Nicholson v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Nicholson v Allianz Australia Insurance Limited [2023] NSWPICMP 590
CLAIMANT:	Ian Nicholson
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Phillip Truskett
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	15 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of minor (now threshold) injuries by Medical Assessor (MA) Gorman; claimant’s review under section 7.26; claimant had significant injury in 1977 motor bike accident and work-related accidents; current accident occurred in September 2018 while claimant at work; he opened the door of the work truck to get out and door was clipped by a passing car; claimant alleged injury to lower back and right hip when he was pushed back into the truck by the force of the collision; claimant had lumbar spine surgery in September 2020; claimant argued his injuries were non-threshold injury due to the presence of radiculopathy, the complete or partial rupture of a lumbar disc and the surgery; Held – Panel found claimant sustained a soft tissue injury to his back aggravating pre-existing degenerative changes and conditions; Panel also found no radiculopathy when examined and no evidence of radiculopathy at any time since the accident; surgery was undertaken to address severe claudicant pain which developed in July 2020 and was not caused by the soft tissue injuries in the accident; Certificate of MA Gorman confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Gorman dated 4 March 2023. 2. Certifies that the claimant’s injuries caused by the motor accident are threshold injuries for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Ian Nicholson was involved in a motor accident on 6 September 2018. He says he was climbing down from a work truck when a passing car came into contact with the door of the truck causing him injury.
Mr Nicholson says he injured his lumbar spine and right hip. He made a claim for statutory benefits again CIC-Allianz, the third-party insurer of the passing car.
A medical dispute about whether Mr Nicholson’s injuries were “minor” injuries arose in connection with that claim and Mr Nicholson referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 4 March 2023, Medical Assessor Gorman determined that all of the injuries Mr Nicholson sustained in the accident were “minor” injuries.
Mr Nicholson then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 24 April 2023, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review to proceed. The President’s delegate, on 28 April 2023 convened this Panel to conduct the Review proceedings.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Nicholson’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (the MAI 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.
The MAI Act was amended by legislation[1] and the term “threshold” injury was introduced to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident.
[1] The Motor Accident Injuries Amendment Act 2022.
The statutory benefits available to Mr Nicholson under the MAI Act are not unlimited. For example, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[2]
[2] For accidents occurring after 1 April 2023, the entitlement to statutory benefits has been extended to 52 weeks.
The issue of “threshold” injury is also relevant to a common law damages claim. While a claim can be made regardless of the severity of the injury, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.[3]
[3] Section 4.4 of the MAI Act.
While the dispute originally determined by Medical Assessor Gorman was termed a “minor” injury dispute, the Panel will adopt the new terminology for the remainder of these reasons.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Section 1.6(5) of the Regulation 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 this claim, cl 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and clause 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[4]. 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”.
[4] Chapter 6 of the Guidelines.
In summary:
(a) if a person injured in a car accident sustains a fracture or organ injury, they have a non-threshold injury;
(b) if the injured person sustained soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 12 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act, and
(c) if the injured person sustains a spinal nerve injury this is a threshold injury unless the particular nerve injury manifests in signs of radiculopathy in accordance with cl 4 of the Regulation.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[5]
[5] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to the original medical assessment by Medical Assessor Gorman, further medical assessments and the Review of medical assessments by this Panel.[6]
[6] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Gorman examined the claimant on 16 November 2022 and issued his decision on 4 March 2023. He acknowledges at [2] that he was asked to assess the claimant’s lumbar spine and right hip injury.
Medical Assessor Gorman notes at [8] the claimant’s pre-accident history including a left leg below knee amputation in 1977 following a motorbike accident, a total right knee replacement in 2016 and right shoulder surgery following a dislocation in 2017. Medical Assessor Gorman records two previous workers compensation claims concerning the claimant’s right knee injury and a fall at work injury his right shoulder.
The claimant gave a history to Medical Assessor Gorman recorded at [9] that he was trying to get out of his work truck when the truck door was struck by a passing vehicle. The claimant said he was thrown back into the truck and his right leg was pinned inside the door jamb. The claimant said he was driven back to his work depot, notified his employer of the injury, and got himself to Bargo to see his general practitioner (GP) Dr Hathiramani. The claimant said he had not worked since.
Medical Assessor Gorman has a history at [10] of the claimant “walking around, managing the pain” (in his back and right leg) for six months before attending a new GP from September 2019. On 24 September 2019 the Medical Assessor records the claimant tripped over a dog, landing on his left side fracturing his left femur which has been surgically repaired.
Medical Assessor Gorman notes the referral to Dr Mobbs, neurosurgeon and the claimant had lumbar spine surgery (hemi-laminotomy decompression at L4/5) on 4 September 2020. Medical Assessor also has a history of Carpal Tunnel surgery in April 2021.
The claimant complained to the Medical Assessor at [12] of ongoing pain in the lower back, and at the back of the right thigh and calf. He said his back pain has improved since the surgery. He also reported right hip pain radiating to the lumbar spine. Mr Nicholson is reported at [13] to be taking Panadol Osteo, Lyrica and occasional Mersyndol Forte.
On examination at [14], the claimant’s neck movements and shoulder movements were reduced. Lumbar movements were restricted but there were no neurological signs (no motor or sensory losses and normal reflexes). The claimant reported tingling down the back of his right leg. Hip motion was restricted with pain in the lumbar spine at the extremes of movement.
Medical Assessor Gorman reviewed at [17] the documentation and at [18] the radiology noting old fractures in the pelvis due to the 1977 accident, “severe stenosis with impingement of both L5 nerve roots” at the L4/5 level due to a broad-based disc bulge, ligamentum flavum thickening and short pedicles. There were other findings of impingement on a background of moderate osteoarthritis. His view was that these were “caused by widespread long-standing age-related degeneration” and not the accident. He said scans of the hips showed moderate to severe osteoarthritis in the left hip and mild to moderate osteoarthritis in the right.
Medical Assessor Gorman diagnosed at [19] soft tissue injuries in the lumbar spine on the background of degenerative changes and soft tissue injury to the right hip resolving over a few weeks. He found at [20] these were caused by the accident.
At [22] Medical Assessor Gorman found no nerve root injury or disc injury caused by the accident (in the back) and that the pain in the hips was from osteoarthritis or referred from the back. He found both to be minor (now threshold) injuries.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant’s submissions[7] note at [3] that the claimant has had no previous lumbar spine injuries or disabilities. After the accident, the claimant says at [4] he progressed to lumbar spine surgery. The claimant says at [5] and [6] that having diagnosed an aggravation of pre-existing lumbar spine degenerative changes, the Assessor did not explain how the aggravation ceased and the underlying previously asymptomatic condition came to be the cause of the need for surgery.
[7] Page 4 of the claimant’s bundle.
The claimant also says at [11] and [12] that there was radiculopathy present which is why the surgery was undertaken and which demonstrates there was an injury to nerves. The claimant says at [15] he has complained of pain and disability continuously since the accident and that the accident was a material contribution to the radiculopathy and for the need for surgery.
The claimant’s original submissions state that the claimant made a workers compensation claim and was paid benefits on the basis of a shoulder and knee injury assessed by the then Workers Compensation Commission. The claimant says that after this he had the lumbar spine surgery (laminectomy and fusion).
The claimant refers to his statement and says that he has had ongoing pain after the accident and that he has used a walking stick from the time of the accident as a result of his back injury. He said he reported radicular-type symptoms but was not properly investigated.
The claimant submitted that the direct effect of the motor accident was to aggravate or exacerbate the pre-existing degenerative changes which developed further and worsened resulting in nerve root compression which gave rise to the surgery.

Insurer’s submissions

The insurer asserts the Medical Assessor considered the signs of radiculopathy and found there were none in his examination as did Dr Oates and Professor Cameron.
The insurer says the Assessor has considered all the documentation including the supplementary report from Dr Oates.

Procedural matters

The Panel issued directions to the parties for a bundle of documents each. The claimant provided his bundle (AD1) and the insurer provided its bundle (AD2).
The Panel met on 23 June 2023 and reported to the parties on 26 June 2023 as follows:
(a)    the panel noted the injuries referred for assessment were the claimant’s lumbar spine and a hip injury. While the lumbar spine injury was covered in the submissions the Panel noted there were no submissions about the hip injury. The Panel asked the claimant whether he agreed that his hip injury was a threshold injury;
(b)    the Panel referred to the cases of David v Allianz Australia Ltd[8] and Lynch v AAI Ltd[9] and identified two issues, whether the claimant had an injury to a lumbar spinal nerve manifesting in radiculopathy (at any time) and whether he had a complete or partial rupture of lumbar spine tendons, ligaments, menisci or cartilage including a disc injury, and
(c)    the panel requested copies of GP and physiotherapy records from three years before the accident to date.
[8] [2021] NSWPICMP 227.
[9] [2022] NSWPICMP 6.
A medical examination was scheduled for 11 August 2023 however this could not proceed as the claimant had fallen and fractured his arm.[10] A further date was set for 29 September 2023.
[10] The claimant provided a medical certificate from Dr Gunaratne to confirm this injury and its affect on Mr Nicholson and his ability to drive.
The claimant confirmed, in a message uploaded to the portal on 23 August 2023, that there was an issue about the current presence of radiculopathy. The claimant’s solicitor said this was on the basis of, “continuing radicular symptoms including burning, numbness, pins and needles and other sensory symptoms affecting both lower limbs.” The Panel notes there is a significant difference between radicular symptoms and signs of radiculopathy which will be explained in detail later in these reasons.
The claimant did not respond to the Panel’s query about the hip injury.
The Panel subsequently received records from Bargo Doctors and Tahmoor Medical Centre (Tahmoor Medical) from the claimant.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The Application for Personal Injury Benefits (claim form) was signed by the claimant and dated 21 October 2018.[11] Mr Nicholson says in this form he sustained the following injuries:
(a)    lower back, right side and my hip very sore, could not walk;
(b)    right leg sore, and
(c)    right side of my body sore.
[11] Page 146 of AD1.
On 3 September 2021, the insurer denied liability for the claimant’s common law damages claim.[12]
[12] The liability notice is found at page 39 of the insurer’s bundle.
The claimant has provided a copy of consent orders from the Workers Compensation Commission[13] dated 15 September 2020. An award for the respondent was entered in respect of an alleged right shoulder injury, weekly compensation was awarded from 22 October 2018 to 10 November 2019 and the balance of the application was discontinued.
[13] Page 28 of AD1. The Panel understands the claimant has had previous unrelated workers compensation claims.
In a “supplementary statement” dated 18 August 2019[14] Mr Nicholson says at [2] his right knee is painful and stiff, and he details at [3] the circumstances of his November 2017 work accident that led to right shoulder surgery on 5 March 2018. This led to a golden staph infection [4] and five or six months off work.
[14] Page 42 and 142 of AD1.
Mr Nicholson explains the mechanics of the current accident at [5] and that he was getting out of a truck and had his foot nearly on the ground when he was hit and thrown back into the vehicle as a result of the impact. He says [6] he drove home and saw his GP who gave him a certificate off work and gave him pain killing medication. He had an X-ray.
Two weeks later his doctor told him to resign due to his injuries and he did resign [7].
He has ongoing pain in the right side of his lower back and lower middle part of the back. When it is bad, he gets pain down the right side of his leg [8] and he has ongoing pain and restriction in his right shoulder [9] and right knee [10].
There is a further “supplementary statement” dated 27 September 2021 relating to the circumstances of the accident (and relevant to fault). The claimant refers to seeing Dr Mobbs in mid-April 2021 [7], physiotherapy in October 2020 which worsened his condition [8], hydrotherapy since his surgery [10] and his use of a walking stick since the accident [11]. While he says his extreme pain has gone, he says he still uses his walking stick, has numbness and cannot walk for any great distance or do anything around the house.
The insurer has provided a statement from the insured[15] who says she was driving a red Honda Jazz. She said [31] the accident occurred on a suburban street with one lane in each direction. She says sometimes there are cars parked on either side [32]. She says at [35] she was driving at 30-40kmph in the 50kmph speed zone due to congestion including the council trucks. She said the door of the council vehicle was closed as she approached [37], and that Mr Nicholson opened his door onto her [52].
[15] For privacy’s sake, the Panel does not consider it necessary to disclose the name of the insured.
She says at [38] she pulled over straight away and [40] that three council workers came over to her and that she and the claimant exchanged details and she then left the scene.
At [45] she recounts a call she took from the police who said they needed to get a statement from her as the truck driver claimed she had “done a hit and run and he had a back injury”.
The insured says [55] no action was taken against her and [50] the council paid for a tow truck and for the repair of the damage to her car.

Pre-accident records

The insurer has provided two reports from Dr Hartnell, orthopaedic surgeon dated 22 March and 18 April 2018. These refer to right shoulder conditions and surgery but do not mention the back or hip or any other matter of relevance to this assessment. Bearing in mind the date of the current accident, this is not surprising.
The claimant has provided a copy of the records of Dr Hathiramani which commence with an entry on 27 July 2016. Before the accident there are multiple attendances for right knee issues, workers compensation issues and pain management. The Panel has been unable to identify in this bundle any report of any complaints of back pain or right hip pain before the accident.

Treating medical records and reports

A partially completed certificate of fitness unsigned and undated has been provided.[16] This has not assisted the Panel.
[16] Page 151 of AD1.
Dr Hathiramani from Tahmoor Medical completed a certificate of fitness on 22 October 2018. He lists the injuries as “soft tissue injury of right lumbar spine and right hip.”

The notes from Tahmoor Medical record an attendance on 6 September 2018[17] giving a history of the accident and alleging injury to the back. The Panel notes:
(a)    there is no specific mention of right hip pain;
(b)    the claimant said he looked in the mirror before getting out of the truck and no-one was there. He had two feet on the step and the next thing he recalled was being forced into the truck and his right lower back was forced into the steering wheel. The doctor records the claimant had to climb out of the left side of the vehicle and that the driver of the car stopped 100 metres down the road, and
(c)    on examination the doctor noted a soft tissue injury to the back with muscle spasm but no neurological injury or bruising. Radiology was requested.
[17] Page 33 of AD2.
There were two further attendances on 7 and 14 September 2018. On the first of these, there is a record of “severe osteoarthritis back, osteoarthritis both hips injury [yesterday] caused soft tissue inflammation.” On the later attendance the note says “WC [workers compensation] still sore. Soft tissue injury can’t drive and sit in car for longer than 5 mins.”
On 21 September 2018 Dr Hathiramani records:
“Soft tissue injury now completely better. Analgesia and review and return to full duties for this issue. Long term he feels unfit to maintain his role. I have [advised] he medically is only fit for office duties. Wide spread [osteo arthritis]”
There are a few consultations regarding stress, the desire to retire and the claimant’s resignation from work. On 5 October 2018 is a record “has dropped last [workers compensation] just resigned from work.”
On 22 October 2018 the claimant attended for musculoskeletal injury and soft tissue injury and on 30 October 2018 there were similar complaints.
On 29 January 2019 the claimant attended complaining of poor range of motion in shoulder and knee. The Panel notes there is no mention of back or hip complaints.
In early 2019 there were a number of attendances for wound care in relation to an ongoing issue with his stump. On 28 March 2019, Mr Nicholson attended for osteoarthritis “ongoing and worsening slowly.” On 29 April 2019 the claimant again attended for chronic osteoarthritis in the context of what appears to be the workers compensation claim.
On 8 May 2019 a nurse at the practice records that the claimant had been laid off work, had an occupational therapy assessment and “would benefit from falls prevention” and she records a lower back pain assessment of 8 (presumed to be out of 10). The notes end on 28 June 2019 and there are further complaints in May and June about his stump and Workcover issues.
The claimant changed doctors and commenced seeing Dr Singh of Bargo Doctors on 20 September 2019.[18] The claimant mentioned a car accident in 1977 and “another court case after another MVA?4 years ago.” The claimant requested Mersyndol saying he uses Lyrica for phantom pain and Panadol osteo for osteoarthritis.
[18] A set of notes is included in the insurer’s bundle at page 48, and a further set of 142 pages was provided by the claimant’s solicitor.
On 27 September 2019 the claimant attended Bargo Doctors after falling over the dog. He was allegedly in severe pain in his stump and knee and left hip and the record is of the claimant falling directly onto his left hip.
In the ambulance record[19] after his fall is a note that the claimant had tripped over the dog and fell on his side and experienced “immediate pain to upper left hip, hip and lower back unable to ambulate”.
[19] Page 276 insurer’s bundle.
The claimant attended Bowral Hospital and was discharged.
On 30 September 2019 Dr Ghatora of Bargo Doctors talked to the radiologist about the claimant’s comminuted but minimally displaced left hip fracture and requested the radiologist send the claimant straight to hospital.
Mr Nicholson attended Bowral Hospital. The claimant is reported to have said that his usual level of pain (phantom pain) is 7 out of 10 and current pain 12 or 13 out of 10.
At the admission summary on page 179 is this history “last 2 – 3 weeks acute on chronic lower back pain, being compliant with physio” there is then a note of “hit by a car 18 months ago – ongoing back pain, no acute bony trauma diagnosed he can remember”.
The claimant attended Dr Singh on 23 October 2019, and it appears Dr Hartnell was the treating surgeon in respect of the left hip fracture.
There are then several attendances for wound care and other issues but no mention of the car accident or lower back pain. In early 2020 the claimant attended for wrist pain and he received treatment for carpal tunnel problems.
On 7 July 2020 the claimant spoke to Dr Gunaratne of Bargo doctors and it is recorded:
“Had called as he is having severe back pain today. Has had so much trouble getting up and walking and attending physiotherapy. Had gone for the physiotherpay visit and since then he had severe pain which is still presistance [sic]. Has had the same pain on and off the past 1 – 2 weeks. Cannot weight bear. Wanted some pain medication. The pain in the lower back radiating to the pelvic area.”
While the pain was reported to be severe there were no bladder or bowel issues and no weakness reported in the lower limbs. The claimant referred to a car accident “many years ago.” Dr Gunaratne advised the claimant to go to hospital to get some immediate imaging done and the claimant agreed.
On 13 July 2020 a further attendance occurred due to continuing severe back pain. The claimant had been to the hospital and wanted a review. The note from Dr Gunaratne says:
“The pain is located in the lumbar area radiates to the right limb. Same pain as he had but increase in intensity. Nil difficulty in opening bowel and urination. Nil numbness in the limbs.”
The claimant was noted to walk with a stick. He was tender in the midline of L2-L3 and there was bony tenderness over the right iliac fossa and in the right hip area. He was tender in all right hip movements. There was normal movement of the left hip but some tenderness.
The claimant was referred to Dr Bashford[20] with “acute on chronic back pain” and Dr Gunaratne refers to “back pain since the MVA in 2018.” He was said to have had severe pain for two to three weeks.
[20] Additional bundle page 20.
The claimant attended on Dr Gunaratne again on 20 July 2020. Doctor had reviewed the radiology and noted there were several disc bulges, and he did not know if this was a new or old injury and a referral to Dr Mobbs was given.[21] This says:
“[the claimant] presented to us with acute on chronic back pain since the MVA in 2018. He has been managing pain [with] lyrica and physiotherpay but for the past 2 – 3 weeks he had been having severe pain.”
[21] Page 51 and 56 of AD1 and page 22 of the additional bundle.
On 31 July 2020 the claimant was complaining of pain the left stump radiating to the thighs and the absent toes. There is a note “nil back pain.”
Dr Mobbs reported to Dr Gunaratne on 17 August 2020[22] that the claimant’s current issue was pain in the buttock and leg when mobilising. Dr Mobbs could not see the cauda equina on the MRI. Despite the “traumatic MRI scan” the claimant told Dr Mobbs that he was coping but was bothered by the progressive symptoms. Dr Mobbs was proposing central decompression at the L4/5 level.
[22] Page 59 of AD1.
In a further letter dated 20 August 2020,[23] Dr Mobbs refers to “extreme compression” at L4/5 and was surprised “he is still on his feet and able to get around at all”. The claimant was keen to have the surgery.
[23] Page 62 of AD1.
The surgery occurred on 4 September 2020 and the operation report[24] includes details noting an incision was made, a round-burr instrument was used, and disc and osteophyte fragments were removed and a steroid us used to irrigate the inflamed nerve root.
[24] Page 75 of AD1.
On 18 September 2020 the claimant was referred by Dr Mobbs for hydrotherapy and physiotherapy.
Dr Mobbs wrote to Dr Gunaratne on 22 October 2020[25] having seen the claimant for his six week post-operative review. He reported the claimant had “a miraculous result” in that his referred pains in the legs were gone, he was off his painkillers an “happy pills” and his “phantom pains” (in his amputated leg) had also resolved. The claimant was keen to get back to his usual activities and was cleared to do so.
[25] Page 81 of AD1.
The claimant was seen by Dr Mobbs in March 2021 for carpal tunnel compression on the right and wanted that fixed and this was done on 16 April 2021.
Dr Mobbs wrote to Dr Gunaratne on 20 May 2021 about both the claimant’s back and the carpal tunnel issue. The claimant continued to recover from his lumbar spine surgery which had made a “huge difference to his lifestyle and livelihood.” The claimant’s palm ache had improved since his wrist surgery, but he still had a trigger finger issue.
On 12 August 2021 Dr Mobbs referred to a flare up of back pain with “some degree of recurrent leg pain.”

Radiology

An X-ray of the claimant’s pelvis, hip and lumbar spine was undertaken on 6 September 2018 and reported on 7 September 2018[26]. Old fractures in the pelvis were seen with changes consistent with mild osteoarthritis.
[26] Page 46 of AD1.
In the lumbar spine there was slight thinning of the posterior aspect of the discs at L1 to S1, slippage of L4 on L5 probably due to facet joint osteoarthritis and slight anterior wedging of L1 with 20% loss of height which “appears old”.
On 14 July 2020 the claimant had a CT scan[27] of his lower back, both hips and pelvis with a clinical history of “acute on chronic back pain. ?fracture”. This revealed:
(a)    no acute fractures in the pelvis;
(b)    chronic and united fractures in the pelvis with internal fixation devices;
(c)    moderate to severe osteoarthritis in the left hip and mild to moderate osteoarthritis in the right hip;
(d)    partial fusion of both sacroiliac joints;
(e)    severe canal stenosis and impingement of both L5 nerve roots at L4/5 due to a “combination of a broad-based disc bulge, ligamentum flavum thickening and short pedicles”, and
(f)    impingement at other levels and canal stenosis on the background of moderate osteoarthritis.
[27] Page 48 and 53 of AD1.
On 17 August 2020 the claimant had an MRI[28] of the lumbar spine due to a history of “Lumbar radiculopathy?” and the conclusion was “multifactorial severe central canal and left foraminal stenosis at L4/L5”.
[28] Page 62 of the additional bundle.

Medico-legal reports

Dr Oates provided a report to the claimant’s solicitors dated 25 July 2019.[29] He states he had previously assessed the claimant in January 2018 for the claimant’s right knee problems. Dr Oates had 14 reports of Dr Hartnell and four reports from Dr Bashford most of which the Panel does not have. However, Dr Oates does not appear to have had the GP notes from Tahmoor Medical or Bargo Doctors.
[29] Page 110 and 178 of AD1.
Dr Oates has a history of the claimant’s pre-accident issues with his knee and shoulder and then has a history of the accident, recording that the claimant was hit and pushed back into the truck and his right leg was jammed between the seat and the door after being hit by the insured vehicle. The claimant old Dr Oates it took 15 minutes to free his leg and open the door.
The claimant gave a history of low back pain developing and radiating from the buttock through the thigh and hip to just below the right knee with occasional pins and needles. The claimant said he was not assisted by the police at the scene or by his boss at work who would not call an ambulance and he got himself home and into his GP at 4.30 that day. He said he was given 12 days off work.
The claimant reported to Dr Oates that at the end of the 12 days his GP told him to go back to work because all he had was soft tissue injuries but separately told the claimant’s wife that he was unfit to work due to all of his conditions. This upset her and Mr Nicholson then resigned.
The claimant said he paid for his own physiotherapy for his low back and right hip girdle area and saw his doctor twice a week.
After examination Dr Oates diagnosed a “rotator cuff tear of the right shoulder (caused in a work-related accident in November 2017) and a soft tissue injury to the lumbar spine with mechanical referred pain to the right lower extremity.” He found the motor accident was a “substantial contributing factor” to the lumbar spine condition.
The Panel notes that although Dr Oates had found restricted right hip movement, he did not diagnose an injury to the right hip but appears to consider the right hip pain is referred from the lower back injury.
Dr Oates says there were insufficient criteria to diagnose radiculopathy.
Dr Oates saw the claimant again (by telehealth) on 21 September 2021.[30] He had reports and records from Dr Mobbs, the CT report of the lumbar spine and operation records. He records in great detail the claimant’s treatment. The claimant had significant restriction of movement in the lumbar spine, a straight leg raise reduced on the right and a 3cm scar.
[30] The report of that consultation is dated 24 September 2021 and is found at page 118 of AD1.
Dr Oates diagnosed an aggravation of degenerative change in the lumbar spine with progressive development of the severe canal stenosis which he says was caused by the accident. He expressed the view that but for the accident, the claimant would not have had the surgery.
Dr Oates assessed whole person impairment at 11%.
Dr Oates also had a report of a significant flare up of lower back symptoms in August 2021 “just walking around his yard.” The claimant reported other flare-ups of low back pain and pins and needles in the right leg whilst walking, pain (including referred pain into the left buttock and thigh) and right leg discomfort.
The Panel notes that again there is no specific mention of any right hip joint pain and any pain in the right hip or buttock area appears to be related to the claimant’s back pain.
Professor Ian Cameron provided a report to the insurer dated 21 June 2021.[31] He has a consistent history of the accident and immediate right leg and trunk pain. The claimant said he had physiotherapy which did not help and he changed doctors, had imaging and then urgent surgery was performed.
[31] Page 310 of AD2.
Professor Cameron appears to have a complete past history of the fall at home and the fractured hip and right carpal tunnel issues developing.
The claimant reported limited lumbar spine movement but no significant lumbar spine pain. There was continuing phantom pain and he complained of limited mobility and poor balance.
In the neck there was no spasm or guarding a reduced (but symmetrical) range of motion and no non-verifiable radicular complaints or indication of cervical radiculopathy.
In the thoracic spine, reduced range of motion but no signs of radiculopathy.
Professor Cameron noted the significant time difference between the accident and the development of sudden and severe lumbar spine symptoms. He found it difficult to be definitive about the issue of causation and requested records from Dr Hathiramani be produced.
Professor Cameron expressed the view that on the basis of the records he had before him the surgical treatment was not related. He was of the view the claimant had sustained a soft tissue injury to the lumbar spine and right leg.

RE-EXAMINATION FINDINGS

Mr Nicholson attended a medical examination with Medical Assessor Truskett on 2 September 2023.

History provided by Mr Nicholson

Pre-accident history

Mr Nicholson who is currently aged 70 was involved in a major motorbike accident in 1977. The Panel notes there is no documentation for any claim made following this accident provided[32].
[32] Bearing in mind the length of time since that accident, this is not surprising.
That accident occurred in Sutherland, and Mr Nicholson was admitted to Sutherland Hospital for management. He said the injury was severe and he “died” on several occasions and was resuscitated. Mr Nicholson said that he suffered a fractured pelvis, spinal fracture, possible hip fracture, sympathetic nerve injury to the left leg, groin injury and a major head injury. Mr Nicholson was not sure whether he had a hip fracture or not and if so, which hip it was. As a result of his left lower limb injuries, he had a below knee amputation of his left leg. He also recalled a coccyx resection and pelvic surgery whilst in Sutherland Hospital.
Despite the seriousness of this accident and his injuries, Mr Nicholson said that on recovery, he was still very active. He said that he could work and perform all domestic duties. He conceded that he suffered from phantom limb pain involving the left leg causing significant pain. He described the pain as a burning, aching pain with episodes of electric shocks. He consulted pain specialists and was treated with Lyrica (pain modulator) and Mersyndol (narcotic analgesic) for many years.
After his initial injury and following a period of recovery, Mr Nicholson said he had no further back pain.
He detailed a total right knee replacement in 2016 and an open reduction total reconstruction of his right shoulder in 2017.

History of the current accident

At the time of the motor accident on 6 September 2018 Mr Nicholson was working for the local council in a full-time capacity having worked for this organisation for 16 years. He worked as a truck driver performing general duties and traffic control work.
On the day of the accident, he was working on road works at Premier Street Strathfield. He said he was getting out of the truck from the driver’s side. He said he performed this task diligently as he stated he was aware of potential difficulties with the traffic in the street. He checked both ways and opened the door 45 degrees. He stepped out of the truck backwards initially with his left leg on the runner followed by his right leg when suddenly a vehicle struck the door swinging it open. This door then closed again pinning his right leg between the door, seat, and the steering wheel. He said he was jammed and he started beeping the horn for help. Mr Nicholson said the car continued some 600 metres down the road before stopping. His co-workers heard him, one of whom, Mr Diva, came to his assistance. He was able to pull the driver’s door open and get Mr Nicholson free. He got out slowly. They then pushed the door closed so that it was not causing a traffic obstruction. Mr Nicholson then stated that he walked 600 metres down the road to the vehicle that had struck his door to “see if the driver was okay”.
He then said he had an altercation with the leading hand (of his work team) who wanted him to deny that the accident had occurred because of a lot of people worked for him. The leading hand advised him to say that he was in the wrong. His co-worker, Mr Diva then assisted him back to the truck. They could not open the driver’s door of the truck because it was now jammed. Mr Diva entered the truck through the passenger side door and assisted Mr Nicholson into the vehicle.
They then drove seven to eight minutes to the depot.
Mr Nicholson said that on impact he felt immediate pain in the lower back and right hip. When he got back to the depot, he filled out forms for his injury that were eventually completed by the leading hand and recorded by the secretary of the depot.
Mr Nicholson said he then drove himself home from Strathfield to Tahmoor, a distance of about 80km. He said he was in pain and stopped on three occasions on the expressway. He reached Tahmoor Medical at approximately 4.15pm. He told Medical Assessor Truskett that imaging of his leg and back was performed. He was advised that there were no fractures, and he was sent home with painkillers. He stated that he then remained home in bed for one to two weeks.
When he returned to Tahmoor Medical, he was advised that he had soft tissue injuries and could return to work. Dr Hathiramani certified him as fit for work but only for light duties. Mr Nicholson completed a computer course that was meant to be his intended work. He did return to work and was tasked with entering data into a computer. He would get locked out of the computer six to eight times per day and he was told by his boss (who had to re-log him in repeatedly) to give it up work. He was subsequently declared apparently unfit for work.

Mr Nicholson said he continued to have physiotherapy at Tahmoor but said that he formed the view that Dr Hathiramani was not listening to his complaints about his back pain and in addition Dr Hathiramani went overseas for three months. When the doctor returned, Mr Nicholson had made an appointment with him but was kept waiting for more than an hour and a half. He said he then changed practices to Dr Gunaratne of Bargo Medical. He stated that soon after changing practice, this doctor recognised the problem with his back and referred him to Dr Mobbs, neurosurgeon, for his eventual back surgery.
Medical Assessor Truskett put several inconsistencies in this history to Mr Nicholson as follows:
(a)    Mr Nicholson attended Dr Hathiramani on 6 September 2018 at 15:27 (not 4.15pm) on the day of the motor vehicle accident. Dr Hathiramani records a description of the accident which includes Mr Nicholson’s lower back being forced into the steering wheel by the incident (no detail of that was provided to Medical Assessor Truskett). Mr Nicholson is said to have had to climb out the left side of the vehicle and the insured vehicle stopped 100 metres (not 600 metres) down the road. When these discrepancies were pointed out, Mr Nicholson said to Medical Assessor Truskett that he was “fuzzy” about the details of the incident.
(b)    Mr Nicholson attended again on 21 September 2018. Dr Hathiramani records that the soft tissue injuries were now “completely better and [he could] return to full duties for this issue.” Dr Hathiramani stated long-term that Mr Nicholson felt unfit to maintain his role and “I have advised that he medically is only fit for office duties because of widespread osteoarthritis”. Mr Nicholson did not give this history and maintained his decision to retire was made on the recommended of others and that he did not want to retire.
(c)    He next attended the practice on 29 April 2019 some seven months after the last visit. Dr Hathiramani had been asked by the insurer or lawyers to clarify the work certificates said Dr Hathiramani said his certification remains the same and that Mr Nicholson had chronic osteoarthritis and was fit for office duties only. There was no mention of back pain. Mr Nicholson was asked why there was such a significant separation between the two attendances. Mr Nicholson thought that Dr Hathiramani was away, but said his recollection was “fuzzy”. When asked why there is no record of back pain, he could at first offer no explanation. He then said that Dr Hathiramani had private notes which his lawyer had tried to obtain these but was unable to do so. The medical members of the Panel consider it implausible that a treating GP would keep notes separate from the electronic file and not provide them when the electronic notes were provided. The Panel also notes the contents of the electronic notes are comprehensive and include details of both the workers compensation and compulsory third party claims as well as general medical and health issues again suggesting there is no other set of notes.
(d)    Mr Nicholson last saw Dr Hathiramani on 29 May 2019 at which time it is recorded that the claimant’s osteoarthritis was the same clinically and he referred to a legal report. It was at that time that Mr Nicholson decided to transfer his medical care to Bargo Medical. Mr Nicholson first attended the Bargo Practice and was assessed by Dr Singh on 20 September 2019. The purpose of the visit documented was to “introduce himself” and the documented discussion related entirely to management of phantom pain from the 1977 motorbike accident with no mention of back pain. He was given a script for Mersyndol Forte (narcotic analgesic) for management of this condition. Medical Assessor Truskett asked why almost a six-month period had elapsed between his last Tahmoor Medical visit and the first visit to Bargo Medical and why back pain was not mentioned if this was an issue and Mr Nicholson responded that things were “foggy” and he could offer no explanation as to why there was no record of back complaints.
(e)    Mr Nicholson attended on 27 September 2019, and was seen by Dr Vilheim complaining of falling over a few days previously, still with severe pain in his stump, right knee and hip and that he fell directly onto the left hip. He was using crutches. A CT scan was performed, and he returned on 30 September 2019 and was demonstrated to have a comminuted minimally displaced left hip fracture. Mr Nicholson confirmed that this fall occurred at home when he tripped over the family dog, that it was a significant fall and that his fracture was treated surgically with pinning.
(f)    Mr Nicholson attended his GP practice on 24 occasions between October 2019 and May 2019 with no record of back pain at any of those attendances. The claimant could offer no explanation for this.
(g)    In a telehealth consultation with Dr Gunaratne on 7 July 2020, Mr Nicholson described severe back pain and that he had trouble getting up and walking to physiotherapy. Pain was in the lower back radiating to his pelvis. Medical Assessor Truskett pointed out to the claimant that this would appear to be the first record of any form of back pain that has been documented in the Bargo Doctors’ notes. Mr Nicholson could offer no explanation why this was so other than to say he was “foggy” about the details. It was also put to him that the onset of this back pain was quite acute and more than two and half years after the motor accident. Mr Nicholson was asked to confirm this history and repeated that his recollection was “foggy”.
Mr Nicholson said he underwent back surgery which the records indicate was a L4/5 laminotomy rhizolysis, nerve root bilateral L5 with left approach decompression performed by Dr Mobbs at Prince of Wales Private Hospital on 4 September 2020. Mr Nicholson said this was performed as a private patient and was self-funded. He paid a gap payment in the order of $10,000.

Current medications

He takes Lyrica 150mg one twice a day as he has for many years. He takes Panadol Osteo one three times a day which he has also done for many years and Mersyndol daily for pain.

Current status

Back

Mr Nicholson says he experiences pain in his lower back which radiates to the back of his right thigh to the back of his calf. He would score this pain as 10/10 and it will reach this level two to three times per month. He is never pain free and would usually have a score of 7/10. Pain can be made worse spontaneously or with activity.

Right hip

He has pain in the right hip in the region of the right buttock (and not the hip join) which he says is separate to his right leg pain. He would score this pain as 7/10 most of the time and it has been present since the accident. He says he has walked with a walking stick since the current accident.
Mr Nicholson says he can walk approximately 200 to 300 metres and must then rest. He can sit for seven minutes and stand for four minutes. He cannot bend over. He can walk up hills and stairs one step at a time with the assistance of a rail. He can drive an automatic motor vehicle. He cannot do housework or yard duties, and these are done by his wife. He lives on a one-acre property in Bargo which he was managing before the accident. He can socialise for short periods. He says he is entirely dependent on his wife’s income. She works for a bank. He receives no insurance or disability payments.

Physical examination

On general examination, Mr Nicholson was cooperative and walked slightly stooped with a walking stick in his right hand. He limped on his left leg. He had a left leg below knee prosthesis. This was not removed for the examination as it was not necessary. He did sit for most of the one-hour interview and stood on one occasion. He was wearing shorts and did not need to disrobe for the purpose of the assessment. He climbed on and off the examination couch with some assistance and used his walking stick.

Back

There was a 6cm well-healed scar in the lower lumbar region consistent with lumbar surgery. It was slightly tethered, a good colour match with no trophic changes. It was difficult to see.
The right leg circumference was measured, it was 50cm in circumference 10cm above the patella and 42cm below the knee at its widest point. The left leg measurements were not measured due to the presence of the amputation and stump. There was no visual evidence of muscle atrophy in the right lower limb.
There was some reduction in back movement but no dysmetria:
(a)    flexion and extension was normal;
(b)    lateral flexion left and right was one third normal, and
(c)    rotation left and right was one third normal.
Power of the right lower limb was measured and was normal with normal power of extension and flexion of the right toe on the right. He could not stand, however, on his right toes as he said he felt unstable.
Sciatic nerve root tension tests were negative and the claimant was able to straight leg raise his right limb without difficulty to 90 degrees.
There were sensory changes in the right leg. Two thirds of the leg below the knee to the calf, had reduced sensation circumferentially. He expressed the changes as a score of 2 out of 10. The thigh and foot and lower third of the leg had normal sensation. This cannot be explained by reference to a dermatomal distribution.
Knee jerk, medial hamstring jerk, and ankle jerk were present on the right. There was no muscle guarding.

Right hip

There was global reduction of right hip movement in all directions of approximately one third due to pain. There was similar reduction on the left.

CONSIDERATION OF THE ISSUES RELEVANT TO THE ASSESSMENT

Is the claimant’s evidence reliable?

There were inconsistencies between the history as recorded in Mr Nicholson’s medical records and the history provided by the claimant at the examination. Mr Nicholson was asked about these, and the explanation offered was that he felt “foggy” or “fuzzy”. The Panel notes that the words “foggy” and “fuzzy” were used when the claimant could not remember or recall the details of what he was being asked by Medical Assessor Truskett and took this as an indication his memory of events was not good.
The Panel notes other inconsistencies. For example, Dr Oates has a report from the claimant that it took him 15 minutes to free his leg and get himself out of the truck whereas he told Medical Assessor Truskett he had to be helped out of the truck. Medical Assessor Oates records the impact occurred with the claimant just out of the truck with his feet on the steps whereas the claimant said in his statement he was almost out of the truck and on the ground.
The accident occurred over five years ago, and the claimant has had several injuries and other claims. The Panel accepts the claimant may be confused or have poor recall of the details of the current accident. The Panel therefore prefers the medical and other records for confirmation and clarification of the claimant’s reported histories.

What were the injuries sustained in the accident?

Mr Nicholson had a significant motorbike accident in 1977 as described but was able to re-join the workforce and perform household duties. There is no record of any chronic back pain related to that accident before the Panel, but understandably he did have severe phantom limb pain relating to his left amputation requiring Lyrica and Mersyndol for long-term pain management.
There appears to be considerable discrepancy in the severity of the current accident as described by Mr Nicholson and in the documentation reviewed, although some clarification was obtained at the examination. The Panel accepts that as he was getting out of the truck there was an impact between a passing car and the door, and that Mr Nicholson was knocked or pushed into the vehicle with some part of his body impacting some part of the inside of the truck.
The Panel is satisfied that this mechanism of injury could result in injury to the claimant’s lower back and right hip.

Did the claimant injure his lower back in the accident?

The issue that is difficult to reconcile is that when he was able to free himself, Mr Nicholson walked some 600 metres to inquire as to the other driver’s wellbeing. This would seem inconsistent given the nature of injury that he describes with immediate and severe back and right hip pain. He had elsewhere indicated he had walked 100 metres. Either way, if he had sustained a more significant injury to his lower back as he says, a walk of that length would have been difficult.
Mr Nicholson also said he was also able to drive himself home from Strathfield to Tahmoor Medical, about 80km. While he says he stopped three times, this history has not been provided elsewhere and regardless of the number of stops, this would again seem a difficult thing to do given the severe back and right hip pain that he claims he was experiencing.
In addition, the medical records of both Tahmoor Medical and Bargo Doctors indicated early complaints of back pain, recovery within a few weeks, occasional reports of some back pain and then a long interval until 7 July 2020 before a complaint of severe back pain was made. The entry at Bargo Doctors on that date describes an acute attack of back pain of one to two weeks duration.
Mr Nicholson subsequently underwent investigations which demonstrated severe canal stenosis at L4/5, the descriptors of which are degenerative in nature. It is also significant to the Panel that after leaving Tahmoor Medical (last consultation 28 June 2019) there was a three-month gap before attending Bargo Doctors with no complaint of back pain until after the claimant fell over the dog and fractured his left hip. There was another significant gap with no mention of back complaints between the admission to Bowral Hospital on 1 October 2019 and the telehealth consultation on 7 July 2020 nine months later. A week after that is the first recorded complaint of claudicant type pain radiating to the right lower limb.
When all of the GP notes and medical records are considered, it is the clinical judgment of the medical members of the Panel that Mr Nicholson sustained a soft tissue injury in the car accident on a background of degenerative changes in the lumbar spine and previous conditions including the surgical treatment of his coccyx after the 1977 motorbike accident. The Panel is also satisfied that Mr Nicholson largely recovered from that soft tissue injury based on the records from Tahmoor in September 2018 and the absence of any documented complaints of more significant back pain for two more years.
It is also the clinical judgment of the medical members of the Panel that the lumbar back complaints made on and after 7 July 2020 are not related to the soft tissue injury sustained in the accident. This is because of the length of time between the last complaints of pain after the accident (8 May 2019) and the next complaint (July 2020). It is also noteworthy that the type of complaints closer in time to the accident are very different to the complaints made on 7 July 2020 and the emergence of more extensive radicular symptoms. The Medical Assessors are of the view that it is not medically plausible for a soft tissue injury to cause this significant increase and change in symptoms more than two years after the accident and it was those later symptoms that have led to the need for the claimant’s surgery.

Did the claimant injure his right hip in the accident?

The Panel is satisfied that the claimant did injure his right hip in the accident. The claimant reported a sore right hip in the claim form signed on 21 October 2018 and Dr Hathiramani from Tahmoor Medical certified a right hip injury in the medical certificate of 22 October 2018.

ASSESSMENT OF INJURIES CAUSED BY THE ACCIDENT

Does the claimant have lumbar spine radiculopathy?

Clause 5.8 of the Guidelines provides that radiculopathy is “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”:
(a)    loss or asymmetry of reflexes (see Table 6.8 in the Guidelines);
(b)    positive sciatic nerve root tension signs (see Table 6.8 in the Guidelines);
(c)    muscle atrophy and/or decreased limb circumference (see Table 6.8 in the Guidelines);
(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.
When examined by Medical Assessor Truskett, the claimant did not have any loss or asymmetry of reflexes, no positive nerve root tension signs, there was no muscle atrophy in his right or left upper leg, there was no muscle weakness and no reproducible sensory loss anatomically localised to an appropriate nerve root distribution. Mr Nicholson does not have any of the five signs of radiculopathy.
The Panel notes the claimant’s complaints of pain radiating from his back into the left and right buttock. Radiating pain is a radicular symptom but not one of the five signs of radiculopathy as required by the Guidelines.

Has the claimant had lumbar spine radiculopathy at any time since the accident?

On the day of the accident, Dr Hathiramani noted “no neurological injury” in the context of the stated lower back pain and there are no reports in the Tahmoor Medical notes of any of the five signs of radiculopathy being present.
In the notes from Bargo Doctors, there is reference to back pain 7 July 2020. No signs of radiculopathy were recorded. On 13 July 2020 there is a reference to pain radiating into the right limb but no numbness in the limbs.
Dr Mobbs refers to claudicant pains down the legs but as stated before, radiating pain is not one of the five signs of radiculopathy and Dr Mobbs does not record any neurological signs or symptoms in his records, reports and letters.
Dr Oates, the medical expert for the claimant and Professor Cameron for the insurer did not find two or more of the five signs of radiculopathy.
Medical Assessor Gorman did not find two or more of the five signs of radiculopathy.
The Panel cannot find in any of the records, any indication that at any time since the accident the claimant has two or more signs of radiculopathy present at the same time and referable to the same nerve root.

Has the claimant sustained a complete or partial rupture of cartilage?

The medical members of the Panel note that the discs in the claimant’s spine comprise two parts, a nucleus pulposis and an annular fibrosis. The latter is a fibrous-cartilaginous ring that surrounds the former.
It is the clinical judgment of the Medical Assessors that a broad-based disc bulge might indicate a weakness in the ring however it is a herniation or prolapse of disc material through a tear in the ring that would be, in the Panel’s view a complete or partial rupture of “tendons, ligaments, menisci or cartilage” and would therefore be a non-threshold injury.
The X-ray report of the lumbar spine by Southeast Radiology on 7 September 2018, showed hypertrophic osteophytic lipping present generally at the visualised disc margins with slight thinning of the posterior aspect of the disc at each level from L1 to L5. There is minimal anterior slip of L4/5 which the Medical Assessors consider relate to facet joint osteoarthritis. The transverse process of L5 articulates with the sacrum where there are degenerative changes. There is slight anterior wedging of L1 with approximately 20% loss of body height that appears old. No further abnormalities are recorded.
It is the clinical judgment of the medical members of the Panel that this report is describing degenerative disease with no indication of any acute bony injury.
The CT scan of the lumbar spine performed by Southeast Radiology on 14 July 2020, describes thickening of the ligamentum flavum at the L4/5 level and a broad-based disc bulge resulting in severe canal stenosis and impingement of both L5 nerve roots along with impingement at other levels.

There is no mention of tears or fissures in any of the discs seen in the scan and no mention of herniation or prolapse of disc material.
It is the clinical judgment of the medical members of the Panel that this report is describing lumbar spine pathology that is entirely age related and therefore degenerative. There is no evidence of fracture, dislocation or any traumatic complete or partial rupture of tissue in the lumbar spine.

What is the nature of the right hip injury?

Mr Nicholson has significant degenerative change of his right hip, and no acute fracture or dislocation injury has been reported in any radiology. The Panel notes the certificate of Dr Hathiramani which accompanied the claim form diagnosed a soft tissue injury to the hip.
It is the clinical judgment of the medical members of the Panel that the claimant sustained a soft tissue injury to his right hip in the accident.

CONCLUSION

If the claimant has sustained any nerve or nerve root injury in the accident the Panel is of the view this is a soft tissue and threshold injury within the meaning of s 1.6(1) due to the absence of two of the five signs of radiculopathy at any medical examination that complies with cl 5.6 and Part 6 of the Guidelines.
The Panel is not satisfied that the pathology reported in the claimant’s lumbar spine demonstrates a fracture, dislocation or the “complete or partial rupture of tendons, ligaments, menisci or cartilage” at any level in the lumbar spine. Any injury therefore to any structure of the lumbar spine is a soft tissue and threshold injury.
The Panel finds that Mr Nicholson’s right hip injury is a soft tissue and threshold injury.
As the Panel has found that all of the claimant’s injuries are soft tissue and therefore threshold injuries, the outcome of this Review is the same as Medical Assessor Gorman’s. It follows therefore that his certificate should be confirmed.

[2023] NSWPICMP 590

15 November 2023