Milanovic v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Milanovic v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 492
CLAIMANT:	Zivorad Milanovic
INSURER:	IAG Limited trading as NRMA
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:	19 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; claimant involved in a motor accident in 2020 and suffered injuries to his cervical spine, right shoulder and left shoulder; claimant had also been involved in an earlier car accident in 2013 in which he injured his neck and back, amongst other things; claimant made no complaint of ongoing back pain nor did he seek treatment about this following this earlier accident; insurer submitted that a focal annular tear identified on scans after the second accident was an incidental finding which was more likely than not pre-existing; Medical Assessor accepted that the claimant had suffered an annular tear but provided no reasons about this; Medical Review Panel satisfied that the claimant had demonstrated no complaints about his lumbar spine for the subject accident; Held – the claimant had a disc protrusion and an underlying tear which were causally related to the subject accident; the claimant had suffered a non-threshold injury as a result of the accident in 2020; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION DETERMINATION. 1. The Review Panel revokes the certificate of Medical Assessor Woo dated 1 March 2023. 2. The Review Panel is satisfied that the claimant suffered an annular tear at L5/S1 with a disc protrusion as a result of a motor vehicle accident on 4 March 2020 and that this was a non-threshold injury pursuant to the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

The insurer appeals against the Medical Assessment Certificate of Medical Assessor Alexander Woo (the Medical Assessor) of 1 March 2023, whereby he found Zivorad Milanovic (the claimant) sustained a non-threshold lumbar spinal injury.
On 1 March 2023 the Medical Assessor found the following injuries caused by the accident:
(a)    cervical spine – soft tissue injury;
(b)    right shoulder – soft tissue injury, and
(c)    left shoulder – soft tissue injury
were minor injuries (now referred to as threshold injuries) for the purposes of the Motor Accident Injuries Act 2017 (the Act).
The Medical Assessor also found the following injury caused by the motor accident:
(a) lumbar spine – injury to the L5/S1 disc with annular tear and disc protrusion
was not a minor injury (now referred to a non-threshold injury) for the purposes of the Act.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment of a threshold injury dispute:
(d)    cervical spine – aggravation of pre-existing conditions, radiculopathy impingement of C7 nerve root;
(e)    thoracic spine – aggravation of pre-existing conditions;
(f)    lumbar spine – aggravation of pre-existing conditions, radiculopathy, nerve root impingement of L5 and annular tear;
(g)    right knee – trauma, impingement, restricted range of movememt (ROM) and blunt force trauma;
(h)    right shoulder – impingement and restricted ROM, and
(i)    left shoulder – impingement and restricted ROM.

The accident

On 4 March 2020, the claimant was the driver of a car, wearing a seat belt. He was travelling straight when another car made a u-turn and collided into the passenger side of his car. His car was pushed onto a footpath before it stopped.
The claimant recalled hitting his head against the mid-column of his car and his right knee hit the dash.
The claimant recalled getting out of his car with help from bystanders.
The claimant was transported by ambulance to Liverpool Hospital where he was assessed and discharged the same day.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Review Panel have read all the documentation. If a particular document is not referred to by the Review Panel, this does not mean that the Review Panel or a Review Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The Review Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Review Panel is to come to its own conclusion and to take its own history.

LEGISLATIVE BACKGROUND

Jurisdiction

The claimant’s claim is governed by the provisions of the Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “threshold” injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.

Threshold injury

A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “threshold psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Review Panel as they deal with psychological or psychiatric injuries.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.5   Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Does the claimant have radiculopathy?

Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.8 as follows:
“5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes
(b) positive sciatic nerve root tension signs
(c) muscle atrophy and/or decreased limb circumference
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Clause 5.7 of the Guidelines says that in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.

Insurers submissions

The insurer submits the Medical Assessor’s statement of reasons fail to explain the actual path of reasoning in sufficient detail to enable the court or any party to “see whether the opinion does or does not involve any error of law”.
The insurer highlights Table 6.8 of the Guidelines require for a finding of non-verifiable radicular complains the dysfunction must “follow the distribution of a specific nerve root”. The insurer submits, the Medical Assessor’s examination fails to evidence this.
The insurer submits the Medical Assessor has failed to make a finding of causation with respect to the L5/S1 disc with annular tear and disc protrusion.
The insurer highlights what it refers to as the post hoc ergo propter hoc fallacy. That is to say, merely the presence of pathology after the subject accident does not necessarily mean that it was caused by the subject accident.
The insurer submits the Medical Assessor has failed to provide any path of reasoning as to the subject accident being the cause of the pathology rather than an incidental finding or a pre-existing pathology rendered symptomatic by the subject accident.
The insurer highlights the claimant has had previous similar symptomology in the lower limbs. The insurer submits that the Medical Assessor’s lack of reason renders the parties unable to determine if there was an error in law in how this issue was considered or resolved by the Medical Assessor, if at all.
The insurer says that given the insurer’s internal review, highlighting the issue of pre-existing complaints, incidental findings, and causation of the pathology, the Medical Assessor had a heightened obligation to provide reasons as discussed in Campbelltown City Council v Vegan [2006] NSWCA 284 at [121]-[122].
The insurer reiterates the claimant has had previous pre-existing issues to the region consistent with the pathology identified after the subject accident.
The insurer submits a “focal annular tear” noted on imaging is an incidental finding which, on the balance of probabilities, more likely than not to be pre-existing, and which may have been rendered again symptomatic by the subject accident. Furthermore, the insurer submits anatomically, the intervertebral disc is not cartilage and thus a fissure in this region caused by the subject accident would not evidence a non-threshold injury as defined under statute.
The insurer submits that the medical literature evidence that these types of inclusion found on imaging are more prevalent with the passage of time in the asymptomatic population.
The insurer says that intervertebral discs, that is the nucleus pulpous (NP) and anulus fibrosis (AF) are fibrous connective tissue as defined in the Act. The insurer says that this fibrous connective tissue is joined to the vertebral endplate (BEP) by means of a cartilage layer (CEP).
[IMAGE UNABLE TO RENDER]
The insurer says that in other words, disc bulging and any suspected tears to the fibrous tissue (i.e. NP and AF), do not necessarily evidence tears to the cartilaginous endplate. This would be equivalent of muscular haematoma being referred as a musculoskeletal tear and therefore not a threshold injury.
The insurer refers to and says that extensive medical literature, such as Boden et al. (Boden, S. D., McCowin, P. R., Davis, D. O., Dina, T. S., Mark, A. S., & Wiesel, S. (1990) and “Abnormal Magnetic-Resonance Scans of the Cervical Spine in Asymptomatic Subjects. A Prospective Investigation” JBJS, 72(8), 1178-1184.) supports the epidemiology and prevalence of spinal pathology.
Relying on another research article, the insurer refers to and says that Dr Coroneous (Coroneous, M. (2020). “Incidence, Evaluation and Classification of Lumbar Spine MR Abnormalities in Asymptomatic Individuals”. Retrieved October 27, 2020, from confirms the high incident of spinal abnormalities such as bulges, protrusions, herniations, and disc osteophyte complex are terms used interchangeably. The insurer says that although they give the impression of a traumatic causation, these changes are often part of the aging and degenerative progress given their prevalence in the asymptomatic population.
The insurer submits that in studies by Stadnik et al (Stadnik, T. W., Lee, R. R., Coen, H. L., Neirynck, E. C., Buisseret, T. S., & Osteaux, M. J. (1998). Annular tears and Disk Herniation: prevalence and contrast enhancement on MR images in the absence of low back pain or sciatica. Radiology, 206(1), 49-55) the 50-year-old category disk degeneration was found in 80% of the asymptomatic population, disk height loss in 56%, disc bulges in 60%, disc protrusions in 46%, annular fissures in 23%, and facet degeneration in 32% of the population.
The insurer submits that disc fissures of the annulus of all types are “presenting nearly all degenerated discs”, “fissures occur in all degenerative discs but are not all visualised”. The insurer says that notably, the term fissure is preferred over tear “primarily out of concern that the word ‘tear’ could be misconstrued as implying a traumatic aetiology” (Fardon, D. F., Williams, A. L., Dohring, E. J., Murtagh, F. R., Rothman, S. L. G., & Sze, G. K. (2014).) Lumbar disc nomenclature: version 2.0: Recommendations of the combined task forces of the North American Spine Society, the American Society of Spine Radiology and the American Society of Neuroradiology. The Spine Journal, 14(11), 2525-2545).
The insurer referred to the degenerative changes in the claimant’s lumbar spine including an annular fissure. The insurer says however, that based on the above literature, noting the degenerative findings including disc bulging and the absence of traumatic changes, the it is more likely than not that these findings are incidental rather than a finding caused by the subject accident.
The insurer submits whilst it is possible for the pre-existing degenerative disc pathology to have been rendered symptomatic again by the subject accident, in the absence of radiculopathy, it is still a minor injury as the subject accident did not cause the pathology itself.
The insurer lodged submissions initially to the claimant’s original application for assessment of threshold injuries.
Regarding the claimant’s past medical history, the insurer referred to the claimant’s previous claim form in relation to an accident dated 18 March 2013. The insurer says that this showed the claimant that sustained injuries to his head, neck, right arm, chest, back, right leg and anxiety and depression.
The insurer has referred to what it submits are relevant parts of the clinical records from Health Check Family Medical Practice, the practice of the claimant's general practitioner (GP), as at 24 September 2020. These records have been summarised, below:
(a)    On 20 March 2013 Dr Predrag Tomasevic reported that the claimant was involved in a car accident on 18 March 2013 when his stationary car was rear ended while in traffic. The claimant complained of headaches, neck pain, mild and chest pains, occasional right lower limb pains and paraesthesia. No pains in the back, bilateral shoulders and upper limbs, no pains or paraesthesia in the left lower limb, no abdominal pain. Dr Tomasevic also noted that the claimant had “2 days headaches, insomnia, anxious”.
(b)    On 8 April 2013 Dr Tomasevic recorded that the claimant complained of headaches, neck pain, mild arterial chest pain, occasional right lower limb pain and paraesthesia.
(c)    Dr Tomasevic also noted that the claimant did not work due to his injuries.
(d)    On 23 May 2013 Dr Tomasevic recorded that the claimant complained of headaches, neck pain, mild anterior chest pain, insomnia, difficulty concentration, anxiety and depression.
(e)     Dr Tomasevic again also noted that the claimant did not work due to his injuries.
(f)    On 12 September 2013, Dr Tomasevic recorded that the claimant complained of headaches, neck pain, left and right shoulder and left knee pain.
(g)    Dr Tomasevic noted that the claimant commenced working as a painter three days a week on light duties.
(h)    On 10 June 2014 Dr Tomasevic recorded that the claimant complained of headaches, neck pain, left and right shoulder and left knee pain.
(i)    On 18 January 2019 Dr Tomasevic recorded that the claimant had swelling in his bilateral ankles since 11 January 2019.
The insurer refers to the ambulance report dated 4 March 2020 which indicated that the claimant was involved in a low-speed accident, was wearing a seatbelt at the time of the accident, self-extricated, there was a minor damage to his vehicle with no cabin intrusion, airbags did not deploy.

The ambulance report recorded that the claimant had no signs of chest trauma, no head-strike, Glasgow Coma Score of 15, no cervical spine or bony tenderness, no back pain, abdomen soft and non-tender, pelvic ring intact, could recall full event, no neurological symptoms. The claimant complained of lateral neck pain to the trapezius region and right knee pain where it had stuck the dash and mild headache.

Claimant’s submissions

In response to the submissions of the insurer, the claimant says that the Medical Assessor made his determination whilst being fully aware of the claimant’s medical history from his long-term GP, Dr Tomasevic.
The claimant says that the insurer has attempted to submit that there was pre-existing pathology in the lumbar spine but provides no evidence of this beyond a single vague reference to occasional right lower limb pain and paraesthesia pre-dating the accident by seven years without further complaint prior to the subject accident occurring.
The claimant submits that the Medical Assessor made all reasonable inquiries and assessments into the lumbar spinal injury and provided a clear path of reasoning consistent with the available medical records, his clinical assessment, the radiology and clinical assessment of the claimant’s treating orthopaedic specialist Dr Matthew Giblin.
The claimant addressed the allegations of the that the Medical Assessor failed to make a finding of causation and that the mere presence of the pathology does not mean it was caused by the subject accident. In response to this, the claimant says that the Medical Assessor clearly made a finding of causation with respect to the L5/S1 annular tear and disc protrusion on the basis of the immediate onset of symptoms in the Lumbar spine, the history of the accident, mechanism of injury, clinical and imaging findings.
The claimant submits that it is clear that the Medical Assessor determined the lumbar spinal injury and pathology were causally related to the subject accident and having considered the pre and post-accident medical records and the contemporaneous clinical findings and radiological evidence requested by the claimant’s GP as a result of the immediate onset symptoms from the subject motor vehicle accident on 4 March 2020.
The claimant says that within the evidence available to the Medical Assessor there was no record of pre-existing complaints of the lumbar spine, beyond a single vague reference to occasional right lower limb pain and paraesthesia pre-dating the accident by seven years without further complaint prior to the subject accident occurring.
The claimant submits that in light of the history and the immediate onset of symptoms and obtaining of radiological evidence, the Medical Assessor has used his clinical expertise to make a determination and accept that the subject motor vehicle accident was the cause of the claimant’s lumbar spinal injury and pathology.
The claimant submits that in the absence of any other evidence, and which the claimant submits does not exist in this matter, this is the determination the Medical Assessor could make in the circumstances and is the correct finding in this matter.
The claimant submits that the majority of the insurer’s submissions appear to be directed to the Review Panel upon the assumption its application will be accepted without consideration, and then go on to only refer to approximately 80 pages of what the claimant says is irrelevant medical literature to the subject dispute and alleged material error, which has not been established.
The claimant says that as the insurer has failed to identify any errors within the reasons of the Medical Assessor then his certificate must stand.

The medical evidence

Regarding the scans as submitted in the claimant’s bundle of documents, these were illegible. The Medical Assessor, in his certificate and reasons the subject of this review, commented that the annular tear and disc protrusion at L5/S1 was with potential irritation of either L5 nerve root and consistent with non-verifiable radicular pain in the left leg.
The Medical Assessor was satisfied that the injuries suffered by the claimant in the accident, including an injury to the L5/S1 disc with an annular tear and disc protrusion, arose because of the accident. He provided no elaboration about this.
Radiological scans of the claimant and commented upon by the Medical Assessor, were as follows;
(a)    MRI brain on 10 June 2020:
no abnormality detected.
(b)    MRI cervical spine on 10 June 2020:
minimal spondylotic changes with mild left C6/7 foraminal narrowing due to uncovertebral osteophytosis with potential impingement of the exiting left C7 nerve root.
(c)    MRI thoracic spine on 10 June 2020:
incidental mild prominence of the central canal throughout the thoracic cord maximal about the T7 level measuring 1.7mm. Facet joint OA at the T9/10 and T10/11 levels
(d)    MRI lumbar spine on 10 June 2020:
there is no disc bulging at the L2/3, L3/4 and L4/5 levels. There is a tiny focal annular tear and focal disc protrusion at L5/S1 mildly indenting the right anterior aspect of the thecal sac but not causing lateral recess or central canal stenosis. Associated diffuse disc at this level mildly narrowing the foramen and potentially irritating either exiting L5 nerve root.
In a report dated 3 August 2020 Dr Giblin, the claimant’s treating orthopaedic surgeon, reported that since the accident the claimant had neck, low back pain and some mild mid thoracic pain. Dr Giblin confirmed that there was no radiation into the upper or lower limbs and no associated paraesthesia. On examination the claimant had restricted range of neck and bilateral shoulder movement with reproduction of neck pain, not shoulder pain. On examination of the lumbar spine the claimant could forward flex to the knees, had discomfort of arising, straight leg raising was 70 degrees bilaterally and there were no significant peripheral neurological signs.
Dr Giblin concluded that the claimant had injuries to his cervical and lumbar spine and to a lesser extent to his thoracic spine. Dr Giblin said that there was no need for surgery and that with conservative treatment the claimant would improve. Dr Giblin recommended a bone scan to see if the claimant would benefit from a steroid injection.
In a report dated 26 August 2020 Dr Giblin noted that the bone scan showed uptake in the right sided facet joints at C4/5 and the left sided facet joints at L4/5 and L5/S1, also the sacroiliac joints in the right knee. Dr Giblin noted that the claimant’s neck and low back pain was more central than one sided, “indicating it may be more discogenic in nature”. Dr Giblin changed Nurofen to Celebrex and recommended the claimant to take it with Panadol and to continue with physiotherapy and hydrotherapy.
In a report dated 8 February 2021, Dr Giblin noted that the physiotherapy, hydrotherapy, Celebrex and Panadol did not seem to help the claimant. Dr Giblin noted that the claimant tried Nurofen and Endone which was of benefit.
In a report dated 10 May 2021, Dr Giblin noted that symptomatically the claimant was much the same as when he last saw him.
Dr Lim, a GP, provided a report of 5 November 2020 and a diagnosis of:
“Cervical spine radiculopathy, C6/7 foraminal narrowing with potential impingement of L) C7 nerve root (MRI); Bilateral Shoulder Strain; Lumbar spine radiculopathy, L5/S1 disc protrusion with annular tear, potentially compress L5 nerve root (MRI); R) knee strain; Major depressive disorder; PTSD”.
Dr Lim provided no analysis for his conclusions.
Clinical records from Health Check Family Medical Practice, from the claimants treating GP, as at 24 September 2020, show the following points of note:
(a)    on 05 March 2020 Dr Tomasevic recorded that the claimant was involved in a car accident on 04 March 2020 and was suffering from headaches, neck pain, entire back, left and right shoulders and right knee pain.
(b)    Dr Tomasevic noted that prior to the subject accident the claimant denied any previous significant problems with his neck, back, left to right shoulders, left or right knees.
(c)    On 10 March 2020, and 12 March 2020 Dr Tomasevic recorded that the claimant was suffering from headaches, neck pain, entire back, left and right shoulders and right knee pain, no paraesthesia in the left or right upper or lower limbs.
(d)    On 17 March 2020, 24 March 2020, 06 April 2020, 14 April 2020, 23 April 2020, 04 May 2020, 18 May 2020, 03 June 2020, 12 June 2020 and 15 June 2002 Dr Tomasevic recorded that the claimant had headaches, neck pain, entire back, left and right shoulder, right knee pain and occasional paraesthesia right side of head.
(e)    On 12 June 2020, 15 June 2020, 23 June 2020, 07 July 2020, 15 July 2020, 21 July 2020, 23 July 2020, 30 July 2020, 03 August 2020, 17 August 2020, 26 August 2020, 31 August 2020 and 15 September 2020 Dr Tomasevic recorded that Mr Milanovic had headaches, neck pain, entire back, left and right shoulder, right knee pain and paraesthesia right side of head.
The Benchmark Rehabilitation ADL Assessment report from dated 7 May 2020 noted largely full ranges of movement with mainly the lumbar spine being restricted. The report noted that the claimant was able to drive for up to 30 minutes due to physical limitations.
The report also recorded that the claimant did not return to his leisure tasks due to the reported pain.
The Benchmark Rehabilitation Progress Reports noted some improvement but significant concerns and avoidance behaviours affecting return to work.
The progress report dated 20 July 2020 reported that the claimant was hesitant regarding return to work and advised that “he would like to concentrate on improving his health first”.
The insurer lodged late documentation including a psychiatric medico legal report from Dr George of 10 November 2023. The insurer provided no submissions regarding this late documentation This report is of no assistance to the Review Panel.
The insurer, in its late documentation, also lodged a report of Dr Smith dated 22 September 2014, going to the claimant’s prior injuries. Dr Smith concluded that he could find nothing wrong with the claimant. If Dr Smith were to be accepted, then the Review Panel would accept that any injury from his 2013 accident had stabilised by 2014 and that the claimant had no disabilities arising from that.
Holistic Therapy clinical notes, for 2013 treatment and following, are primarily to do with neck and shoulder complaints.
Also included in the insurer’s bundle of documents is a report of Dr Kuljic dated 1 September 2022. Dr Kuljic is a psychiatrist. His report adds nothing to the considerations of the Review Panel to the physical injuries suffered by the claimant.

Medical examination/considerations by the Review Panel

The Review Panel considered a re-examination of the claimant was not required because no submissions had been made about the evidence or otherwise about radiculopathy, and the issues are to be determined from the nature of the imaging presented to date. The parties were given an opportunity to submit if a physical medical examination was required but neither party required this.
Medical Assessors Oates and Assem have considered all of the documentation and have questioned the claimant by way of Teams videoconference, on 26 February 2024. Their report follows:
“Details of who attended the Assessment
Mr Milanovic attended a Teams video conference with Medical Assessor Assem and Medical Assessor Oates as arranged on 26/02/2024.
An official Serbian interpreter, Sasha, was present for the duration of the interview.
HISTORY
Pre-accident medical history and relevant personal details
Mr Milanovic said he came to Australia from Serbia in November 2010. He is married with three children, the oldest of whom is 17, and all of whom are at school. His wife does not work, as she provides care to the children.
The Panel Medical Assessors asked Mr Milanovic about a previous motor vehicle accident which occurred on 18/03/2013. He said he was stopped in his car at a red light and a following vehicle hit him from the back.
He said it was not a major accident and he recovered after treatment. He was off work for a few months. He was working as a painter at the time. A claim was made, and he was paid $14,000. His car was repaired, and he continued to drive it thereafter.
He injured his head, neck, right arm, back and had right leg pins and needles. He can’t recall if he had any imaging or scans after the 2013 accident.
He had a fall whilst playing with his children at home on 27/11/2013 and fractured his left wrist but made a full recovery following immobilisation in plaster.
The Medical Assessors asked him about a GP entry of 12/09/2013 referring to headaches, neck pain, left and right shoulder and left knee pain, and he could not recall if this was connected to the 2013 accident.
The Panel Assessors asked him about a GP entry of 10/06/2014 referring to headaches, neck pain, left and right shoulder pain and left knee pain, and he could not recall if this was connected to the 2013 motor vehicle accident.
He recalls he had treatment and recovered, and then said it was not related to the motor vehicle accident of March 2013.
He said at the time of the subject motor vehicle accident of 4/03/2020 he was working as a painter in a residential basis and had done this since he came to Australia in November 2010. He then clarified this was apart from a short period doing carpentry work when there was no painting work available.
Mr Milanovic said he had had no other accidents before the motor accident of 18/03/2013.
History of the motor accident
Mr Milanovic said on 4/03/2020 he was the driver of a VW Bora sedan. There were no passengers, as he had just dropped his daughter off at school. He had a seatbelt on. He was travelling straight along a street at about 45-50kph, when a car which he recalls was a 4WD came from the left-hand kerb, which was a bus lane, without putting an indicator on and started to turn in front of him. This 4WD collided with the front passenger door of his vehicle. When he saw the other vehicle was coming, he tried to steer to the right to try and avoid it and after the impact, his car was pushed against the opposite footpath.
He hit his head against the mid column of the car and his right knee hit the dashboard. He was not knocked unconscious. He said his right knee is OK now. He recalls getting out of the car with help from bystanders but is not sure whether he lost consciousness. No airbag deployed.
He did not drive his car from the scene. Police, ambulance and fire brigade attended.
The Medical Assessors noted that the photograph of his car showed only a minor impact against the front passenger door and asked for his comment. He said it was a big impact and his car was written off. He said the impact was significant enough such that the connection of his seatbelt to the B pillar was torn off by the impact.
He felt pain in the neck, shoulders and lower back and right knee. We asked him about the ambulance record, which stated he had reported ‘no back pain’. He explained that he was shocked and stressed at the time and can’t recall what he told the ambulance paramedics.
He was taken to Liverpool Hospital where he spent about eight hours. He recalls having an ultrasound scan to the front and back of his body but is unsure what specific regions.
History of symptoms and treatment following the motor accident
Shortly after this, he saw his usual GP, Dr Tomasevic, complaining of pain in the neck, back, both shoulders and right knee. He was sent for physiotherapy which was paid for by the insurer for about 12 months, and consisted of treatment to the neck, shoulders and lower back. He also had medications which he said were prescribed by Dr Giblin, whom he described as a pain specialist, although Dr Giblin is actually an orthopaedic surgeon.
The GP ordered MRI scan of the spine. He also had an MRI scan of the brain. The MRI scan of the brain was normal and those of the cervical spine and thoracic spine showed minor degenerative changes. The MRI of the lumbar spine showed multiple lower lumbar disc degenerative changes with an annular tear of the L5/S1 disc.
He had difficulty with thinking and sleeping and was referred to a psychiatrist and given ‘strong’ psychoactive medication.
He continued to receive medications from Dr Tomasevic after physiotherapy stopped but felt they were inadequate, so changed his GP about three months ago to Dr Ducic, who treats him with Panadeine Forte and Endone.
He has had some abdominal pain and recently had an ultrasound showing a polyp on his gall bladder which will be kept under surveillance.
Details of any relevant injuries or conditions sustained since the motor accident.
Nil relevant to the body regions injured in the subject accident, viz., cervical, thoracic and lumbar spines, right knee and the shoulders.
On 18/05/2022, he slipped down a step and injured his right foot. He attended the Gosford hospital ED and investigations revealed a closed fracture of the right hallux (big toe). The hospital record states, ‘he reported nil other injuries or sites of pain.’ He was given analgesics and fitted with a CAM walker boot and advised to have follow up with an orthopaedic team and GP in his own area (Liverpool).
Current symptoms
He has low back pain in the midline, which is mainly localised to the back, but from time to time his right leg goes numb like an electric shock radiating from the lower back through the buttock and down the right lower extremity as far as the heel and foot. The back is worse with bending and lifting. The knee has settled down.
He hasn’t been back to work since the date of the accident because of the pain from the injuries to his shoulders and lower back, and also the fact that he can’t concentrate.
He lived on his savings initially and he and his wife both receive Centrelink benefits. At home he can’t help much and just does some light tasks such as washing dishes.
His wife and his mother-in-law, who comes over, do the bulk of the housework. He can carry a bag of weight 2-3kg but afterwards has pain in the shoulders. They live in an apartment so there is no yard work to do. Bending increases the back pain, so he can only do light tasks. He can’t wash the car for instance.
Current and proposed treatment
He has strong medications prescribed by the psychiatrist. He takes Panadeine Forte and Endone as required for the pain arising from the physical injuries.
EXAMINATION
Because this interview was conducted by Teams video link arranged by PIC, no physical examination was undertaken. Physical examination had not been considered to be necessary by the Panel, because there was no dispute about the physical examination findings.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is soft tissue injury to cervical, thoracic and lumbar spines with annular tear of the L5/S1 disc within a focal disc protrusion, mildly narrowing the neural foramina and potentially irritating either exiting L5 nerve root.
The other diagnoses are soft tissue injury to the right and left shoulders, and impact soft tissue injury to anterior right knee.
The motor accident was a cause of these injuries, as cervical spine and thoracic spine are mentioned in the ambulance and hospital records respectively, and cervical spine is mentioned in the Allied Health Recovery Request (AHRR) of 26/03/2020.
The lumbar spine is also referred to in the AHRR, as are right and left shoulders, and in the early GP record.
Threshold injury
The cervical spine and thoracic spine injuries were diagnosed soft tissue injuries and therefore are threshold injuries.
There was no evidence of two or more criteria present on clinical examination by Medical Assessor Woo to justify a diagnosis of cervical or thoracic radiculopathy.
The lumbar spine injury is classified as a non-threshold injury, owing to the presence of an annular fissure at L5/S1. This is a partial or complete tear of cartilage, noting the annulus fibrosus of the intervertebral disc is composed of fibrocartilage. The Panel cannot rule out categorically that the subject accident was a cause of this annular fissure, because there is no evidence of such pathology being present prior to the subject accident.
For this reason, the Panel decided to request the MAS records of the 2013 motor vehicle accident and medical and allied health records between 2012 and 2017, and between 2017 and 2019, to check for the presence of imaging and other clinical data which might provide evidence that the motor accident of 18/02/2013 was a cause more than negligible of a significant lumbar spine injury, which might be associated with an annular fissure or radiculopathy.
These records indicated this MVA on 18/03/2013 caused soft tissue injuries resulting in neck pain, headache, bilateral shoulder pain and left knee pain. He was off work for a period after the accident, after which he returned on reduced hours and light duties as a painter in late August 2013. GP records indicated continuing symptoms as at 10/06/2014, and physiotherapy records indicated treatment up until August 2014. Nevertheless, he was recovered well enough to be playing football with his children at home when he fell and fractured his left wrist on 27/11/2013.
In the period after this accident, there is no reference to his having had an MRI scan to check the status of the spinal discs.
The Panel notes that the examination findings of Medical Assessor Woo of the lumbar spine did not indicate two or more criteria being present which would justify a diagnosis of lumbar radiculopathy in accordance with cl 5.8 of the Guidelines.
The right knee is a threshold injury and has resolved, with normal findings at the time of the medical examination by Medical Assessor Woo.
The right and left shoulders are classified as threshold injuries, being soft tissue injury, and the Panel could not discover any imaging which had been done which would qualify the right and left shoulder injuries as non-threshold injury according to the definitions in Section 1.6(2) of the Act.
The Panel adopts the findings and conclusion of Medical Assessor Oates and Medical Assessor Assem.”

CAUSATION

The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 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.”

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[4] and
"scope of liability".[5]
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”..
In the accident involving the claimant, he was driving his car which was unexpectedly collided into firstly, on the left side, and then secondly, by an impact on the right side with the footpath. It was sudden, and might have been with some degree of force.
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
[8] At [27].
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as threshold injury”) and involved a question of causation in respect of an amputated toe.
The discussion in Kinchela concerning the correct principles to apply relating to causation follows:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said:
“67    The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68     As to whether the motor vehicle accident trauma was a cause of a ‘left posterolateral annular tear’ with ‘mild disc desiccation’ shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2) ‘a delamination may not fall within the definition of a tear’; and
(3) ‘the defect may not be the source of his pain and disability’.
69     The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
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].
73     The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74     The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75     This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76     In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77     In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgment’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question”.
Photographs of the car in which the claimant was travelling, possibly taken a short time after the accident but not known when by the Review Panel, show body damage to the front left door panel of the car.
Photographs of the claimant’s car, post-accident and provided within the insurer’s investigation report, follow:
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
A photograph of the insured car, post-accident and provided within the insurer’s investigation report, follows:
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
The Review Panel must consider whether the claimant’s disabilities, particularly to his cervical, thoracic and lumbar spines are causally related to the accident and especially noting the lumbar spine L5/S1 disc with annular tear and disc protrusion.
Scientifically, there is a possibility that the accident could have caused an annular tear to the claimant’s lumbar spine. The Review Panel must consider, did the accident contribute to the claimant suffering an annular tear when he had an earlier motor vehicle accident in 2013?
There is essentially no evidence of complaint about the claimant’s lumbar spine following the accident in 2013. And yet, immediately following the accident the subject of this claim, in 2020, the claimant complained of back pain, and continuously thereafter.
The Review Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, whether the claimant’s annular tear arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
On the balance of probabilities, can it be said that the annular tear suffered by the claimant and for which he immediately complained, was caused by the accident? The Review Panel is satisfied that this is the case. The claimant, at the time of the accident, was 37 years of age. He had not been treated for symptoms of an annular tear or back pain in his lumbar spine before the accident. In the opinion of the Review Panel, the accident materially contributed to the claimant suffering an L5/S1 disc protrusion and annular tear.
The Review Panel is satisfied that the accident and impact has had a more than negligible effect on the lumbar spine condition suffered by the claimant including an annular tear at L5/S1 with a disc protrusion.
The claimant had no demonstrated complaints about his lumbar spine before the accident. The Review Panel is satisfied that on the balance of probabilities the accident was a contributing cause which is more than negligible. The claimant suffered an acute injury, among other things, to his lumbar spine following the accident and for which he immediately sought medical treatment the day following the accident from his GP.
The claimant not only has a disc protrusion but also has an annular tear.
The claimant has a disc protrusion and an underlying tear which is causally related to the subject accident and remains symptomatic and is as clearly defined as a ligamentous tear with no pre-accident complaint about this body part by the claimant.
An MRI scan of the lumbar spine on 10 June 2023 identified:
“…a tiny focal annular tear and focal disc protrusion at L5/S1 mildly indenting the right anterior aspect of the thecal sac but not causing lateral recess or central canal stenosis. Associated diffuse disc at this level mildly narrowing the foramen and potentially irritating either exiting L5 nerve root”.
Once a person has a disc protrusion, it follows that it has split the annulus. The disc space posteriorly opens up on flexion making it easier for the disc to protrude posteriorly.
As there is no evidence before the Review Panel to suggest that the claimant complained about his lumbar spine before the accident, the Review Panel accepts that the claimant has suffered a lumbar spine injury on 4 March 2020 which constituted a disruption of the tissue, that is the annulus that surrounds and supports the nucleus pulposus. For the purposes of the Act, the lumbar spine strain is not just a soft tissue injury, but an annular tear. The claimant complained about this immediately following the accident to his GP.
An annular fissure is the same as an annular tear and radiological evidence establishes causation. The annular fibrosis is the ligament that contains the nucleus pulposus which in this claimant’s case has ruptured and torn through the annulus. The reason the annular tear is associated with the accident is that the disc has protruded through it as a result of the subject collision.
Regarding the claimant’s past medical history, the insurer referred to the claimant’s previous claim form in relation to an accident dated 18 March 2013. The insurer says that this showed the claimant that sustained injuries to his head, neck, right arm, chest, back, right leg and anxiety and depression. This is correct but the clinical notes show that no treatment following the accident related to the claimant’s back. The Review Panel is not satisfied that the injury to the claimant’s back and the subject of this determination, arises from the accident on 18 March 2013. There is no evidence of any annular tear before the accident which is the subject of this determination.

CONCLUSION

This is a dispute between the claimant and the insurer about: whether the injury caused by the accident is a threshold injury under Schedule 2, s 2(e) of the Act.
The Review Panel is satisfied that the accident and impact has had a more than negligible effect on his lumbar spine causing an annular tear at L5/S1 with a disc protrusion suffered by the claimant. That condition has been caused by the accident.
Consequently, the claimant has suffered a non-threshold injury.

DETERMINATION

The Review Panel revokes the certificate of Medical Assessor Woo dated 1 March 2023.
The Review Panel is satisfied that the claimant suffered an annular tear at L5/S1 with a disc protrusion as a result of a motor vehicle accident on 4 March 2020 and that this was a non-threshold injury pursuant to the Act.

[2024] NSWPICMP 492

19 July 2024