Noshad v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 497
•23 July 2023
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Noshad v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 497 |
CLAIMANT: | Boshra Noshad |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Michael Couch |
DATE OF DECISION: | 23 July 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether injury to the lumbar spine was a threshold injury; Medical Assessor determined threshold injury; re-examination of the claimant; Held – injury to the lumbar spine was caused by the accident and was not a threshold injury; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the Certificate of Medical Assessor Herald, dated 11 December 2023 and determines that the injury to the lumbar spine was caused by the accident and was not a Threshold injury for the purposes of the Motor Accidents Injuries Act 2017 (MAI Act). 2. The Review Panel further certifies that the following injuries were caused by the accident and were threshold injuries: (a) soft tissue injury to cervical spine, thoracic spine, both shoulders, both knees, right hand, and right leg. |
STATEMENT OF REASONS
INTRODUCTION
On 9 July 2022, Boshra Noshad (Ms Noshad) the claimant, was involved in a motor vehicle accident (the accident), which she alleges resulted in both physical and psychiatric injury.
Insurance Australia Limited ABN 11 000 016 722 trading as NRMA Insurance (NRMA) is the insurer.
Under the provision of the Motor Accidents Injuries Act 2017 (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”.
Ms Noshad submitted an Application for Personal Injury Benefits (APIB) dated 1 October 2022.
Threshold injury dispute
NRMA determined that Ms Noshad had sustained a threshold injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Ms Noshad subsequently filed an application in the Personal Injury Commission (Commission).
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are medical assessment matters, including whether an injury caused by the motor accident is a threshold injury.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY – STATUTORY PROVISIONS
Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) 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.
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, 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 Jonathan Herald (the Medical Assessor) in respect of the dispute as to threshold injury were:
(a) whether the injury to the cervical spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes caused by the accident is a threshold Injury for the purposes of the MAI Act;
(b) whether the injury to the thoracic spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes caused by the accident is a threshold Injury for the purposes of the MAI Act;
(c) whether the injury to the lumbar spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes caused by the accident is a threshold Injury for the purposes of the MAI Act;
(d) whether the injury to the left shoulder – orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement derived from cervical spine caused by the accident is a threshold Injury for the purposes of the MAI Act;
(e) whether the injury to the right shoulder – orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement derived from cervical spine caused by the accident is a threshold Injury for the purposes of the MAI Act;
(f) whether the injury to the right hand – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes caused by the accident is a threshold Injury for the purposes of the MAI Act;
(g) whether the injury to the right leg – pain and restricted movement derived from lumbar spine Injury caused by the accident is a threshold Injury for the purposes of the MAI Act;
(h) whether the injury to the left knee – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes caused by the accident is a threshold Injury for the purposes of the MAI Act and,
(i) whether the injury to the right knee – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes caused by the accident is a threshold Injury for the purposes of the MAI Act.
At [3]-[4] in his reasons, Medical Assessor Herald noted the submissions made by Ms Noshad via her solicitor on 1 August 2023, and NRMA’s reply on 23 August 2023.
The Medical Assessor took a pre-accident medical history at [9].
He noted Ms Noshad had a pre-accident medical history of rheumatoid arthritis.
He took a history of the accident at [9] and a history of the symptoms and treatment following it at [10]:
“On 2 July 2022 whilst driving her car on the M4, she was slowing down to stop to go into an exit but unfortunately, she was hit from behind. Police and a tow truck came, and she was taken home by the tow truck and given a hire car for a few days. She saw her GP at that point with back pain and pain radiating down the right leg and was referred for a CT scan which showed an L4/5 disc prolapse. She was referred for physiotherapy and when she did not improve, her GP suggested that she see Dr Lim who had more expertise in this field. She had an MRI scan of the cervical spine which showed C5/6 disc prolapse, C6/7 disc prolapse and potential C6 and C7 neural impingement, as well as a right-sided L4/5 disc prolapse and potential L4 nerve impingement. She was subsequently treated with acupuncture, physiotherapy, and Thai massage. She has not had an approval for further treatment. She takes medications such as Panadol and painkillers.”
Ms Noshad told the Medical Assessor that she suffered from back pain and pain down her legs. He noted this was the main area of pain and the majority of the soft tissue injuries appeared to have resolved.
The Medical Assessor listed the current symptoms at [12]:
“She continues to have back pain and pain radiating to both legs. She does not have radiculopathic symptoms or radiculopathy. She has also gained about 10 kg of weight since the accident.”
The Medical Assessor set out the clinical examination at [14]:
“General presentation
She is a well woman, 160 cm in height and 75 kg in weight. As mentioned, she has put on about 10 kg since the motor vehicle accident.
15. Cervical and Thoracic Spine
Examination of the cervical and thoracic spine reveals no tenderness with full range of motion and normal neurological examination to her upper limbs and thoracic spine region.
16. Lumbar Spine Examination
Examination of the lumbar spine reveals some pain in the lumbar spine region. She has stiffness over the lumbar spine with forward flexion to 50% of range and lateral flexion to 50% of range to her knees. Extension is limited to 25% of range. She has a normal gait but describes pain radiating down both legs. She has a normal neurological examination to her lower limbs which are intact to tone, power, and reflexes and a normal gait.
17. Upper Extremity Examination
On examination of her upper extremities, she has a full range of motion of both shoulders with no tenderness, no pain and grade 5 power to the muscles. Her right hand also has a full range of motion with no bony tenderness and no soft tissue changes and a normal neurological examination to her upper limbs.
18. Lower Extremity Examination
Examination of the lower extremities reveals no tenderness, full range of motion of both knees, and stable knees. Her right leg also has no bony tenderness or referred pain from the back and she has a negative straight leg raise.”
The Medical Assessor provided a summary of relevant radiological and medical imaging at [20]-[21].
In his diagnosis and reasons, the Medical Assessor opined Ms Noshad suffered soft tissue injury to multiple body parts with prominent resolution and ongoing aggravation of underlying lumbar spondylosis due to the soft tissue injury.
He determined that the following injuries were caused by the accident:
(a) soft tissue injury to cervical spine, thoracic spine, lumbar spine, both shoulders, both knees, right hand, and right leg.
REVIEW PROCEDURE
Ms Noshad lodged an application for review of the assessment of the Medical Assessor.
On 1 February 2024, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the 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 Personal Injury Commission Act 2020. 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 PANEL
The Panel issued a Direction to the parties on 6 February 2024 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. On 12 February 2024, the solicitor for Ms Noshad uploaded to the portal a bundle of documents (Ms Noshad’s bundle) and on 18 January 2024 the solicitor for the insurer uploaded its own paginated bundle of documents (insurer’s bundle).
Application for Personal Injury Benefits
In the APID dated 1 October 2022, Ms Noshad listed her injuries as:
“(a) lower back injury;
(b) full right leg injury;
(c) left knee injury;
(d) aggravated previous neck injury;
(e) right hand injury and,
(f) psychological injury.”
In the Application, Ms Noshad stated she was suffering from a “neck injury” at the time of the accident.
Certificate of Capacity/ Certificate of Fitness
The Certificate of Capacity was completed by Dr Eric Lim on 15 August 2022. He commented:
“Driver involved in a MVA. Her car was rear- ended by another vehicle.”
He diagnosed the following accident-related injuries:
“…cervical spine aggravation, C4/5, C6/7 degenerative changes (CT 05/07/22); bilateral shoulder strain; thoracic spine strain; lumbar spine strain; bilateral knee strain; PTSD…”
24 October 2022 CT scan lumbar spine
Ms Noshad attended a CT scan of the lumbar spine. The report made the following findings:
“History:
MVA recently with right leg pain.
Findings:
No fracture can be identified at any level,
L1/2: No disc or endplate pathology. No central or foraminal stenosis. Norm.al facet Joints.
L2/1: No disc or endplate pathology. No central or foraminal stenosis. Normal facet Joints.
L3/4: small posterior broad-based disc bulge with mild bilateral foraminal stenosis. No central canal stenosis. Normal facet joints.
L4/5: Moderate posterior broad-based disc bulge with small endplate osteophytes. Moderate bilateral foraminal stenosis, more marked on the right. Moderate central canal stenosis with moderate to marked narrowing of both lateral recesses. Mild left degenerative facet joint change.
LS/S1: Small posterior broad-based disc bulge with mild bilateral foraminal stenosis. No central canal stenosis, Normal facet joints.
Comment:
1. No fracture.
2. Mild to moderate degenerative change. particularly at L4/S.
3. Irritation of the exiting right L4 nerve root at t.4/5 and/or irritation of the descending tight L5 nerve root in the lateral recesses are the most likely causes of the symptoms.
4. Mild degenerative facet joint change.”
8 December 2022 MRI scan cervical spine
Ms Noshad attended an MRI scan of the lumbar spine for neck pain following the motor vehicle accident. The report made the following findings:
“Normal cervical lordosis. vertebral body heights arc maintained. No marrow oedema or fracture. No T2 cord signal abnormality,
C1/2: No central canal or neural exit foraminal narrowing.
C2/3: No central canal or neural exit foraminal narrowing.
C3/4: Mild disc degeneration and small posterior disc-osteophyte complex. Mild central canal stenosis, Mild bilateral uncovertebral and facet joint degenerative changes. Mild to moderate bilateral neural exit foraminal narrowing.
C4/5: Mild to moderate disc degeneration. Mild central canal stenosis. Mild to moderate bilateral uncovertebral and facet joint degenerative changes. Mild to moderate bilateral neural exit foraminal narrowing.
C5/6: Mild disc degeneration and small posterior disc-osteophyte complex. Moderate bilateral neural exit foraminal narrowing, Minor impingement of both exiting C6 nerve roots.
C6/7: Mild to moderate disc degeneration and small posterior disc-osteophyte complex, Moderate bilateral neural exit foraminal narrowing, Mild impingement of both exiting C7 and C6 nerve roots.
C7/T1: No central canal stenosis. Mild bilateral uncovertebral and facet joint degenerative changes. Mild to moderate right and mild left neural exit foraminal narrowing.
Comment: No acute fracture or paraspinal haematoma. Moderate bilateral C5/6 and C6/7 neural exit foraminal narrowing with potential irritation of both C6 and C7 nerve roots.”
8 December 2022 MRI scan lumbar spine
The report of the MRI scan of the lumbar spine was summarised as follows:
“No acute fracture or marrow oedema, No paraspinal haematoma. Moderate right L4/5 neural exit foraminal narrowing with potential irritation of the exiting right L4 nerve root.”
27 June 2005 ultrasound right shoulder
The ultrasound of the right shoulder on 27 June 2005 was determined to be a normal study.
Report of Amanda Chu, occupational therapist
Ms Noshad completed a pain questionnaire; the results were as follows:
ROI (Region of Interest)
Self-reported pain score at the time of the assessment (VAS scale 0-10)
Self-reported of Symptoms
Headache
10/10
Ms Noshad’s headache has been happening since the massage stated from below. She reported that the pain was worsen by the accident and she constantly experiencing sharp pain.
Neck
8/10
Ms Noshad’s C5/6 was injured back in 2007 from a massage and the pain has not gone away since. She reported that the pain has worsen by the accident initially, and now it has settled a bit.
Thoracic spine
8/10
Ms Noshad reported that she has been experiencing constant dull pain on her upper back.
Lower back
9/10
Ms Noshad experiences lower back pain throughout the day and it often reaches level 9 pain by night time. It feels like sharp pain for 2-3 hours in the middle of the day and Boshra has been putting on sesame oil and hot wheat pack to reduce the pain.
Right Thigh
9/10
Ms Noshad reported that sometimes she experiences so much pain that she cannot move and when the pain comes it can last for a few days.
Right knee
6/10
Same form of pain as right thigh.
Right ankle & foot
9/10
Same form of pain as right thigh.
Allied health recovery request, State Insurance Regulatory Authority
Mr De Robillard (physiotherapist) from Infinity Allied Healthcare diagnosed:
“…cervical spine C4/5, C6/7 strain, bilateral shoulder strain, thoracic spine strain, lumbar spine strain, bilateral knee strain”
He further provided the results of his clinical assessment:
“…pain location: Low back Neck b/l shoulder – R more affected b/l knees - R more affected p&n, numbness: R lower leg form knee to foot weakness: R leg sleeping disturbances due to pain of back, knee aggs: driving, walking, bending, lifting, laying prone, walking, twisting, Functional tolerance: Sitting: 30 minutes Walking: 15 minutes Standing: 15 minutes Driving: 25 minutes c/sp rot L 60 R 40 ext 50 flex 90 Shoulder Flexion R 120 L 145 l/sp flex 50 ext 5 LF L 50 R 30 rot L 30 R 5 Knee Flexion R 80 L 100 Ext L=R 0”
Mr De Robillard (physiotherapist) wrote to Dr Lim, and noted ‘subjective’ findings:
“Low back pain (across beltline distribution, unable to bend or twist)
Neck pain (worst lower right neck, difficulty with driving and turning head)
Bilateral Shoulder pain – Right most affected (unable to lay on right side, reach push)
Bilateral knee pain Right most affected (unable to kneel, bend, mobilise stairs)
Sleep disturbances ++ due to back & knee pain
Paresthesia along right leg between knee to foot”
General practitioner (GP) notes, Dr Thien Quang Nguyen
Dr Nguyen had a telephone consultation with Ms Noshad on 31 August 2022. The clinical notes document:
“Req day ff work because had low back pain & was unable to drive to work today…”
Dr Eric Lim’s treating report dated 15 December 2022
Dr Eric Lim, general practitioner, provided an initial assessment on 15 August 2022. He noted the following injuries:
“Neck/ Shoulder/ Back/ Knee/ Psych”
Dr Lim diagnosed:
“Cervical spine aggravation, C4/5, C6/7 degenerative changes (CT 05/07/22); bilateral shoulder strain; thoracic spine strain; lumbar spine strain; bilateral knee strain; PTSD…”
He commented:
“She continues to work 5hrs/ 3 days per week from home.”
Dr Lim noted that hospital attendance was not required, and that Ms Noshad took simple analgesics.
Photographs of the vehicle
The insurer provided photographs of the damage to the vehicle following the accident. The Panel took these photographs into consideration in considering the issue of causation.
SUBMISSIONS
Ms Noshad’s submissions, dated 5 January 2024
Ms Noshad submitted via her solicitor that the President would be satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect for the following reasons:
(a) failure to conduct assessment in accordance with the provisions of the Motor Accident Guidelines (the Guidelines);
(b) failure to engage with evidence, and
(c) failure to provide adequate reasons.
Failure to conduct assessment in accordance with the provisions of the Guidelines
Ms Noshad submitted that the Medical Assessor had not addressed all of the criteria listed in paragraph cl 5.8 of the Guidelines, namely (c) and (e) – whether she exhibited muscle atrophy or reproducible sensory loss. Clause 5.8 required two or more of the five criteria listed to be present on examination, and without Medical Assessor Herald assessing two of them, he could not have been satisfied that she did not suffer from radiculopathy in the lumbar spine as a result of the accident.
Failure to engage with evidence
By finding that Ms Noshad’s lumbar spine injury was a result of aggravation of her underlying spondylosis, the Medical Assessor had failed to take into consideration her lack of complaint of her lower back symptoms in her clinical records prior to the motor vehicle accident.
Further, the inconsistencies between Ms Noshad’s presentation and the information contained in the medical evidence (specifically, Dr Lim’s treating report dated 15 December 2022) were not identified by the Medical Assessor nor raised with her.
By not putting these inconsistencies to Ms Noshad, the Medical Assessor had not complied with the general provisions for assessment contained in cl 5.6.
Failure to provide adequate reasons
Ms Noshad submitted that aside from the radiological scans mentioned, the remainder of the evidence provided to the Medical Assessor was not referred to in his certificate beyond merely being listed by their file names as they were uploaded to the Commission’s portal.
The Guidelines require a Medical Assessor to give consideration to more than just the radiological scans alone in determining whether or not Ms Noshad has sustained a threshold injury. If the Medical Assessor did give consideration to the remainder of the evidence, he had not said as much in his certificate. In particular, the parties were left to wonder how the Medical Assessor concluded that Ms Noshad did not suffer from radiculopathy in her lumbar spine in light of the Medical Assessor not addressing the required criteria contained in the Guidelines, especially when there was evidence before him that indicated the contrary.
Insurer’s submissions in reply, dated 18 January 2024
NRMA submitted the Medical Assessor’s examination of the lumbar spine and lower limbs complies with the Medical Assessor’s obligations to provide reasons.
NRMA submitted the relevant radiculopathy criteria had been appropriately addressed by the Medical Assessor as defined under cl 5.8 of the Guidelines:
(a) loss or asymmetry of reflexes: “She has a normal neurological examination to her lower limbs which are intact to tone, power, and reflexes”;
(b) positive sciatic nerve root tension signs: “She has a normal neurological examination to her lower limbs” and “she has a negative straight leg raise”;
(c) muscle atrophy and or decreased limb circumference: “She has a normal neurological examination to her lower limbs which are intact to tone, power…”;
(d) muscle weakness: “She has a normal neurological examination to her lower limbs which are intact to tone, power”, and
(e) reproducible sensory loss: “She has a normal neurological examination to her lower limbs which are intact to tone, power, and reflexes…”.
NRMA disagreed with the assertion that the Medical Assessor’s finding of normal gait and negative straight leg raise are inconsistent with the 15 December 2022 report of Dr Lim which reportedly found those features. The insurer highlighted that the Medical Assessor conducted the examination a year after Dr Lim and these issues would likely have resolved.
NRMA disagreed that the Medical Assessor was required to necessarily address every single document under relevant documentation.
NRMA highlighted the property damage photos were consistent with a relatively low energy rear-end accident.
NRMA accepted there may have been a brief period of symptomology which would and have resolved.
NRMA submitted any ongoing symptomology reported is consistent with Ms Noshad’s underlying degenerative pathology.
THE MEDICAL EXAMINATION BY THE PANEL
Ms Noshad was examined by Medical Assessor Michael Couch on 18 April 2024 over a period of 90 minutes.
She attended alone and had travelled to the city business district (CBD) by train from her home in Fairfield.
She spoke excellent English, having been a high school English teacher in her native Iraq and was now teaching English as a second language (ESL).
Pre-accident medical history and relevant personal details
Ms Noshad said that she had come to Australia in 2002 from Baghdad as a refugee. In Baghdad she had worked as a high school teacher, including teaching English.
When she first arrived in Australia, she did some interpreting work. She had obtained an advanced diploma in Teaching English to Speakers of Other Language (TESOL) at university.
She now teaches ESL at TAFE through distance learning, working two days a week from home and one day onsite.
She explained that she does evening shifts because of increased morning symptoms. She also said that she could no longer drive to TAFE because of low back pain and took the train instead.
Ms Noshad was divorced and lived alone. She had one married daughter and one grandchild. She had extended family in Iraq.
Ms Noshad confirmed the diagnosis of Rheumatoid Arthritis made some five years earlier. This affected her hands, wrists, elbows and neck but not her lower limbs. She attended a rheumatologist and took Plaquenil and Aspirin.
She went on to say that symptoms had always been worse in the mornings, when she was stiff and sore and found it difficult to get up.
However, she denied any previous low back pain and emphasised that the accident had caused different symptoms. She said that prior to the accident she attended a gym and walked for one hour a day.
History of the accident
(At this stage of the interview, Ms Noshad was noted to adjust her posture in the chair.) She stated that mid-morning on 2 July 2022 she was alone, driving her Toyota Camry on the M4 heading eastwards. She slowed at the Church Street exit to Parramatta with a lot of vehicles ahead. Her car had almost stopped when another vehicle struck her from behind. She said that initially she did realise what had happened and that it was “like an explosion”. She was wearing a seatbelt, but airbags did not activate. She could not recall movements of the car or her body in detail but did feel as if the car had dropped and thought that all the tyres had burst (which they apparently had not). She was able to alight from her vehicle and it was towed away.
The Panel noted the photographs provided showed what appeared to be quite extensive damage to the rear of the Toyota Camry CV96EC, including to the boot lid and surround. There were also photographs of a Jeep, WLD04U, with a front bull bar. The repair quote listed a total cost of $7052.
History of symptoms and treatment following the accident
Ms Noshad denied initial symptoms straight after the accident. She said that pain started on the second and third days after the accident, especially low back pain with radiation to the right lower limb. She stated, “I thought it was because of the rheumatoid arthritis but I’d never had that pain before.” She recalled that it was difficult to move the right leg and it felt very heavy and she had to drag it.
She consulted her GP who told her that her new symptoms were not because of rheumatoid arthritis and were related to the motor vehicle accident. In addition to low back symptoms, she recalled initially having pain in the whole of the right upper limb – she pointed with her left hand from the right shoulder, right down the limb to the hand – she said these symptoms had improved but not completely resolved.
Ms Noshad recalled initial neck pain which had recently been getting worse and was associated with severe headaches. These often wake her at 2.30-3.00am and can last for two to three hours. She denied associated migrainous symptoms such as nausea, vomiting or visual disturbance. For these, she typically takes two Panadol Osteo, strong coffee and massages her neck. Ms Noshad also recalled initial symptoms in the left shoulder but said these had resolved.
Treatment had initially been with her GP, who had apparently suggested she consult Dr Lim in Parramatta. (She said that she had since ceased attending Dr Lim.) Treatment had included physiotherapy and a lot of acupuncture, but she had not attended any medical specialists, saying she could not afford this. Her main analgesic medication had been Panadol Osteo two tablets twice a day – she said that she occasionally took another painkiller. She could not recall the name of this and said that she tries to avoid it. She said that she had also taken some herbal remedies, being keen on alternative health approaches. At the time of this reassessment, she was not having any physical treatment, stating that she could not afford it.
Details of any relevant injuries or conditions sustained since the accident
Ms Noshad denied any such further injuries or conditions.
Current symptoms
Low back pain
Ms Noshad described this as her worst problem. She stood and pointed to the whole lumbosacral area, down as far as her coccyx. She had pain most of the time and did not have any pain-free days. Back pain could wake her from her sleep. Pain radiated to the right buttock and the posterolateral thigh and down her leg to the foot and toes. On questioning, she denied any sudden or sharp pain with coughing or sneezing. She described difficulty with prolonged postures and has to change posture frequently – she said her supervisor at TAFE had asked her why she often stood while using a computer at work. (The Medical Assessor asked her if she had tried using a sit/stand desk and she had not.) Walking tolerance was variable and estimated a maximum of 30 minutes. Low back pain could wake her from her sleep. Sometimes she got relief from back pain from lying down, but this is variable.
Neck
Ms Noshad described more intermittent pain in the neck – perhaps occurring on alternative days. As mentioned above, she described troublesome headaches associated with her neck symptoms – she said these were not like headaches she had experienced in the past.
Right shoulder
There was sometimes radiation of neck pain to the right upper limb and right shoulder with paraesthesia in the right hand. She was able to move her right upper limb normally, but it feels heavy.
Left shoulder
Ms Noshad said that initial symptoms in the left shoulder had resolved.
Current activities
Ms Noshad continued to work as an ESL teacher, doing three days a week. She lived alone in an upstairs unit and fortunately had a lift. Her married daughter helped with housework and shopping. She did cook for herself to some extent. Sleep had been quite disturbed with troublesome headaches occurring most nights. She was anxious while driving. She had not returned to the gym but did do some walking.
Lifestyle factors
Ms Noshad did not smoke or drink alcohol.
Clinical examination
Ms Noshad presented as an immaculately dressed, middle-aged woman wearing traditional dress and a head scarf (she was happy to remove the head scarf for examination of the cervical spine).
She spoke excellent English and appeared to be intelligent and well-educated.
She gave a clear specific history in a very straightforward manner and could clearly differentiate her rheumatoid arthritis symptoms from those which she related to the car crash.
She was cooperative throughout and showed good effort, with no suggestion of abnormal pain behaviours, inconsistency or self-limitation.
She was somewhat overweight at height 155cm and 70kg – she said that she had put on about 10kg (probably due to reduced physical activity since the accident.)
She was noted to be uncomfortable sitting in a chair during the interview and stood to stretch her low back several times. She was able to sit and then lie supine on the examination couch, but accepted help from the Medical Assessor to sit up again from the couch.
Cervical spine
She reported moderate tenderness over the posterior cervical spine, particularly bilaterally over the paraspinal muscles.
Both trapezius muscles were tense to palpation and moderately tender. Flexion and extension of the cervical spine were both about half of normal. Rotation was half of normal bilaterally. Lateral flexion was two-thirds of normal to the left and one-third of normal to the right. (The positive findings were tenderness, muscle guarding and minor dysmetria. The intermittent right upper limb symptoms described were not typical of non-verifiable radicular complaints).
Lumbosacral spine
It was obvious from her behaviour and changes of posture during the interview that her low back was uncomfortable.
On palpation she reported tenderness over the lumbosacral spine in the midline and to the right. Active range of movement (AROM) of the lumbosacral spine was tested with her standing and knees straight. Flexion was full and she was able to reach her fingertips below the knees with a smooth lumbar movement. However, extension was only half of normal and reported as more painful than flexion. There was also asymmetry of lateral flexion, which was full to the left but two-thirds of normal and accompanied by pain to the right. There was no evidence of lumbar paraspinal muscle guarding or spasm.
The Medical Assessor considered that her right lower limb symptoms could reasonably be construed as non-verifiable radicular complaints.
Upper extremities
Her hands were clean and soft with no callouses. The right (dominant) upper arm measured 34cm in circumference, the left 33.5. Both forearms measured equally at 28cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical. Power was normal in both upper limbs and light touch sensation preserved bilaterally.
Thus, there were definitely no signs of cervical radiculopathy.
The right hand was normal to examination with no tenderness or deformity and normal and symmetrical grip strength. In the shoulders she did not report any tenderness to palpation over the glenohumeral joints (shoulder joints proper), although as noted above, both trapezius muscles were tense and tender. AROM of the shoulders was measured with repetition with a goniometer, as tabulated – there was mild to moderate restriction of right shoulder flexion and abduction, associated with pain in the trapezius muscle and also reported low back pain, but no pain localised to the shoulder joint proper.
Right
Left
Flexion
120°
170°
Extension
30°
60°
Abduction
130°
170°
Adduction
20°
30°
External Rotation
80°
80°
Internal Rotation
90°
90°
(The clinical picture was of secondary restriction of right shoulder flexion and abduction, mainly related to her cervical spine condition, with no evidence of glenohumeral joint/rotator cuff pathology).
Lower extremities
The right (dominant side) calf measured 40cm in circumference and the left 39.5. Knee jerks and ankle jerks were somewhat less brisk than average, but present and symmetrical. Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal bilaterally. Sensation was preserved in both lower limbs. Straight-leg-raising was full on the left at 60 degrees and pain-free. On the right it was restricted to 30-40 degrees with pain down the leg reproduced by sciatic stretching, indicating positive nerve root tension. Both knees were clinically normal.
A few functional activities were observed: Ms Noshad was able to take a few steps with bare feet with weight on the balls of her feet and heels off the floor, and then with weight on her heels with forefeet off the floor, although she described this as slightly difficult. Without using hand support, she was able to perform a squat halfway to the floor before stopping and recovering. Gait was normal.
The Panel’s impressions following the first examination
Ms Noshad presented in a very genuine and straightforward manner. She appeared to be a good observer of her own symptoms, could clearly distinguish those related to her longer standing rheumatoid arthritis from those which she related to the accident, and showed no suggestion of exaggeration or abnormal pain behaviours. She was consistent throughout.
She described, and there was documentary evidence of, a harder than average rear-end crash when she was hit by a jeep with a front bull bar, resulting in considerable damage to the back of her car.
She described the early (but not immediate) onset of symptoms- mainly in the low back with probable right lower limb radicular symptoms, and to a lesser extent in the neck, right shoulder and right upper limb. She recalled initial symptoms in the left shoulder which had resolved. She did not mention any separate symptoms in either knee or right hand (other than some referred symptoms from the cervical spine).
Panel’s further examination
The Panel noted on discussion post the initial examination that Medical Assessor Couch was unable to perform the clinical examination properly on 18 April 2024, as a result of the clothing which Ms Noshad was wearing (traditional).
Given Ms Noshad's submission as to the failure of the examiner under review to carry out the examination properly and to obtain the proper measurements, the Panel considered it necessary to conduct a further examination.
The examination was performed on 25 June 2024 over a period of 30 minutes. Ms Noshad again attended alone.
Further history
Ms Noshad again confirmed that low back pain was her worst symptom. She said that there had been some deterioration since the previous examination some ten weeks earlier. She said that the main change was she now had pain radiating into the left lower limb as well as the right. She again described pain, pointing to the lumbosacral spine, with radiation to the right buttock, posterolateral thigh and calf, into the sole of the right foot and the lateral toes of the right foot. Whereas previously she had not had radiation to the left lower limb, she now described radiation to the left buttock, posterolateral thigh, calf and the sole of the foot but not into the toes. Ms Noshad said that she had consulted her GP again about this and had been referred for some sessions of physiotherapy (probably under Medicare).
She also described neck pain and said that she was now waking every morning with this. She uses heat packs for her neck and back every night. Ms Noshad added that her previous unit had been put on the market and she had to move to Campbelltown to find new accommodation which she could afford. Her daughter continues to live in Fairfield, near to her old home.
Clinical examination
Presentation was similar to that recalled and described previously. A head covering, outer cloak and thick sweater were removed, as were jeans, sneakers and socks. Examination of the lower limbs was satisfactory in her tights. She was able to sit during the fairly brief interview but was noted to move somewhat slowly when climbing on and off the examination couch and rolling over from prone to supine. As previously, the Medical Assessor gave her assistance to sit up from supine.
Cervical spine
Findings in the cervical spine were similar, with moderate tenderness over the posterior cervical spine, paraspinal and trapezius muscles. The right trapezius was noted to be tense compared with the left. There was again dysmetria in lateral flexion.
Upper extremities
Full neurological examination of the upper extremity was again normal, with no muscle wasting, weakness, loss or asymmetry of reflexes or sensory loss.
Lumbosacral spine
There was again tenderness reported to palpation over the lumbar spine, in the midline and to the right. Forward flexion was two-thirds of normal whereas extension was only half of normal and more painful than flexion. On this occasion there was no definite asymmetry of lateral flexion, which was about half of normal to each side. However, lateral flexion was reported as more painful to the right, and more comfortable to the left.
Lower extremities
At this further examination, the Medical Assessor paid special attention to the lower extremities, noting that ten weeks earlier there had been symptoms suggesting right L4/5 nerve root irritation, with a positive right-sided nerve root tension but no other definite objective signs of radiculopathy. On this occasion, both calves again measured equally in girth at 40cm. Both thighs were measured carefully, 10cm proximal to the patella, at 54cm. This measurement was taken by having first accurately circumscribed the area of the limb with masking tape, and then carefully measuring that tape.
On this occasion there was definite asymmetry of knee jerk. In the supine position the right knee jerk could not be obtained, whereas the left was easily elicited and quite brisk. Further testing with Ms Noshad sitting on the side of the couch again showed a brisk knee jerk on the left but barely present knee jerk on the right. This finding was confirmed with several repetitions. As before, there was no objective weakness in either lower limb and light touch sensation was preserved. Straight-leg-raising was again normal on the left at 60 degrees with complaint of slight low back pain only. On the right it was again restricted to 40 degrees, with definite radicular pain increased by sciatic stretching with passive ankle dorsiflexion.
Consideration of the submissions
At the first Medical Review Panel (MRP) meeting on 20 March 2024, the Panel had a discussion of the issues and resolved it would be necessary to examine Ms Noshad in order to address the parties’ submissions.
At the first Panel meeting, the Panel noted that the Delegate pointed out that the Medical Assessor had not recorded the circumference of Ms Noshad’s lower limbs to the nearest 0.5cm as required under Table 6.8 of the Guidelines.
Ms Noshad submitted that the Medical Assessor had not addressed all of the criteria listed in paragraph cl 5.8 of the Guidelines— whether Ms Noshad exhibited muscle atrophy or reproducible sensory loss. Clause 5.8 required two or more of the five criteria listed to be present on examination, and without the Medical Assessor assessing two of them, he could not have been satisfied that she did not suffer from radiculopathy in the lumbar spine as a result of the accident.
At the first re-examination by the Panel, the picture in the lumbar spine was of non-verifiable radicular complaints in the right lower limb (consistent with previous CT and MRI findings showing a potential for right L4/L5 nerve root irritation). On that occasion there was positive nerve root tension in the right lower limb, but no additional objective signs to formally diagnose radiculopathy. On the second occasion there was marked and reproducible asymmetry of knee jerks with depression on the right. This further finding was consistent with the clinical picture seen at the first re-examination. As examined on this occasion, Ms Noshad had signs of right L4/L5 radiculopathy, this supported the conclusion that this was a non-threshold injury.
The Panel notes that the reason why the knee reflexes tested differently at the two Panel examinations, was that at the first examination the legs, including the knees, were concealed beneath thick multiple layers of clothing, thus making asymmetry of reflexes less obvious if this was present. The re-examination, in which the knee area of the legs was covered only by much thinner winter tights, allowed a more accurate assessment of whether the knee jerks were symmetrical or not.
The Panel’s careful examination and re-examination confirmed that asymmetry was present.
Medical Assessor Couch noted further clinical deterioration of the lumbar spine at the second examination. The Panel must therefore take into account the clinical signs on this day, as the most accurate representation of Ms Noshad’s current condition and her corresponding diagnosis.
The consideration of whether or not there were clinical signs justifying a determination that there were non-threshold injuries in accordance with the guidelines, the Panel must take into account the examination on the day and on this day, the further examination of Ms Noshad observed by Medical Assessor Couch showed there to be signs of right L4/L5 radiculopathy, this supported the conclusion that this was a non-threshold injury.
In the cervical spine, the clinical picture and signs were still those of whiplash associated disorder grade 2 with muscle guarding and minor dysmetria. This is a threshold injury.
Ms Noshad further submitted that Medical Assessor Herald had failed to take into consideration her lack of complaint of her lower back symptoms in her clinical records in all dates prior to the motor vehicle accident.
The Panel considered the GP records which had been uploaded to Pathways by Ms Noshad’s solicitor, dating back to 2002. The Panel considered it significant that there was no previous history of lower back symptoms pre- dating the accident.
To determine whether the injuries caused by the accident were a threshold injury, the Panel gave close consideration to clause 5.6 of the Guidelines:
(a) the Panel took a comprehensive accurate history, including pre-accident history and pre-existing conditions;
(b) the Panel reviewed the relevant records available at the assessment;
(c) the Medical Assessor took a comprehensive description of the injured person’s current symptoms;
(d) the Panel conducted a careful and thorough physical examination, and
(e) reviewed the diagnostic tests available at the time of assessment.
The Panel considered significant; the examination on the day, the radiological images, the photographs of the accident, the clinical notes of the treating medical practitioners prior to, and subsequently following the accident and determined that the current diagnoses were:
(a) whiplash associated disorder, Grade 2, of the cervical spine with muscle guarding and minor dysmetria. There were no signs of cervical radiculopathy, and this was a threshold injury.
(b) On first examination Ms Noshad was diagnosed with soft tissue injury to the lumbar spine with dysmetria, non-verifiable radicular complaints in the right lower limb and positive nerve root tension. CT and MRI of the lumbar spine had shown degenerative changes with a potential for right L4/L5 nerve root irritation. On the second occasion there was marked and reproducible asymmetry of knee jerks with depression on the right. This further finding was consistent with the clinical picture seen at the first re-examination. As examined on the second occasion, Ms Noshad had signs of right L4/L5 radiculopathy, which is a non-threshold injury.
(c) Right shoulder – there was no evidence of direct or intrinsic injury to the right shoulder joint. She had slight to moderate painful restriction of flexion and abduction, secondary to muscle guarding in the right trapezius muscle. This is part of the threshold injury to her cervical spine.
(d) Any initial injury to the left shoulder had resolved.
(e) There was no evidence of current separate injuries to either knee, the right lower limb itself, or the right hand.
The Panel determined that the injury to the lumbar spine was caused by the accident and was not a threshold injury for the purposes of the MAI Act.
The Panel further determined that the following injuries were caused by the accident and were threshold injuries:
(a) soft tissue injury to cervical spine, thoracic spine, both shoulders, both knees, right hand, and right leg.
The Panel revokes the Certificate of the Medical Assessor Herald, dated 11 December 2023.
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