Lang v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Lang v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 404
CLAIMANT:	Izak Lang
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	21 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; this dispute is about whether the claimant suffered a threshold injury (which was previously called a minor injury) in a motor accident on 8 March 2021; claimant applied for review of Medical Assessor (MA) Harrington’s certificate dated 24 August 2022; MA certified claimant did not display radiculopathy in cervical and lumbar spine and shoulder injuries were soft tissue; scans and Panel re-examination demonstrated evidence of acute change with accident causing progression of lumbar spine herniation to annular tear; Held – the Panel was satisfied that the accident caused the lumbar spine injury that does not fit threshold injury definition under section 1.6; MA certificate revoked and new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) The following injuries caused by the motor accident: · soft tissue injury to the cervical spine; · soft tissue injury to the right shoulder, resolved; · soft tissue injury to the left shoulder, resolved, and are threshold injuries *for the purposes of the MAI Act 2017.* The following injury caused by the motor accident: · Lumbar spine–intervertebral disc injury with annulus fissure *is not a threshold injury for the purposes of the MAI Act 2017.*

REASONS

Pre-accident medical history and relevant personal details

Mr Lang is a young adult who lives in Lakehaven in NSW.
At the time of the injury he was studying for his second year of a science degree. He has not completed his degree. He had also been successful in applying for a food logistics job, which he was not able to commence.
He denies having any musculoskeletal conditions before the accident.
He says before the accident he used to enjoy surfing, body boarding, playing computer games and playing Oz tag. He has not returned to these activities since the accident.

History of the motor accident

Mr Lang was involved in a motor vehicle accident on 8 March 2021. He was the front seat passenger of his mother’s car. She had stopped waiting to turn left at a round-a-bout next to Bunnings in Tuggerah when a car rear-ended them.
Emergency services were not required. He was not taken to hospital.
The next day, he noticed neck pain, lower back pain and he developed a bad headache. He visited his general practitioner (GP) Dr Malek.
He was initially treated conservatively with physical therapy, hydrotherapy and a gym course. He also applied anti-inflammatory cream to affected areas (noted on AHRR in March 2021).
He was referred to Dr Omprakash Damodaran, neurosurgeon, for opinion and management.

Claim

The insurer insured the owner and/or driver of the vehicle at fault for liability to pay to the claimant any statutory compensation and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Lang lodged the claim form for personal injury benefits with the insurer on 30 March 2021.
The insurer issued a liability decision on 2 July 2021 marking 26 weeks since the accident. The letter accepted liability, but denied Mr Lang sustained a non-threshold injury.
Mr Lang requested an internal review of this decision.
The insurer affirmed the original decision on 20 August 2021. Mr Lang applied to the Personal Injury Commission (Commission) to refer the insurer’s decision to a Medical Assessor to resolve the dispute.
Medical Assessor Harrington (the Medical Assessor) conducted the original medical assessment on 17 August 2022 and produced a certificate dated 24 August 2022.
Mr Lang applied to the Commission to refer the certificate to a Review Panel (Panel), which was within 28 days after the Commission issued the original certificate.[1]
[1] Section 7.26(10) of the MAI Act.
On 25 October 2022, the President’s delegate referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]

Legislative framework

[2] Section 7.26(5) of the MAI Act.

Statutory provisions

This is a dispute about whether the motor accident caused injury that could be classified as threshold injuries under Schedule 2, s 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act on 1 April 2023 to substitute the term “threshold injury” for “threshold injury”. The terms are interchangeable. This decision will retain the former term when talking about the original decision this Panel is reviewing, but the current term will be used when addressing our certificate.
At the time this dispute arose s 1.6 of the MAI Act defined a threshold injury as a “soft tissue injury” or a “ a psychological or psychiatric injury that is not a recognised psychiatric illness.” 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 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, clause 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 the motor accident caused a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines 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 provided:
“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 MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
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 the injury will be assessed as a threshold injury.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[3]
[3] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
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 and whether they were threshold or non-threshold as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[5] and Insurance Australia Ltd v Marsh.[6]
[5] [2021] NSWCA 287 at [40], [41] and [45].
[6] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[7] that a neurological examination can verify radiculopathy at any time after the accident to satisfy the concept that the injury is not a threshold injury for the purposes of the MAI Act.
[7] [2021] NSWPICMP 227 at [84]-[104].
The Panel also adopts the reasoning in Lynch v AAI Ltd[8] that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
[8] [2022] NSWPICMP 6 at [44]-[62].

Review

On 4 April 2023, the Panel met via telephone.
The Panel decided eventually to consider afresh all aspects of the assessment under review as it was apparent all injuries were in dispute as to their threshold injury status.
Considering the NSW Court of Appeal’s decision in Sydney Trains v Batshon[9] the Panel determined re-examining the claimant was necessary in order to reach a decision
[9] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
As there was considerable dispute about the original [BG1] Medical Assessor’s findings on radiculopathy, it was decided re-examination was necessary to see whether the required signs for that condition could be verified.
After some delay due to sickness and the claimant’s availability Medical Assessor Home arranged to conduct this examination on behalf of the Panel at his rooms on 28 July 2023.
The claimant was directed to bring all relevant imaging studies to the appointment.
The claimant was also directed to lodge the clinical notes from after 29 May 2021 from the claimant’s GP at Grace Medical Care and other relevant health care provider, with any brief submissions regarding the examination.
The Panel met on 14 August 2023 to discuss the matter further and deliberate.

Assessment under review

Medical Assessor Harrington certified that the accident as described was a rear-end impact of reasonable force which could have caused a whiplash injury of his cervical spine. This has resulted in some asymmetric loss of movement, more so to the left than the right. He could not find evidence of cervical radiculopathy, therefore the Medical Assessor found it was a threshold injury.
The Medical Assessor also assessed a lumbar spine soft tissue injury which had resolved. He was certain there was no radiculopathy evidence.
He also assessed that the whiplash / soft tissue injury diagnoses for both shoulders had resolved.

Disputes and issues identified for review

The Commission referred the following injuries for assessment:
(a) Lumbar Spine: whether the lower lumbar radiculopathy injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
(b) Cervical spine: whether the supraspinatus ligament injury, disc prolapse with nerve root irritation injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
(c) Left Shoulder: whether the musculoligamentous injuries to both shoulders caused by the motor accident is a threshold injury for the purposes of the MAI Act.
(d) Right Shoulder: whether the musculoligamentous injuries to both shoulders caused by the motor accident is a threshold injury for the purposes of the MAI Act.
The claimant highlighted that the following aspects of the original assessment were identified as disputed:
(a) whether Mr Lang’s injury to his cervical spine is a threshold injury;
(b) whether Mr Lang’s injury to his lumbar spine is a threshold injury, and
(c) whether either or both shoulder injuries are threshold injuries, for the purposes of the MAI Act.
It was apparent that Mr Lang was alleging he suffered radicular symptoms, but they have not been verified on examination as required in the Guidelines.
The application for review stated Medical Assessor Harrington did not consider whether the claimant had radiculopathy at any time which was caused by the accident in accordance with s 1.6 of the MAI Act and cl 4 of the Regulation.
The insurer opposed the application on the basis the Medical Assessor had not made any material error in his assessment.

Documentation

The Panel considered the following documentation:
·        Medical Assessor Harrington’s certificate dated 24 August 2022;
·        Mr Lang’s application for review and attached documents identified as A1 and AD1;
·        Reply and attached documents identified as R1;
·        the President’s delegate’s reasons dated 22 October 2022 referring this matter to a Panel, and
·        all the documents which were provided to Medical Assessor Harrington before the assessment under review.
The claimant provided updated clinical notes and recent scans for the re-examination.

SUBMISSIONS

Claimant’s submissions

The claimant submits that the insurer and the Medical Assessor made an incorrect determination.
The claimant submits that due to his radiculopathy symptoms in his lumbar spine, he has sustained a non-threshold injury pursuant to the legislative definition.
With reference to the MRI of the claimant’s lumbar spine dated 12 May 2021, as a result of the subject motor vehicle accident, the claimant sustained injury in the form of “a left posterolateral disc herniation into the left lateral recess and exit foramina …. Impinging on the exiting nerve root.”
Neurosurgeon, Dr Omprakash Damodaran affirmed these findings, who opined the MRI results demonstrate an “L5/S1 disc prolapse and discovertebral changes… compression of the L5 nerve root in the lateral recess” (as per Dr Damodaran’s report dated 18 July 2021).
The claimant has lumbar spine injuries resulting in lower back pain and radiculopathy, with symptoms such as pain down the legs and pins and needles sensation in the left foot. The medical evidence indicates that the claimant is suffering from lower lumbar radiculopathy, which may require surgery to alleviate the pain and symptoms.
The claimant's physiotherapist reports physical restrictions such as sitting, standing, walking tolerances, and lifting capacity, which demonstrates severe and longstanding injury.
The claimant provided further submissions to state why the earlier assessment was incorrect.
In paragraph 18, Medical Assessor Harrington’s certificate noted that:
“the MRI of the lumbar spine dated 12 May 2021 shows a degenerative disc at L5/S1… The Radiologist has reported a prolapse and there is some indentation or a bulge on the left, however this isn’t consistent with the clinical picture. If there was a symptomatic prolapse or impingement, this has certainly resolved.”
The MRI scan does not indicate a degenerative disc at L5/S1. It shows “there is a posterolateral disc herniation into the left lateral recess and exit foramina and impinging on the exiting nerve root.”
It has already been submitted that there were various verifiable signs of radiculopathy listed in the claimant’s medical evidence as well as non-verifiable radicular complaints. The Panel must not overlook the claimant’s contemporaneous complaints.
The claimant demonstrated the following signs during consultations with specialist(s) as well as during examination pertaining to radiculopathy which confirm that the identified impingement has not resolved:  
(a)    nerve root irritation;
(b)    restricted movement in rotation and lateral bending;
(c)    altered sensation in the ulnar distribution in the right hand;
(d)    pins and needles in the left foot and numbness down bilateral lower limbs;
(e)    asymmetric loss of movement, and
(f)    lower lumbar back pain with some radiation of pain down the leg, particularly down the right leg but there are also some left sided symptoms (see report of
Dr Damodaran dated 18 July 2021 and Dr Malek dated 12 October 2021).

Insurer’s submissions

The insurer submits that the injures claimed are threshold injuries in accordance with the MAI Act.
The Medical Assessor’s cervical spine clinical findings did not detect evidence of non-verifiable radicular complaints (as defined in Table 6.8 of the Guidelines), or any evidence of verified radiculopathy (as per Clause 5.8 of the Guidelines).
Even if there were clinical findings of non-verifiable radicular complaints in the Medical Assessor’s examination, such symptoms fall within the definition of a threshold injury.
At [15] of the Medical Assessor’s certificate he noted [BG2] dysmetria and tenderness in the claimant’s left trapezius muscles. He did not find muscle weakness; reflexes were noted to be present and symmetrical with some altered sensation in the ulnar distribution of the right hand. Based on these findings, there is no evidence of verified radiculopathy as defined in cl 5.8 of the Guidelines, noting there is an absence of two or more clinical signs of dysfunction to a specific spinal nerve distribution.
Regarding the lumbar spine, the applicant refers to neurosurgeon Dr Omprakash Damodaran’s report dated 18 July 2021, Allied Health Recovery Request (AHRR) dated
8 September 2021 and GP report of Dr Michael Malek dated 12 October 2021. The claimant relied on these reports to support his claim he was diagnosed with lower lumbar radiculopathy.
The insurer submits that the clinical findings contained in the reports of Dr Damodaran, AHRR and GP Dr Malek do not satisfy the diagnosis of lumbar radiculopathy as defined in cl 5.8 of the Guidelines. Whilst there are neurological symptoms such as radiating pain down the right leg, pins and needles in the left foot and numbness down bilateral lower limbs referenced in the aforementioned reports, these symptoms do not satisfy the diagnosis of radiculopathy as per cl 5.8 of the Guidelines.

The insurer refers to the definition of non-verifiable radicular complaints as per Table 6.8 of the Guidelines and note the symptoms the claimant described do not meet the definition of non-verifiable radicular complaints.
Even if there were clinical findings of non-verifiable radicular complaints in the Medical Assessor’s examination of the lumbar spine such symptoms fall within the definition of a threshold injury as per cl 5.9 of the Guidelines.

Medical evidence

The medical evidence relied on is identified in the submissions.

Radiology

The relevant scans are identified in the above submissions and in the Panel’s medical examination report.
The scans dated 16 June 2023 submitted via an application to admit late documents were considered relevant to resolving the facts in issue. The Panel considered these in its deliberations.

REVIEW PANEL FINDINGS

Clinical assessment

Medical Assessor Home undertook this clinical assessment at his rooms on Friday 28 July 2023. The claimant brought his mother, Cherie, to the assessment. Mr Lang provided the history directly.

Past medical history

There is no history of neck or back complaints before this accident. Mr Lang has been told that he suffers from joint hypermobility. His mother understands that there is a family history of Marfan syndrome.

Details of subject accident

Mr Lang states that he was involved in the subject motor vehicle accident as the front seat passenger, in a Holden Cruise sedan, driven by his mother. There were no other passengers in the vehicle.
The vehicle was stationary when struck behind by a car. There was no secondary forward collision. The vehicle sustained rear-end damage.
Following the accident his mother drove to the side of the road. He was able to alight from the vehicle himself. His mother exchanged details with the other driver. Police and Ambulance did not attend.
He recalls early symptoms of psychological shock. Later that day he developed neck pain and headache. These symptoms continued for approximately one week.
He recalls that within a week of the accident he also developed lower back pain and a feeling of tightness in his legs.
He says he attended his GP at the Grace Medical Centre, who referred him for CT scan imaging and MRI scan imaging of the cervical spine, performed 1 April and 7 April 2021, respectively.
He was referred for additional MRI scans of the lumbar spine, which were performed on 12 May 2021.
He commenced physical therapy and he recalls that initially Medicare funded this, and later the CTP Insurer funded the treatment. He recalls that the physical therapy provided some temporary symptom benefit. He received passive treatment and advice regarding exercise.
He recalls that during the second three-month period he underwent supervised hydrotherapy. He recalls a mild benefit from the treatment.
In mid-2021 he was referred to Dr Damodaran, whom he saw during COVID-19 protocols. He confirms that a history was taken but the doctor did not physically examine him. His scans were reviewed. Dr Damodaran recommended conservative management.
He subsequently attended physiotherapy, funded through Medicare. There has been no other formal medical treatment.
He says that over the counter analgesia does not provide any benefit. He was taking Maxigesic during the early stages of his recovery.
He then adds that he takes occasional Ibuprofen, about once every fortnight.
Recently he attended Dr Damodaran, in late June 2023, and was referred for further MRI scans of the lumbar spine. They were performed on 16 June 2023.
He is scheduled to return to Dr Damodaran for further advice in the next month.

Current symptoms

Mr Lang describes neck pain present intermittently, five days per week. The pain is felt in the midline, sometimes worse on the left side. He finds neck motion is a bit better to the right.
He describes occasional paraesthesia in the proximal arms and in the palm of the left hand, sometimes extending to the base of the middle and ring fingers. There are no symptoms of permanent numbness. He describes a general feeling of weakness. There is also sensation of tightness in the shoulder girdles. There is no lateral shoulder pain. He generally avoids overhead tasks.
He describes occipital headache occurring associated with the neck pain. There is sometimes associated nausea.
He reports lower back pain, across each side of the lower back, more prominent on the left side. He describes intermittent radiation of the pain at the back of the left thigh. There is sometimes further pain in the distal left calf and the sole of the left foot.
There is occasional paraesthesia in the same pattern.
He describes less frequent, similar symptoms, in the right lower limb.
There is urgency of micturition, but no other bladder dysfunction. There is no bowel dysfunction. He describes mild erectile difficulties.
He is left hand dominant. He reports a sitting tolerance of 5-10 minutes, with a maximum of 30 minutes. A walking tolerance of 10 minutes. He is able to crouch and kneel adequately. He is able to perform stair climbing adequately, however this sometimes exacerbates his back pain. He describes broken sleep, due to back pain.
He is independent for activities of self-care. He is able to lift and carry 5kg.

Social history

He lives with his mother. He performs occasional light bench height tasks. His mother performs all the household cleaning and gardening.
Mr Lang says that he has taken up Auslan studies at TAFE, three hours over two days per week.
At the time of the accident he was studying a Bachelor of Science, with a view to seeking qualifications for medical school. He did not persist with these studies after the subject accident.
He hopes to return to his studies in the future.

Physical examination

Mr Izak Lang is now a 23-year-old male, who is 175cm tall and weighs 62kg.

Cervical spine

Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. There was a full range of active cervical spine motion in all planes. However pain is declared with extreme left sided rotation. There is mild muscle guarding on the left side at the extreme range of motion.
Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is no muscle wasting. There is normal sensibility throughout. There is generalised hyperreflexia. The deep tendon reflexes are symmetrical. Spurling’s test is negative for arm pain.

Right shoulder

There is a full range of active motion of the right shoulder on goniometer measurement. Impingement signs are negative. There is normal power of resisted movements across the rotator cuff.

Left shoulder

There is a full range of active motion of the left shoulder on goniometer measurement. The impingement signs are negative. There is normal power of resisted movements across the rotator cuff.

Thoracolumbar spine

Examination of the thoracolumbar spine reveals normal spinal curvature without muscle spasm. There is a fair range of active motion. Pain is declared with the extreme range of lumbar flexion, which is not reproduced in a long sitting position.
Straight leg raise is performed to 70° bilaterally. The claimant reports left sided back and leg pain during foot dorsiflexion on the left, but there is no concordant restriction of leg raise. There is a negative slump test on the same side.
Neurological examination of the lower extremities reveals normal lower limb power in all muscle groups. There is normal power throughout. There is no muscle wasting. The deep tendon reflexes are symmetrically preserved.
Mr Lang reports increased sensibility in the left leg, from the knee to the toes. This is non dermatomal in pattern.
The calves are measured as symmetrical, at 34.5 centimetres. The thighs are symmetrical at 39 centimetres on each side.
The claimant is able to stand independently on his toes of the left and right foot. He is able to walk on his toes and heels and demonstrates normal lower limb power in all myotomes[BG3] [TO4]

DIAGNOSTIC IMAGING

Mr Lang brought the following imaging report to the assessment:
MRI scan cervical spine, dated 16 June 2023, reported as follows
“Alignment normal. No destructive bone lesion is identified. Craniocervical junction is unremarkable. No marrow oedema is identified in the cervical spine. No paravertebral or prevertebral soft tissue oedema is seen. The ALL, PLL and ligamenta flavun appear intact. Mild degenerative disc bulge is noted at C3/4 and C4/5. No significant central canal stenosis identified. No abnormal cord signal is visualised. No foraminal stenosis identified and no other side. No focal disc herniation is detected.”
MRI scan lumbar spine, dated 16 June 2023, reported as follows
“The alignment of the lumbar spine is normal. No compression fracture or destructive bony lesion is identified. There is no facet joint arthropathy seen. There is a left foraminal disc herniation at L5/S1, measuring 14x4mm. It contains an annular tear. The disc herniation is more conspicuous on the current examination. There is mild left foraminal stenosis at his level, without evidence of a neural impingement. No central canal or foraminal stenosis is seen elsewhere.”
The annular fissure detected on the second imaging was not present at the time of the initial MRI scan examination.
The Panel notes the young age of the claimant and the finding of an intervertebral disc bulk on the initial scans.
The subsequent scans of June 2023 demonstrate progression of this lesion with the development of an annulus fissure.
The fissure represents a progression of the disc injury caused by the accident.
The Panel finds that this pathology represents a non-threshold injury, which arose because of the motor vehicle accident. The accident caused a progression of the disc injury resulting in the fissure.

DIAGNOSIS AND CAUSATION

Mr Lang was involved in a motor vehicle accident in which the vehicle he was travelling was struck from behind. He was a front seat passenger at the time of the crash.
There were early symptoms of neck pain and headache, with development of lower back pain symptoms within a week of the accident.
Subsequent imaging has demonstrated mild degenerative disc bulging at C3/4 and C4/5.
MRI scans of the lumbar spine demonstrated left sided disc pathology at L5S1, with scans suggesting possible impingement of the left L5 nerve root in the exit foramen, whereas the latest scans do not demonstrate nerve root impingement. However the latest scans show an annulus fissure in the same location and this is considered to have arisen from the motor accident.
There were early symptoms of muscular pain at the shoulders. There are no abnormalities on examination of the shoulders at this assessment.

FINDINGS

Cervical spine

Medical Assessor Home was satisfied the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. The clinical presentation does not meet the criteria for cervical radiculopathy set out in Clauses 5.8 to 5.10 of the Motor Accident Guidelines.

Lumbar spine

Medical Assessor Home was satisfied the injury to the L5/S1 intervertebral disc meets the definition of a non-threshold injury under the MAI Act, because an annulus fissure represents a tear in the fibrocartilage and is therefore a cartilage tear.
The clinical presentation does not meet the criteria for lumbar radiculopathy set out in cls5.8 to 5.10 of the Motor Accident Guidelines (see above).
It is Mr Lang’s recollection that Dr Damodaran did not examine him to check for radiculopathy because the specialist was observing COVID-19 related precautions.
From the current clinical assessment there are insufficient clinical signs to determine a diagnosis of radiculopathy in accordance with requirements of Clauses 5.8-5.10 of the Guidelines.

Right and left shoulders

The injuries listed are threshold injuries. Medical Assessor Home was satisfied the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.

Panel decision

The Review Panel’s conclusions on the parties’ issues

The Panel adopted Medical Assessor Home’s medical examination report as evidence in the review and agreed with his findings.

THRESHOLD INJURY

Mr Lang describes a rear-end impact of reasonable force which the Panel finds probably caused the injuries that were referred to the Panel.

Radiculopathy

Whilst Dr Damodaran in his report, dated 18 July 2021, diagnosed lower lumbar radiculopathy on the basis of the symptoms provided, no examination findings were set out because Dr Damodaran was observing Covid 19 protocols. The Panel’s examination did not elicit radiculopathy’s clinical signs.
The Panel adopting the reasoning in David has found that there is insufficient medical evidence that the injury is not-threshold in respect to radiculopathy for the purposes of the MAI Act from the date of the accident up to the time of the assessment.

Cervical spine

The Panel found the accident caused a soft tissue injury to the cervical spine. This has resulted in some asymmetric loss of movement, more so to the left than the right

Lumbar Spine

The Panel found the accident caused a disc injury, including the subsequent development of an annulus fissure, which is a non–threshold injury.

Shoulder injuries

The Panel found the accident caused soft tissue injuries to the right and left shoulder, which have resolved.

CONCLUSION

The Panel’s findings in relation to the threshold injury dispute is that the accident caused the lumbar spine injury referred to the Review Panel and that it does not fit the definition of a threshold injury under the MAI Act.
Accordingly, the Panel will revoke Medical Assessor Harrington’s certificate.
The motor accident caused the following injuries that are threshold injuries for the purposes of the MAI Act:
· soft tissue injury to the cervical spine;
· soft tissue injury to both shoulders;
The following injury caused by the motor accident is a non-threshold injury for the purposes of the MAI Act
·Lumbar spine L5/S1 disc annulus fissure.
Member O’Riain, Medical Assessor Home and Medical Assessor Couch have viewed this certificate and confirmed they agree with the outcome. The Panel will issue a new certificate.

[BG1]check

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[TO4]What is a synonym for this word?

[2023] NSWPICMP 404

21 August 2023