Mason-Balshaw v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 501

DETERMINATION OF REVIEW PANEL

CITATION:

Mason-Balshaw v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 501

CLAIMANT:

Deborah Mason-Balshaw

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Michael Couch

MEDICAL ASSESSOR:

Sophia Lahz

DATE OF DECISION:

10 July 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (MAC Act); Motor Accident Injuries Act 2017 (MAI Act); review of Medical Assessment Certificate (MAC); permanent impairment; accident on bus on 30 April 2019; assessment of whole person impairment (WPI) under the MAC Act; assessment of treatment dispute under the MAI Act; causation; cervical, thoracic and lumbar spine, right shoulder, left elbow, wrist and hand, head injury, and right hip; discectomy and fusion surgery; the claimant was injured in an accident whilst on a public bus which braked suddenly to avoid an unidentified vehicle; NRMA also managing statutory benefits claim; longstanding history of cervical and lumbar spine complaints; lack of contemporaneous complaint; Held – per Briggs v IAG Limited t/a NRMA Insurance, the relevant legal test in relation to causation does not require scientific certainty; accident caused soft tissue injury to head (resolved); injuries to cervical spine, thoracic spine, lumbar spine, right shoulder, left elbow, left wrist and left hand; injury to right hip not caused by accident; MAC revoked; new MAC issued with WPI assessed at 19%; three-level discectomy and fusion at C4/5, C5/6 and C6/7 related to the injury caused by the accident but not reasonable and necessary in the circumstances.

DETERMINATIONS MADE:  

issued under Part 3.4 of the Motor Accidents Compensation Act 1999

following a review under s 63 as to

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%

1.     The Review Panel revokes the certificate of Medical Assessor Cameron dated 5 October 2024 and determines that the accident was a cause of the following injuries which give rise to a permanent impairment which is greater than 10% and is 19%:

·        head – soft tissue injury (resolved);

·        cervical spine – aggravation of pre-existing degenerative changes;

·        right shoulder – a non-displaced stress fracture/bone contusion;

·        left elbow – soft tissue injury;

·        left wrist – soft tissue injury;

·        left hand – soft tissue injury;

·        thoracic spine – soft tissue injury, and

·        lumbar spine – aggravation of pre-existing symptomatic degenerative lumbar spondylosis.

2.     The Review Panel finds the following injury referred for assessment was not caused by the accident:

·        injury to the right hip.

ASSESSMENT OF TREATMENT AND CARE

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

3.     The three-level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by treating neurosurgeon Dr Coughlan is related to the injury caused by the accident.

4.     The three-level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by treating neurosurgeon Dr Coughlan is not reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

1. On 30 April 2019 Ms Mason-Balshaw (the claimant) was a passenger on a bus. She was walking down the aisle when the bus accelerated and then braked suddenly as an unidentified vehicle came into its path causing the claimant to lose her footing and hit her head on a pole before landing on the floor on her right side (the accident).

2. Ms Mason-Balshaw made claims against both the bus and the unidentified vehicle.

3. Ms Mason-Balshaw may have an entitlement to both statutory benefits and common law damages arising out of the accident.

Claim against NRMA Insurance (in respect of the bus)

1. Insurance Australia Limited trading as NRMA Insurance (NRMA) is the insurer for the bus in respect of the claim for common law damages. As a result of the recent decision of the Court of Appeal in McTye v Ching Yu Chang by his tutor Leo Alexander Birch[1] the assessment of common law damages arising out of the negligence of the driver of the bus will be assessed in accordance with the Motor Accidents Compensation Act, 1999 (the MAC Act).

   [1] McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3.

2. Section 131 of the MAC Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

3. In dispute is whether the degree of permanent impairment sustained by Ms Mason-Balshaw as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]

   [2] Sections 57 and 58 of the MAC Act.

4. Ms Mason-Balshaw also has an entitlement to statutory benefits (including treatment expenses) under the Motor Accident Injuries Act, 2017 (the MAI Act) against the insurer of the bus. NRMA is also managing the claim for statutory benefits to which Ms Mason-Balshaw is entitled under the MAI Act.

5. There is a treatment dispute between the claimant and NRMA on behalf of the bus. On 19 June 2023 Dr Marc Coughlan asked the insurer to fund a C4/5, C5/6 and C6/7 anterior cervical discectomy and fusion procedure (the proposed surgery).

6. NRMA declined the treatment request for the proposed surgery on the basis the surgery was not reasonable and necessary and, that the need for it, if any, did not arise from the accident.

7. NRMA affirmed the decision following an internal review.

8. Under Schedule 2, cl 2 of the MAI Act the question of whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident is a medical assessment matter which is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]

   [3] Section 7.20 of the MAI Act.

9. The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the permanent impairment dispute and the treatment dispute between the parties.

10. Both the permanent impairment dispute and the treatment dispute were referred to Medical Assessor Cameron for assessment. Medical Assessor Cameron issued a certificate dated 5 October 2024 in which he certified the claimant had not sustained a greater than 10% whole person impairment (WPI) as a result of injury caused by the accident. He also certified that treatment and care in the form of a three-level discectomy and fusion of the claimant’s cervical spine was not related to an injury caused by the accident and was not reasonable and necessary in the circumstances.

11. The claimant has sought a review of that assessment.

Claim against Allianz Insurance (in respect of the unidentified vehicle)

1. Allianz Australia Insurance Limited acts as the agent for the Nominal Defendant (Allianz) in respect of the unidentified vehicle. The claim for common law damages arising out of the negligence of the driver of the unidentified vehicle will be assessed under the MAI Act.

2. Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

3. There is a dispute against Allianz in respect of the unidentified vehicle as to whether the degree of permanent impairment sustained by Ms Mason-Balshaw as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act which is determined in accordance with Division 7.5 of the MAI Act by a medical assessor.

4. The claimant filed an application with the Commission seeking a medical assessment to resolve the permanent impairment dispute against Allianz.

5. In matter No R-M21611/24-01-1 as against Allianz, Medical Assessor Cameron issued a certificate dated 5 October 2024 in which he certified the claimant had not sustained a greater than 10% whole person impairment as a result of injury caused by the accident. The claimant has sought a review of that assessment.

6. The claimant has sought a review of that assessment.

7. Both applications for review have been referred to this Review Panel (Panel).

MOVING FORWARD

1. Pursuant to rule 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel “is to conduct and determine the proceedings in accordance with procedures determined by the panel”.

2. Where the interests of the insurers coincide in respect of the two medical reviews the Panel decided to assess both disputes together with the evidence in one matter to be the evidence in the other.

3. Whilst both medical reviews are to be heard together the balance of these Reasons for Decision will address the following disputes against NRMA:

   ·        the permanent impairment dispute assessed under the MAC Act, and

   ·        the treatment dispute assessed under the MAI Act.

4. The dispute against Allianz for the assessment of permanent impairment under the MAI Act will be the subject of a certificate and reasons for decision in matter No. M21611/24-01-1

DOCUMENTS CONSIDERED BY THE PANEL

1. On 5 February 2025 NRMA uploaded to the portal a bundle of documents paginated from pages 1 to 1,083 (NRMA’s documents).

2. On 14 February 2025 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 13 (claimant’s documents) which did not include any documents already contained in the documents furnished by NRMA.

28.On 25 February 2025 Allianz uploaded to the portal a bundle of documents paginated from pages 1 to 801 (Allianz’s documents) which were in addition to the documents already uploaded by the claimant and NRMA.

RELEVANT STATUTORY PROVISIONS

Permanent Impairment dispute under the MAC Act

1. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). Whilst the Guidelines are said to be effective from 1 June 2018 and relate to motor vehicle accidents that occurred between 5 October 1999 and 30 November 2017, the Panel notes that these Guidelines apply to the assessment of damages under the MAC Act. Section 131 states no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person caused by the accident is greater than 10%. In accordance with s 132 disputes as to permanent impairment are to be determined by a medical assessor under Part 3.4 of the MAC Act and s 133 states that the assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Medical Guidelines issued for that purpose. Accordingly, where damages are assessable under the MAC Act the Panel finds these are the applicable Guidelines.

2. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[4]

   [4] Clause 1.2 of the Guidelines.

3. Causation of injury is addressed in the Guidelines:

   “1.5   An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

   1.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

   This, therefore, involves a medical decision and a non-medical informed judgement.

   1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

4. Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[5] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.

   [5] Kinchela v Insurance Australia Group Ltd T/as NRMA Insurance [2021] NSWSC 804.

Treatment dispute under the MAI Act

1. Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:

   “(1)    An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-      

   (a)The reasonable cost of treatment and care,

   (b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,

   (c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.

   (2)     No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

ASSESSMENT UNDER REVIEW OF SENIOR MEDICAL ASSESSOR CAMERON

1. The injuries referred to Medical Assessor Cameron for assessment as to permanent impairment were listed as follows:

   ·        head – closed head injury;

   ·        cervical spine injury;

   ·        right shoulder injury;

   ·        left elbow injury;

   ·        left wrist injury;

   ·        left hand injury;

   ·        thoracic spine injury;

   ·        lumbar spine injury, and

   ·        right hip injury.

2. The treatment disputes referred for assessment were:

   ·        whether the three-level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by treating neurosurgeon Dr Coughlan relates to the injury caused by the accident for the purposes of s 3.24 of the MAI Act, and

   ·        whether the three-level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by treating neurosurgeon Dr Coughlan is reasonable and necessary in the circumstances for the purposes of s 3.24 of the MAI Act.

3. Medical Assessor Cameron issued a certificate dated 5 October 2024.

4. He reported Ms Mason-Balshaw had been in receipt of a Disability Support Pension since 2006. She had a history of musculoskeletal issues, noting a work injury in 1990, an L5/S1 fusion in 1994 and right total hip replacement in September 2022. She also had a history of hypercholesterolaemia and anxiety or depression.

5. Medical Assessor Cameron reported Ms Mason-Balshaw exacerbated her back pain and shoulder pain and also developed neck problems. He noted the presence of pain behaviours.

6. He reported asymmetrically reduced range of motion of the cervical spine, to 50% normal generally and to 40% normal on rotation to the left with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints. Nerve tension signs were negative.

7. Medical Assessor Cameron reported inconsistent pain at both shoulders which Ms Mason-Balshaw said was due to variable pain.

8. He reported active range of motion (ROM) of both shoulders as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	90°	120°
Extension	30°	30°
Adduction	30°	30°
Abduction	90°	120°
Internal Rotation	80°	90°
External Rotation	70°	70°

1. He reported left elbow range of movement was 0 to 140 degrees with normal pronation and supination.

2. He noted inconsistent movement of the left wrist due to variable pain. He observed movement at the left wrist as flexion 50º, extension 50º, radial deviation 20º and ulnar deviation 30º.

3. Medical Assessor Cameron noted a full range of motion at the other upper extremity joints. Circumferences of the upper extremities were right 23.5cm and left 24cm.

4. He reported markedly and symmetrically reduced range of motion at the thoracic spine, to (50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints.

5. Medical Assessor Cameron reported markedly and symmetrical reduced range of motion at the lumbar spine (to 50% normal) in all planes with no muscle spasm, no muscle guarding no dysmetria and no non-verifiable complaints. Nerve tension signs were negative.

6. He found full range of motion at both knees with no crepitus or instability. He found a full range of motion at the other lower extremity joints including the hips. He found no neurological abnormalities in the lower extremities. Circumferences of the lower extremities were right 37cm and left 38cm. He found no specific gait abnormality.

7. Medical Assessor Cameron reviewed the available medical evidence. The first consultation with Dr George of Thirroul Medical Centre was on 3 May 2019 when he reported a laceration on the right side of the head, bruising on the left arm and severe pain from the left shoulder. Dr Dewey of Woy Woy Medical Practice noted the bus accident on 16 September 2019 when he recorded right shoulder and head injuries with aggravation of the back.

8. Medical Assessor Cameron reported there were no symptoms from the cervical spine or thoracic spine reported for about four months after the accident.

9. Medical Assessor Cameron concluded Ms Mason-Balshaw did not sustain injury to the cervical spine or thoracic spine in the accident. He found she had long-standing cervical spinal degenerative disease that that been symptomatic intermittently prior to the accident.

10. He concluded she sustained soft tissue injuries to the head, the lumbar spine, the right shoulder, the left elbow, the left wrist, the left hand and the right hip. He found no evidence of cervical or lumbar radiculopathy or traumatic brain injury.

11. Medical Assessor Cameron found the head injury was not assessable where there were no recorded abnormalities in the Glasgow Coma Score, no post traumatic amnesia and no brain imaging abnormalities associated with brain trauma. He assessed the lumbar spine as Diagnostic Related Estimate (DRE) lumbosacral category I or 0% WPI. Due to inconsistent movements of the right shoulder, he assessed it by analogy. Due to moderate crepitation, he assessed 3% WPI. He found 0% WPI of the left elbow. Similarly, he assessed the left wrist by analogy to mild crepitation, assessing 1% WPI. He assessed 0% WPI for the left hand and 0% WPI for the right hip.

1. Medical Assessor Cameron certified a 4% WPI arising out of the accident.

2. In respect of the cervical spine Medical Assessor Cameron stated:

   “The contemporaneous clinical records do not show symptoms from the cervical spine (or thoracic spine) for a significant time (about four months) after the subject bus incident. After the incident there were multiple clinical consultations where other symptoms were recorded. Ms Mason-Balshaw has long standing cervical spinal degenerative disease that had been symptomatic intermittently prior to the subject incident. Her current symptoms from the cervical spine are non-specific and likely due to cervical degenerative disease. This was not aggravated or exacerbated by the bus incident.”

3. Medical Assessor Cameron also concluded there was no indication for spinal fusion. He reported Ms Mason-Balshaw had non-specific neck pain without evidence of radiculopathy or myelopathy. He also noted a long history of chronic pain. He found the surgery was not reasonable and necessary because there was no clear indication for it and because the claimant was likely to have continuing pain irrespective of surgical treatment. He noted that had been the case following surgery to her lumbar spine.

4. Medical Assessor Cameron issued a certificate dated 5 October 2024 in which he certified that the three level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by Dr Coughlan did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances.

REVIEW PROCEDURE

1. The claimant has sought a review of the medical assessment of Medical Assessor Cameron.

2. The claimant lodged an application for review of the medical assessment on 11 November 2024 within 30 days of the date on which the certificate was made available to the parties.

3. On 11 December 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.

4. Rules 127 to 130 of the PIC Rules are made pursuant to Part 5 of the Personal Injury Commission Act, 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.

5. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

6. On 20 February 2025 the Panel agreed an examination was necessary.

EVIDENCE BEFORE THE REVIEW PANEL

1. Ms Mason-Balshaw was 58 years of age at the date of accident and is now 64 years of age.

Pre-accident treating medical evidence

1. A left shoulder ultrasound on 1 July 2010 demonstrated a full thickness tear of the supraspinatus tendon, associated with a mild subdeltoid bursitis.[6]

   [6] NRMA’s documents p 429.

2. On 13 October 2016 the claimant was referred by her general practitioner (GP) to the Neurosurgical Outpatients Clinic at John Hunter hospital for review of neck pain, brachialgia and right arm pain.[7]

   [7] NRMA’s documents p 52.

3. On 15 April 1008 Dr Wild referred the claimant to Woy Woy Hospital for review by a pain management specialist of “long term moderate to severe neck pain following any injury some years ago”.[8]

   [8] NRMA’s documents p 56.

4. On 6 June 2011 the claimant complained of paracervical pain radiating into shoulders, occiput, tender trap muscles.

5. A CT scan of 10 June 2011 noted cervical spondylosis mainly affecting the C4/7 to C6/7 levels with probable compression of the exiting left C5 nerve, both C6 nerves and the left C7 nerve.

6. On 5 July 2011 Dr Dewey GP of Umina Surgery referred the claimant to the Neurosurgical Outpatient’s Department of Prince of Wales Hospital for “chronic severe debilitating pain experienced in the occipital and bilateral trapezius regions”.[9]

   [9] NRMA’s documents p 60.

7. On 19 August 2011 the claimant saw Dr Hamdan, neurosurgical registrar at Prince of Wales Hospital in respect of worsening neck pain and shoulder pain that she described as burning or tingling.[10] He reported there was no radiation of pain down her arms nor was there any numbness or paraesthesia’s in her arms or hands. He noted normal power of her upper limbs. Sensation was intact in the upper limbs. Dr Hamdan recommended bilateral C4/5 peri-vesicular injection and an MRI of the cervical spine.

   [10] NRMA’s documents p 61.

8. The claimant underwent CT guided perineural injections to the left C4/5 on 19 September 2011 and to the right C5 on 23 September 2011.[11]

   [11] NRMA’s documents p 62 and p 63.

9. Ms Mason-Balshaw was reviewed in the Neurosurgical Clinic at Prince of Wales Hospital on 27 January 2012.[12] She reported pain at the back of the neck with some paraesthesia and bilateral pain. She complained of a nonspecific distribution of pain going over the shoulder and down the arms bilaterally. She had no weakness or sensory disturbance, and all her reflexes were intact. It was noted that a recent MRI scan showed multilevel foraminal stenosis at the C4/5 and C6/7 levels. She was noted as a potential candidate for surgical intervention.

   [12] NRMA’s documents p 64.

10. The claimant underwent a CT guided epidural injection of L3-L4 on 17 May 2012.[13]

    [13] NRMA’s documents p 63.

11. The claimant underwent CT guided perineural injections to the left C4/5 on 24 May 2012 and to the right C5/6 on 31 May 2012.[14]

    [14] NRMA’s documents p 65.

12. On 12 September 2012 Dr Dewey referred the claimant to Dr Hamdan for review.

13. The claimant had the following repeat CT guided perineural injections:

    (a)    8 January 2013 to left C5;

    (b)    15 January 2013 to right C5;

    (c)    17 December 2013 to left C5, and

    (d)    21 January 2014 to right C6.[15]

    [15] NRMA’s documents pp 68-69.

14. The claimant underwent CT guided epidural injections to the lumbar spine on 23 June 2014.

15. On 1 July 2014 Dr Dewey referred the claimant to Prince of Wales outpatient clinic for review of “cervical and lumbar pain radiating into her left upper limb and left leg” and requesting an opinion on surgical intervention.[16]

    [16] NRMA’s documents p 70.

16. A CT scan of the cervical spine on 22 July 2014 showed foraminal narrowing from C4/5 to C6/7 with possible nerve root compressions at left C5 and right C6.

17. The claimant underwent CT guided perineural injections to the left C4/5 on 19 August 2014 and to the right C5/6 on 2 September 2014.[17]

    [17] NRMA’s documents pp 71 and 74.

18. The claimant underwent CT guided left L4-5 peri-foraminal injection on 2 May 2015.[18]

    [18] NRMA’s documents p 80.

19. On 6 March 2015 the claimant saw Dr Jonathan Curtis, neurosurgeon.[19] He reported she underwent an L5/S1 pedicle screw fusion in 1994 following which she was well for a period with no leg symptoms until about a year earlier. He said it was difficulty to typify the leg pain because it was variable. He reported there was no suggestion of nerve compression in the lumbar spine. He did not think the claimant’s symptoms were surgical. He noted in the upper limbs she had variable pain affecting both sides which appeared to best fit a C6 nerve root problem. He recommended an MRI of the cervical spine.

    [19] NRMA’s documents p 77.

20. An MRI of the cervical spine of 14 April 2015 noted narrowing of the intervertebral foramina at C4/5, C5/6 and C6/7 due to bony encroachments.

21. On 14 June 2016 Dr Alan George GP of Thirroul Medical Centre reported complaints of chronic neck and back issues post an accident in 1990.

22. On 31 May 2017 Dr George reported complaints of severe pain in the neck and radiculopathy (reduced sensation in the left arm, weakness, shooting pains) following a physiotherapist session.

23. An MRI scan of the cervical spine of 27 June 2017 showed foraminal narrowing at the levels C4/5 to C6/7, impingement of left C5 and bilateral C6 and C7 nerve roots.

24. On 11 April 2018 the claimant had an ultrasound guided injection for right trochanteric bursitis.[20]

    [20] NRMA’s documents p 827.

25. On 5 February 2018 the claimant asked Dr George for a steroid injection for her C5/7 level disc problems.

26. On 14 January 2019 the claimant had a CT guided right L4/5 facet joint injection.[21]

    [21] NRMA’s documents p 830.

Application for personal injury benefits

1. In the application dated 3 May 2019 the claimant described her injuries as:

   (a)    laceration to the right side of the head;

   (b)    neck, shoulder, and arm pain, swelling and bruising on the right-hand side of her body, and

   (c)    injury to the left side of the wrist, hand and arm causing a haematoma, swelling and bruising.[22]

   [22] NRMA’s documents p 47.

2. The claimant disclosed she had a chronic neck and back injury sustained in an accident in 1990.

Post accident treating medical evidence

1. The ambulance report dated 30 April 2019 provides the following summary:

   “Pt was getting on a bus when the bus has driven off and had to stop suddenly whilst passenger was still standing. Pt has fallen down two steps head first into a pole approx. 2 meters away. No LOC, Pt recalls events and denies any new neck pain, PEARL. She has a pre-existing neck problem. Pt has a small LAC to her R parietal lobe, bruising and swelling to her L forearm with full ROM to her wrist and hand along with pain and bruising to her posterior R shoulder. …”.[23]

   [23] NRMA’s documents p 84

2. The Discharge Summary of Wollongong Hospital reported the claimant presented to the Emergency Department following a full on a bus resulting in a laceration to the right parietal scalp, contusion to the left wrist and right shoulder.[24] On examination it was noted the claimant had nil neck midline bony tenderness.

   [24] NRMA’s documents p 90

3. The claimant first saw Dr George, GP of Thirroul Medical Centre regarding the accident on 3 May 2019 when she reported injuries to her right shoulder, head, left forearm and left lower back.[25] On examination she noted extensive bruising on left forearm, a haematoma near the left wrist and some mild bruising of the left lower back. She also noted a laceration on the right side of the scalp and that the claimant was holding the right shoulder very low with restricted movements.

   [25] NRMA’s documents p 174

4. In a Certificate of capacity/certificate of fitness dated 3 May 2019 when asked how the injury related to the accident Dr George reported:

   “Injuries to R shoulder + L forearm + back + laceration on R side of head + neck sustained following a fall on the bus when sudden break was applied when Deborah was standing finding a seat.”[26]

   [26] NRMA’s documents p 925

5. Ms Mason-Balshaw first consulted Dr Dewey of Woy Woy Family Practice on 6 August 2019 following the accident. She recorded:

   “injured in Bus crash earlier this year

   Rt shoulder/head injury, lower back pain aggravated,

   Will see patient for follow up”.[27]

   [27] NRMA’s documents p 115.

6. On 6 August 2019 Mr Timothy Healey physiotherapist reported the claimant had been referred for her right shoulder and lower back post-accident fall on a bus in April 2019.[28] In an Allied health recovery request (AHRR) dated 6 August 2019 he diagnosed “lower back injury and right shoulder – bony oedema of right scapula, mild tendinosis of anterior supraspinatus, and ? superior labral tear”.[29]

   [28] Allianz’s documents p 777.

   [29] Allianz’s documents p 780.

7. Whilst Ms Mason-Balshaw consulted Dr Dewey on 28 August 2019, 2 October 2019, 25 October 2019, 30 October 2019, 4 November 2019, 2 December 2019, and 31 December 2019 the first recorded complaint of neck pain occurred on 14 January 2020 when Dr Dewey reported “paracervical pain since injury”.[30] Dr Dewey reported increasing right shoulder and thoracolumbar pain since the bus accident on 31 December 2019.

   [30] NRMA’s documents p 114.

8. On 3 February 2020 the claimant underwent an ultrasound guided right subacromial-subdeltoid bursal injection.[31]

   [31] NRMA’s documents p 95.

9. On 6 March 2020 Ms Mason-Balshaw was assessed by Ms Melinda Tan-Stephen, occupational therapist on behalf of Benchmark.[32] She recorded Ms Mason-Balshaw reported the following injuries from the accident:

   ·        laceration to the head which has since healed;

   ·        right shoulder “bone bruise”, bursitis, and

   ·        injury to her upper and lower back.

   [32] Allianz documents p 478.

10. Ms Tan-Stephen reported Ms Mason Balshaw complained of headaches, pain in the upper thoracic and lumbar spine and pain in the right shoulder across the scapular.

11. The claimant saw Dr Arooge Shafi, rehabilitation physician on 8 April 2020.[33] He reported following the accident when she was a passenger on a bus the claimant had suffered ongoing chronic pain. He opined that the claimant’s shoulder symptoms were mainly radicular symptoms from the cervical spine. When he reviewed the claimant on 14 July 2020 Dr Shafi reported her main symptoms were her mid to lower back pain and pain in the right buttock and right leg down to the foot.[34] He also reported ongoing pain in the right shoulder, mainly pins and needles, numbness and stinging around the shoulder blade area. He referred the claimant to Dr Coughlan, neurosurgeon.

    [33] NRMA’s documents p 96.

    [34] NRMA’s documents p 100.

12. On 7 May 2020 Ariel Gillies physiotherapist reported after nearly a year of treatment there was no major improvement in terms of the lumbar spine and shoulder pain.[35] She concluded the unfavourable response to physiotherapy could come to down to various factors including irregular attendance, psychosocial factors, previous history of back pain or central sensitization.

    [35] NRMA’s documents p 728

13. The claimant underwent a CT guided perineural injection to the right C5/6 on 11 June 2020.

14. On 23 June 2020 the claimant reported ongoing paracervical pain, radiating right shoulder/upper back pain.

15. The claimant underwent an MRI scan of the cervical spine on 6 July 2020.

16. A Brisbane Waters Private Hospital Allied Health Day Program Discharge Summary dated 4 September 2020 reported Ms Mason-Balshaw participated in a day patient multidisciplinary program which commenced on 16 June 2020. The diagnosis in respect of the accident on 30 April 2019 was:

    ·        right shoulder bursitis;

    ·        pain and paraesthesia around the right scapula;

    ·        back pain radiating to the right buttock, thigh and leg, and

    ·        left C4/5, bilateral C5/6 and left 6/7 foraminal stenosis with likely compression of the exiting nerve roots.

17. On 7 September 2020 the claimant saw Dr Marc Coughlan.[36] He obtained a history that the claimant had "some mild pre-existing neck pain" before the accident and had "very severe ongoing neck pain with bilateral occipital pain" following the accident. He considered she had pre-existing degenerative disc disease but remained symptomatic because of the significant traumatic incident, namely the accident. Dr Coughlan recommended ACDF (anterior cervical discectomy and fusion) to address the claimant's axial neck pain and bilateral brachialgia.

    [36] NRMA’s documents p 102

18. Nerve conduction studies conducted on 7 January 2021 showed evidence of a mild ulnar nerve lesion at the left elbow.[37]

    [37] NRMA’s documents p 249

19. The claimant underwent a CT guided perineural injection to the right C5/6 on 1 April 2021.[38]

    [38] NRMA’s documents p 707.

20. The claimant underwent an ultrasound guided injection of the left elbow common extensor tendon origin on 12 April 2021.[39]

    [39] NRMA’s documents p 705.

21. The claimant underwent an ultrasound guided injection of the right subacromial bursa on 2 July 2021.[40]

    [40] NRMA’s documents p 703.

22. On 30 November 2021 the claimant consulted Dr Stuart Gray. He reported on 30 April 2019 Ms Mason-Balshaw was on a bus when it braked heavily and she fell injuring her head, shoulder, back and right hip. He reported since that time she had experienced increasing right groin pain which tended to start in the buttocks and lateral hip and radiate down the right leg.[41] He recommended hip replacement surgery. In relation to causation he stated:

    “The real question is is this related to the accident and that is difficult to answer. Certainly, she has lots of sources of her pain and whilst I certainly think this would have flared up her hip arthritis usually that would be temporary and there was certainly no evidence of any fractures around the hip with this recent accident.”

    [41] NRMA’s documents p 252.

23. On 2 November 2022 Dr Coughlan reviewed the claimant. He reported to the claimant’s GP that she did have some pre-existing neck pain, but this was quite mild and not requiring regular analgesics.

24. On 14 June 2023 Dr Coughlan noted worse neck pain and axial arm pain. He recommended multilevel fusion.[42]

    [42] NRMA’s documents p 106.

25. In July 2023 the claimant was referred to Guardian Exercise Rehabilitation to formulate an exercise program to assist with rehabilitation. The claimant was noted as having poor physical and mental health, poor functional capacity and exhibiting pain avoidance behaviours.

26. Dr Coughlan provided a report dated 6 October 2023. He noted the Claimant's injuries as severe ongoing neck pain, bilateral occipital pain, mild weakness in C5 bilaterally.

27. The history Dr Coughlan obtained was that the Claimant had a sudden onset of pain immediately following the accident and has had two cortisone injections by way of conservative treatment. He considered the accident to be a substantial contributing factor to the cervical injuries because of the sudden onset of severe pain. Dr Coughlan also considered two cortisone injections to be sufficient trial of conservative treatment for progression to surgical intervention.

28. Dr Coughlan stated that surgical intervention is hoped to lead to a durable reduction in the level of symptoms or increased function in the cervical spine.

29. The claimant commenced a structured and guided exercise program with Paul Philpott of Guardian Exercise Rehabilitation on 10 July 2023.[43] In an AHRR No 1 dated 11 July 2023 the diagnosed injuries were neck, lower back, right shoulder, left elbow and wrist. Mr Philpott reported Ms Mason-Balshaw demonstrated pain avoidance behaviour.

Imaging

[43] NRMA’s documents p 207

Ct lumbosacral spine, 15 April 2011

1. The report concludes:

   “Prior laminectomy and fusion of the L5-S1 levels. Advanced degeneration of the L5-S1 disc. Small broad based disc bulges mildly indenting the thecal sac. No spinal canal stenosis or foraminal stenosis is seen.”[44]

   [44] NRMA’s documents p 655

CT scan cervical spine, 10 June 2011

1. The conclusion to the report reads:

   “Cervical spondylosis mainly affecting the C4/5 to C6/7 levels with disc bulges and posterior osteophytes mild to moderately compressing the thecal sac and possibly identing the spinal cord. There is narrowing of the left C4/5, both C5/6 and the left C6/7 intervertebral foramina with possible impingement of the exiting left C5, both C6 and the left C7 nerves respectively….”[45]

   [45] NRMA’s documents p 59

CT lumbosacral spine, 20 June 2011

1. The report concludes:

   “Stable CT findings. No new disc bulge or foraminal stenosis is evident.”[46]

   [46] NRMA’s documents p 653

CT scan cervical spine, 22 July 2014

1. The conclusion to the report reads:

   “Multilevel cervical spondylosis. Left foraminal narrowing at C4-5 with possible left C5 nerve root compression, and right foraminal narrowing at C5-6 with possible right C6 nerve root compression. No significant changes in appearance is seen.”[47]

   [47] NRMA’s documents p 72.

CT lumbosacral spine, 19 June 2014

1. The report concludes:

   “L304 broad-based disc bulge has increased in size since the last study, mild to moderately compression the thecal sac. Elsewhere stable CT findings. Prior laminectomies and posterior fusion in the lower lumbar region. No spinal canal stenosis or foraminal stenosis detected.”[48]

   [48] NRMA’s documents p 637.

CT lumbosacral spine, 29 December 2014

1. The report concludes:

   “L4-5 central disc protrusion mildly indenting the thecal sac has developed since the last study Elsewhere stable CT findings. Prior surgery in the lower lumbar spine. No central canal stenosis or foraminal stenosis detected.”[49]

   [49] NRMA’s documents p 628.

MRI lumbar spine, 13 January 2015

1. The report concludes allowing for artefact from previous surgery, no significant abnormality was seen.[50]

   [50] NRMA’s documents p 627.

MRI cervical spine, 14 April 2015

1. The report reads:

   “Findings

   There are degenerative changes of the cervical spine with marginal osteophyte formation and multilevel disc space narrowing from C3 to C7. The cervical spine cord is of normal size and signal. There is no syringomyelia.

   At the level of C4/5, there is narrowing of the left intervertebral foramen due to bony encroachment.

   At the level of C5/6, there is narrowing of the intervertebral foramina due to bony encroachment.

   At the level of C6/7 there is slight narrowing of the intervertebral foramina due to bony encroachment.

   At the level of C7/T1 there is no narrowing of the intervertebral foramina.”[51]

   [51] Insurers documents p 79.

CT scan lumbar spine, 18 November 2016

1. The report concludes:

   “The predominant finding is degenerative nonfused right L4/L5 facet joint and mild facet joint degenerative disease at L3/L4.”[52]

   [52] Insurer’ documents p 831.

MRI cervical spine, 27 June 2017

1. The report reads:

   “Findings: There is loss of normal cervical lordosis. Vertebral heights are preserver. Intervertebral discs are desiccated. Spinal cord returns normal signal. Suspicion of bone marrow oedema along the inferior endplate of C4.

   At C4/5 level, there is a broadbased disc bulge indenting the thecal sac with prominent eft posterolateral component. Mild bilateral facet joint arthropathy. There is severe foraminal narrowing and nerve root impingement on the left. Mild canal stenosis seen. No cord compression.

   At C5/6 level, a broadbased disc bulge seen indenting the cord. Mild bilateral facet joint arthropathy. Bilateral moder to severe foraminal narrowing and nerve root impingement seen. Mild to moderate canal stenosis seen. No cord compression.

   At C6/7 level, a generalised disc bulge seen indenting the thecal sac. Mild facet joint arthropathy. Bilateral severe foraminal narrowing and nerve root impingement seen. No canal stenosis.

   At C7/T1 level, no posterior disc bulge. Minor facet joint arthropathy. No nerve root impingement or canal stenosis.

   There is preservation of normal flow voids in the vertebral arteries. No abnormality seen in the soft tissues of the neck.

   Conclusion:

   Combination of disc bulges and facet joint arthropathy causing severe impingement of left C5 and moderate to severe impingement of bilateral c6 and C7 nerve roots. Mild to moderate canal stenosis at C4-C6 levels. No cord compression or focal cord oedema.

   Addendum (10/1/18)

   Comparison was made with previous MRI from April 2015. No significant improvement or worsening since the prior examination. …”.[53]

   [53] NRMA’s documents p 81

X-ray and ultrasound right hip joint, 31 January 2018

1. The history reported was a severe recurrent pain in the right hip going to the right groin. The report states:

   “X-ray right hip Joint: The hip joint space is well preserved. There is no significant degenerative joint disease identified. The sacroiliac joints are unremarkable.

   Ultrasound right hip joint: There is no evidence of hip joint effusion identified. The gluteal tendons are intact. There is mild thickening and tenderness of the greater trochanteric bursa suggestive of trochanteric bursitis.”[54]

   [54] NRMA’s documents p 857.

CT scan lumbar spine, 9 July 2018

1. The reported history is of severe degenerative changes with pain. The report states:

   “Bilateral pedicle screws at the L5 and S1 levels identified. No evidence of hardware failure.

   L5-S1 has facet arthropathy present. NO canal narrowing or significant exit foraminal narrowing is seen.

   L4-5 has exuberant facet arthropathy without exit foraminal narrowing or canal narrowing seen.

   L3-4 has facet arthropathy throughout without canal stenosis or exit foraminal narrowing same with L2-3.

   L1 – 2 and T12 – L1 are appropriate Sacral canal and sacral foramen are appropriate.”[55]

   [55] NRMA’s documents p 826

MRI right shoulder, 4 June 2019

1. The comment reads:

   “AC joint degenerative change. The prominent abnormality is of marrow oedema in the more medial portion of the scapular spine as it passes towards the acromion. This would usually be a reflection direct trauma of the scapular spine….”.[56]

   [56] Allianz’s documents p 673

Whole body bone scan, 19 June 2019

1. The comment reads:

   “1.     The scan findings at the right acromion is suspicious for a non-displaced stress fracture/bone contusion with likely post traumatic arthropathy at the right acromioclavicular joint. Clinical +/- radiological correlation is recommended.

   2.     There is moderate degenerative change at C4/5 and C6/7 discovertebral joint in the cervical spine. In the lumbar spine, there is moderate L1/2 discovertebral arthropathy and mild bilateral L4/5 facet joint arthropathy. No acute fracture is seen in the lumbar spine.

   3.     Arthropathy elsewhere in the distribution as described above, most marked at the right hip which is unchanged when compared to the previous bone scan performed in November 2018.” [57]

   [57] Allianz documents p 766

Ultrasound right shoulder, 3 February 2020

1. The comment reads:

   “•      Mildly  thickened subacromial-subdeltoid bursa indicating low-grade bursitis.

   ·        No rotator cuff tear seen.”[58]

   [58] NRMA’s documents p 609

CT scan cervical spine, 3 February 2020

1. The report concludes:

   “•      Cervical  spondylosis, mainly affecting the C4-5, C5-6 and C6-7 discs.

   ·        Posterior osteophytes in these levels mild to moderately compressing the thecal sac.

   ·        Left C4-5, bilateral C5-6 and left C6-7 foraminal stenosis with likely compression of the exiting nerve roots.”[59]

   [59] NRMA’s documents p 95

CT lumbosacral spine, 3 February 2020

1. The findings were compared with a previous study on 29 December 2014. The conclusion reads:

   “•      Lumbar spondylosis, worsened since the previous study.

   ·        Prior L5-S1 laminectomies and posterior fusion of the L4-S1 levels. Stable and normal alignment.

   ·        Small disc bulges without significant faecal sac compression. No evidence of central canal stenosis or foraminal stenosis.

   ·        No evidence of nerve root impingement.”[60]

   [60] NRMA’s documents p 610.

MRI thoracolumbar spine, 3 February 2020

1. The previous posterior fusion and posterior decompression at L5.S1 level was noted. Alignment at the fused level was satisfactory. The comment reads:

   “Thoracic and lumbar spondylotic changes without significant canal stenosis. No foraminal narrowing or neural compromise at any level is seen.

   Multilevel lumbar facet arthropathy is noted…”[61]

   [61] NRMA’s documents p 607.

X-Ray and ultrasound right hip, 2 July 2020

1. The comment reads:

   “•      Right hip osteoarthritis;

   ·        No evidence of trochanteric bursitis.”[62]

   [62] NRMA’s documents p 604.

MRI cervical spine, 6 July 2020

1. The findings were reported as follows:

   “Alignment: Normal.

   Bones: the vertebral heights of the cervical spine are preserved. No compression fracture is demonstrated. The marrow signal is within normal limits. No focal lesion.

   Facet joints: Scattered low grade degenerative changes.

   Disco-vertebral joints: Mild degenerative changes more pronounced at C4/5 and C5/6.

   Soft tissues: No significant abnormality.

   Spinal cord: The visualized upper spine cord demonstrates normal size, contour and signal. No intramedullary, intradural or extradural abnormality is seen.

   C2/3: No central canal, subarticular recess or foraminal stenosis.

   C3/4: Mild broad-based disc bulge. No central canal stenosis. Mild left foraminal narrowing.

   C4/5: Posterior disc-osteophyte complex slightly indenting ventral thecal sac surface. Minimal central canal narrowing (10 mm AP). Moderate right and severe left foraminal stenosis impinging the exiting left C5 nerve root.

   C5/6: Posterior disc-osteophyte complex. No central canal stenosis. There is severe bilateral foraminal stenosis potentially impinging the exiting C6 nerve root.

   C6/7: There is broad-based disc bulge. No central canal stenosis. Moderate bilateral foraminal stenosis.

   C7/T1: No central canal or foraminal stenosis.

   Comment:

   Multilevel spondylotic changes as described.

   Minor central canal narrowing at C4/5.

   Multilevel foraminal stenosis, most severe involving left C4/5 and bilateral C5/6 potentially impinging the exiting nerve roots at the above levels.”[63]

X-ray left elbow, 17 March 2021

[63] NRMA’s documents p 99.

1. The report reads:

   “No fracture or dislocation is seen. There is no significant effusion detected in the elbow joint.

   Mild to moderate OA is noted with reduced joint spaces, small marginal osteophytes, subchondral sclerosis and cysts. The radiohumeral joint is relatively rose affected. No intra-articular calcified loose body is seen.”[64]

Right shoulder X-ray and ultrasound, 30 March 2021

[64] NRMA’s documents p 710.

1. The report reads:

   “X-ray:

   There are mild degenerative changes in the glenohumeral joint.

   Tere are mild degenerative changes in the AC joint.

   No subacromial spur or subacromial space narrowing.

   Ultrasound:

   Biceps tendon is intact and norma.

   There is subscapularis and supraspinatus tendinopathy but no tear. Infraspinatus tendon is intact and normal.

   There is mild thickening of the subacromial burse with bursal impingement at 90 degrees of abduction.

   No glenohumeral joint effusion.

   Comment:

   Subscapularis and supraspinatus tendinopathy and mild subacromial bursitis.”[65]

X-ray and ultrasound left wrist, 7 April 2021

[65] NRMA’s documents p 708.

1. The report reads:

   “X-ray: No fracture of dislocation was seen.

   The joint spaces are preserved with no established arthropathy. No bony lesion is identified.

   Ultrasound: No evidence of wrist tendinopathy is detected.

   There is no feature of synovitis in the radiocarpal or ulnocarpal joints.

   The median nerve defines normally.[66]

CT thoracic spine, 20 April 2021

[66] NRMA’s documents p 706.

1. The comment reads:

   “No obvious cause of the pain has been demonstrated. Previously noted disc bulge/g\focal disc protrusion at the T2/3 level as reported on MRI scan from 02/03/2020 is no obvious on today’s CT scan and there is no other posterior disc lesion. There is minor facet joint arthropathy noted at multiple levels but there is no obvious compromise to the spinal canal or exiting nerve roots. Tere is a likely Tarlov’s cyst on the left side at T11/12 level which is unchanged from an MRI from February 2020. No other significant abnormality has been demonstrated.”[67]

CT lumbar spine, 1 October 2021

[67] NRMA’s documents p 704.

1. The findings are reported as follows:

   “Bones: The vertebral body heights are normal. Sagittal vertebral body alignment is normal. Previous surgery with pedicle screws at L5 and S1 level. The set joint arthropathy L3-4 and L4-5 levels.

   Soft tissues: Visualised soft tissues are normal.

   Discs: There is disc space narrowing at L3-4 and L5-S1.

   L2/3: There is no focal disc herniation canal or foraminal stenosis.

   L3/4: There is no focal disc herniation canal or foraminal stenosis.

   L4/5: There is no focal disc herniation canal or foraminal stenosis.

   L5/S1: There is no focal disc herniation canal or foraminal stenosis.

   Comment: Recurrent disc herniation. Previous surgery No complication of surgery is evident.”[68]

   [68] NRMA’s documents p 1,073.

MRI lumbar spine, 21 October 2021

1. The comment on the report reads as follows:

   “There is no focal disc herniation canal or foraminal stenosis. Previous surgery. No acute abnormality.”[69]

   [69] NRMA’s documents p 1,074.

X-ray and ultrasound left elbow, 13 May 2022

1. The ultrasound showed a small joint effusion. The comment reads as follows:

   “There are changes consistent with common extensor origin tendonitis as well as partial thickness tear in keeping with a lateral epicondylitis.”[70]

   [70] NRMA’s documents p 253.

MRI cervical spine, 25 May 2022

1. The report reads:

   “Findings: At C4-5 there is left bony foraminal narrowing from uncovertebral hypertrophic changes. No other significant foraminal narrowing.

   There are anterior impressions on the thecal sac at C3-4 to C6-7, and there may be some minor deformity of the cord at C405 centrally.

   At the other levels, there are disc and facet joint degenerative changes but no spinal canal or foraminal narrowing.

   There is no paraspinal mass.

   Conclusion: Degenerative changes with left bony foraminal narrowing at C4-5. Multiple levels of spinal canal narrowing with some deformity of the cord centrally at C4-5.”[71]

   [71] NRMA’s documents p 104.

CT left wrist, 14 June 2023

1. The conclusion to the report reads:

   “No acute bony injury seen.

   OA changes in several intercarpal joints, first CMC, first and third MCP joints.

   Low-density soft tissue thickening around the carpal bones, raising the possibility of synovitis.”[72]

   [72] NRMA’s bundle p 1,076.

CT lumbar spine, 14 December 2023

1. The findings were reported as follows:

   “The bone images show pedicle screws at the L5-S1 level.

   The L5 is partially lumbarised. There are degenerative changes in the disc at this level.

   There are more significant degenerative changes at L3-4 with discovertebral degenerative changes at the levels above this.

   There are marked degenerative changes at T12-L1 with large Schmorl’s nodes.

   There is no spondylolysis or spondylolisthesis.

   The vertebral bodies have maintained reasonable height.

   There are significant degenerative changes throughout the lower apophyseal joints although the soft tissue images are degraded by the metal hardware and are non-diagnostic.

   Axial soft tissue windows have again demonstrated the degenerative somatic changes as described above. Axial images were reviewed from the T12 level to the mid sacrum assessment of any bony/soft tissue pressure effects on the canal or exiting foramina.

   T12/L1: The canal and exit foramina do not appear to be compromised.

   L1/L2: Normal appearances to the canal and exit foramina.

   L2/L3: Normal size canal and exit foramina.

   L3/L4: Large broad-based bulging of the disc but no localised pressure effects on the thecal sac or exiting foramina.

   L4/L5: The exit foramina appear within normal limits and the bony outlines f the canal do not appear to be compromised. Laminectomy noted.

   Soft tissue images are non-diagnostic due to the metal hardware.

   L5/S1: The bony outline of the canal and exit foramina do not appear to be compromised. Soft tissue images are non-diagnostic due to the metal hardware.”[73]

   [73] NRMA’s documents p 1,078.

CT lumbosacral spine, 1 May 2024

1. The findings were reported as follows:

   “Vertebral body heights are preserved. No acute fractures or destructive bone lesions identified.

   Alignment of the lumbar spine remains anatomical.

   No bony canal stenosis.

   Moderate to severe decrease in disc heights are noted at L1-L2, L3-L4 and L5-S1.

   Schmorl’s nodes are seen in the upper endplates of L1-L2 through L4-L5.

   Bilateral transpedicular screws are seen at L5 and S1.

   Postsurgical bony fusion is seen at the bilateral facets of L4-L5 and L5-S1.

   L1/2: No disc bulge or herniation. No spinal canal or neural foraminal stenosis.

   L2/3: No disc bulge or herniation. No spinal canal or neural foraminal stenosis.

   L3-4: Diffuse disc bulge causing indentation of the ventral thecal sac. No significant neural foraminal stenosis.

   L4/5: Minimal disc bulge seen. No spinal canal or neural foraminal stenosis.

   L5/S1: No disc bulge or herniation. No spinal canal or neural foraminal stenosis.

   Atrophy of the bilateral paravertebral muscles are seen.

   Impression:

   Post surgical and degenerative changes as noted above These are not significantly changed since the prior study.”[74]

   [74] NRMA’s bundle p 1,081.

MRI lumbar spine, 28 May 2024

1. The findings are reported as follows:

   “Prior posterior fusion at L5/S1 noted with pedicular screws in situ. Alignment is satisfactory and no complicating features are visible.

   The lumbar vertebrae maintain a satisfactory height and sagittal alignment.

   Disc degeneration is noted at all levels with loss of normal signal and Schmorl’s nodes at several levels. There are Modic type 1 endplate changes also noted at L3/L4.

   No other focal marrow signal abnormality is seen.

   L1/L2: Minor posterior disc bulge without focal disc protrusion. Bilateral mild facet arthropathy. No foraminal encroachment or neural compromise.

   L2/L3: Posterior disc bulge with a shallow right posterolateral focal disc protrusion. Mild canal encroachment. Mild bilateral foraminal narrowing due to bulging disc and facet arthropathy. No exiting nerve root compromise.

   L3/L4: Minor posterior disc bulge without focal disc protrusion. Bilateral mild foraminal narrowing due to bulging disc and facet arthropathy. No neural compromise.

   L4/L5: Assessment is limited due to artefacts from L5 pedicular screws. As far as can be determined, no significant canal stenosis or foraminal encroachment is seen.

   L5/S1: Prior laminectomy and posterior fusion. No canal or foraminal encroachment but assessment is limited due to artefact.

   The visualised distal spinal cord and caudate equina define normally.

   Comment: Prior posterior fusion and laminectomy at L5/S1. No complicating features. Mild to moderate spondylotic changes that may not have significantly progressed since the prior study.”[75]

Medico-legal evidence

[75] NRMA’s documents p 1,083.

Dr James Bodel, orthopaedic surgeon

1. The claimant was assessed by Dr Bodel on 1 June 2021 by telehealth. He provided a report dated 14 July 2021.[76] Dr Bodel reported he had assessed the claimant on 22 July 1995 following an injury whilst working at Pizza Hunt Australia on 26 July 1989. He reported she underwent a spinal fusion on 21 April 1993 performed by Dr Graham. Dr Bodel noted when he assessed the claimant in 1995, she had not done well with the treatment protocol and was left with residual disability.

   [76] Claimant’s documents p 15.

2. Dr Bodel recorded Ms Mason-Balshaw reported the bus driver had to perform an emergency braking manoeuvre to stop hitting a car stating:

   “Whilst falling my left arm/elbow/and wrist had hit the seats as I was flying past. My head, neck and shoulder hit the pole, and then my shoulder, back and remaining body slammed on the floor”.

3. Dr Bodel reported the wound on the claimant’s head was glued at Wollongong Hospital, she had X-rays of her right shoulder and developed extensive bruising. He reported by July 2019 Ms Mason-Balshaw had begun to develop some spasms in the interscapular region of the thoracic spine and the lower back.

4. Dr Bodel reported complaints of occipital headache and neck pain, pain over the top of the right shoulder, numbness and tingling in the right arm, pain in the left elbow, wrist and hand, pain in the region of the thoracic spine and lower back pain with referred pain down the left leg. He also reported pain radiating down the right leg.

5. Dr Bodel diagnosed soft tissue injuries to the neck and back and a rotator cuff injury to the region of the right shoulder. Dr Bodel assessed a 25% WPI.

6. Dr Bodel diagnosed soft tissue injuries to the neck and back and a rotator cuff injury to the region of the right shoulder. Dr Bodel assessed a 25% WPI.

7. Dr Bodel reviewed the claimant by way of in person examination on 9 June 2023 and provided a report dated 13 October 2023 and 1 November 2023.

8. Dr Bodel reported Ms Mason-Balshaw still had bursitis in the region of the right shoulder and periscapular pain on the right-hand side extending into the right armpit. He reported she was not considering surgery for the shoulder. Dr Bodel reported weakness in the left hand and a tendency to drop things. He reported Ms Mason-Balshaw had developed ulnar neuritis with numbness and tingling into the ring and little finger of the left hand. Dr Bodel reported continuing pain in the basis of the neck, neck pain and pain in the left wrist and hand.

9. Dr Bodel reported range of movement of the shoulders as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	90°	140°
Extension	30°	40°
Adduction	10°	20°
Abduction	70°	120°
Internal Rotation	50°	60°
External Rotation	50°	60°

1. He reported impingement in both shoulders but no instability.

2. He recorded range of movement in each elbow as follows:

Elbow movement	Active ROM Measured RIGHT	Active ROM Measured LEFT	Normal ROM
Flexion	130°	120°	140°
Extension	-10°	-20°	0°
Pronation	80°	70°	80°
Supination	80°	70°	80°

1. Dr Bodel reported tenderness over the lateral epicondyle, mainly on the left with pain on passive wrist flexion and resisted wrist extension. He recorded range of movement in each wrist as follows:
   
   

Wrist Movement	Active ROM Measured RIGHT	Active ROM Measured LEFT	Normal ROM
Flexion	60°	50°	60°
Extension	60°	50°	60°
Radial deviation	20°	20°	20°
Ulnar deviation	30°	25°	30°

1. Dr Bodel reported grip strength was normal. He reported localised tenderness over the ulnar nerve behind the medical epicondyle. He also reported some sensory loss in the ulnar nerve distribution on the left side which he rated as a grade IV sensory loss but with no visible sign of wasting in the small muscles of the hand and no motor weakness in the median or ulnar nerves.

2. Dr Bodel reported a good range of lateral bending and rotation of the thoracic spine and no impairment of straight-leg-raising or neurological abnormality in the lower limbs.

3. Dr Bodel diagnosed soft tissue injury to the neck and back, rotator cuff pathology in the shoulders, lateral epicondylitis in each elbow and restricted range of wrist movement due to tenosynovitis. He concluded the accident “materially contributed” to the ongoing disability.

4. Dr Bodel’s assessment of WPI remained unchanged.

Dr Raymond Wallace, orthopaedic surgeon

1. Allianz obtained a medicolegal report from Dr Raymond Wallace dated 28 March 2022. Dr Wallace concluded the claimant sustained the following injuries as a result of the accident:

   ·        musculoligamentous strain cervical spine;

   ·        aggravation of pre-existing symptomatic multilevel degenerative cervical spondylosis;

   ·        rotator cuff strain right shoulder;

   ·        soft tissue injury left elbow;

   ·        soft tissue injury left wrist;

   ·        musculoligamentous strain lumbar spine;

   ·        aggravation of pre-existing symptomatic multilevel degenerative lumbar spondylosis, and

   ·        capsular strain right hip.

2. Dr Wallace opined that a significant portion of the claimant’s cervical spinal and lumbar spinal disabilities were due to the previous work-related injury in 1990.

3. Dr Wallace opined that the claimant would not benefit from operative intervention at that time. He considered that it was highly unlikely that the surgical intervention proposed by Dr Coughlan of a 3-level discectomy and a fusion at C4/5, C5/6 and C6/7 levels would lead to a durable reduction in the level of symptoms or increase in function at her cervical spine. He also opined that the proposed surgical intervention carried significant risk due to possible anaesthetic and surgical complications.

4. Dr Wallace provided a supplementary report dated 5 May 2022. He was asked to review a report of Dr Stuart Gray, orthopaedic surgeon dated 30 November 2021.[77]

   [77] Allianz’s documents p 797.

5. Dr Wallace concluded the claimant’s right hip condition was due to age-related degenerative osteoarthritis at the right hip which was unrelated to the accident. He commented that Ms Mason-Balshaw did not complain of any right groin pain to Dr Dewey despite visiting her on multiple occasions in the period August 2019 to July 2021.

6. He reiterated his opinion that the claimant suffered a capsular strain at her right hip as a result of the bus accident in April 2019 but concluded there was no objective evidence that she suffered any significant intra-articular pathology at the joint.

7. Dr Wallace concluded that the need for right hip replacement was not causally related to the accident.

Dr Todd Gothelf, orthopaedic surgeon

1. Dr Gothelf assessed the claimant for the Allianz and provided a report dated 11 October 2023. He reported before getting a seat on a public bus the driver started moving and then stopped causing the claimant to fly through the air and impact the back door poles. He reported her shoulder hit the pole and then she fell onto the floor.

2. He reported complaints of neck pain, lower back pain exacerbated by the accident, zero hip pain after undergoing right total hip replacement surgery on 14 September 2022, stinging and burning of the right shoulder and left elbow and left wrist pain made worse with movement.

3. He reported complaints of neck pain, lower back pain exacerbated by the accident, zero hip pain after undergoing right total hip replacement surgery on 14 September 2022, stinging and burning of the right shoulder and left elbow and left wrist pain made worse with movement.

4. On examination of the cervical spine Dr Gothelf reported normal posture, no tenderness to palpation, no visible or palpable deformity in the neck region and no observed guarding or muscle spasm. He reported cervical movement was a fraction of the normal range of motion of full cervical extension, full flexion, full right rotation, full left rotation, full right lateral flexion and full left lateral flexion. He found no cervical asymmetrical loss of motion.

5. Dr Gothelf noted power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal. Circumferential measurements of both upper limbs were equal.

6. He reported active range of motion of both upper limbs, measured in degrees as follows:

Right	IMP	Left	IMP
Shoulder	Flex/Ext	110/40	5/1	140/50	3/0
Abd/Add	120/20	3/1	130/40	2/0
Ext Rot/Int Rot	70/80	0/0	70/80	0/0
Elbow	Flex/Ext	140/0	0/0	140/0	0/0
Forearm	Pron/Sup	80/80	0/0	80/80	0/0
Wrist	Flex/Ext	60/60	0/0	60/60	0/0
Rad Dev/Uln Dev	20/30	0/0	20/30	0/0

1. In respect of the back Dr Gothelf reported a fraction of normal active motion of full flexion, full extension, a fraction of normal active thoracic motion of full left rotation and right rotation.

2. He reported a fraction of normal active lumbar motion of full left lateral flexion and full right lateral flexion. He found no asymmetrical loss of motion. He reported normal alignment, curvature and pelvic symmetry. He reported no tenderness to palpation and no observed muscle guarding or spasm.

3. In respect of the lower limbs Dr Gothelf noted normal gait and no difficulty walking on toes or heels unaided. Power was 5/5, muscle tone was normal, and sensation was intact. Reflexes were normal and symmetrical in the knee and ankle and Babinski test caused down-going toes. He reported range of motion was normal in knees and ankles.

4. Dr Gothelf stated there were no reported symptoms with straight leg raise in lying down to 70 degrees or in the sitting position. The circumference of both lower limbs was equal.

5. Dr Gothelf reported the following active range of motion:

Right (degrees)	Left (degrees)
Hip flexion/extension	100/0	100/0
Hip abduction/adduction	30/20	30/20
Hip external/internal rotation	40/30	40/30

1. Dr Gothelf found the history provided by the claimant was inconsistent with the physical examination findings.

2. Dr Gothelf diagnosed a laceration to the right side of the head, soft tissue aggravation of pre-existing degenerative change to the cervical spine, soft tissue injury to the left wrist and arm and soft tissue injury to the right shoulder. He concluded that cervical spine multilevel spondylosis, lumbar spine L4/S1 fusion and lower back pain, and right hip arthritis was not caused by the accident.

3. Dr Gothelf assessed a 7% WPI, combining 1% WPI for the cervical spine and 6% WPI for the right shoulder.

4. Dr Gothelf provided a supplementary report dated 4 March 2024. He reviewed his assessment of the cervical spine applying DRE II or 5% WPI on the basis of non-verifiable radicular complaints. However, having regard to evidence of a pre-existing cervical spine condition with radiculopathy he deducted 5% WPI resulting in 0% WPI for the cervical spine. He assessed a total 6% WPI arising out of injury to the right shoulder.

SUBMISSIONS

Claimant’s submissions

1. The claimant provided submissions dated 22 April 2024 and 11 November 2024.[78]

   [78] Claimant’s documents pp 4 and 9.

2. The claimant submits that striking her head on a pole in a bus that produced a laceration to the back of the head is consistent with a cervical spine injury. The claimant submits that Medical Assessor Cameron failed to provide reasons as to why striking her head on a pole did not contribute to a cervical spine injury and placed too much weight on contemporaneous evidence.

3. The claimant submits Medical Assessor Cameron failed to consider whether the accident was a more than negligible cause of injury or aggravation of a pre-existing condition. The claimant relies upon the decision of Campbell J in Owen v Motor Accidents Authority (NSW).[79]

   [79] Owen v Motor Accidents Authority (NSW) 2012 NSWSC 650.

4. The claimant submits there was evidence of injury to the cervical spine within four months of the accident where the Application for personal injury benefits dated 3 May 2019 describes injuries to the right side of the head, neck, shoulder and arm pain.

5. The claimant submits that the reference by Dr George on 3 May 2019 to the right shoulder and head is a reference to injury in the cervical spine region.

6. The claimant also notes that medico-legal specialists namely Dr Bodel, Dr Wallace and Dr Gothelf all assessed and reported on injury to the cervical spine. It was also noted that in NRMA’s submissions there was no suggestion that the claimant did not sustain injury to the cervical spine. Indeed, it was argued the claimant’s condition had not stabilised where she was contemplating C4/5, C5/6 and C6 anterior cervical discectomy and fusion.

7. The claimant provided submissions dated 22 April 2024 in support of the permanent impairment dispute.[80]

   [80] Claimant’s documents p 3.

NRMA’s submissions

1. NRMA provided submissions in respect of the treatment dispute dated 2 December 2024.[81]

   [81] NRMA’s documents p 5.

2. NRMA notes that Medical Assessor Cameron’s findings on causation included considerations of:

   ·        his finding that the claimant’s cervical spine symptoms were non-specific;

   ·        her long standing history of intermittently symptomatic cervical spine degenerative disease, and

   ·        lack of complaint of cervical spine symptoms at clinical consultations where other symptoms were recorded.

3. NRMA submits that the lack of complaint was not merely an absence of complaint but also the lack of complaint was affirmatively recorded:

   ·        the ambulance report dated 30 April 2019 recorded “No LOC, Pt recalls events and denies any new neck pain, PEARL”, and

   ·        the Wollongong Hospital Emergency Department recorded on 30 April 2019 “Nil … midline back/neck pain”.

4. In relation to the opinions of Dr Bodel, Dr Wallace and Dr Gothelf NRMA submits it is well recognised that the medical assessor’s task is not to address alternative medical opinion but rather to “form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise” as per Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].

5. NRMA disputes it has made any concession that the claimant’s cervical spine injury was caused by the accident and notes that whether the cervical spine symptoms are caused by the accident is a medical question integral to the treatment dispute referred for assessment.

6. NRMA submits Medical Assessor Cameron adequately explained his actual path of reasoning for the matters certified in the Certificate.

7. NRMA provided submissions in respect of the substantive treatment dispute dated 14 February 2024.[82]

   [82] NRMA’s documents p 12.

8. NRMA submits the proposed surgery does not relate to the accident where the claimant has a long history of neck pain and brachialgia prior to the accident. It is noted that radiological scans showed foraminal narrowing involving C4/5, C5/6 and C6/7.

1. NRMA submits the delay in seeking medical attention for her neck and the unchanged radiological findings shows that the accident has not made a material contribution to the claimant’s neck condition. This is consistent with the opinion of Dr Wallace.

2. NRMA submits the opinion of Dr Coughlan is not reliable where it is based on a pre-accident history of “mild pain” and a “sudden onset of severe pain” after the accident. NRMA submits this is not consistent with the contemporaneous clinical records.

3. NRMA notes the need for surgery had been raised in 2012 and 2014, but the claimant chose to continue with cortisone injections.

4. NRMA notes that in Insurance Australia Limited t/as NRMA Insurance v Foti[83] the Panel considered the following criteria to be relevant to, but not determinative of, the decision of whether a treatment is "reasonable and necessary":

   [83] Insurance Australia Limited t/as NRMA Insurance v Foti [2023] NSWPICMP 395 at [16]-[17].

   (a)   the appropriateness of the treatment in dispute;

   (b)   the availability of alternative treatment;

   (c)   the cost effectiveness of the treatment;

   (d)   the actual or potential effectiveness of the treatment, and

   (e)   the acceptance by medical experts of the appropriateness of the treatment.

5. NRMA submits in relation to the appropriateness and effectiveness of the surgery, the Member ought to take into consideration Dr Wallace's opinion that the surgery may not provide durable symptom relief or significantly improve the claimant's cervical spinal function but carries significant risks.

6. NRMA submits whilst surgical intervention was considered by the claimant’s treating doctors 10 to 12 years ago the claimant likely had a different risk profile at that time.

7. NRMA provided submissions in respect of the substantive WPI dispute dated 10 May 2024.[84]

   [84] NRMA’s documents p 19.

8. NRMA submits the claimant suffered injuries to her cervical and lumbar spine in an accident on 26 July 1990 and continued to suffer chronic pain.

1. NRMA submits there was no injury to the left shoulder, right elbow, thoracic spine or right hip due to the absence or delay of complaint. NRMA noted there was no mention of the left shoulder or the right elbow in the emergency attendants’ records or the GP records as of July 2021.The insurer noted there was no complaint of thoracic pain until January 2020 and no complaint of right hip pain until after July 2021.

2. NRMA notes that neither Dr Wallace nor Dr Bodel diagnosed an injury to the thoracic spine. Dr Wallace did not diagnose injury to the left shoulder or the right elbow.

3. NRMA submits that Dr Wallace was correct in making a deduction for a pre-existing condition in the cervical spine where the claimant’s condition was not asymptomatic at the time of the accident given the claimant reported it was symptomatic to both ambulance and emergency department staff.

THE MEDICAL EXAMINATION

1. Ms Debra Mason Balshaw was examined by Medical Assessors Michael Couch and Sophia Lahz on 27 June 2025 at the Medical Suites at the Personal Injury Commission over a duration of 2.5 hours.

2. Ms Mason-Balshaw attended the appointment punctually. She presented, neatly attired, with an antalgic gait whilst carrying a walking stick in her left hand.

3. The Medical Assessors explained the purpose of the appointment at the commencement of the assessment; that it was to determine disputes as to permanent impairment and treatment regarding injuries sustained in a motor (bus) accident on 30 April 2019.

History

1. Ms Mason-Balshaw provided the following history. She is aged 64 and left-handed.

2. She divorced many years ago and has one daughter now aged 41 with two small children whom she enjoys spending time with. She is a reformed alcoholic who has been sober for 22 years and an ex-smoker who ceased smoking 15 years ago. She is single and currently living alone in a unit at Woy Woy, Central Coast.

Pre-accident history

1. Ms Mason-Balshaw told the Medical Assessors that she had sustained significant injuries to the neck and lower back, in 1990 whilst working for Pizza Hut. At the time, she had been inside a refrigerator when a large container of orange juice fell directly onto her head.

Pre-accident history

1. Ms Mason-Balshaw told the Medical Assessors that she had sustained significant injuries to the neck and lower back, in 1990 whilst working for Pizza Hut. At the time, she had been inside a refrigerator when a large container of orange juice fell directly onto her head.

2. Dealing first with pre-accident complaints of neck pain, she told the Medical Assessors of intermittent neck pain over the years for which she received various cervical spine injections bilaterally. The records do indicate injections at left C5 in 2013 and right C6 in 2014. Whilst there was never any recommendation for cervical spine surgery before the accident on 27 January 2012 the Neurosurgical Clinic at Prince of Wales Hospital noted she was a potential candidate for surgical intervention and on 1 July 2014 Dr Dewey requested an opinion on surgical intervention. However, on 6 March 2015 Dr Curtis, neurosurgeon reported he did not think the claimant’s symptoms were surgical.

3. The Thirroul GP records prior to the accident indicate that Ms Mason-Balshaw requested a cervical spine injection during 2018 and there had also been significant neck complaints during 2017. However, there was no mention of the neck in records immediately predating the accident.

4. Ms Mason-Balshaw underwent an MRI scan of the cervical spine pre-accident on 27 June 2017 showing severe impingement of left C5 and bilateral C6 and C7 nerve roots, also with mild to moderate spinal canal stenosis C4/6.

5. There was concurrent chronic low back pain before the accident, and Ms Mason-Balshaw reported that overall, lower back symptoms worried her more than neck pain over the years. In 1994, she underwent an L4/S1 lumbar fusion for low back pain with right sciatica, which helped although did not fully resolve the symptoms. However, similar to the neck symptoms, low back pain flare-ups were intermittent, and she received lumbar spine steroid injections episodically for symptomatic relief.

6. Prior to the accident, the most recent investigation of the lumbar spine was a CT scan performed on 9 July 2018 demonstrating bilateral pedicle screws at L5 and S1 without hardware failure. There was L5/S1 facet arthropathy, exuberant L4/5 facet arthropathy without canal/foraminal narrowing and L3/4/L2/3 facet arthropathy, again without canal stenosis/foraminal narrowing.

7. The Medical Assessors drew to the claimant’s attention the entries in the GP records regarding lower back and right hip pain in March 2019 during the weeks immediately preceding the accident. There were also frequent references to lower back pain and sometimes right hip pain throughout 2018. Ms Mason Balshaw said that she could not recall these consultations although if there were medical records of such, she accepted that they had occurred.

8. She told the Medical Assessors that in the days immediately preceding the accident, there had been no significant pain in either the neck or the lower back.

9. She recalled a history of frozen left shoulder many years ago although she said that the shoulder recovered to the point of having sufficient elevation to peg out washing on the line.

10. Besides the left shoulder, there were no other issues involving the left upper limb preceding the accident.

11. Ms Mason-Balshaw said there were no pre-existing issues with the right shoulder, and as noted, she had (before the accident) a satisfactory range of motion to complete commonly performed daily activities.

12. Regarding the right hip, she acknowledged some groin and buttock pain before the accident although she said there was some uncertainty on the part of her doctor whether the abovementioned symptoms were coming from the lumbar spine or alternatively the hip. A hip X-ray on 9 July 2018 before the accident showed preservation of the joint space with no significant joint degeneration identified. It was only after the accident that a right hip X-ray on 2 July 2020 demonstrated advanced osteoarthritis.

13. At the time of the accident Ms Mason-Balshaw had been living at Thirroul to be closer to her daughter whom she had been assisting with childcare of a grandchild. She said that despite chronic neck and lower back symptoms; she had nonetheless been able to complete usual chores albeit slowly and with pacing. Specifically, she said she could pick up her grandson, vacuum, prepare meals, complete shopping and hang out washing.

1. There was full active range of motion at the hands with satisfactory ability to make fists bilaterally.

2. There was no weakness or else wasting of small (intrinsic muscles) of the hands, although there was subjective reduction of light touch sensation in the left-sided ring and little fingers. There was no objective evidence of a left ulnar nerve injury.

3. At the hips, the active range of motion is shown in the following table: The examination was conducted in a seated position due to the claimant’s inability to lie flat.

Right	Left
Flexion	90	80
Extension	Neutral (0)	Neutral (0)
Internal rotation	30	30
External rotation	40	40
Abduction	30	30
Adduction	40	40

1. There was no pain with active motion of either hip.

2. Overall, there has been an excellent clinical outcome with respect to previous right-sided buttock/groin symptoms, since the right THR. There was mild bilateral painless restriction of motion.

3. Ankle and knee movements were within normal limits.

DIAGNOSIS AND CAUSATION

1. In considering causation the Panel refers to the test for causation set out in the Guidelines. However, the Panel also notes in Briggs v IAG Limited Trading as NRMAInsurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[85] His Honour stated at [70]-[72]:

   [85] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.

   “70.   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

   ‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

   “An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference”.’

   71.    The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

   ‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

   72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

Head injury

1. The ambulance report and the Discharge Summary of Wollongong Hospital together with the clinical notes of Dr George of 3 May 2019 document a laceration to the right parietal scalp.

2. The Panel finds as a result of the accident the claimant sustained a soft tissue injury to the head which has now resolved.

Cervical spine

1. The Panel has concluded that the mechanism of the motor accident, that is, hitting her head on a pole sufficient to cause a laceration, striking her left wrist/forearm/hand on adjacent seats before the right side of her body struck the ground, could have caused or contributed to injury to the cervical spine.

2. NRMA submits not only was there was a lack of complaint pertaining to the cervical spine following the accident, but the Ambulance Report recorded the claimant denied any new neck pain and Wollongong Hospital recorded nil neck pain.

3. NRMA also disputes causation of injury to the cervical spine given the claimant’s long history of neck pain prior to the accident including discussion as to surgery in 2012 and 2014 and the lack of complaint to treating practitioners in the months following the accident.

4. In Norrington v QBE Insurance (Australia) Ltd[86] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:

   [86] Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548.

   “In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”

5. Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority(NSW)[87] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”

   [87] Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650.

6. Notwithstanding the limited complaint of cervical spine symptoms in the post-accident period the Panel, noting causation does not require scientific certainty, is satisfied the accident did cause or contribute to injury to the cervical spine having regard to the following:

   ·        whilst the claimant had acknowledged pre-accident complaints relating to her cervical spine and there were reported symptoms in 2017 and in 2018 there were no reported complaints in 12 months preceding the accident;

   ·        the strike to the head sustained by the claimant on the pole, on the balance of probabilities, resulted in a translation of forces along the neck;

   ·        the claimant reported an injury to her neck in the Application for personal injury benefits dated 3 May 2019;

   ·        the Certificate of capacity/certificate of fitness completed by Dr George on 3 May 2019 referenced injury to the neck, and

   ·        the Medical Assessors noted the claimant presented in a straightforward manner.

7. The Panel finds the claimant sustained an aggravation of the pre-existing degenerative changes to the cervical spine caused by the accident.

Right shoulder

1. The Panel finds the mechanism of the accident could have caused or contributed to injury to the right shoulder.

2. The Panel notes there is no pre-accident history of right shoulder complaints.

3. The ambulance report documented pain and bruising to the posterior right shoulder, Wollongong Hospital documented injury to the right shoulder following the accident and on 3 May 2019 Dr George reported injury to the right shoulder and noted restriction of movement of the right shoulder.

4. The claimant localised pain to the right AC joint with elevation and to the mid upper left arm with elevation. Therefore, the clinical examination findings were not consistent with symptoms referred from the neck causing restriction of shoulder movements. Accordingly, the Panel finds the decision of Nguyen v The Motor accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351 does not apply in this case.

5. There have been consistent complaints of pain and restriction of movement of the right shoulder and investigations included an MRI of the right shoulder on 4 June 2019 and the whole-body bone scan on 19 June 2019. The whole-body scan demonstrated bony contusion to the right shoulder and on examination the claimant reported pain localised over the acromio-clavicular joint.

6. The Panel finds that the accident did cause the injury to the right shoulder, namely, a non-displaced stress fracture/bone contusion.

Left elbow

333.The Panel finds the mechanism of injury could have caused or contributed to injury to the left elbow where the claimant described striking her left wrist/forearm/hand on adjacent seats before the right side of her body struck the ground.

334.The Panel notes there is no pre-accidents history of left elbow complaints.

335.Whilst there was no specific mention of injury to the left elbow the ambulance report described bruising and swelling of the left forearm and on 3 May 2019 Dr George reported injury to the left forearm, particularly, extensive bruising.

336.Thereafter, there is no recorded complaint of left elbow pain, however, the Panel notes the ongoing focus was on the claimant’s cervical and lumbar spine.

337.On 1 June 2021 Dr Bodel reported pain in the left elbow and on 28 March 2022 Dr Wallace accepted the claimant had sustained a soft tissue injury to the left elbow.

338.On examination the claimant reported posterior left elbow pain and difficulty with both elbow flexion and extension. She was non-tender over the lateral epicondyle.

339.Noting causation does not require scientific certainty the Panel finds the accident caused a soft tissue injury to the left elbow.

Left wrist

340.The Panel finds the mechanism of the accident could have caused or contributed to injury to the right shoulder where the claimant described striking her left wrist/forearm/hand on adjacent seats before the right side of her body struck the ground.

341.The Panel notes there is no pre-accidents history of left wrist complaints.

342.The ambulance report recorded “bruising and swelling to her left forearm with full ROM to her wrist and hand…”, the Discharge Summary of Wollongong Hospital reported a contusion to the left wrist and on 3 May 2019 Dr George referenced a haematoma near the left wrist.

343.In the Application for personal injury benefits the claimant referenced injury to the left side of the wrist. On 1 June 2021 Dr Bodel reported pain in the left elbow, wrist and hand and in his report dated 28 March 2022 Dr Wallace assessed a soft tissue injury to the left wrist.

344.On examination the medical assessors reported activity related dorsal left wrist pain. Ms Mason-Balshaw also reported she often drops items from the left hand and uses the right hand to lift heavier items.

345.The Panel finds the claimant suffered a soft tissue injury to the left wrist caused by the accident.

Left hand

346.The Panel finds the mechanism of the accident could have caused or contributed to injury to the right shoulder where the claimant described striking her left wrist/forearm/hand on adjacent seats before the right side of her body struck the ground.

347.The Ambulance Report recorded “bruising and swelling to her left forearm with full ROM to her wrist and hand…”, and on 3 May 2019 Dr George referenced bruising to the left forearm and a haematoma near the left wrist.

348.Whilst there was no further mention of complaints pertaining to the left hand in the treating records the Panel notes the focus thereafter was on the claimant’s cervical and lumbar spine.

349.In his report dated 14 July 2021 Dr Bodel reported pain and weakness in the left hand and a tendency to drop things.

350.At the time of the medical examination the Panel found the claimant to be a reliable historian and does not propose to treat the failure of treatment providers to comment on the left hand as decisive given the dicta of Campbell J in Owen v Motor Accidents Authority(NSW).[88]

[88] Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650.

351.The Panel finds the claimant suffered a soft tissue injury to the left hand caused by the accident.

Thoracic spine

352.The Panel finds the mechanism of the accident could have caused or contributed to injury to the thoracic spine where the right side of the claimant’s body struck the ground.

353.However, the Panel notes there is no record of complaint at any time, in either the ambulance report, the hospital notes, the treating practitioners notes or in the Application for personal injury benefits relating to the thoracic spine.

354.On 31 December 2019 Dr Dewey reported thoracolumbar pain, seven months post- accident. On 6 March 2020 Ms Tan-Stephen of Benchmark reported pain in the upper thoracic spine. On 8 April 2020 Dr Shafi, rehabilitation physician reported complaints of mid to lower back pain.

355.Whilst Dr Bodel reported pain in the region of the thoracic spine, Dr Wallace did not. The claimant underwent a CT scan of the thoracic spine on 20 April 2021.

356.On examination Ms Mason-Balshaw complained of episodic right-sided thoracic pain which she assessed at 9/10 and worsened by prolonged standing.

1. However, the Panel notes any absence of any complaint relating to the claimant’s thoracic spine prior to the accident. Where the Panel accepts the focus post-accident was on the claimant’s cervical and lumbar spine, where the claimant was found to be a reliable witness and where the relevant legal test in relation to causation does not require scientific certainty the Panel finds the accident did cause the claimant to sustain injury to the thoracic spine.

2. The Panel finds the injury to the thoracic spine to be a soft tissue injury.

Lumbar spine

1. The Panel finds the mechanism of the accident could have caused or contributed to injury to the lumbar spine where the right side of the claimant’s body struck the ground.

2. The claimant had a long-standing history of complaints pertaining to the lumbar spine and had undergone lumbar fusion for low back pain in 1994. Indeed, the claimant underwent a CT guided right L4/5 facet joint injection on 14 January 2019. The claimant disclosed her history chronic back injury in the Application for personal injury benefits.

3. Following the accident neither the Ambulance Service nor Wollongong Hospital recorded any complaint pertaining to the lumbar spine. However, on 3 May 2019 Dr George reported injury to the left lower back including some mild bruising.

362.Thereafter there have been consistent complaints of increased symptoms at the lower back since the accident.

363.A CT scan of the lumbar spine of 13 January 2020 showed lumbar spondylosis, prior L5/S1 laminectomies and posterior L4-S1 fusion and small disc bulges with no evidence of either nerve root impingement or else spinal canal stenosis/foraminal stenoses.

364.The Panel finds the accident did contribute to injury to the lumbar spine where the claimant has sustained an aggravation of the pre-existing symptomatic degenerative lumbar spondylosis.

Right hip

1. The Panel finds the mechanism of the accident could have caused or contributed to injury to the right hip where the right side of the claimant’s body struck the ground.

2. There were pre-existing complaints of right hip pain, and the claimant was referred for an
   X-ray and ultrasound of the right hip joint on 31 January 2018 due to severe recurrent pain in the right hip going to the right groin. At that time no significant degenerative joint disease was identified.

3. There was no reported injury to the right hip in either the ambulance report, the discharge summary of Wollongong Hospital, the Application for personal injury benefits or the records of the treating general practitioner.

368.The claimant underwent a further X-ray and ultrasound of the right hip on 2 July 2021 when right hip osteoarthritis was noted.

369.Whilst there were complaints of pain in the right buttock, thigh and leg there were no further reported complaints of right hip pain until the claimant consulted Dr Gray on 30 November 2021, and he recommended hip replacement surgery. Dr Gray was unable to be categoric when he was asked to address the question of causation. He suggested the accident could have caused a temporary flare up the claimant’s hip arthritis, but noted there was no evidence of any fractures around the hip.

370.Having regard to the lack of complaint pertaining to the right hip for over two years post-accident the Panel is not satisfied that the accident caused or contributed to the injury to the right hip, even by way of a temporary flare up of the claimant’s hip arthritis.

371.The Panel finds that the claimant’s right hip condition and the need for total right hip replacement surgery was due to age-related degenerative osteoarthritis.

PERMANENT IMPAIRMENT

1. When assessing permanent impairment, the Panel notes clause 1.21 of the Guidelines states the evaluation should only consider the impairment as it is at the time of the assessment, even where the findings on examination of Medical Assessors Lahz and Couch differ from the findings of Medical Assessor Cameron.

Head

1. The Panel notes the claimant sustained a soft tissue injury to the head. However, there was no assessable impairment where there was no suggestion of a traumatic brain injury as evidenced where there was no recorded GCS abnormality, no reported post traumatic amnesia and no imaging of the brain undertaken at the time.

2. The Panel finds the soft tissue injury to the head has resolved.

Cervical spine

1. Based on the Medical Assessors’ clinical findings, there was dysmetria within the flexion/extension plane of the cervical spine equating with 5% WPI at the cervical spine (page 104, AMA 4 Guides, Table 6.7 page 103 Guidelines).

2. The panel has considered the pre-existing neck problems although having reviewed extensive medical records preceding the accident, found no evidence of neck symptoms at the time of the accident. There were reported symptoms in 2017 and then also 2018 although there were no complaints in the 12 months immediately preceding the accident.

3. Clause 1.31 of the Guidelines requires that unless there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident then its possible presence should be ignored. The Panel does not propose to make any allowance for a pre-existing impairment where it has been unable to establish the presence of a pre-existing symptomatic impairment at the time of the accident.

4. The Panel assesses 5% WPI arising out of the injury to the cervical spine.

Right shoulder

1. The Panel has found the claimant sustained a non-displaced stress fracture/bone contusion to the right shoulder.

2. For the right shoulder, considering UEI/WPI due to restriction of AROM (active range of motion), using the best observed range of motion, there is 13% UEI (5%, 1%, 5%, 1%, 0%, 1%, Figures 38, 41, 55, pages 43-45 AMA 4 Guides) or else 8% WPI (Table 3, page 20 AMA 4 Guides). Of note the bone scan after the accident showed increased uptake at the AC joint consistent with an acute bony injury in this location.

3. The Panel notes the claimant’s observed left shoulder restriction of motion is clearly abnormal and attributes it to the claimant’s history of left frozen shoulder. Thus, it cannot be assumed that the right shoulder would have displayed similar movement to the left shoulder but for the accident.

4. On this basis, the Panel has calculated WPI/UEI due to right shoulder restriction from which it has taken no deduction, given the right shoulder reportedly functioned normally before the accident. Of note, the post-accident bone scan has shown an acute bony injury (acromion) after the accident implying a significant impact to the shoulder during the accident.

1. The Panel assesses 8% WPI arising out of the injury to the right shoulder.

Left upper extremity

Left elbow

1. The Panel has found the claimant sustained a soft tissue injury of the left elbow.

2. At the left elbow, there is 2% UEI (1% UEI for flexion restriction and 1% for loss of extension, (Figures 32 and 35, pages 40-41 AMA 4 Guides) or else 1% WPI (Table 3, page 20 AMA 4 Guides) for loss of active motion.

3. The Medical Assessors noted a full range of right elbow motion and therefore no deduction is applicable to the impairment assessment at the left elbow for any constitutional limitation of the uninjured right elbow.

4. The Panel assesses 1% WPI arising out of the injury to the left elbow.

Left wrist

1. The Panel has found the claimant sustained a soft tissue injury to the left wrist.

2. At the left wrist, there is 14% UEI for loss of movement (5%, 5%, 2%, 2% Figs 26 and 29, pages 36 and 38, AMA 4 Guides) less 2% UEI for constitutional loss of right wrist motion i.e. 12% UEI or else 7% WPI (Table 3, page 20, AMA 4 Guides) of the left wrist due to the accident.

3. It is assumed that the left wrist would have displayed the same range of motion as the right wrist, but for the accident.

4. The Panel assesses 7% WPI arising out of the injury to the left wrist.

Left hand

1. The Panel has found the claimant sustained a soft tissue injury to the left hand.

2. On examination the Medical Assessors found no impairment of the hands for restriction of finger motion. There was no clinical abnormality of the left hand.

3. As noted, there were insufficient clinical signs to confirm a left-sided ulnar nerve injury. There was no weakness of finger abduction/adduction and there was no wasting of the small muscles of the hands. The ulnar nerve at the medial elbow was not irritable. There was only subjective reduction of sensation at the left ring and little fingers.

4. The Panel found no assessable impairment of the left hand.

Thoracic spine

1. The Panel has found the claimant sustained a soft tissue injury to the thoracic spine.

2. There was no dysmetria, no localised thoracic tenderness, no muscle guarding/spasm, no non-verifiable radicular complaints and no signs of radiculopathy. This equates to a DRE Thoracolumbar Category I or 0% WPI at the thoracic spine (page 111 of the AMA 4 Guides).

3. The Panel assesses 0% WPI of the thoracic spine due to the accident.

Lumbar spine

1. The Panel has found the claimant sustained an aggravation of the pre-existing symptomatic degenerative lumbar spondylosis.

2. At the lumbar spine, there was already a pre-existing impairment of 20% WPI (DRE Lumbosacral Category IV) due to the preceding lumbar fusion. The panel acknowledges increased symptoms at the lower back since the motor accident although it cannot deem additional WPI due to the accident, in the absence of fractures or other neurological abnormalities such as lumbosacral radiculopathy.

3. The Panel assesses 0% WPI of the lumbar spine due to the accident.

Right hip

1. The Panel has found the claimant’s right hip condition was not caused by the accident.

Total permanent impairment

1. Applying the Combined Values Chart the Panel combines the 8% WPI for the right shoulder, 7% WPI for the left wrist, 5% WPI for the cervical spine and 1% WPI for the left elbow giving rise to a total 19% WPI caused by the accident.

TREATMENT DISPUTE – CERVICAL SPINE DECOMPRESSION AND FUSION

Is the proposed treatment related to the injury caused by the accident

1. The Panel is asked to consider whether the three-level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by treating neurosurgeon Dr Coughlan relates to the injury caused by the accident and whether it is reasonable and necessary in the circumstances.

2. In AAI Limited v Phillips[89] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act.

   [89] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.

3. Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.

4. Where the Panel found that the accident caused the claimant to sustain an aggravation of the pre-existing degenerative changes to the cervical spine it is satisfied that the accident was a material contribution to the need for the treatment, namely the surgery. This is the case where prior to the accident there had been no reported discussion of surgery since 2015 when Dr Curtis advised he did not think the claimant’s symptoms were surgical.

Is the treatment reasonable and necessary in the circumstances

1. Ms Mason-Balshaw suffers from non-specific neck pain although there is no clinical evidence of either cervical radiculopathy or myelopathy.

2. Cervical fusion is a major operative procedure and should only be undertaken if there are fractures/spinal instability or for relief of compression of spinal cord or nerve roots where the patient’s symptoms correspond with the findings on imaging. Whilst there is multilevel nerve root compression demonstrated on the MRI scan, this is occurring at the C5/6 and C6/7 levels, but not affecting the C8 nerve root, which could be (potentially) responsible for the claimant’s current symptoms at the left ring and little fingers. The Panel also notes that nerve conduction studies conducted during 2021 also demonstrated a mild left ulnar nerve lesion that could also be contributing to the latter symptoms.

3. Whilst Dr Coughlan considered surgery was necessary for relief of painful discopathy the Panel does not consider that to be one of the indicators for spinal surgery in the absence of radiculopathy or myelopathy. The Panel also notes there was no neck deformity, no listhesis and no large disc hernia which would otherwise support the need for surgery.

4. Given the absence of objective neurological abnormalities and the absence of any cervical spinal instability plus the lack of correlation between reported neurological symptoms and imaging findings, the proposed cervical decompression and fusion whilst causally related to the accident is neither reasonable nor necessary.

CONCLUSION

1. The Panel revokes the certificate of Medical Assessor Cameron dated 5 October 2024 and determines that the accident was a cause of the following injuries which give rise to a permanent impairment which is greater than 10% and is 19%:

   ·        head – soft tissue injury (resolved);

   ·        cervical spine – aggravation of pre-existing degenerative changes;

   ·        right shoulder – a non-displaced stress fracture/bone contusion;

   ·        left elbow – soft tissue injury;

   ·        left wrist – soft tissue injury;

   ·        left hand – soft tissue injury;

   ·        thoracic spine – soft tissue injury;

   ·        lumbar spine – aggravation of pre-existing symptomatic degenerative lumbar spondylosis.

2. The Panel finds the following injury referred for assessment was not caused by the accident:

   ·        injury to the right hip.

3. The three-level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by treating neurosurgeon Dr Coughlan is related to the injury caused by the accident.

4. The three-level discectomy and fusion surgery for the C4/5, C5/6 and C6/7 level recommended by treating neurosurgeon Dr Coughlan is not reasonable and necessary in the circumstances.