Musawi v AAI Limited t/as GIO
[2024] NSWPICMP 296
•14 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Musawi v AAI Limited t/as GIO [2024] NSWPICMP 296 |
| CLAIMANT: | Syed Ruhullah Musawi |
| INSURER: | AAI Limited trading as GIO. |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Rhys Gray |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 14 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 11 June 2021; a medical dispute arose as to whether or not the injury which the claimant sustained was a threshold injury; the Medical Review Panel conducted an examination of the claimant; Held – Medical Assessor Wijetunga’s determination of threshold injuries was affirmed; the Review Panel certifies that the injury referred for assessment and caused by the accident, namely the lumbar spine injury, is a threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Wijetunga, dated 12 September 2023. |
STATEMENT OF REASONS
INTRODUCTION
On 11 June 2021, Mr Musawi, the claimant, was the driver of his then stationary Toyota Corolla, with three vehicles behind, when another vehicle collided with the third vehicle, causing a pile up into Mr Musawi’s vehicle.
In the result of the collision, Mr Musawi alleges that he was injured.
A complete description of the motor vehicle accident is provided in the Reasons of Medical Assessor Wijetunga, summarised below.
AAI Limited ABN 48 005 297 807 trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Mr Musawi under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”
Mr Musawi submitted an Application for Personal Injury Benefits dated 29 January 2021.
Threshold injury dispute
The insurer determined that Mr Musawi had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Mr Musawi sought an Internal Review of the minor (threshold) injury decision. The insurer affirmed the determination.
Mr Musawi subsequently filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute. A treatment dispute was also filed.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act and whether proposed treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. 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.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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.
6.6 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.
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.’”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Wijetunga in respect of the dispute as to threshold injury was the following:
(a) lumbar spine injury.
At [4] in her reasons, Medical Assessor Wijetunga noted the submissions made by the claimant on 10 May 2023, and insurer’s reply on 31 May 2023.
Medical Assessor Wijetunga took a pre-accident medical history at [9].
Mr Musawi was born in Afghanistan. He migrated from Afghanistan to Australia in 2009. He then commenced work as a painter.
Initially he worked full time as a painter which he was doing at the time of the accident. During Covid he was off work for about 6 months which he also attributed to symptoms of lower back pain.
He gradually returned to suitable duties in painting after this. At present he works as a painter involving light duties such as cleaning for about three days a week. He hires other workers (four others to do the painting).
Medical Assessor Wijetunga took a history of the motor accident at [10] and a history of the symptoms and treatment following the accident at [11]:
“Mr Musawi was driving an automatic 2011 Toyota Corolla with no other occupants in the vehicle. He reports that the accident involved 4 cars. He reports that he was stationary at traffic lights when his vehicle was rear-ended with such force that it resulted in a subsequent forward collision with a vehicle that was pushed into the car in front.
No airbags were deployed. He recalls being jolted forward. He was able to self-extricate at which time he recalls being dizzy. No police or ambulance attended. He drove his car home which was about 20 minutes. His car was subsequently written off.
Initially he felt some generalised body pain. He consulted his GP later that day describing lower back pain at which time was estimated at 6-7/10, using visual analogue scale.
He consulted his doctor a few days later, after which there was no improvement.”Medical Assessor Wijetunga further documented:
“His GP subsequently referred him for investigations… He experienced worsening of his symptoms, and he ceased physiotherapy after about 10 treatments.
He was referred to a neurosurgeon Dr Olson, who also opined that the morning pain may reflect a rheumatological condition. He has not undertaken any further treatment.
Since then, he attempts to manage his symptoms with analgesia.”Medical Assessor Wijetunga listed the current symptoms at [10]:
“Mr Musawi reports constant lower back pain which at a baseline is 3-4/10 and increases with working to about 6-7//10. He reports that his pain is worse is sitting.
He also reports difficulty negotiating stairs.
He reports that pain extends down both legs and on the right side it extends down the lateral aspect to the foot.
He reports that there is intermittent bilateral numbness on the lateral aspect of his thighs which extends down both legs to the feet.”Mr Musawi told Medical Assessor Wijetunga that he was currently taking anti-inflammatory medication and two to four Panadol a day.
Medical Assessor Wijetunga set out the clinical examination at [14]:
“General presentation
Mr Musawi was observed to stand after being seated for 15 minutes. He was able to stand and walk on his toes and heels cautiously. He was able to achieve a squat cautiously.
On observation there was no abnormality of his lumbar spine. There was normal spinal curvature. He demonstrated a normal range of movement on all planes but described an increase of pain with rotation bilaterally.
The neurological examination of the lower limbs was undertaken which demonstrated normal tone and muscle strength. There was no muscle wasting.
He has reduced right knee reflex when compared to the left, which correlates with L4 nerve injury. He described reduced sensibility over lateral aspect of his right lateral thigh, and medial calf which correlates with an L4 dermatomal pattern.”Medical Assessor Wijetunga commented on the summary of relevant radiological and medical imaging:
“The investigations findings are consistent with a developmental spondylolisthesis.”
In his diagnosis and reasons Medical Assessor Wijetunga noted Mr Musawi was involved in a reasonably major motor vehicle accident where “the mechanism of the accident was of a severity that the rear-end collision resulted in 2 further forward collisions, and his car was written off.”
Medical Assessor Wijetunga summarised that his examination reflected musculoligamentous strain of the lumbar spine. Given that this did not involve tear of ligaments, tendons or cartilage and there was no true nerve injury demonstrated by MRI which correlated with neurological findings, his condition was consistent with a soft tissue injury as defined under s 1.6(2) of the MAI Act. Therefore, it was considered a threshold injury.
Medical Assessor Wijetunga determined that the following injury was caused by the motor accident:
(a) musculoligamentous strain of the lumbar spine
REVIEW PROCEDURE
Mr Musawi lodged an application for review of the assessment of Medical Assessor Wijetunga within 28 days of the date on which the certificate of Medical Assessor Wijetunga was made available to the parties.
On 20 November 2023, 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 Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 27 November 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction on 13 December 2023 the solicitor for the claimant uploaded to the portal a bundle of documents (claimant’s bundle) and on 15 December 2023 the solicitor for the insurer uploaded its own paginated bundle of documents (insurer’s bundle).
Application for Personal Injury Benefits
In the Application for personal injury benefits dated 18 July 2021 Mr Musawi listed his injuries as “Back pain”.
He described the motor vehicle accident as:
“First car applied brakes to amber light. VAF hit CL from behind & pushed into car in front like domino effect. 4 cars involved”.
Certificate of Capacity/ Certificate of Fitness
Dr Ahmed Al-Jaish completed this certificate on 6 August 2021 and provided a diagnosis of lower back pain after the MVA. He recommended that Mr Musawi take Voltaren and Lyrica and attend physiotherapy.
Dr Ahmed Al- Jaish completed a further Certificate of Capacity/ Certificate of Fitness on 29 September 2021, and came to the same diagnosis and recommendations. Dr Al Jaish noted Mr Musawi was fit to work for 2 hours per day, 2 days per week for the period 29 September 2021 to 27 October 2021.
CT scan of the lumbar spine, 10 July 2021
The CT scan reported the following findings:
“Clinical history
Lower back pain after MVA
Findings:
- There is a grade 1 (0.4cm) L5/S1 spondylolisthesis secondary to chronic-appearing L5 pars interarticularis defects, which demonstrates slightly sclerotic margins. Lumbar alignment is otherwise normal. No acute fracture. The intervertebral disc space heights are maintained.
- L1/L2, L2/3, L3/4, L4/5: There are no focal disc protrusion. The spinal canal and exit foramina remain adequate and no nerve root impingement is suggested. Facet joints are intact.
- L5/S1: Spondylolisthesis is posterior uncovering/bulging of the intervertebral discs. No spinal canal stenosis. Intact facet joints. Moderate bilateral foraminal stenoses
containing exiting L5 nerve roots.
Conclusion
Chronic grade 1 L5/S1 spondylolisthesis secondary to L5 pars interarticularis defect. Posterior uncovering/ bulging of the intervertebral disc at this level with bilateral foraminal stenoses noted. No acute traumatic lesion.”
Dr Ahmed Al-Jaish, general practitioner (GP)
Dr Ahmed Al-Jaish, GP, provided a referral letter to Granville Physiotherapy and Hydrotherapy on 29 September 2021. He noted in his referral, lower back pain and L5/S1 spondylolisthesis.
Dr Gemma Olson, neurosurgeon
Dr Olsen reviewed Mr Musawi on 2 November 2021 and wrote the following:
“He tells me that tie has had pronounced low back pain with right sided leg pain since a motor vehicle accident that occurred on 11 June 2021…
He describes pain across his lower back. This pain bothers him significantly whenever he is still sitting and lying are significant stressors for the pain. He finds that he needs to shift his position constantly, particularly in bed at night and when sitting in a chair. This is evidenced by a very antalgic sitting position today in the office and by him needing to stand throughout the consultation.
He finds that he is very stiff in the morning, and it takes some time for him to get his back moving. As he starts to move and become freer and freer, his back pain settles.
It is interesting that this forms a part of his symptomatology and I wonder if a rheumatological cause for his pain has been sought and excluded. He did not describe other pains in other Joints but some of this is concerning for other underlying pathology.
Interestingly after his accident he had this significant low back pain and subsequently posterolateral leg pain that extends down into his foot with occasionally numb toes.
He occasionally gets some left sided leg pain, but this is in a different distribution and mainly affects the left thigh This sounds like it may be radiating pain from the lower back… he has a grade l L5/S1 spondylolisthesis secondary to an L5 bilateral pars defect with possible bilateral foraminal stenoses around the L5 nerve roots.
There is no evidence of any traumatic injury to the spine. This scan was performed in July of this year… He has been unable to work since his accident and he has no other significant medical history.
He examined normally today with a normal gait and good strength in his legs.
I think Syed needs to have an MRI. This will allow us to better understand any soft tissue injury that he has as well as for us to see the nerve roots of bilateral L5. I am particularly concerned that his right leg symptomatology may be consistent with nerve root compression at this level.”
MRI Trauma report, 6 December 2021
The MRI report, noted the following conclusion:
“Findings: The visualised lower spinal cord defines normally as does the conus medullaris which tapers normally at L 1-2. No abnormal thickening or clumping of the cauda equina nerve roots is noted.
At T12-L1, no significant central canal or foraminal stenosis is noted on the sagittal sequences.
At L1-2, no significant central canal or foraminal stenosis is noted on the sagittal sequences.
At L2-3, there is no significant central canal or foraminal stenosis.
At L3-4, there is no significant central canal or foraminal stenosis.
At L-4-5, there is no significant central canal or foraminal stenosis.
At L5-S1, note is made of bilateral L5 pars interarticularis defects. Minimal nonspecific oedema is noted in the left L5 pedicle. There is grade 1 anterolisthesis of L5 on S1 by 6 mm. There is a small posterior annular fissure. There is moderate dehydration of the L5-S1 intervertebral disc. There is no significant central canal stenosis. There is mild bilateral foraminal stenosis.
Conclusion: There are bilateral L5 pars interarticularis defects associated with grade 1 anterolisthesis of L5 on S1 by 6mm, with moderate disc dehydration at L5-S1 accompanied by a small L5-S1 annular fissure. There is no significant central canal or evidence of static exiting neural impingement. There is mild bilateral L5-S1 foraminal stenosis. Although there is no evidence of static exiting neural impingement, it is conceivable that on weight bearing there may be potential irritation to the exiting L5 nerve roots. Clinical correlation is suggested.”
GP Notes
On 16 January 2024, 21 March 2024 and 26 March 2024 the Panel directed Mr Musawi to produce the treating GP clinical notes from 1 January 2020 to 31 December 2023. These documents were not produced by him.
SUBMISSIONS
Claimant’s submissions, dated 6 October 2023
Mr Musawi considered there to be reasonable cause to suspect the assessment of Medical Assessor Wijetunga is incorrect in a material respect and, accordingly, seeks a review pursuant to s 7.26 of the MAI Act.
Given he was very young, and given it was accepted he was asymptomatic pre-accident, there was no consideration as to whether there was a material contribution by the accident to this condition. The Medical Assessor referred to a “traumatic cause”, but this was not the way causation was be determined according to the Act. It was possible, for example, he had disc desiccation pre-accident, but that the accident caused the annular fissure on that background.
Mr Musawi submitted there was a failure to give reasons, in particular, why was it said the association with dehydration leads inevitably to the conclusion that the condition was developmental, especially given his age?
The Medical Assessor did not consider the range of symptoms suffered from time to time and whether they ever met the description of “radiculopathy” at the L5 level.
Mr Musawi submitted that the accident does not have to be a sole cause as long as it was a contributing cause, which is more than negligible.
Having regard to the lack of complaints prior to the accident, the contemporaneous complaints following the accident and the consistency of complaint thereafter the Panel should find on the balance of probabilities, and noting the test does not require scientific certainty, that the accident was a contributing cause which was more than negligible to the Mr Musawi’s radiculopathy.
More detailed reasons are required in respect to conflicting evidence (Tyack v Cain [2007] NSWWCCPD 119). A failure to indicate why one party’s evidence had been accepted over another may be an error (Vandenberg v Department of Corrective Services [2014] NSWWCCPD 17).
Insurer’s submissions in reply, dated 26 October 2023
The insurer submitted the claimant had failed to establish any reasonable cause to suspect the medical assessment of Medical Assessor Wijetunga was incorrect in a material respect. Accordingly, his application for review did not comply with s 7.26 of the MAI Act and ought be dismissed.
The insurer submitted Mr Musawi’s submissions were misconceived in the context of the subject dispute as the kind of non-threshold spinal injury alleged could not be diagnosed in the absence of radiological imaging.
The insurer submitted the certificate of Medical Assessor Wijetunga to be a detailed, well-reasoned and compliant independent opinion based the Medical Assessor’s examination, review of medical evidence and opinion using the entire gamut of his clinical skill and judgment.
The insurer submitted it was well established that:
(a) a soft tissue injury is a threshold injury;
(b) in the context of spinal injuries, a soft tissue injury is any injury other to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage;
(c) an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury, and
(d) radiculopathy means impairment caused by dysfunction of a spinal nerve root when two or more clinical signs (as defined) are found on examination.
Accordingly, the insurer submitted that Medical Assessor Wijetunga was required to (and did) determine whether the claimant suffered an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage as a result of the accident. The insurer submitted that could only occur by reference to the radiological imaging (especially given the very limited medical evidence relied upon by the claimant). In the event the Medical Assessor was satisfied as to the presence of an injury to a spinal nerve root, he was also required to determine whether radiculopathy was present.
The insurer submitted the President would reject the contention that the Medical Assessor fell into error in not providing adequate reasons (which is disputed by the insurer in any event) for his opinion that pathology was developmental in circumstances where there was no corresponding radiculopathy as required for a non-threshold injury in any event.
The insurer noted reasons given by Medical Assessors do not need to be extensive or provide detailed explanation of the minutiae of methodology applied in reaching their professional judgment.
The insurer submitted there was no evidence before the Medical Assessor radiculopathy (associated with the L5 dermatome or at all) was present at some earlier point in time to the assessment and again notes the claimant attached only one radiological scan report to his application.
THE MEDICAL EXAMINATION BY THE PANEL
Mr Musawi attended the Commission medical suites on 7 February 2024. He attended unaccompanied.
Medical Assessor Les Barnsley was physically present, and Medical Assessor Rhys Gray attended through video link. A Dari/Hazaragi interpreter, National Accreditation Authority for Translators and Interpreters (NAATI) number CPN6FI14V attended by telephone.
At the outset of the assessment, the Medical Assessors confirmed that Mr Musawi and the interpreter fully understood each other.
Mr Musawi was advised of the non-confidential nature of the assessment and the fact that the medical assessors were not able to provide medical care or advice. He was appraised of the types of questions to be addressed, and the extent of the proposed physical examination.
Past medical history
Mr Musawi denied any medical problems prior to the motor vehicle accident on 11 June 2021. He had not been involved in any prior motor vehicle accidents and had no previous compensation claims. He was specifically asked about prior low back pain or leg pain at any time and stated that he had never had either of these symptoms.
History of motor vehicle accident
On the 11 June 2021 Mr Musawi was the seat-belted driver of a Toyota Corolla. He was stationary, third in a line of cars, at a traffic light. His car was then struck from behind by a fourth vehicle. The impact shunted his car into the car in front, which was in turn shunted into the first vehicle in the queue. He was looking ahead at the time of impact. He thinks he hit something inside the car but cannot recall details. He was quickly aware of pain all over his body. The airbags in his car did not deploy and he was able to drive the car home. He said that it was subsequently unable to start and was later written off. As the day progressed, he developed increasing low back pain.
Mr Musawi saw his GP that evening and was prescribed analgesics and advised that his symptoms would settle in a week or so.
Progress
Mr Musawi reported that he had persisting low back pain that had been increasing over time. It had remained localised to the lumbosacral junction. It was aggravated by activity, especially lifting, and he had some pain every day.
He reported that he has had intermittent numbness in either leg, usually at night but it would also occur during the day. The Medical Assessors confirmed that by ‘numbness’, Mr Musawi was describing a profound loss of sensation. The site of this sensory loss was sought both by asking Mr Musawi where he experienced the numbness and asking him to demonstrate on his own body where the problem was experienced. He indicated that the numbness started around the lateral pelvic brim, and spread to affect the entire leg, both the medial and lateral aspect and the foot. The leg would also feel heavy and weak. Mr Musawi was then asked to confirm that the entire surface of the leg was affected by this sensation, and he agreed that the entire leg was affected.
Investigations and treatment
Mr Musawi recalled having CT scans and MRI scans but was not sure what they demonstrated. He had been managed by his GP but was also referred to Dr Gemma Alsop, neurosurgeon. No operation had taken place.
Mr Musawi had two brief courses of physiotherapy of four or five sessions each, but he did not find these of any help. He took paracetamol regularly, but when his pain was bad, he took a stronger pain reliever. He could not remember the name of this today.
Current status
Mr Musawi had returned to working as a painter between two and four days a week but he avoided heavier jobs.
Physical examination
He was 162cm tall and weighed 71.9Kg. He walked with a normal gait without walking aids. Specifically, there was no foot drop or toe dragging and he had a normal swing through, heel strike, stance phase, and push off. He appeared comfortable moving around the room. He was able to stand on his toes and take a few steps forward on his heels.
His lumbar spine and lower limbs were examined whilst he was wearing his shirt, underwear and a surgical gown tied at the back.
Lumbar spine
Lumbar flexion and extension were both reduced by 50%. Lateral flexion achieved a displacement of his hands, initially held by his sides of 8cm on each side, being reduced but symmetrical. Lumbar rotation was symmetrical but reduced by 50%. Palpation of the lumbar spine revealed no localising tenderness, no guarding and no spasm of the musculature.
Lower limb neurological examination
Straight leg raising was limited to 60 degrees on each side at which point he had low back pain. Sciatic stretch test was negative, with no leg pain noted with passive straight leg raising to 60 degrees, and no leg pain produced by the addition of passive ankle dorsiflexion. These constituted a negative lower limb nerve tension test.
There was decreased power noted in all lower limb muscles specifically hip flexion, hip extension, knee flexion and knee extension, ankle plantar flexion and ankle dorsiflexion. Mr Musawi reported that all these movements made his back hurt. The weakness was variable between repeated assessments. The weakness in the knee flexors and extensors and ankle plantar flexion and dorsiflexion was of a “give way” type, where initial effort was rapidly followed by relaxation of the muscle group being tested. The power at both ankles for flexion and dorsiflexion was between 3+/5 and 4-/5. This is inconsistent with Mr Musawi’s ability to stand on his toes and his heels. This was brought to his attention, but he said that he didn’t know why this was the case. He was given the opportunity to repeat the testing and although there was some improvement, he still demonstrated weakness of plantar flexion and dorsiflexion on both sides with symmetrical weakness of 1st toe extension.
Formal measurement of limb circumference assessed 10cm above and 10cm below the upper and lower poles of the patella respectively demonstrated no differences between the two sides.
Knee and ankle deep tendon reflexes were brisk and symmetrical.
On light touch testing of the lower limbs Mr Musawi initially reported subjective loss of sensation over the lateral left thigh, the entire circumference of the left calf and the dorsum (top) of the foot as well as the plantar surface (sole) of the foot. As the examination progressed, he advised that the medial aspect of the thigh had also become numb.
Consideration of the submissions
At the first MRP meeting on 15 January 2024, the Panel has a discussion of the issues and resolved it would be necessary to examine Mr Musawi in order to address the parties’ submissions.
Mr Musawi submitted that given he was very young, and given it was accepted he was asymptomatic pre-accident, there was no consideration as to whether there was a material contribution by the accident to this condition. Having regard to the lack of complaints prior to the accident, the contemporaneous complaints following the accident and the consistency of complaints thereafter and noting the test does not require scientific certainty, that the accident was a contributing cause which was more than negligible to the Mr Musawi’s radiculopathy.
The insurer submitted that Mr Musawi’s submissions were misconceived in the context of the subject dispute as the kind of non-threshold spinal injury alleged could not be diagnosed in the absence of radiological imaging.
The Panel noted, the essence of the dispute was that the Medical Assessor Wijetunga concluded that, notwithstanding that on physical examination there were two criteria of radiculopathy met, on the balance of probabilities, the small L4/S1 annular fissure reflected developmental and degenerative aetiology, rather than a traumatic cause.
This was also concluded notwithstanding the Medical Assessor’s recognition that the accident was of a severity that the rear-end collision resulted in two further forward collisions and the car was written off. It was also in the context of Mr Musawi being a relatively young person (DOB: 1987) with no pre-accident history of back pain.
The Panel took into account its role in determining causation as set out in clear terms in Adam Briggs v IAG Limited t/as NRMA Insurance [2024] NSWCA 3, a recent decision of the Supreme Court of New South Wales of 11 January 2024:
(a) the Panel has to determine causation in accordance with well-understood Common Law principles and the Guidelines and reach its conclusions on the balance of probabilities;
(b) the Panel has to consider the claimant’s age, his circumstances, the relevant history at the time of the accident, including whether there was any previous history of lumbar spine pain;
(c) the Panel has to consider the particular nature and extent of the accident and the forces that would have been operative on the Claimant as a result of the accident, and
(d) the Panel cannot make its determination on causation wholly on the basis of its consideration of whether radiological changes could or could not be proven to be traumatically caused.
Did Mr Musawi have radiculopathy in his lower limbs?
The Panel did not find that Mr Musawi has radiculopathy from the lumbar spine affecting the lower limbs. The reported symptom of entire leg numbness included several dermatomes and did not meet the sensory disturbance criteria for radiculopathy. Specifically, he did not have:
(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, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
therefore, he did not meet the criteria for radiculopathy outlined in section 5.8 to 5.10 of the Guidelines.
Were the pars defects and spondylolisthesis at L5/S1 caused by the accident?
It was important to consider this issue as if the spondylolisthesis and pars defects were caused by the accident, it would not be a threshold injury.
The Panel noted that the medical determination of causation is whether the accident could have caused the injury and did on the balance of probabilities.
The Panel also noted that the standard of proof applied to the nexus between the accident and the demonstrated abnormality is on the balance of probabilities, which is a less stringent test than that typically applied to causation in the medical literature.
The first imaging to demonstrate the pars defects and resultant spondylolisthesis was a CT scan performed on 7 July 2021, around four weeks after the accident.
The report from Dr Stephen Morris was unequivocal in its conclusions. There was “no acute traumatic lesion”. The borders of the pars defects (fractures through the posterior elements of the lumbar spine) had slightly sclerotic margins, indicating long-standing bony remodelling. He states that pars defects are chronic appearing, and his conclusion was that the patient has chronic grade 1 spondylolisthesis. He also notes disc changes. These would be subsequent to the spondylolisthesis. These changes could not have occurred in four weeks.
It was therefore the opinion of the Panel that the accident could not have caused the pars defects and spondylolisthesis. Similarly, the annular tear noted at the subsequent MRI scan on 6 December 2021 was far more likely (ie on the balance of probabilities) to be related to the underlying disc changes resulting from the chronic spondylolisthesis than any acute trauma.
Conclusion
The Panel affirms the certificate of Medical Assessor Wijetunga, dated 12 September 2023.
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