and right shoulder were soft tissue injuries which met the criteria of a threshold injury.

Insurer’s submission dated 4 February 2025[15]

[15] Insurer’s bundle, p 3.

These submissions were filed opposing leave to review the medical assessment.
The insurer referred to cl 6.121 of the Guidelines and noted the findings by the Medical Assessor that the reported pathology in the scans was not related to the accident and common in asymptomatic people.
The insurer submitted the protruding disc on its own does not constitute a non-threshold injury, regardless of causation. No reasoning was provided for this submission.
In relation to the pelvic fracture, the insurer referred to the discharge summary from the hospital which noted that the claimant could get out of the car independently, was mobilising well and the CT scan showed no abnormality for acute injuries.
The insurer submitted there was no medical evidence before the Medical Assessor that verified the presence of a fracture and there was no suggestion in the hospital notes on discharge that the claimant follow-up with the fracture clinic or any suggested treatment of a fracture.
The insurer further submitted that the reason for the CT scan was due to neck pain and thoracolumbar pain and not to rule out a spinal fracture. There was no indication of pelvic pain to suggest the presence of a fracture.
The insurer submitted that the Medical Assessor did not determine whether the injury to the lumbar spine was a non-threshold injury simply because there was no radiculopathy. It otherwise submitted that the Medical Assessor provided sufficient reasons.

MATERIAL BEFORE THE PANEL

Pre-accident medical records

In February 2020 the claimant complained of left wrist hand pain after heavy lifting.[16]
[16] Claimant’s bundle, p 86.
In March 2022 the claimant attended his GP and complained of anxiety symptoms, was prescribed Zoloft as well as complaining of lower back pain and prescribed Brufen.[17]
[17] Claimant’s bundle, p 86.

Post-accident medical records

The clinical notes of the Wetherill Park Medical Centre dated 2 September 2022 referred to the motor accident that day when the claimant felt very sore, hitting his head on the steering wheel and had abdominal pain since midday which was getting worse.[18] The GP referred the claimant to Liverpool Hospital Emergency Department noting pain on cervical spine rotation and abdominal pain with suspicions of the possibility of internal organ damage.[19]
[18] Claimant’s bundle, p 28.
[19] Claimant’s bundle, p 44.
The Emergency department discharge referral recorded the following:[20]
[20] Insurer’s bundle, p 7.
“Referred by GP
Had MVA at 7 AM in morning
Stationary at red light, restrained
Truck rear-ended patient's current high-speed
Patient rear-ended car in front due to impact
Airbags not deployed
Hit had against steering wheel
? Loss of consciousness or was stunned, few seconds
Got out of car independently, assisted police with enquiries
Went to GP as was aching everywhere
Mobilising well
Not amnesic.”
The clinical notes referred to mild tenderness in the cervical spine with pain. A thoracolumbar spine scan was also required to rule out any spinal fracture. The photocopied clinical records also refer to a CT thoracic aortogram with the following comments:
“dissection flap
Configuration
Pulmonary embolus
Effusion
The right middle lobe are non-specific
Pleural thickening over the left upper lobe
Fracture
Liver adjacent to the falciform ligament in keeping with local fat infiltration
…
Pelvis or upper femur fracture.”
The discharge summary refers to “CT – no abnormality detected for acute injuries” and the arrangements for future care were to be with the GP with no suggestion of treatment for either a heart condition or fractures.
On 18 September 2022 the claimant attended a different GP who noted the motor accident, and that the claimant complained of being “sore all over his body”.[21]
[21] Claimant’s bundle, p 85.
The claimant completed a claim form dated 1 November 2022 when he referred to neck pain, left arm and leg, back pain, wrist pain and “sudden headache because of head hit steering wheel” as injuries caused by the accident.[22]
[22] Claimant’s bundle, p 125.
A certificate of capacity dated 2 November 2022 referred to neck pain, headache, arm and leg pain.[23]
[23] Claimant’s bundle, p 14.
A certificate of capacity dated 27 April 2023 refer to neck pain, lower back and leg pain.[24] The GP then referred the claimant for physiotherapy for management of neck and back pain.[25]
[24] Claimant’s bundle, p 17.
[25] Claimant’s bundle, p 45.
A certificate of capacity dated 18 June 2023 referred to neck pain, headache, arm and leg pain.[26]
[26] Claimant’s bundle, p 20.
The X-ray of the lumbosacral spine dated 26 August 2023 showed minor retrolisthesis of L5 on S1 with no crush fracturing or spondylolisthesis and the sacroiliac joint margins were preserved.[27]
[27] Claimant’s bundle, p 35.
On 4 September 2023 the GP referred the claimant for physiotherapy noting low back pain radiating towards the back of the thigh.[28]
[28] Claimant’s bundle, p 48.
The MRI scan of the lumbar spine dated 19 October 2023 noted a clinical history of a motor accident “last year” with lower back pain radiating towards the back of the thigh. The scan showed a broad-based shallow left posterolateral disc protrusion at L5/S1 causing some impingement of the descending left S1 nerve root.[29]
[29] Claimant’s bundle, p 12.
Dr Darwish, neurosurgeon, examined the claimant on 11 April 2024 noting the motor accident and that the claimant developed low back pain radiating to the left leg.[30] Neurological examination of the lower limbs was normal, and the doctor recommended physiotherapy and a further MRI scan.
[30] Claimant’s bundle, p 82.
The MRI scan of the lumbar spine dated 17 May 2024 noted a broad-based moderate sized left posterolateral disc protrusion at L5/S1 causing some compression of the descending left S1 nerve root.[31]
[31] Claimant’s bundle, p 114.

RE-EXAMINATION

The claimant was examined by Medical Assessor Lahz on 19 August 2025. The Medical Assessor provided the following report:
“Mr Khan attended 15 minutes late for the appointment due to difficulty locating the building, having taken an Uber from Redfern Station. He had travelled that morning by train from Liverpool to Redfern because he does not have to walk very far in or out of Redfern Station to reach the platforms.
His opening comments were that he was feeling very emotional and that he also definitely does not have a threshold injury due to the severe low back pain and left sciatica he has been experiencing since the 2022 motor accident. He then mentioned that a scan had shown shift/damage of the L5/S1 disc.
He is aged 32 and right-handed. He and his wife are living in a granny flat at the back of a home in Green Valley which his cousin owns. He is grateful that the rent is very cheap because he has been under considerable financial hardship since the motor accident on 2/9/22.
Mr Khan is originally from Fiji and of Indian heritage. He has lived in Australia for
13 years and married seven years ago. He holds an Advanced Diploma in Hospitality, and before the pandemic, he managed a food outlet at a Westfield. Subsequently, he changed vocations to air conditioning service/repair. At the time of the 2022 motor accident, he was working for Alenda Air and said he had been physically very fit, capable of lifting heavy units weighing up to 90kg.
After the accident, he was off work for about 11 months before attempting to resume preinjury duties although he could not do so beyond a few weeks due to low back pain with left sciatica. Alenda Air gave him suitable duties for 6-7 weeks until the company went bankrupt. Subsequently, he was unemployed for a while. He worked briefly for another air conditioning company although again he could not sustain the work beyond a few weeks due to chronic pain. He was then again unemployed for a few months which he found very hard, just sitting at home not doing anything. For the last 18 months, he has been working in his brother’s air conditioning business Oz Air Pro in the office whilst also being sometimes called upon to deliver parts. He spends many hours in the office although he does no heavy work and noted that his brother ‘is helping him out and being very good to him’.
He said too that he and his wife were evicted from their rental property due to lack of finances. Subsequently, they stayed with his brother for a period until finding another rental property and also starting work in his brother’s business. They are now as noted living in a granny flat behind a cousin’s home.
His wife is now working full time in disability support having previously been studying whilst working casually.
Mr Khan initially denied any significant past history. However, I pointed out to him that the GP records in March 2022, six months before the motor accident, refer to an episode of low back pain. He thought for several seconds before explaining there had been low back strain due to heavy lifting at work. He said the non-radiating low back pain settled spontaneously without any treatment, and there was never any sciatic component.
After the accident, he developed sleeping problems due to high stress levels and diagnosed (following sleep studies) with obstructive sleep apnoea. However, he was not given a CPAP machine but just an oral spray and banned from driving for several months. He says the problem has now cleared up and he is permitted to drive but required to have sleep studies undertaken every two years. However, he says he does not drive due to severe anxiety in case his vehicle is once again rear-ended.
Mr Khan is a reformed smoker and drinker; no alcohol or else cigarettes for the last seven years.
Mr Khan confirmed his involvement in the motor accident on 2/9/22. At the time, he was the restrained driver of a Nissan Pathfinder, stationary at lights when his vehicle was rear ended by a 4-tonne truck, causing his vehicle to be propelled to the one in front. He said that his car was written off in the crash whilst there was some frontal damage to the truck.
The ambulance did not attend. He believes he was ‘blacked out’ for about 30 seconds, according to another driver on the scene. He woke up to find himself in the vehicle with wheels still spinning and smoke in the cabin. He recalls bystanders assisted him from the vehicle and he was helped to sit down in a nearby gutter until his brother came to collect him from the scene.
They attended the police station to make a report, where he was then advised he should seek medical help. He said that from the instant of the motor accident, there was pain involving the head, neck, left arm (initially), lower back and left leg. He suggested there had been bruising on the forehead due to his head (possibly) striking the steering wheel. He felt very shocked during the immediate aftermath of the accident.
His brother took him to the GP who immediately referred him to Liverpool Hospital on the same day as the subject motor accident.
He spent several hours at Liverpool hospital. When I asked him the diagnoses made, he said that a scan showed ‘shift’ of the L5S1 disc causing low back pain with symptom radiation to the left leg.
I asked him if he were informed at the hospital that there had been any fracture. He said not though he noted that it was his lawyer who actually picked up the reference to a (pelvic) fracture in a report from the hospital. I let him know that the report the Panel had seen was obviously incomplete and that we had requested a full version of the hospital records including the said report in order to draw proper conclusions. (At the time of seeing him, this had not been received.)
However, I pointed out to him the following: the GP records (Wetherill Park) on 2/9/22 state only that he was very sore with pain on neck movement and further, that his head may have struck the steering wheel. GCS was recorded as 15/15. He was then immediately referred to the Emergency Department. There was no mention of back pain.
Mr Khan told me that he kept telling the doctor at every consultation about severe low back pain and sciatica. He could not provide an explanation as to the silence of the GP records on this matter, after the motor accident. He did offer that he felt very shocked at the hospital and been ‘too out of it’ to think straight to provide a full account of all symptoms being experienced.
The discharge summary from Liverpool Hospital 2/9/22 does not refer to any fracture and the records themselves confirm GCS 15/15 with possible earlier brief loss of consciousness, and that he was not amnesic for the accident. The records also refer to his complaints of neck tenderness and generalized aches. A CT scan was done to exclude acute injury and he was then discharged home with Panadol and anti-inflammatory medication.
Subsequently, on 18/9/22, he saw a different GP (Merrylands Medical) reporting soreness all over the body as well as forgetfulness. He was very disorganised bringing in a lot of papers. Again, there was no specific reference to low back pain and left sciatica in this entry.
Thereafter, the Wetherill Park GP records note consultations on 1/11/22 (complaint of abdominal pain, no other symptoms recorded), 27/4/23 (abdominal pain, no further symptomatic complaints documented), 18/6/23 (back pain), 26/8/23 (snoring with low energy levels, requiring sleep studies) and 4/9/23 (low back pain into the posterior thigh, requiring MRI lumbar spine), 9/10/23 ( no new information, notes copied/pasted), 10/11/23 (further copy and pasted notes, MRI results given to patient but not specified in notes).
The first mention of low back pain I could find was on the Personal Injury Claim form dated 1/11/22 (2 months post MVA), noting the rear then frontal impacts to the vehicle. There is mention of neck pain, pain in the left arm and leg, back pain and wrist pain as well as headache due to impact with the steering wheel.
I put all of the above to the claimant who could not shed any light as to the paucity of references to low back pain in the early GP/medical/hospital records.
I also pointed out to him that he had not apparently consulted the doctor very much, despite the reported intensity of low back pain with left leg pain. He said he could not afford to see doctors regarding the problems. He was out of work and had no money. He said he needed to devote efforts to moving house and finding new work.
In the finish, Mr Khan said he asked his GP to perform a scan of the lower back due to increasingly severe, intolerable back pain with left leg pain. Consequently, an MRI of the lumbar spine was undertaken on 19/10/23 (13 months post MVA) showing L5/S1 desiccation associated with left posterolateral protrusion versus the left S1 nerve root. Associated, there was slight left foraminal narrowing due to disc height loss and there was facet osteoarthritis affecting the L1-2, L2-3 and L4-5 joints. There was also L3-4 disc desiccation associated with mild bulging. The SIJ (sacroiliac joint) appearance was normal.
The first Certificate of Capacity mentioning low back pain is that dated 27/4/23, seven months post-accident.
Mr Khan has not undergone any physiotherapy since the motor accident, again due to financial hardship and lack of insurer agreement to fund. His GP did also suggest psychological interventions although for similar reasons, nothing eventuated. He said he has been struggling to survive due to unemployment and lack of money.
In November 2023, the GP referred him to Dr Sundaraj, a pain specialist at Penrith although again he did not consult the specialist due to financial hardship.
He consulted Dr Darwish, a spinal surgeon in April 2024. When I reminded him about this, he initially did not remember this although he then recalled the consultation. Dr Darwish’s correspondence referred to normal gait, left-sided SLR of 80 degrees with positive neural stretch although there were normal findings with respect to lower limb power and sensation. Physiotherapy was suggested (again which did not happen) and a progress lumbar spine MRI also arranged.
The progress MRI on 17/5/24 demonstrated similar findings to that earlier, comprising broad based posterolateral left-sided disc bulge at L5/S1 associated with high grade left lateral recess stenosis causing impingement of the left S1 nerve root. There were mild bilateral facet osteoarthritic changes at L1-2, L2-3, L3-4 and L4-5. The right lateral recess was patent.
No treatment flowed from the consultation with Dr Darwish. He is essentially living with the lower back and sciatica symptoms as best he can.
He receives regular prescriptions for Palexia 50mg bd prn from his GP, and he generally takes two of these per day, up to five days per week when unable to cope with unrelenting pain. He said too that he often takes a couple of Paracetamol at night because these help him sleep. He is not taking any other regular medications for other medical conditions.
He also sometimes self-funds a massage for symptomatic relief.
He reported to be very worried about his future, whether he will be able to work once more and particularly worried, bearing in mind he is just 32.
In addition to lower back pain with left sciatica he also complains of pain in the neck and right arm (coming from the neck). Earlier there had been left arm pain although this has since resolved. He said initially the “whole” body was in pain. There had been some pain over the front of the left shoulder and in the upper anterior left chest, although as noted this resolved.
He has not undergone investigations of the neck or else the right arm, only of the lower back.
Current Symptoms
Mr Khan complains of frequent ‘hard’ right-sided neck pain 8/10 intensity with symptom spread to the right trapezius/posterior right shoulder spreading along the triceps but not beyond the elbow. There are no upper limb neurological symptoms on the right side.
The left upper limb is basically asymptomatic unless he lies directly on the left shoulder for too long at which stage the left upper limb can go numb, and he can have difficulty with opening/closing the left hand, needing to stretch out his fingers in order to free up movement and improve numbness in that location.
He experiences periumbilical (abdominal) pain on average once a week lasting a few hours. This can have a cramping character. There are no associated nausea, vomiting or diarrhoea. He has lost appetite and there has been a 25kg weight loss since the accident to now 85kg.
The lower back is the biggest problem with symptom spread to the buttocks, left posterior thigh/calf stopping at the posterior ankle and not involving the foot. There are no associated lower limb neurological symptoms. He reported 10/10 pain involving the lower back and leg, worsened by bending, lifting, twisting, prolonged sitting, standing and walking.
He complains that the lower back and left leg ‘lock’ and that sometimes if he bends over, he has to get someone to push his back straight to the upright position due to inability to extend the spine. There is intermittent left groin pain although this is not a major problem.
The right leg is asymptomatic.
The claimant also complains of a host of psychological and cognitive difficulties inclusive of high stress, low mood, poor memory, general disorganisation and concentration issues. He shares financial management with wife although she does most of it due to his thinking difficulties due to high anxiety. He does use mobile phone functions such as lists and calendars to keep track of appointments and tasks needing completion.
At home, he does the best he can to assist his wife with cleaning/general chores in the granny flat.
He says that despite low back pain, he does his share of mopping, vacuuming, general cleaning and cooking. He will also go shopping with his wife although he requires frequent breaks when walking around.
He generally sits down to cook meals.
He does not do any yard work or else home handyman tasks.
Before the accident, he liked fishing, soccer, tennis and volleyball although he has stopped all of these activities.
He is also not seeing friends given that he elects to stay at home most of the time. His wife is supportive and generally looks after him. However, he feels strongly that the Insurer and treating doctors have been remiss for not providing him with enough support since the motor accident. He reiterated on several occasions that he feels hard done by because the accident was not his fault even though he is the one who has been suffering severe low back pain with sciatica for nearly three years.
Examination
Prior to the interview, he walked into the consulting room with a normal fluid gait.
On examination, he was emotionally distressed and disorganised. He sat with his back slouched and head hung forward. He looked miserable and sometimes on the verge of tears.
At the commencement of the examination, I asked him to do the best he could with all requested movements.
I explained that I would not force him to move. How and to what degree he moved was his choice. I asked him to let me know if there were extreme pain or if he needed to take a break during the physical examination.
He indicated that he understood the above.
He undressed freely without obvious difficulty raising his arms overhead.
However, the formal component of the examination was characterised by verbal pain complaints, wincing, grimacing and protection of painful areas.
Height was 177cm and weight 74kg.
There was a poke neck with protracted head posture. There was tenderness at C7 and over bilateral trapezial regions R>L although there was no muscle guarding or spasm at the cervical spine.
On being asked to move his neck, he became quite anxious and moved his head very slowly in a staccato fashion. I asked him to try to relax which would make movements easier. Flexion and extension with encouragement were 2/3 normal range, left and right lateral flexion ½ normal range, left rotation ½ normal range and right rotation 1/3 normal range. I repeated the neck movements three times and obtained similar findings consistent with dysmetria (affecting rotation).
There were no upper limb non-verifiable radicular complaints.
There was normal sensation over the upper limbs bilaterally.
Upper limb power was normal aside from give way weakness at the shoulders due to neck pain.
There was no measurable wasting at the arms 29cm 5cm above the elbow crease nor the forearms 28cm 5cm below the elbow crease.
Upper limb reflexes were present and symmetrical.
Upper limb neural tension tests were negative.
There were not the two necessary signs to conclude the presence of cervical radiculopathy.
Active shoulder movements are shown in the following table. These ( where restricted) were repeated three times and measured with a goniometer to check for consistency. There was no wasting of the shoulder girdles and impingement tests were negative.
Right Left

Abduction

100, 150, 150

140, 150, 130

Adduction

50

50

Flexion

140 150 130

150 140 130

Extension

50

50

Internal rotation

80

80

External rotation

80

80

I advised him that the range of motion at the shoulder with respect to abduction and flexion was variable and he indicated that this was due to prevailing pain levels affecting his ability to move.
There was restriction at terminal range of elevation due to pain complaints behind the shoulders (referred from the neck).
There was full range of elbow, wrist and hand motion. At the wrists, there were 70 degrees of extension, 80 degrees of flexion, 20 degrees of RD and 40 degrees of UD. There was no tenderness at the left wrist.
Gait was very antalgic by conclusion of the upper limb and neck examination.
He could with light support from the examiner walk on heels and then toes albeit with much wincing and grimacing.
Lumbar flexion and extension were slowly performed and ½ or normal range. Lateral flexion was ½ normal range to either side and rotation a cautious 1/3 normal range to either side. There was no dysmetria.
There was lumbar spine tenderness most marked at L1-3 although he said he felt the ‘area where the two holes are’ was about to spasm. By the ‘holes’ I eventually was able to clarify that he meant the PSIS (posterior superior iliac spine) dimples. There was much less tenderness at the lower midline lumbar spine at L5-S1 in the region of the disrupted disc. I also pointed this out to him although he could not explain the discrepancy.
There was no muscle guarding or spasm at the lumbar spine.
In a seated position, he could extend each leg in turn to the equivalent of SLR 70 degrees whilst complaining of back pain and to lesser extent leg pain in a non-dermatomal pattern.
In supine, there were 80 degrees of right SLR and on the left just 30 degrees of SLR limited by back pain and posterior left leg pain.
Lower limb neural tension test on the right was negative whilst on the left possibly positive though coloured by emotional distress. There was an inconsistency as noted with SLR in the seated and supine positions especially on the left.
There were no lower limb non-verifiable radicular complaints.
There was normal sensation over the lower limbs.
Deep tendon reflexes were present and symmetrical. In fact, the knee and ankle jerks were present and brisk.
Lower limb strength was preserved aside from proximal pain-related weakness from low back pain. This was not in a single nerve root (myotomal) pattern.
There was no measurable wasting of the thighs 41 cm 10 cm above the patella nor of the calves at maximal mid-calf girth 33cm.
Hip, knee and ankle movements were pain free of full range and unremarkable.
There were not the two signs necessary to conclude presence of lumbosacral radiculopathy per MAG paragraph 6.138.
Conclusions
Overall, the examination was difficult due to fear avoidance and pain behaviour with the claimant reluctant to move and needing considerable encouragement.
I accept there have been neck and head soft tissue injuries due to the motor accident based on the content of the early GP and acute hospital records.
The claimant demonstrates no evidence of traumatic brain injury. GCS was consistently 15/15 after the motor accident and there is no medically verified abnormality in either GCS or else PTA duration. No brain imaging was undertaken. A self-reported brief loss of consciousness is not an objectively verifiable abnormality. The criteria for TBI/concussion (mild TBI) diagnosis are not met per the MAG paragraph 6.164 page 113.
Whilst the claimant reports cognitive and emotional symptoms, these are not due to traumatic brain injury and should be assessed by a psychiatrist.
The claimant has sustained at most a soft tissue injury of the head.
The left arm, left wrist, left leg and lower back are mentioned on the PICF 1/11/22 so I will accept soft tissue injuries in this location despite the paucity of information in the GP records.
However, he reports that earlier pain in the left upper limb has resolved and clinically there are no signs of ongoing injury of the left arm. There is minor, variable restriction of the left shoulder movement due to neck pain (Nguyen). As noted, there was a full range of motion noted of the elbows, wrists and hands.
He complains ongoing of neck pain with referral to the right arm, stopping at the elbow.
At clinical examination, there was no evidence of cervical (upper limb) radiculopathy. There were not the two necessary clinical findings to confirm presence of radiculopathy per the Medical Assessment Guidelines.
The lumbar spine was very difficult to examine due to high pain levels and general reluctance to move in case of painful flare-up. Extension and flexion were symmetrically limited as detailed above, similarly lateral flexion to either side was symmetrically restricted as noted above. There were no positive findings at the lumbar spine to support the presence of lower limb radiculopathy aside from a possibly positive left-sided SLR (difficult to interpret due to high levels of emotional distress). There was widespread pain reported involving the posterior left leg although this was not in a typical distribution for S1. There was no involvement of the sole of the foot and the ankle reflex as noted was brisk. As noted above there was no muscle spasm or guarding and there was normal lower limb neurological examination. Therefore, I have not made any clinical findings at the lower limbs to confirm the presence of a lower limb radiculopathy per the criteria set out in the MAG.
The claimant presents with high levels of emotional and functional overlay further making the decision and clinical assessment difficult.”
Regarding the treatment dispute (MRI Pelvis), this investigation is unnecessary, given there is no definite evidence of any acute pelvic fracture at the time of the motor accident (plus also in consideration of the claimant’s ongoing symptomatic complaints of low back pain and left sciatica which are clearly derived from the lumbar spine rather than the pelvis). Lumbar spine imaging has already demonstrated a sizable left-sided L5S1 disc. An MRI pelvis would not contribute any further useful diagnostic information and thus not reasonable and necessary.

FINDINGS

General principles

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or not threshold injuries as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[32] and Insurance Australia Ltd v Marsh.[33]
[32] [2021] NSWCA 287 at [40], [41] and [45].
[33] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[34] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act. The Panel adopts the further reasons in QBE Insurance (Australia) Pty Ltd v Chebat[35] clarifying the misconceptions stated in Merhi v Insurance Australia Ltd.[36]
[34] [2021] NSWPICMP 227 at [84]-[104].
[35] [2024] NSWPICMP 611 (Chebat) at [87]-[93].
[36] [2024] NSWPICMP 316.
The decision of David was applied by the Supreme Court in Allianz Australia Insurance Ltd v Susak[37] and the proposition was not disputed on appeal to the Court of Appeal.[38]
[37] [2024] NSWSC 1359 at [91].
[38] Allianz Australia Insurance Ltd v Susak [2025] NSWCA 91 at [37] and [75].
We adopt the reasoning in Lynch v AAI Ltd[39] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[40]
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[39] [2022] NSWPICMP 6 at [44]-[62].
[40] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel has read and adopts the examination and other findings of Medical Assessor Lahz supplemented by the following reasons.

Allegation of pelvic fracture

The parties were advised of our preliminary view of the interpretation of the clinical notes. There is a black mark on the side of the page of the record indicative of a photocopy. We base this observation on common human experience. We requested clear copy of the notes and provided the claimant with ample time to produce them.
The absence of contemporaneous complaint is relevant but not determinative to the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[41] and AAI Ltd v McGiffen.[42]
[41] [2021] NSWSC 548 (Norrington).
[42] [2016] NSWCA 229 at [64]-[66].
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[43] Accordingly, the absence of complaint of injury to a body part must also be relevant to the issue of causation.
[43] [2014] NSWSC 888 at [31]-[32].
There is no contemporaneous complaint at hospital or to the GP of initial pelvic pain. The CT scan at hospital was to rule out spinal fracture in circumstances where there was no complaint of pelvic pain.
We repeat our preliminary observations that if the claimant was diagnosed with a pulmonary embolus and/or dissection flap at hospital (which the notes suggest) then there would have been urgent medical treatment for these life-threatening conditions rather than simple discharge for review by the GP in “3-5 days” to review progress and to monitor the thyroid nodule.
The comment in the notes of “pelvis or upper femur fractures” is otherwise non sensical as it implies that the radiologist could not identify whether the fracture occurred in the pelvis or the upper femur.
We are of the view that there are missing words from the clinical notes that have not been properly copied. We believe the word “No” probably appears at the beginning of each line.
The hospital clinical notes also refer to “no abnormality detected for acute injuries” which reinforces our view of the notes.
The nature of the accident could not cause a pelvic fracture in the absence of direct trauma to that body part. There is no history provided by the claimant to any practitioner of that occurring.
For these reasons we do not accept that the claimant suffered a pelvic fracture.

Allegation of brain injury

There is a history at hospital of a head strike against the steering wheel with the following comment:
“? Loss of consciousness or was stunned, few seconds
Got out of car independently, assisted police with enquiries.”
This history is grossly inconsistent with a brain injury.
The fallibility of human recollection and the importance of contemporaneous records are referenced in numerous cases including Coote v Kelly,[44] Onassis v Vergottis,[45] Gestmin SGPS S.A. v Credit Suisse (UK) Limited,[46] Campbell v Campbell[47] and Watson v Foxman.[48]
[44] [2016] NSWSC 1447.
[45] [1968] 2 Li Rep 403 at 431.
[46] [2013] EWHC 3560 (Comm) at [15]-[22].
[47] [2015] NSWSC 784 at [73]-[76].
[48] (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
In Nominal Defendant v Corbin Davies J stated:[49]
“One reason that contemporaneous statements and documents are likely to be more accurate than a recollection of events is that a statement made at the time of an event, particularly when relatively spontaneous, is likely to be more accurate than a later statement made at a time when false memories can intrude. In a minority of cases the false memories are deliberately so because of the contrivance of the maker of the statement. In the majority of cases the false memories are honestly believed either for the reasons such as those outlined by Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) or because the person recalling the events has tried to assemble recollections logically so that what happened can have some rational explanation in the person’s mind. As Leggatt J noted at [17] memories are fluid and malleable, being constantly rewritten whenever they are retrieved.”
[49] [2017] NSWCA 6 at [167], Emmett JA agreeing at [156].
The hospital was obviously aware of a head strike as it recorded it. In those circumstances it is likely that the staff were aware of the potential and questioned the claimant appropriately. Those answers, which we consider more reliable to the history provided by the claimant to Medical Assessor Lahz that he “blacked out for 30 seconds”.
For these reasons and those provided by Medical Assessor Lahz in her examination report we do not accept that the claimant sustained a brain injury caused by the motor accident. We agree that there was probably a soft tissue injury to the head which resolved within a short period.

Abdomen

There was no specific reference to any abdominal injury in the contemporaneous records. At most, there has been a soft tissue injury to the abdomen which has now resolved.

Neck/arm injury

We accept that the claimant suffered a soft tissue injury to the cervical spine based on contemporaneous complaint and the nature of the motor accident.
We could not identify any change in pathology to the cervical spine that would satisfy the meaning of a non-threshold injury. No medical practitioner has diagnosed this including in the findings of both the original Medical Assessor and the examination report of Medical Assessor Lahz.
Further there is no record of a clinical sign of radiculopathy as defined in the legislation/Guidelines. There are otherwise no recorded signs of radiculopathy from the cervical spine in both the detailed examination findings of the original Medical Assessor and Medical Assessor Lahz.
Finally, we note that any examination findings do not support a finding of structural change in the cervical spine.
The claimant otherwise alleged injury to the left arm and wrist. We have been unable to identify any injury to these body parts. These are suggestions of referred pain from the cervical spine to the left arm. This is not an injury to the left arm in the nature of a pathological change.

Back injury

The claimant relied on the pathology identified in the MRI scan dated 19 October 2023 identifying a left posterolateral disc protrusion at L5/S1 causing impingement of the left S1 nerve root. The MRI scan dated 17 May 2024 demonstrated the same findings.
Intervertebral discs are cartilaginous structures. An aggravation of that disc involving further tearing and causing herniation is a partial rupture of cartilage and ligaments. If a motor accident caused further tearing of a disc, then this would amount to a non-threshold injury as defined under the MAI Act and Guidelines.
The early post-accident records do not support a finding of low back injury.
The accident could cause low back injury although the low back is more protected from whiplash injury (compared with the neck) due to the presence of the seat.
There is an absence of recorded complaint of low back pain in the hospital notes and two initial consultations to the GP. The claimant’s response that he repeatedly mentioned the symptoms and they were not recorded is unlikely as that would mean that three separate medical practitioners erred in failing to record the complaint. Furthermore, sciatic type complaints are a red flag to any prudent medical practitioner and warrant immediate further investigations such as MRI scanning which ultimately did not occur until one year after the motor accident.
Due to the absence of recorded complaint regarding incapacitating low back pain with left sciatica early on after the motor accident (two sets of GP records, hospital records) it is difficult to accept the demonstrated L5/S1 disc lesions as being caused or aggravated by the motor accident and of producing the reported symptoms which have an uncertain date of onset. However, as we previously noted, absence of contemporaneous complaint is not determinative of causation.
The first mention of low back pain is on the claim form two months after the accident, with GP records silent on this beforehand. The scan showing the L5/S1 disc disruption was not undertaken until October 2023 more than a year after the motor accident. Unfortunately, the claimant did not receive any physiotherapy shortly after the motor accident so there are few sources which the Panel can use to corroborate the claimant’s reported symptom evolution since the motor accident.
It is possible but extremely unlikely that the motor accident would have caused or aggravated a disc lesion in the lower back. This is because the lower back is restrained and protected from insult by the car seat. The relevant forces from a rear-end/front collision are significantly lessened in the lower spine region compared with the neck.
A more plausible, likely explanation for the presence of the disc lesion in the lower spine is the heavy lifting the claimant had performed over the years. The claimant provided a history of heavy lifting to Medical Assessor Lahz of extremely heavy weights. The nature of the motor accident is insignificant when compared to the strains imposed upon the lower back from this type of lifting.
Accordingly, whilst the motor accident may have caused a soft tissue injury to the lumbar spine, we do not accept on the balance of probabilities that the L5/S1 lesion was either caused or aggravated by the motor accident.
We also note that there were no signs of lumbosacral radiculopathy as identified in the Guidelines present in the various examinations. We could not identify from the clinical records any signs of radiculopathy as defined in the Guidelines in any medical record.

TREATMENT DISPUTES

Reasonable and necessary in the circumstances

Mr Khan is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[50] Grove J stated:[51]
“22 I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[50] [2003] NSWCA 52 (Clampett).
[51] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[52]
[52] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[53] They include:
(a)    the appropriateness of the particular treatment;
(b)    the availability of alternative treatment;
(c)    the cost of the treatment;
(d)    the actual or potential effectiveness of the treatment, and
(e)    the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[53] See Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) at [88].

Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
The examination findings of Medical Assessor Lahz provide no medical basis for the need for a pelvic MRI scan. The claimant’s main symptomatic complaints are of low back and leg pain, clearly derived from the lumbar spine where a significant disc lesion has already been demonstrated on various imaging. For that reason, we do not accept that a proposed MRI scan of the pelvis is reasonable and necessary.

Does the proposed treatment relate to the injury resulting from the motor accident

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[54] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[54] [2019] NSWCA 324.
The injuries caused by the motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[55] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[55] [2018] NSWSC 1710 at [29] (Phillips).
We refer to our finding that the motor accident did not cause a pelvic fracture. There are otherwise no relevant symptoms in the pelvis warranting an MRI scan. Accordingly, we do not accept that the proposed MRI scan relates to the injury caused by the motor accident.

CONCLUSION

For these reasons the Panel confirms the medical assessment certificate.

Abduction	100, 150, 150	140, 150, 130
Adduction	50	50
Flexion	140 150 130	150 140 130
Extension	50	50
Internal rotation	80	80
External rotation	80	80

[2025] NSWPICMP 782

9 October 2025