Lazich v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Lazich v QBE Insurance (Australia) Limited [2023] NSWPICMP 562
CLAIMANT:	Leo Lazich
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	8 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute related to assessment of permanent impairment; pre-existing fusion at C6/7; pre-existing symptoms and degeneration at C5/6; ongoing neck treatment by chiropractor at time of motor accident; Post accident histories referred to improving neck condition; post-accident notes suggest C5/6 disc herniated approximately 6 weeks after the motor accident; Panel not satisfied that motor accident caused or aggravated the neck condition; Issue of deduction for pre-existing condition; observation of meaning of clauses 6.31 and 6.33 of the Guidelines; “impairment in the same region” means the three separate spinal regions; claimant was DRE Category IV prior to motor accident; issue of assessment depended upon whether pre-existing fusion at C6/7 was “unrelated or not relevant” to subsequent fusion at C5/6; Held – no injury to cervical spine or other body parts; original assessments confirmed.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% *THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017* IS AS FOLLOWS:** The Panel confirms the medical assessment certificate dated 4 January 2023.

REASONS

BACKGROUND

On 20 August 2018 Mr Leo Lazich (the claimant) was stationary when the insured vehicle collided with his trailer from the rear.[1]
[1] Claimant’s bundle, p 7.
QBE Insurance (Australia) Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Mr Lazich any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2 clause 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Cameron and dated 4 January 2023 (the medical assessment).[4] The Medical Assessor found that the claimant suffered no injuries caused by the motor accident and did not assess any impairment.

THE REVIEW
[4] Claimant’s bundle, p 20.

The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[5]
[5] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that it was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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 Merit Reviewer or a Medical Assessor.[7]
[7] 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. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.

STATUTORY PROVISIONS

The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL 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.”

ASSESSMENT UNDER REVIEW

The Medical Assessor noted that the claimant did not have medical consultation until early October 2018 in circumstances where this was a low velocity crash. He also opined that the prior spinal fusion would cause degenerative changes above and below the level of the fusion. The symptoms that developed were independent of the subject motor vehicle accident.
The Medical Assessor opined, because the motor accident was not severe and there was a significant delay in the development of symptoms with an alternative explanation for the problems at the C5/6 level, that causation for any of injuries have not been established.

OTHER ASSESSMENTS

Medical Assessor Payten provided a certificate dated 24 November 2022. That Medical Assessor assessed permanent impairment of 9% due to injury to the swallowing mechanism and damage to vocal cords secondary to cervical spinal surgery. This medical assessment has not been reviewed and is not before the Panel.
Medical Assessor Cameron provided a combined certificate dated 9 January 2023 that the motor accident did not cause impairment greater than 10%.[12]
[12] Claimant’s bundle, p 27.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundle of documents for the Panel’s consideration.
The claimant filed two sets of late documents. The first set were clinical records of the chiropractor which are discussed later in these Reasons.
The second set of late documents were updated records of recent treatment including two reports of Dr Martin, an MRI scan dated 12 April 2023 and EMG studies dated
19 April 2023.
On 3 August 2023 the insurer advised the Panel that it does not consent to the most recent documents. The claimant stated that they were updated records but not particularly relevant to the causation issue.
We have considered the recent records and note that they are not relevant to the causation issue. The further documents however provide an excellent record of the claimant’s updated condition and recent treatment.

Pre-existing condition

The MRI scan dated 12 August 2008 showed a large left paracentral disc extrusion at the C6/7 level impinging on the exiting C7 nerve roots of the left.[13]
[13] Claimant’s bundle, p 63.
A medical assessment by Medical Assessor Pierides in March 2011 assessed permanent impairment caused by the 2008 motor accident.[14] The doctor noted that the claimant underwent left posterior C6/7 foraminotomy and subsequently the cervical decompression and fusion at C6/7 with grafting.
[14] Claimant’s bundle, p 87.
The Medical Assessor held that the 2008 motor accident injured the C6/7 disc resulting in the subsequent surgery with ongoing radiculopathy. The cervical spine was assessed as DRE category V due to the ongoing radiculopathy. An assessment of 1% was allowed for the scarring due to the surgical procedures.
Assessments of permanent impairment by other doctors who examined the claimant in 2010 and 2011 were either 25% (Dr Ryan) or 35% (Dr Dan, Dr O’Neill).
The MRI scan dated 5 August 2013 showed a broad disc osteophyte complex eccentric to the left, indenting the thecal sac at C5/6.[15]
[15] Claimant’s bundle, p 68.
The MRI scan dated 7 May 2018 showed a shallow right paracentral disc protrusion with small annual fissure at C5/6 which was reported to have increased in size when compared to a previous study.[16] There was no significant spinal canal or exit foraminal narrowing at that level. The anterior fusion was clear at the C6/7 level with no spinal cord or exit foraminal narrowing.
[16] Claimant’s bundle, p 70.
The consultation with the chiropractor on 12 July 2018 noted acute left sided neck pain with nil radiation.[17]
[17] Claimant’s late bundle, pp 24-25.
On 2 August 2018 the chiropractor noted some improvement in cervical spine pain with intermittent referral into the top of the left triceps.[18]
[18] Claimant’s late bundle, p 24.
On 16 August 2018 the chiropractor noted that the claimant was significantly better with nil referred pain with review in two weeks.[19]
[19] Claimant’s late bundle, p 23.

Post accident records

The chiropractic records dated 30 August 2018 refer to the claimant being significantly better since previous visit with nil referred pain with review in two weeks.[20]
[20] Claimant’s late bundle, p 23.
On 13 September 2018 the chiropractor again noted “significantly better since last rx > nil referral pain” but added “Woke up 4/7 mid back spasmed” [sic] with nil radiation and tightness around lateral ribs.[21]
[21] Claimant’s late bundle, p 22.
The clinical record of Dr Peesa, general practitioner (GP) dated 2 October 2018 noted a pinched nerve at the back and requested a CT scan of the upper thoracic area with a question of disc prolapse. Lyrica was prescribed.[22]
[22] Insurer’s bundle, p 25.
On 4 October 2018 the chiropractor recorded the following:[23]
“Pt has exp severe pain in the R upt/periscapular region in the past few days >. The pain has been quite severe.
Pain is travelling down the arm in the first digits. >> suggest C6
Pt has noticed in increased weakness in the grip strength
Pain described the pain as being sharp, and radicular in nature.
Pt can recall a minor MVs recently, in which the symptoms started pst incident.”
[23] Claimant’s late bundle, pp 21-22.
The chiropractor noted mild reduction in the C6 reflex.
The clinical note of Dr Roberts dated 8 October 2018 noted the motor accident in August 2018 when the claimant was rear-ended and “saw chiro”. The GP noted pain in the right arm and paraesthesia in the right hand.[24]
[24] Insurer’s bundle, p 30.
The MRI scan of the cervical spine dated 5 October 2018 reported disc degenerative disease at the C5/6 level with a right paracentral disc herniation which had increased in size and progress since the previous study.[25] The disc was reported as abutting the cord without any signal abnormality but with the extension of the herniation towards the right sided fragment with probable compression of the right C6 nerve root.
[25] Claimant’s bundle, p 72.
Dr Paul Mason provided a report dated 8 October 2018 in response to a referral from Dr Roberts. The doctor recorded the following history:
“Thank you for referring this 38-year-old landscape gardener who presents with four weeks of aggressive periscapular pain eventually developing in sharp right pain in the context of a mild whiplash injury six weeks ago on a background of the more significant whiplash injury 10 years ago eventually resulting in C6/7 fusion.”
The doctor noted that the claimant stated that symptoms have progressed significantly over the last four weeks and is disturbing his sleep making it difficult to lay down. Comparison MRI scans taken four months previously and again on 5 October 2018 demonstrated progressive right paracentral herniation at the C5/6 level progress compressing the right C6 nerve root.
On examination the doctor noted reduced sensation of the right side of the shoulder, right index finger and in the posterior aspect of the arm. There was significant weakness of the right shoulder on external rotation, right elbow flexion and right elbow extension. The doctor opined that the symptoms were likely arising from the compression of the right C6 nerve root.
Dr Richard Parkinson, surgeon, provided a report dated 11 October 2018.[26] The doctor noted that the claimant presented with right C6 motor radiculopathy, brachialgia and pain. The pain had significantly improved following a recent right sided C6 periradicular cortisone injection.
[26] Claimant’s bundle, p 40.
The doctor noted a history of surgery in 2008 and a progress MRI scan for surveillance in August 2018 which did not show any specific issues. The claimant had a further motor accident with “almost immediate pain radiating to his right arm”.
On examination the doctor noted weakness in the C6 myotome on the right-hand side with some mild muscle wasting. There was no light touch sensory loss and reflexes were attenuated.
Dr Parkinson noted the significant right C6 motor radiculopathy and recommended disc replacement rather than fusion C5/6 to minimise the risk of adjacent level degeneration.
Dr Ian Farey, surgeon, provided a report dated 16 November 2018.[27] The doctor noted a history of severe neck pain two days after the motor accident with subsequent increase in radiation to the right upper limb and fingers with development of weakness in the right hand. The claimant did not present with any neck or upper limb pain but had weakness in the right hand which was decreasing.
[27] Insurer’s bundle, p 69.
Provocative tests right upper limb nerve root compression was negative and neurological examination did not reveal any evidence of weakness. The right triceps jerk was depressed but otherwise all reflexes were present and normal in amplitude. There was no evidence of myelopathy.
Dr Farey noted that the claimant had symptoms secondary C6 nerve root compression, presented with “minimal symptoms” and did not recommend surgery.
Dr Charles New, surgeon, reviewed the claimant on 29 November 2018.[28] The doctor noted a history of a second motor accident on 20 August 2018 which resulted in increasing neck and left arm pain and significant perceived weakness. The pain was described as an aching burning sensation with stabbing sensations and pins and needles with now pain in the right hand, not in a specific dermatome.
[28] Insurer’s bundle, p 67.
Dr New noted the opinion of Dr Parkinson who wished to proceed with surgery and
Dr Farey who favoured a conservative approach. Dr New concurred with Dr Farey’s opinion.
A report from Leigh Perry, undated, noted an attendance on 9 May 2019 with a history of an insidious onset of thoracic tightness and pain a few weeks earlier.
A chest X-ray dated 20 May 2019 was normal. The thoracic spine X-ray of the same date showed moderate mid thoracic scoliosis convex to the right with no compression fracture and satisfactory alignment.[29]
[29] Claimant’s bundle, p 74.
Dr Corey Cunningham, physician, provided a report dated 4 July 2019.[30] The doctor noted the motor accident in August 2018 “following which he appears to have injured his C5/6 disc and further surgical intervention is being considered given his ongoing right sided upper limb weakness”.
[30] Claimant’s bundle, p 44.
An X-ray identified some degenerative changes through the mid thoracic region and a slight scoliosis to the right, centred at the T8 level.
The doctor opined that the chest wall pain was an exacerbation of the underlying thoracic degenerative changes rather than being directly related to the neck.
In a further report dated 1 August 2019, Dr Parkinson, noted that the claimant was getting some lateral shoulder and triceps lateral arm pain. Repeat MRI scan showed improvement in the disc bulge at C5/6 and the doctor opined that further conservative treatment was appropriate. The doctor noted that the claimant was a little weak on the triceps (C7), and he thought this is probably long-standing. He agreed with
[31] Claimant’s bundle, p 46.
Dr Cunningham that a thoracic cortisone injection was appropriate.[31]
Nerve conduction studies dated 10 September 2019 were consistent with chronic C5/6 nerve root dysfunctional on the right side.[32]
[32] Claimant’s bundle, p 97.
Dr Nimeshan Geevasinga provided a report dated 25 October 2019.[33] The doctor noted a history that the claimant was doing relatively well until August last year when he was again involved in a motor accident when he noticed a slight whiplash injury and started to notice cramping discomfort around the thoracic region.
[33] Insurer’s bundle, p 36.
The doctor could not identify any neurological symptoms of note and recommended a conservative approach.
in January 2020 Dr Parkinson noted that neck pain was worsening in the context of nerve conduction studies confirming C5/6 dysfunction. Further progress MRI studies were recommended.[34]
[34] Claimant’s bundle, p 47.
A further MRI scan dated 3 February 2020 showed a mild diffuse disc bulge causing mild canal stenosis at C5/6 not impinging on the cord.[35]
[35] Claimant’s bundle, p 77.
On 6 February 2020 Dr Parkinson reviewed the further MRI scan and opined that the C5/6 disc was presumably the cause of the neck pain. The doctor recommended pain management opinion before any surgical recommendation.[36]
[36] Claimant’s bundle, p 48.
Dr Nathan Taylor, pain specialist, provided a report dated 26 February 2020.[37] After what was described as a long discussion about chronic pain in various management strategies, the doctor opined that the surgery appeared appropriate. A further script provided to assist in sleeping at night.
[37] Claimant’s bundle, p 49.
Dr Parkinson performed an extension of the fusion at C5/6 on 15 June 2020.[38] On
[38] Claimant’s bundle, p 51.
[39] Claimant’s bundle, p 52.
30 July 2020 the doctor noted that the claimant was doing well although he had some difficulty swallowing.[39]
Dr John Korber, radiologist, provided a report dated 2 February 2021.[40] Dr Korber reviewed the MRI scan of the cervical spine dated 7 May 2018. His description of the scan is as follows:
“There is stable interior interbody fusion of C6/7. There is a small right-sided posterolateral disc protrusion at C5/6 indenting the spinal cord with some reduction right exit foramen but not compressing the exiting nerve root. An annular tear is also seen.”
[40] Claimant’s bundle, p 53.
Dr Korber’s description of the MRI scan dated 5 October 2018 was:
“Since the previous study there is now a large right-sided disc herniation impinging on the exiting C6 nerve root and compressing the right side of the court, best appreciate in the sagittal protection. Comparison is made in figure 1 through the C5/6 level between the May and October studies. There has been significant alteration in size of the disc herniation since the previous study. The spinal fusion is again noted and changed.”

Dr Korber opined:
“Given the relative proximity of the two MRI examinations, with an intervening motor vehicle accident, it is reasonable to suggest the disc herniation, which is quite large on 5 October 2018, is related to the motor vehicle accident (if it is clinically confirmed). Clinical correlation is always necessary. It is well known that discs above and below fusion views levels are more prone to injury because of the lack of movement, the level of the fusion.
Also of note is that, although I have not seen the films, that the disc has reduced in size. Reduction in size of the disc herniation is an indicator (of which there are few) that the disc herniation was acute. This is on the basis that an acute disc herniation contains hydrated material which subsequently defecates reducing the size of the herniation. Chronic disc herniations don’t tend to change.”
Dr Charles New, spinal surgeon provided a report dated 18 March 2021.[41] The doctor recorded a history of a motor accident on 20 August 2018 when the claimant was driving a Toyota Kluger towing a trailer the car was hit from behind by the insured vehicle. The claimant noted a significant increase in the neck and left arm pain described as an aching burning sensation with sharp stabbing qualities and pins and needles. The pain extended to his right hand in the C7 nerve root distribution.
[41] Claimant’s bundle, p 58.
Examination in November 2018 confirmed a decrease range of motion movement but no frank neurological deficit. Subsequent surgery in June 2020 was recorded as showing a 90% resolution of neck pain and a 40% resolution of right arm pain.
Dr New otherwise referred to and concurred with Dr Korber’s opinion.
Dr Robert Breit, orthopaedic surgeon, provided a report dated 11 June 2021.[42] On examination the doctor noted normal power, tone and sensation in the right arm with no evidence of C6 weakness in either arm. The claimant did have residual depression of the left triceps jerk from the earlier injury.
[42] Insurer’s bundle, p 274.
Dr Breit was asked about whether the C5/6 extension effusion surgery performed in June 2020 was related to the accident. The doctor stated:
“This really comes down to the force of impact. You have not provided me with copies of the photographs of the vehicles. He also claims that the cervical MRI from three months earlier was a routine follow-up suggested by his physiotherapist. If as you indicate impact was trivial that I would indicate there is no nexus. The force of impact was concentrated on the trailer to the tow ball the amount of force required bend the unit could be determined.”
The doctor then opined that there was no relationship between the claimant’s injury and the motor accident.

Statements

The claim form completed by the claimant dated 24 October 2018 stated that the motor accident caused “a bulging C5 – C6 spine disc”.[43]
[43] Claimant’s bundle, p 7.
The claimant provided a statement dated 16 August 2021.[44] Relevantly the claimant said that his car was hit from behind and he had no warning of the impact. He immediately developed pain in the neck and left arm. He described it was “sharp and quick at the time and I did not realise at the time that serious”. Over the following 7 to 10 days the claimant stated that he developed aching burning and stabbing sensation with pins and needles in the right and he could not write properly or even staple paper together.
[44] Claimant’s bundle, p 100.
The claimant provided a supplementary statement which was in response to the statement of Sally Beacham dated 27 October 2020.[45] The claimant described the insured as very upset and appeared to have been crying for some time before the accident happened.
[45] Claimant’s bundle, p 106.
The claimant indicated that the collision occurred back from the intersection adjacent to the breakdown lane. He noted that the insured said she was only travelling between 10 and 20 kmph and said that the speed limit of that section of the road was 70 kmph. He was not the type of person to complain to a complete stranger particular when she was upset and crying at the accident scene. He did not believe that the insured was only going between 10 and 20 kmph because the towbar on his vehicle would not have bent like it did at that speed.
The claimant stated that the traffic was not bumper-to-bumper and he had simply slowed and stopped due to the red light ahead when the accident happened.
The claimant agreed that the impact of the collision did not push his vehicle forward. He stated that his vehicle with the trailer weighed more than double of the insured vehicle. However, the claimant said that he was thrown forward in the vehicle from the collision. At the time of the collision the claimant was looking at paperwork to his left.
The claimant said his neck felt uncomfortable at the time the accident. He was not the type of person to go to a stranger and complain about pain. He also noted that the insured was crying at the accident scene, and he felt sorry for her.
The claimant said the insured did not inspect his vehicle but her statement about damage to his vehicle was incorrect. The rear panels on the trailer required replacing as well as the rear gas struts. He otherwise referred to the rear towbar which was broken due to the force of the impact.
The claimant said that he also had a conversation with the insured after the collision when she said that she tried to apply the brakes, but they did not work.
A photograph of the claimant’s vehicle showed the bent towbar.[46]
[46] Claimant’s bundle, p 121.
The insured provided a statement dated 27 October 2020.[47] The insured stated that the traffic was bumper-to-bumper and stop start and she had been following the claimant for less than five minutes. She said the trailer was less than 10 m in front of her, was moving forward at less than 20 kmph and the claimant appeared to stop quite suddenly. The insured said that she braked prior to the impact and estimated a speed at about 5 kmph at the time she bumped into the rear of the trailer. She estimated the impact to be 1/10 with a score of ten being severe and described the impact as “very minor”.
[47] Insurer’s bundle, p 246.

SUBMISSIONS

Claimant’s submissions dated 4 August 2021[48]
[48] Claimant’s bundle, p 1.

The claimant submitted that the motor accident caused damage to the right side of the C5/6 disc requiring surgical treatment, injury to the right shoulder, chest, thoracic spine, left arm, right arm, right hand and injury to the throat consequential upon the cervical spinal surgery.

Claimant’s submissions dated 31 January 2023[49]

[49] Claimant's bundle, p 13.

These submissions were filed seeking leave to review the Medical Assessment. It was noted that the Medical Assessor made no reference to the statements of the claimant dated 16 August 2021 and 1 November 2021. Reference is made to the severity of the impact in the claimant’s statement and his evidence that he developed neck and left arm pain immediately following the accident.
The claimant submitted that the Medical Assessor failed to address the likelihood of the forces of the motor accident causing injury upon the claimant’s weakened cervical spine and causing additional injury. It submitted that there was no evidence that the claimant was suffering from any significant symptomatology in the period leading up to the motor accident.
The claimant referred to the opinion of Dr Korber dated 2 February 2021 who contrasted the findings on MRI scan dated 7 May 2018 with those dated 5 October 2018. Dr Korber opined that the disc herniation related to the motor accident.
The claimant referred to the opinion of Dr Parkinson in October 2018 who referred to an MRI scan dated 5 August 2018 that is two weeks prior to the subject motor accident.[50] In a further report dated 11 October 2018 Dr Parkinson noted the prior MRI scan was a progress scan for a full surveillance of the claimant spinal condition and the subsequent scan in October 2018 showed a new posterolateral disc herniation at C5/6 on the right-hand side.
[50] The scan is dated 7 May 2018. The 5 August scan is 5 August 2013.
The claimant otherwise referred to the opinion of Dr New dated 18 March 2021 who concurred with Dr Korber’s opinion regarding the relationship of the C5/6 pathology to the motor accident.
The claimant otherwise submitted that the Medical Assessor did not correctly apply
cls 6.31 and 6.33 of the Guidelines. It was submitted that the impairment from the 2018 accident was not related to the impairment from the 2006 accident. This is because the motor accident caused a fusion at C5/6 and the prior motor accident caused a fusion at C6/7.

Claimant’s submissions dated 3 March 2023[51]

[51] Claimant’s bundle, p 18.

The claimant noted that the Medical Assessor stated that the “crash was not severe” and this formed an integral part of his reasoning process. It was submitted that the Medical Assessor was not qualified to express an opinion in the way he did on the forces of impact. Furthermore, it is not apparent that the Medical Assessor considered that such forces could cause trauma or aggravate an already damaged and vulnerable spinal column.
The claimant submitted that the Medical Assessor answered the wrong question by looking at an alternative explanation. The claimant submitted that the correct question(s) was “did the 2018 accident cause the alleged injuries and subsequent surgery?”

Claimant’s submissions dated 26 July 2023

The claimant referred to the chiropractic records and noted that they resumed on
12 July 2018 with left-sided neck pain. It was noted that the entry on 4 October 2018 noted severe pain in the right side radiating down the arm suggesting that C6 involvement.
The claimant referred to the MRI scan dated 7 May 2018 and submitted that there was “no significant deterioration of the cervical spine arising from the prior fusion at C6/7” which was inconsistent with the theory of degeneration proposed by Medical Assessor Cameron. The disc protrusion at C5/6 was noted to have only progressed slightly since the previous study, presumably the one undertaken in August 2013.
In October 2018 Dr Parkinson noted significant right sided C6 motor radiculopathy and suggested surgery without undue delay. The doctor opined that the pre-accident MRI scan only showed a slight bolt on the right-hand side whereas the October 2018 MRI scan showed a clear sequestrated right C5/6 disc fragment causing compression of the right C6 nerve root.
The claimant submitted that the words “in the same region” in cl 6.31 of the Guidelines refer to the bodily region and for the purposes of this claim would include the neck or cervical spine.[52]
[52] Claimant’s further submissions, paragraph 15.
The claimant made further submissions as to why the medical assessment certificate provided by Medical Assessor Cameron was incorrect in a material respect. Even though we are required to undertake a new assessment and not an appeal from the medical assessment certificate we have noted the submissions for the purposes of attempting to avoid the same error.
The claimant submitted that the statement by the claimant contradicted the finding that this was a “low velocity crash”.
It also submitted that the Medical Assessor provided no reasoning as the evidence upon which he relied in reaching the determination that there will be rapid degenerative changes above and below the fusion because of the increased forces of the fused segment. The claimant noted that the parties had no opportunity to address that proposition.
The claimant submitted that there was no reasoning for the rejection of the opinion of Dr Korber which should be read in conjunction with the opinion of Dr New.
The claimant submitted that the Medical Assessor failed to consider the claimant’s evidence concerning the purported significant delay in the development of symptoms.
The claimant noted that the first spinal fusion was at C6/7 whereas the 2020 surgery was at the adjacent level (C5/6). He also noted that there was no assessment scarring resulting from the 2020 spinal surgery.
The claimant referred to the test of causation in cl 6.6 of the Guidelines.
The claimant reiterated his reliance on the statement dated 18 August 2021 (paragraphs 25 and 26) and the history of the onset of symptoms post-accident including those experienced at the accident scene. He also referred to his subsequent statement dated 1 November 2021 (paragraph 22) as to his explanation of how he came to sustain a neck injury.
In relation to pre-existing impairment the claimant referred to his primary submissions dated 31 January 2021. He noted in particular cls 6.33 and 6.114 of the Guidelines and submitted “that the injury to C5/6 arising from the subject accident is not related to the previous surgery”. The claimant referred to the opinion of Dr Parkinson, Dr New which was supported by the evidence of Dr Korber.

Insurer’s submissions dated 24 August 2021[53]

[53] Insurer’s bundle, p 1.

The insurer referred to the fusion surgery undertaken in September 2008 and the subsequent assessments by a variety of doctors at 25% or 35% permanent impairment. It noted the MRI scan of the cervical spine dated 7 May 2018 which showed the previous fusion C6/7 and a shallow right paracentral disc protrusion at C5/6.
The insurer noted that there were significant issues as to the severity of the motor accident and referred to the statement of the insured dated 27 October 2020.
The insurer noted the claimant was not attended by ambulance personnel nor was he transported to hospital. It appeared that the first medical consultation was seven weeks after the motor accident.
In the claim form the claimant did not record injuries to any other body part other than the neck. That was consistent with the histories recorded by Dr Parkinson, Dr Taylor, Dr New and the clinical notes of the general practitioner.

Insurer’s submissions dated 20 February 2023[54]

[54] Insurer’s bundle, p 5.

These submissions were filed opposing the application to review the medical assessment.
The insurer submitted that the Medical Assessor examined all relevant material and took a clear history of the circumstances of the accident. It was noted that a mere difference of opinion did not constitute error.
The Medical Assessor otherwise did not assess the other injuries as he found that they were not caused by the motor accident.
The insurer submitted that the injuries claimed were unrelated to the motor accident due to the significant delay in the development of the symptoms.

Insurer’s submissions dated 4 August 2023

The insurer referred to the notes of the chiropractor dated 10 July 2018, 30 August 2018 and 13 September 2018. It submitted that the first recorded complaint of pain in the cervical spine relating to the motor accident was on 5 October 2018. It submitted that this was a significant delay which supported its submission that the motor accident was not significant.
The insurer noted that the claimant had a prior C6/7 discectomy and fusion with assessable impairment of either 25% or 35%. It noted that there was objective evidence of impairment which was symptomatic because the claimant was receiving chiropractic treatment and had undergone a recent MRI scan.
The insurer referred to cls 6.31 and 6.32 of the Guidelines and emphasised the words “same region”. It submitted that these words apply to the cervical spine as a whole and referred to various other clauses in the Guidelines which supports that interpretation. The insurer referred to:
(a)     clause 6.114 of the Guidelines and the words “spinal condition” or “spinal surgery” which refer to the spine as a whole;
(b)     clause 6.132 of the Guidelines which provides that multiple impairments in the spinal region must not be combined supporting the view that “each spinal region is to be assessed as a whole”;
(c)     clause 6.146 refers to multilevel compromise and “indicates that there can be only one impairment for each spinal region”;
(d)     clause 6.129 of the Guidelines which refers to “three regions of the spine” and a DRE category II finding refers to “movements of the spine [sic region?] as a whole, and not the movements of the discs contained in the spine”, and
(e)     clause 6.115 of the Guidelines which refers to “spine regions”, again a reference to the spine as a whole and not the discs contained in the spine.
The insurer submitted that cl 6.33 did not apply because “the pre-existing permanent impairment of the cervical spine is relevant to the permanent impairment of the cervical spine, if any, arising from the motor accident”.[55]
[55] Insurer’s supplementary submissions, paragraph 13(d).

RE-EXAMINATION

Mr Lazich was examined by Medical Assessor Dixon. The examination report is as follows:
“This 43 year old claimant was rear ended by a sedan which hit the trailer he was towing, causing some damage to the trailer but more severe damage to his own vehicle with a bent tow bar. At the time of the accident he was looking to the left at some paperwork.
He had some pain in his neck radiating to his arms but noted some stiffness in his neck. He did not initially seek treatment but had been having regular maintenance chiropractic treatment prior to the subject MVA and some six weeks after the accident, he attended his chiropractor on 13 August 2018 and 14 September 2019 and tried to continue his work which was a subcontracting lawnmower and gardening business.
On Friday 28 September 2018, some five weeks after the accident, he woke up with severe sharp pain down the right side of his neck, arm and chest and back and had difficulty lifting his head. After lying still, the pain settled and he rolled out of bed onto the floor, after which he took Endone, had a shower and when driving to work, he realised his right hand and arm were weak. He struggled to grip. He had difficulty at work writing and clamping a stapler together and stayed in bed over the weekend, taking Lyrica and Endone and then saw his chiropractor, Lee Perry, who suggested an MRI which was performed on 5 October 2018. These scans were reviewed by Dr Paul Mason, sports physician, on 8 October 2018 who arranged for a CT guided perineural right C6 injection on 10 October 2018 which provided good benefit.
By October 2018 he was struggling physically with right sided issues in his neck and right upper extremity and right trunk and attended one of his previous surgeons, Dr Ian Farey and another spinal surgeon, Dr Richard Parkinson, who advised him to wait and see. He struggled on but found it was difficult to work and care for himself without multiple injections so he agreed to have operative intervention which was C5/6 ACDF (anterior cervical decompression and fusion). Following this procedure there was some improvement in his right arm pain but he still required analgesia and had a further post-surgical C5 peri radicular cortisone injection on 5 May 2023 which gave significant improvement to the pain in his right side although the symptoms in his right arm did recur and he has been having regular C6 and C7 peri neural injections every 4 to 6 months.
On examination at the PIC Suites in Sydney on 13 October 2023 he was 178cm tall and weighed 80kg.
He reported ongoing pain at the right side of his neck radiating to the right shoulder and scapula region and some pain radiating below the scapula region towards the right ribs. He reported paraesthesia in the little and ring fingers of his right hand. He reports his neck pain disturbs his sleep and his neck pain and stiffness impacts on his ability to drive, reverse park, change lanes and check the blind spots. He had difficulty elevating his arm due to trapezial muscle and deltoid pain as well as scapular pain. When he tried to elevate the arm, he felt there was tightness of both the triceps and biceps muscles and he felt generalised weakness in the upper extremity.
There was stiffness of his cervical spine with flexion decreased by one quarter and extension by one half. Lateral rotation to the right was decreased by one third and that to the left by one half and lateral flexion to the left was associated with pulling pain of the right trapezius muscle and lateral flexion decreased by one third bilaterally. There was tenderness of the right trapezius muscle. There were two scars anteriorly both on the left and right following his previous ACDF procedures and there was irregular scarring in the laminectomy region following his procedure in 2018. The anterior scars were tender to deep pressure. He could readily localise them. They were visible in normal clothing and they irritated him when he tried to shave.
His reflexes were symmetrical in both upper extremities. His triceps jerks were mildly decreased. His grip strength, thenar power and intrinsic power were grade 5 out of 5 in both hands. There was sensory alteration grade 4 out of 5 in the little and ring fingers of his right hand.
His cervical compression test was equivocal as was his brachial plexus stretch test. His right supraclavicular brachial plexus was mildly tender.
On elevation of his right shoulder, forward flexion was 130 degrees with active abduction 110 degrees, extension 40 degrees, adduction 40 degrees and external rotation 80 degrees and internal rotation 80 degrees. There was no wasting of his right upper extremity. On resisted protraction of the right shoulder, there was winging of the right scapula.
He had a full range of motion of the left shoulder, both elbows, wrists and hands.
His chest expansion measured 4cm out of 5cm but he did report some discomfort referred to the lower ribs below the scapula.
His investigations include an MRI of the cervical spine on 7 May 2018 which showed a shallow right central disc protrusion with an annular tear with the previous anterior cervical fusion at C6/7. The radiologist noted the C5/6 disc protrusion had progressed slightly following the previous study.
A further MRI of the cervical spine on 5 October 2018 following the subject MVA on 20 August 2018 noted straightening of the lumbar lordosis and posterior annular tear at C4/5 and increased right paracentral disc herniation with moderate canal stenosis and underlying disc abutting the cord and extension of disc herniation towards the right sided foramen with probable compression of the right C6 nerve root.
In summary the right paracentral disc herniation at C5/6 had increased in size since the MRI study of 7 May 2018, prior to the subject MVA.
He subsequently had review by two spinal surgeons and Dr Richard Parkinson performed C5/6 ACDF at St Vincent’s Hospital on 15 June 2020. While there was some improvement in the radicular complaint down his right arm, he felt that whenever he elevated the arm, there was a tight band extending into the triceps and biceps area and that he had mild radicular complaint with paraesthesia in the little and ring fingers of the right hand and had ongoing trapezial muscle and scapular pain.
Nerve conduction studies on 10 September 2019 had noted chronic C5/6 nerve root dysfunction on the right.
Issues of causation are discussed in the Panel’s decision below.”

Immediately following the medical examination, the claimant was asked some further questions by the Principal Member in the presence of Medical Assessor Dixon.
Mr Lazich agreed with the histories contained in the chiropractic notes on 2 and
16 August 2018 that his pre-injury neck condition was settling prior to the motor accident.
Mr Lazich also agreed with the entries in the clinical notes dated 30 August 2018 and 13 September 2018 that his neck was improving with no referred pain on those occasions.
Mr Lazich was referred to the entries of the GP on 2 October 2018 and the chiropractor on 4 October 2018. He stated that the acute onset of neck and arm symptoms occurred around late September 2018 consistent with the histories recorded on 2 October 2018 (GP) and 4 October 2018 (chiropractor). Mr Lazich stated that he woke up one morning with acute neck and right arm pain and that this would have occurred very shortly prior to the attendance on the GP and the chiropractor in early October 2018.

FINDINGS

The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[56] The Panel adopts the examination findings of Medical Assessor Dixon and adds the following further reasons.
[56] Section 7.26(6) of the 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[57] and Insurance Australia Ltd v Marsh.[58]
[57] [2021] NSWCA 287 at [40], [41] and [45].
[58] [2022] NSWCA 31 at [11], [21], [64].

Injury to cervical spine

There are factual disputes concerning the extent of the speed of the insurer’s vehicle at the time of the collision of the motor accident and the claimant’s neck symptoms immediately following the motor accident.
The Panel does not have the expertise to estimate the speed of the impact based on the extent of the damage shown in the photographs. The claimant described the force of the impact in significantly greater terms than that described by the insured.
Mr Lazich otherwise described errors in the insured statement.
However, Mr Lazich acknowledged that he did not see the insured vehicle prior to impact.[59] Accordingly, he cannot give direct evidence of an estimate of the insured vehicle speed prior to impact.
[59] Claimant’s bundle, p 102, paragraph 24.
We are left in the difficult task of determining an issue based on conflicting statements where either party has not qualified a suitable expert to comment on the extent of the force that would be required to bend the tow bar. As Dr Breit noted:
“The force of impact was concentrated on the trailer to the tow ball, the amount of force required bend the unit could be determined.”
The reference to “could be determined” is to an appropriately qualified expert estimating the type of force required to bend the towbar.
The medical expertise on the Panel can state that cervical disc damage can occur at lesser speeds particularly when the injured person had underlying degenerative problems. The May 2018 MRI scan showed that the claimant had underlying degeneration at the C5/6 level. The degeneration at that level was reported to have increased in size when compared to the previous study in 2013.[60] Clearly Mr Lazich had neck symptoms in 2018 prior to the motor accident because he had recently underwent a further MRI scan and re-commenced treatment with the chiropractor.
[60] Claimant’s bundle, p 70.
Dr Korber also identified a predisposition to injury at C5/6 due to the fusion at C6/7.[61]
[61] Claimant’s bundle, p 55.
We accept that this is another factor making the claimant susceptible to injury from a rear end collision.
Accepting that the motor accident could have damaged the disc in circumstances where the neck was turned to the left at the time of impact, the issue is whether the motor accident did cause or aggravate the pathology at C5/6.
It is abundantly clear and self-evident that the C5/6 disc has herniated at some point between the scan taken on 5 May 2018 and in early October 2018.
Apart from the claimant’s acceptance of what was recorded, the notes of the chiropractor on 4 October 2018 indicate precision with respect to complaint of recent onset. The notes on 13 September 2018 otherwise refer to a four-day onset of mid back pain amongst a note that states that the cervical pain was significantly better. The notes for that date are clearly not a repeat of earlier entries and record precise details of recent onset of mid back pain.
The chiropractor notes are contrasted with subsequent histories and evidence such as the claimant’s statement.
The claimant provided a statement dated 18 August 2021. He then stated that he developed immediate neck and left arm pain and that right hand pain developed 7-10 days after the motor accident.[62]
[62] Claimant’s bundle, p 102.
Medical histories provided after the October 2018 MRI scan recorded different versions. On 8 October 2018 Dr Mason noted a mild whiplash injury following the motor accident with a four-week history of right arm pain.[63] On 11 October 2018, Dr Parkinson noted immediate right arm pain following the motor accident.[64]
[63] Claimant’s bundle, p 36.
[64] Claimant’s bundle, p 40.
Courts have also expressed caution in accepting notes recorded by medical practitioners.[65]
[65] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [34]-[36]; Mason v Demasi [2009] NSWCA 227 at [2]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23]; Container Terminals Austral Ltd v Huseyin [2008] NSWCA 320 at [8] and Gulic v O’Neill [2011] NSWCA 361 at [24].
The insurer referred to the chiropractic notes dated 30 August 2018 and 13 September 2018 which were inconsistent with a history of recent injury. In its recent submissions the claimant did not offer any explanation of the inconsistency between those notes and the claimant’s statement.
Somewhat inconsistently with the notion of caution as to medical notes, legal precedent emphasises the importance of contemporaneous records over the fallibility of human recollection.[66]
[66] Coote v Kelly [2016] NSWSC 1447 per Davies J, and the passages extracted from Onassis v Vergottis [1968] 2 Li Rep 403 at 431, Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[22], Campbell v Campbell [2015] NSWSC 784 at [73]-[76], and Watson v Foxman (1995) 49 NSWLR 315 at 319 per McLelland CJ in Eq.
The importance of contemporaneous statements and documents was the subject of comment by Davies J in The Nominal Defendant v Cordin[67] when his Honour stated:[68]
“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.”
[67] [2017] NSWCA 6.
[68] At [167].
The claimant’s statement of deteriorating neck symptoms following the motor accident is inconsistent with the post-accident notes of the chiropractor that describe improved symptoms. The suggestion that right arm symptoms developed 7-10 days after the motor accident is inconsistent with the precise clinical note on 4 October 2018.
As we noted, the claimant accepted the chiropractor notes, specifically that the neck condition (for which he was having treatment before the motor accident) was improving during the consultations on 30 August 2018 and 13 September 2018, and the record of onset of right arm symptoms (consultation on 4 October 2018).
Absent that agreement by the claimant, we would have been cautious in accepting the accuracy of the notes of the chiropractor, although, as we noted, the notes recorded on 13 September 2018 are precise and suggest accuracy.
The claimant referred to the opinions expressed by Dr Korber and Dr New who both opined that the herniated disc was caused by the motor accident.
Dr Korber noted that the herniation was based on the motor accident “if it is clinically confirmed”. Dr New based his opinion on a history that following the motor accident the claimant had “significant increase in his neck and left arm pain” with pain extending to the right hand.
It is our view that the C5/6 disc herniated around late September 2018 for the following reasons.
First, the records of the chiropractor for attendances on 30 August 2018 and 13 September 2018 record a neck condition that was improving. Those notes state no referred pain which is grossly inconsistent with a herniated disc.
Secondly, the note of the chiropractor on 4 October 2018 refers to right sided referred pain developing “in the past few days”. The express reference in those notes is to recent onset and is consistent with the development of the herniated disc at that time. This note is precise and consistent with the attendance on the GP on 2 October 2018.
The clinical notes of the GP on 2 October 2018 are vague, do not mention a time of onset of right arm symptoms and do not precisely describe the symptoms. The doctor then referred the claimant for a CT scan of the thoracic spine describing the pain in the “upper thoracic area”. However, the presentation by the claimant to the GP at that time is consistent with a recent onset of symptoms.
Thirdly, the claimant underwent an MRI scan of the cervical spine on 5 October 2018 which showed the herniated disc at C5/6. The timing of the scan is consistent with a recent onset of radicular symptoms.
Fourthly, the claimant advised Medical Assessor Dixon in the examination that the right sided symptoms developed on 28 September 2023. He also advised the Principal Member and Medical Assessor Dixon that the notes of the chiropractor on 4 October 2018 were correct, that is right sided referred pain developing in the past few days.
Fifthly, the claimant agreed that the chiropractor notes on 30 August 2018 and 13 September 2018 were correct, that is the neck pain was significantly better since the previous visit and there was nil referred pain.
For these reasons we do not accept that the histories recorded by various doctors such as Dr New are accurate. The absence of a proper history undercuts the value of the opinion as it is not based on a fair climate.[69]
[69] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
It is both a matter of commonsense and logic, and otherwise basic medical knowledge, that the temporal relationship between the onset of symptoms and an event is relevant to causation. The longer the delay in onset of symptoms, the less likely that there is a causal link between the occurrence of an event and injury.
The claimant submitted that the Medical Assessor had erred because he noted a more likely cause, that is the pre-existing fusion at the adjacent level.
We do not agree with the claimant’s submission that alternative explanations are irrelevant. We accept the claimant’s submission that the question that must answered is whether the disc pathology at C5/6 or indeed any cervical spine injury was caused or aggravated by the motor accident. However, in answering that question it does not mean, as the claimant submitted, that alternative causes are irrelevant to the determination of the ultimate question.
Dr Korber seemed to suggest that the motor accident was the plausible explanation for the disc herniation. However, the claimant indicated that at the time of the motor accident he “performed residential and commercial maintenance and landscaping, mowing, gardening and handyman services, recruitment and physical training of new franchises”.[70] The claimant advised Medical Assessor Dixon that he continued with his work following the motor accident. That type of work can self-evidently lead to spinal injury by reason of the physical nature of the work.
[70] Claimant’s bundle, p 100, paragraph 9.
We are conscious of the test of causation, noting that the claimant was susceptible to injury at C5/6 because of the pre-existing degeneration and the fusion at C6/7 which necessarily placed stress on the adjacent levels. In that respect we agree with the original Medical Assessor that a fusion at one level places stress at adjacent levels and can lead to adjacent level degeneration over time.[71]
[71] See our reasons at [196] herein.
Whilst we have not determined the issue of causation based on alternative causes, we note that this is not a case where we can find that there are no alternative causes for the subsequent C5/6 herniation, bearing in mind that the motor accident need only be a material contribution to injury. That injury can be by way of aggravation of a pre-existing condition. The other causes may explain the subsequent herniation at C5/6.
Finally, we note that our causation finding differs from what was implicitly found by Medical Assessor Payten. We are not bound by those findings and are required to form our own view.
For these reasons we are not satisfied that the motor accident caused any cervical spine injury or aggravated the pre-existing cervical spine, particularly at the C5/6 level.
Accordingly, there is no need or right to assess either impairment of the cervical spine or the scarring which resulted from the surgery.

Other injuries

The claimant has asserted that he sustained other injuries caused by the motor accident.
The right arm was not injured in the motor accident. There were various right arm symptoms that developed in late September 2018 due to the C5/6 herniated disc. For the reasons expressed earlier, those right arm symptoms do not relate to the motor accident.
There is no indication that the motor accident caused a left arm injury. There was pre-accident left arm symptoms which were referable to the pre-existing disc pathology. For the reasons expressed earlier, we are not satisfied that there was any cervical spine injury which in turn would have led to further radiculopathy in either arm.
Any injury to the chest, based on the examination findings of Medical Assessor Dixon, did not cause any assessable impairment.
The claimant also alleged injury to the thoracic spine. There is reference by the chiropractor on 13 September 2018 to a four-day history of mid back pain with nil radiation and tightness around lateral ribs.
In May 2019 Ms Leigh Perry noted an insidious onset of thoracic tightness and pain a few weeks earlier. A chest X-ray dated 20 May 2019 was reported as normal. The thoracic spine X-ray of the same date showed moderate mid thoracic scoliosis convex to the right with no compression.
It is plausible that the motor accident may have caused some soft tissue injury to the thoracic spine. However, the reference by the chiropractor on 13 September 2018 to a four-day history of onset of pain and then in May 2019 to a development of thoracic pain a few weeks earlier, read with the scoliosis shown on X-ray, suggests that the likely explanation is that there was no injury and that the claimant has infrequent but occasional thoracic spine symptoms unrelated to the motor accident.

Pre-existing causing impairment

The issue of pre-existing impairment was the subject of further submissions. It is strictly unnecessary to deal with this as the claimant has not established any impairment. However, we make some brief observations as the point is novel and not the subject of any authority.
The AMA 4 guidelines under the workers compensation legislation have the force of delegated legislation.[72] The Guidelines for assessment for permanent impairment assessment under the motor accidents legislation probably have similar force to those issued under the workers compensation legislation. Accordingly, the general principles of statutory construction apply: Collector Customs v Agfa Gevaert Ltd[73] adopting Dixon J (as his Honour then was) in King Gee Clothing Co Pty Ltd v The Commonwealth.[74]
[72] Ballas v Department of Education [2020] NSWCA 86 at [97].
[73] [1996] HCA 36.
[74] [1945] HCA 23; (1945) 71 CLR 184 at [195].
The principles of statutory construction are well settled. As the plurality stated in Military Rehabilitation CommissionvMay,[75] the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority[76] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[77]
[75] [2016] HCA 19 at [10].
[76] [1998] HCA 28 at [69]-[71].
[77] [2009] HCA 41 (Alcan).
We agree with the insurer’s submission that the cervical spine would have been assessed at DRE Category IV prior to the motor accident due to the C6/7 discectomy and fusion which is classified as a multilevel neurologic compromise. Despite assessments many years previously that the claimant may have been classified as DRE Category V, the evidence prior to the motor accident shows that the cervical spine condition had improved with recent chiropractic treatment. There were no recent reports of referred pain in the treatment examinations immediately preceding the motor accident. Accordingly, there is no evidence of radiculopathy immediately preceding the motor accident.
The claimant was symptomatic prior to the motor accident having attended a number of chiropractic treatments, the last one as recently as four days before the motor accident. The clinical note on 16 August 2018 referred to the claimant being “significantly better” which does not mean that the pain had resolved. On 16 August 2018 the clinical note indicated further review in two weeks.
The submissions between the parties on the construction issue direct attention to the meaning of “the same region” in cl 6.31 of the Guidelines.
The claimant submitted:[78]
“[T]hat reference to region the reference to bodily regions and for the purposes of the claimant claims would include the neck or cervical spine as a bodily region, in accordance with accepted medical usage of the term bodily region.”
[78] Claimant’s further submissions, paragraph 15.
Despite what the insurer stated, the claimant’s submissions were not inconsistent with the insurer’s submission on the meaning of “same region” in cl 6.31.
For the following reasons, the “same region” refers to the assessment of that area as required by AMA 4 and the Guidelines. With respect to the spine that means that the regions are the cervicothoracic, the thoracolumbar or the lumbosacral areas.
Clauses 6.31 to 6.33 provides:
“6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”

Clause 6.32 refers to assessing “spine impairment”. Those words support the conclusion that the spine consist of three regions. It would be absurd to read spine in cl 6.32 as referring to the entire spine. In any event the reference in cl 6.32 where it adopts AMA 4 is not as precise as cl 6.31 which refers to the “same region”.
Other clauses within the Guidelines support the contextual interpretation set out above.
Clause 6.115 refers to the “three spine regions” and specifies that they relate to the “cervical, thoracic and lumbar regions”.
The application of the “DRE method” is contained in cls 6.128 to 6.132 of the Guidelines. Those clauses refer to the cervical, thoracic and lumbar spine being assessed separately. Separate injuries to the different regions can be combined (cl 6.131) but multiple impairments within the one region must not be combined. The highest DRE category for that region is to be chosen (cl 6.132).
These clauses show that the application to the “DRE method” applies to each spinal region.
This conclusion is consistent with Table 70 of AMA 4 which refers to the impairment categories for the cervicothoracic, thoracolumbar and lumbosacral regions. Tables 72 to 74 provide specific assessments for the respective DRE categories in the three spinal regions. This is another clear indication that each region of the spine is separately assessed.
Clause 6.114 refers to cl 6.33 of the Guidelines. Clause 6.114 supports this construction and is otherwise relevant to the “assessment” issue. Clause 6.114 provides:
“Medical assessors must consider whether any pre-existing spinal condition or surgery is related to the motor accident, is symptomatic and whether this would result in any or total apportionment. Where a pre-existing spinal condition, or spinal surgery, is unrelated to the injury from the relevant motor accident, the medical assessor should rely on clause 6.33”.
Clause 6.114 indicates that a pre-existing spinal condition or surgery is included in assessment unless it is disregarded due to cl 6.33.
Accordingly, we accept that the claimant had a pre-existing DRE category IV for the cervical spine region based on the symptomatic fusion at C6/7.
The issue is therefore whether the pre-existing fusion at C6/7 is “unrelated or not relevant to the impairment arising from the motor accident” within the meaning of cl 6.33. The determination of that question in this matter involves whether the C6/7 fusion Is “unrelated or not relevant” to the subsequent C5/6 fusion.
The insurer made the broad submission, without any reference to evidence, that the pre-accident condition was not “unrelated or not relevant”. It did not explain this submission.
The applicant suggested it had been denied procedural fairness because the opinion of Medical Assessor Cameron concerning adjacent level degeneration caused by a fusion was an opinion that had not been raised by the parties. Whilst that is correct, that opinion has now been raised with the parties. The claimant has filed further updated evidence in the matter without addressing that issue.
Adjacent level degeneration over the years is a recognised complication of fusion surgery due to the stress placed on the surrounding joints because of the fused level. The observation of the Medical Assessor that this may occur is consistent with the scan evidence in 2013 and subsequently in May 2018 which showed a deteriorating disc at C5/6.
Having made these observations, the issue for determination of the pre-existing impairment is whether, within the meaning of cl 6.33, the fusion at C6/7 was unrelated or not relevant to the subsequent fusion and resulting impairment at C5/6.
Based on our earlier findings on absence of injury, it is unnecessary to answer that question. If we are wrong on the question of cervical spine injury, then it is necessary to determine this issue.

CONCLUSION

The medical assessment certificate is confirmed.

[2023] NSWPICMP 562

8 November 2023