Noun v AAI Limited t/as AAMI
[2025] NSWPICMP 268
•17 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Noun v AAI Limited t/as AAMI [2025] NSWPICMP 268 |
CLAIMANT: | Noaman Noun |
INSURER: | AAI Limited trading as AAMI |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Tai-Tak Wan |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 17 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whether the claimant suffered a threshold injury; Medical Assessor (MA) determined that the claimant had suffered threshold injuries; claimant involved in an accident being a rear end collision causing the claimant to then collide with the rear of the car in front of him; claimant injured his cervical spine, lumbar spine, head, left shoulder and right shoulder; claimant asserted that he had previously demonstrated two objective signs of radiculopathy but this was rejected by the Review Panel as there was no evidence of the nature of assessment; claimant medically examined by the Review Panel and found not to have any signs of radiculopathy; Held – claimant had suffered threshold injuries; MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel affirms the certificate of Medical Assessor Cameron dated 27 January 2024. 2. The following injuries were caused by the motor accident: (a) cervical spine – soft tissue injury; (b) head – soft tissue injury, there was no evidence of concussion, and the head was not causally related to the subject motor vehicle accident; (c) lumbar spine – soft tissue injury; (d) left shoulder – soft tissue injury, and (e) right shoulder – soft tissue injury. 3. The following injuries are threshold injuries: (a) cervical spine – soft tissue injury; (b) head – soft tissue injury; (c) lumbar spine – soft tissue injury; (d) left shoulder – soft tissue injury, and (e) right shoulder – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
This is an application by the claimant for review of a certificate and reasons of Medical Assessor Cameron (Medical Assessor) dated 27 January 2024.
The claimant was involved in a motor vehicle accident on 23 March 2023. At issue is whether the claimant has suffered threshold injuries.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) cervical spine - discal injury with mild bilateral neural exit foramen narrowing at the C3/4, C4/5 and C5/6 levels and radiculopathy into the upper limbs;
(b) head - post-concussion headache;
(c) lumbar spine - discal injury with mild bilateral neural exit foramen narrowing at the L4/5 level and radiculopathy into the lower limbs;
(d) left shoulder - rotator cuff injury/ referred pain from cervical spine, and
(e) right shoulder - rotator cuff injury/ referred pain from cervical spine.
The Medical Assessor found following injuries caused by the motor accident:
(a) cervical spine – soft tissue injury;
(b) lumbar spine – soft tissue injury;
(c) head – soft tissue injury;
(d) left shoulder – soft tissue injury, and
(e) right shoulder – soft tissue injury,
were threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (Act).
Regarding the injury listed as “head – soft tissue injury” the Panel considered this to be a review of a physical injury to the head and not an injury requiring cognitive assessment. Prior to examination of the claimant on behalf of the Panel, the claimant/insurer were requested to inform the Panel if it was not correct about this position. This injury was noted as “injury to head – post concussion headache” in the claimant’s submissions but was referred to Medical Assessor Cameron for assessment as “head – soft tissue injury” only. The Panel notes that no submissions have been made about this particular injury by the claimant.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
The accident
The accident occurred on 23 March 2023. The claimant was stationary at a set of traffic lights with several vehicles in front of him. Unexpectedly, the insured vehicle collided into the rear of the claimant’s vehicle causing his car to collide into the rear of the vehicle in front of him.
A photograph of the insured car and the damage to its front bodywork follows.
[IMAGE UNABLE TO RENDER]
Two photographs of the claimant’s car and damage to its rear bodywork follows.
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
While there is no certainty about this, on the observation of the Panel, the impact of the insured car with the rear of the claimant’s car would be to be at the point of the exterior’s rear wheel and surrounds.
LEGISLATIVE BACKGROUND
Jurisdiction
The claimant’s claim is governed by the provisions of the Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “threshold” injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
Threshold injury
A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “threshold psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding cl of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Clauses 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root”. 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. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.5 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Does the claimant have radiculopathy?
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.8 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
For the claimant’s injury to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
Claimant’s submissions on review
The claimant submits that his injuries are non-threshold injuries.
The claimant says that the Medical Assessor has erred in his interpretation and application of the relevant principles, in particular, the principles set out in the authority of David v Allianz AustraliaInsurance Ltd [2021] NSWPICMP 227.
The claimant says that David’s case demonstrates that the Medical Assessor has wholly failed to take into account and find favourably in relation to causation for the purpose of this dispute in accordance with the principles mandated by the Commission. This provides that the claimant’s pathology and recorded complaints of radiculopathy made at any time after the accident and not exclusively at the time of the subject assessment, must result in a ‘non-threshold’ injury finding, provided that such complaints and pathology satisfy the provisions of s 1.62 of the Act.
The claimant submits that in the subject assessment, the Medical Assessor concluded that there was no evidence of radiculopathy. However, the claimant says that the Medical Assessor failed to apply principles enunciated in David’s case, that is, the existence of radiculopathy can be established at any time and not only during an examination by a Medical Assessor.
The claimant submits that upon review of the medical evidence and records, the Panel can be satisfied that the claimant demonstrated two objective signs of radiculopathy at any time following the motor accident.
Firstly, in the clinical file of Greystanes Physiotherapy and Sports Injury Clinic as at
6 September 2023, the claimant was classified as suffering from “extensive WAD injuries (Grade 3) from his MVA”. In an Allied Health Recovery Request (AHHR) dated 19 August 2023, the claimant was found to be suffering from Grade 3 Whiplash Associated Disorder (WAD) in both the cervical and lumbar spine as well as associated neurological symptoms.
Secondly, as provided in the Greystanes Physiotherapy clinical records, the claimant presented as follows:
“Very limited AROM reports peripheralized pattern of pain bilaterally and P&N/N from shoulders into both hand reports constant headaches and intermittent periods of dizziness’ and ‘lumbar spine AROM.”
The claimant referred to a State Insurance Regulatory Authority (SIRA) table on the Quebec Task Force Classification of Grades of Whiplash Associated Disorder which classifies Grade 3 Whiplash Disorders as:
“neck complaint and neurological sign(s) including ‘decreased or absent reflexes, weakness and sensory deficits.”
The claimant submitted, that the diagnosis of WAD (grade 3) is based on the clinical examination by the claimant’s treating doctors, whereby signs of radiculopathy and neurological signs were present at the time the claimant was being treated after the subject motor vehicle accident.
The claimant submits that to diagnose an individual with a WAD (grade 3), it must be observed that there is decreased or absent tendon reflexes, weakness and sensory deficits. Furthermore, the diagnosis of a WAD (grade 3) is also persistent with upper limb pain consistent with cervical radiculopathy.
The claimant submits that the Grade Method is used to evaluate and rate the individual’s symptoms and clinical manifestations. The claimant submits that the fact that he has been diagnosed with a WAD (grade 3) would mean that the claimant would have presented with signs of radiculopathy. The claimant says that had there been no signs of radiculopathy present at the time of the consultations, the claimant would have not satisfied the diagnosis of WAD (grade 3).
Further, the claimant says that in the MRI scan dated 1 May 2023, it was recorded that the claimant’s cervical spine had sustained ‘mild disc desiccation’ and ‘mild bilateral neural exit foramen narrowing’ at the C3/4, C4/5 and C5/6 levels. The claimant’s lumbar spine was also found to have ‘mild disc desiccation’ and ‘mild bilateral neural exit foramen narrowing’ at the L4/5 level. The claimant’s pain and neurological symptoms are consistent with the radiological findings in his cervical and lumbar spine MRI.
The claimant submits by way of background information that it should be noted that a disc desiccation can lead to radiating pain, which the claimant says is also known as radiculopathy, which as provided in the clinical file of Greystanes Physiotherapy and Sports Injury Clinic, the claimant did present with at the time he attended upon his treating doctors, which subsequently led to a diagnosis of a WAD (grade 3).
In addition, the claimant says that in the certificate of the Medical Assessor, it was observed that the ‘circumferences of the upper extremities were right 26cm and left 27cm’. The Medical Assessor also noted that ‘there was inconsistent movement at both shoulders that Mr Noun said was due to variable pain from both shoulders’.
The claimant submits that according to Table 6.8 of the Motor Accident Guidelines (the Guidelines) for permanent impairment, atrophy is determined by the difference in circumference which should be ‘2cm or greater in the thigh and 1cm or greater in the arm, forearm or calf’.
The claimant says that noting that muscle atrophy and/or decreased limb circumference was present when the Medical Assessor assessed the claimant, it is submitted that this is a sign of radiculopathy as provided by the Guidelines, and was present at the time the claimant was assessed by the Medical Assessor.
The claimant submits that it is clear that both at the time of assessment and prior to the subject assessment, the claimant has presented with at least two clinical signs of radiculopathy which have not been addressed by the Medical Assessor within his determination.
The claimant submits that the Medical Assessor demonstrably:
(a) failed to conduct the subject assessment in accordance with the principles enunciated in David’s case, and
(b) has made findings that were not open to him, and which are in contravention of the principles enunciated in David’s case and has found negatively on the issue of ‘threshold injury’ which is demonstrably erroneous, and which is wholly inconsistent with the claimant’s treating records and objective radiology.
It is additionally submitted that the Medical Assessor has also failed to consider or to engage with the claimant’s submissions, treating evidence and the objective radiological material that was before him.
Claimant’s submissions on threshold injury
The claimant submits that it is evident that he has been suffering from ongoing pain since the accident which has been affecting his sleep. In the clinical notes of Trinity Healthcare Centre as at 18 May 2023, it was recorded that the claimant was experiencing ‘neck pain, whiplash and shoulders and between blades and lumbar spine as well as ‘severe headaches since accident’ and ‘neck pain worse and numbness hands’. The claimant also submits that further symptoms as a result of the accident include ‘low back pain’, ‘neck pain with radiculopathy’ and ‘ROM decreased in C spine and L spine’.
On 8 May 2023, the claimant was referred to a neurosurgeon for symptoms including ‘chronic headache, neck pain with radiculopathy and lower back pain’.
On 1 May 2023, the claimant underwent an MRI scan of his cervical spine which revealed that there was disc desiccation and ‘mild bilateral neural exit foramen narrowing’ at the C3/4, C4/5 and C5/6 levels.
The claimant says that in the lumbar spine MRI scan report dated 1 May 2023, it was recorded that he had disc desiccation with ‘mild bilateral neural exit foramen narrowing’ at the L4/5 level.
The claimant submits that the physical injuries he has sustained do not meet the criteria of ‘threshold injury’ under the Act.
Insurer’s submissions
The insurer disagrees that there was any evidence before the Medical Assessor of radiculopathy at any time after the accident.
The insurer submits that the Medical Assessor clearly addressed the presence of radiculopathy and outlined his findings on examination of the claimant.
The insurer submits that the Medical Assessor determined that the claimant had sustained injuries to his shoulders in the accident, and therefore that the reported symptoms in the upper extremities were causally related to the shoulders, and not emanating from the cervical spine. The insurer submits that this was consistent with the history given to him on examination by the claimant, in which it was asserted that there was pain in the shoulders and no mention was made of pain radiating from the neck to the upper extremities.
The insurer says that in the claimant’s submissions, references are made to what are asserted to be evidence of radiculopathy after the accident and at the time of examination by the Medical Assessor, being the following:
(a) diagnosis of “WAD Grade III” at the cervical and lumbar spine by the treating physiotherapist, and
(b) findings on MRI at the cervical and lumbar spine.
The insurer says that the Medical Assessor clearly addressed the presence of radiculopathy and outlined his findings on examination of the claimant as follows:
“At the cervical spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.…
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative…”
The insurer submits that the listed injuries are “threshold” injuries because they fit the definition of “threshold” injury set out in the Act and the Regulation. Radiculopathy is not currently present and has not been present following the motor vehicle injury.
The insurer says that the Medical Assessor determined that the claimant had sustained injuries to his shoulders in the accident, and therefore that the reported symptoms in the upper extremities were causally related to the shoulders, and not emanating from the cervical spine. The insurer says that this was consistent with the history given to the Medical Assessor by the claimant, on examination in which it was asserted that there was pain in the shoulders and no mention was made of pain radiating from the neck to the upper extremities.
The insurer refers to the claimant’s submissions, and references made to what are asserted by the claimant to be evidence of radiculopathy after the accident and at the time of examination by the Medical Assessor, being the following:
(a) diagnosis of “WAD Grade III” at the cervical and lumbar spine by the treating physiotherapist;
(b) findings on MRI at the cervical and lumbar spine;
(c) inconsistent movement at both shoulders, and
(d) ‘Atrophy’ of the left upper extremity.
The insurer submits that the findings on MRI and inconsistent movement at both shoulders cannot constitute objective signs of radiculopathy pursuant to cl 5.8 of the Guidelines.
The insurer refers to the claimant’s submission that to satisfy a finding of WAD Grade 3, there must have been objective signs of radiculopathy present. However, the insurer says that the treating records which identified the diagnosis of WAD Grade 3 make no reference whatsoever to objective signs of radiculopathy. The insurer acknowledges that there is reference to “pain”, “headaches”, “dizziness” and limited range of movement, but says that none of these satisfy the criteria in cl 5.8 of the Guidelines. The insurer submits that the Medical Assessor was entirely correct to not consider these records as evidence that the claimant had radiculopathy at any time after the motor accident.
The insurer addressed the claimant's assertion in the application that there was ‘atrophy’ on examination by Medical Assessor Cameron, noting his finding that “circumferences of the upper extremities were right 26cm and left 27cm”. In response to this, the insurer submits the following:
(a) the Medical Assessor made no finding of atrophy, which was a matter within his clinical judgement and expertise. The insurer says that the Guidelines note where a difference in circumference of the upper limbs constitutes atrophy it “should be” where there is a difference of 1cm or more, and does not provide that any such difference must constitute atrophy, and
(b) in any event, the insurer says that the Medical Assessor considered that the findings on examination at the upper extremities were referable to injuries to the shoulders, not radiculopathy emanating from the cervical spine.
The insurer submits that the Medical Assessor provided clear and detailed reasoning as to the absence of any signs of radiculopathy, and properly applied the Guidelines.
MEDICAL EVIDENCE
The Medical Assessor said that there was no evidence of an injury to an intervertebral disc in the subject motor accident and there was no evidence of radiculopathy as defined in the Guidelines. There was no evidence that a rotator cuff ligament tear was sustained in the subject motor accident and there was no evidence of a significant head injury. The Medical Assessor remarked that headache is a symptom and is not indicative of a head injury.
The Medical Assessor said that;
“ in the Act and the Regulation. Radiculopathy is not currently present and has not been present following the motor vehicle injury.”
Dr Hassan provided a treating report to the claimant’s general practitioner (GP) dated
31 May 2023.
The claimant had reported that in the accident he hit his head on the steering wheel. Since that time he has had holocephalic headaches, persistent axial neck pain and lower back pain.
Dr Hassan confirmed that MRI scans of the claimant’s cervical spine, lumbosacral spine and brain did not show any significant abnormalities.
Dr Hassan concluded that the claimant had benign sounding post concussion headaches and non-specific musculoskeletal sounding pain in the neck and his lower back.
No recommendations of substance were made.
Clinical notes of the claimant’s GP have been reviewed and are commented upon below by Medical Assessor Wan.
Clinical notes of the claimant’s psychologist are not relevant to this Panel’s review.
MEDICAL EXAMINATION
The claimant was examined by Medical Assessor Wan on 5 December 2024. His report follows:
The claimant attended the assessment unaccompanied. The assessment, including history taking, cognitive functions assessment and physical examination, lasted for 1.5 hours.
He wanted to show me a ‘new report from Dr Hassen, his neurologist, during the examination, but I advised him that for procedural fairness I could not read that, and any new information should be sent to the Personal Injury Commission (PIC).
The Panel is to review the certificate of Medical Assessor Cameron dated 27/1/2024 for Threshold Injury disputes. The Panel has undertaken a de novo examination for all the injuries.
The following injuries were referred by the Personal Injury Commission for assessment:
o Cervical spine - Discal injury with mild bilateral neural exit foramen narrowing at the C3/4, C4/5 and C5/6 levels and radiculopathy into the upper limbs.
o Head - Post-concussion headache
o Lumbar spine - Discal injury with mild bilateral neural exit foramen narrowing at the L4/5 level and radiculopathy into the lower limbs.
o Left shoulder - Rotator cuff injury/ referred pain from cervical spine.
o Right shoulder - Rotator cuff injury/ referred pain from cervical spine.
History as Given by the Injured person
· Pre-Accident Medical History and Relevant Personal Details
Mr Noaman Noun is 31 years old, and currently unemployed. He said he was a security guard at the time of the subject motor vehicle accident (MVA). He said he stopped working since the MVA.
Past Health
Mr Noun denied any other history of accidents, injuries or other relevant conditions sustained prior to the subject MVA.
It seems that he has depression since separation from his wife.
He said his past medical history was otherwise good.
There is no known history of allergy.
Social History
Mr Noun was born in Lebanon. He came to Australia in 1995.
He said he studied up to year 12 in Australia. He said his school performance was above average, with science as his best subject and then English as his worst subject. However, he said his HSC score was around 50. He then attended a mechanical engineer certificate course in TAFE for 2 years (not an apprenticeship). It was not clear from him whether he got a trade licence or qualification. He said he then worked in Coles as shelf filer for few years. He then worked as a security guard since 2010, until the subject MVA. He said he could not give further details, as his memory has got worse recently.
[From this information, his premorbid intelligence was estimated to be average at best.]
He has separated from his wife (not yet formally divorced). They have 3 children (2 daughters, around 8 years old, and 1 son around 3 years old), all staying with his wife.
He lives with his older sister and her family (including, husband and 3 children) in her house. However, he still uses his previous unit as the mailing address.
He said normally he does not do much housework, which is usually done by his sister and her husband.
He is a chronic smoker (15 cigarettes per day) and a non-drinker.
He drives an automatic car.
· History of the Motor Accident (from the claimant)
Mr Noun said on 23/3/2023, afternoon (he could not remember the time), he was a restrained driver, going home from work? (he said he could remember the details of the MVA). While he was driving on a road of Smithfield at unknown speed. when he was hit by another car from behind. He said his car then hit the car in front of him. (This matter was not mentioned in Assessor Cameron’s certificate and other documents). No police or ambulance came to the scene. Apparently, there was no loss of consciousness (LOC), as he recalled the driver of the car before his came to help him getting out of the car. (he said he could not remember whether the driver was a male or female). He then exchanged details with the driver of the offending car, who was a middle-aged male). He said his head (frontal) hit the steering wheel. It was not clear from him whether there was a head rest in his car seat. He then called his brother, who lived near the scene, who then drove the car to his brother’s place. Since he was still working, his brother called his boss saying that he could not continue working on the day. It was not clear from him whether his car was repaired or written off.
· History of Symptoms and Treatment Following the Motor Accident
Mr Noun said that after the accident, he has pain in his shoulders, back, neck and chest. He did not go to the hospital or sought any medical advice on that day but consulted his GP Dr Baid, a few days later. He could not remember what treatment was given, might be some pain killers.
He was later referred to see a neurologist Dr Hassen.
He was referred to see “Dr Onuha”, a psychologist, but has not seen a psychiatrist.
He could not recall seeing any brain injury specialist, neuropsychologist, or rehabilitation medicine physician.
He could not recall seeing any occupational therapist or rehabilitation regarding return to work (RTW).
· Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
Mr Noun denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA.
· Current Symptoms
His current complaints are as follows:
o Headache, occipital, going to the frontal area, 8/10 in visual analogue scale (VAS). It is a constant burning pain, “just like electrical”. It is relieved by taking painkillers.
o Neck pain, 7/10 in VAS. It is mainly on the “sides of the neck” and is a constant sharp pain. When asked to point to the pain, he pointed the trapezius regions. It is relieved by taking pain killers.
o Right and Left shoulder pain, more on the left shoulder. It is 8/10 in VAS. When asked to show where the pain is, again he pointed to the trapezius region. It is aggravated by any lifting the arms.
o Upper back pain, 6/10 in VAS. It is an intermittent burning pain, and “actually comes from the shoulders”. Sometimes it can be ‘electrical’.
o Sleep is poor. He said he ‘hardly sleep’ because he keeps thinking what happen to him after the accident.
o He agreed that he is depressed.
o He complained that his memory is not good since the accident but getting worse recently. He said he cannot remember what happened yesterday. He said he writes down important things on a piece of paper in his bedroom. (He could not show me the ‘paper’). He sometimes loses his way when driving, so he uses “Google Map” app on his smart phone.
o When I asked about any change in the mood or personality, he said now He does not visit friends so often, he just stays at home.
He reported no problem in the bowel and bladder functions, although sometimes he may have constipation.
He said at most he can sit for 20 minutes, stand for 20 minutes and walk for 5 minutes. He can drive for 20 minutes (automatic car). However, the Panel noted that he had no problem sitting for > 1 hour during examination.
He is independent in the personal hygiene care and most activities of daily living (ADL). He said his sister does most of the housework, and he seldom helps the housework even before the accident. He does not go to gym frequently (even before the accident) but ran in a park for 30 to 45 minutes a day before the MVA but now seldom does that.
· Current and Proposed Treatment
Mr Noun could not remember the details of his current medications. According to a GP’s letters he was taking:
o Tramadol MR 100mg bd
o Axit (mirtazapine) 45 mg daily
o Naprosyn MR 1000 mg daily
o Pariet 20 mg daily
o Panadeine forte 1- 2 tab bd when necessary
He said he once received some physiotherapy but has ceased that now.
He said he sees a psychologist from time to time but could not give further details.
He could not recall seeing an occupational therapist, although he said he once saw a lady referred by the insurer for return to work. Apparently there was no home visit.
Findings on Clinical Examination
· Clinical Examination
Examination on 5 December 2024 showed that Mr Noun was orientated and alert. He said he is 170 cm tall, and weighs 88 kg, which gave a BMI of 30.4. in the obese range. He wore a T-shirt, a pair of short pants and a pair of slippers to the assessment. He looked a bit depressed from time to time. Significant pain behaviours were observed during the interview. He walked independently without walking aid in a normal symmetrical gait. He could walk on tip-toes, on heels, and in tandem (heel-toes) way. He had no problem in squatting. He could dress and undress independently. He could get on the examination couch independently.
He is left hand dominant.
Examination of the head
Examination of the head showed no conspicuous scars, swellings, or deformities. Smell sensation was normal. Visual fields tested by confrontation were normal on both eyes. There was no nystagmus or diplopia found. Pupils were equal and reactive. Visual acuity was grossly normal. There was no gross hearing loss. There were no other motor or sensory deficits in the face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. There were no cerebellar signs found. Romberg test was normal.
Mental State Screening
While the assessment of a traumatic brain injury was not a matter referred to the Panel for assessment, nevertheless, for an appropriate assessment of any head injury to the claimant, it was necessary for a mental state impairment to be undertaken by the Panel, as Mr Noun was complaining of concessional headaches.
Mr Noun scored 27/30 in Folstein Mini Mental test (MMSE). He lost 3 points in the short term verbal memory test, saying he could not remember any recent things. He scored 5/5 in both serial 7 test and reverse spelling test. He had no problem in copying figures including 3-dimensional cubes. He had no problem in alternating sequences. He drew a clock showing the current time quickly and well. Regarding written arithmetic tests, he got correct answers to addition and multiplication, and initially made a mistake in subtraction but he could self-correct the mistake when hinted that there was an error. He refused to try division, saying that he won’t be able to do it. He gave quick and good answers when asked to give for 3 differences and 3 similarities between an apple and an orange.
In summary, there was no evidence of cognitive impairment was detected clinically in the mental state screening tests. The difficulty in short term verbal memory was mostly likely due inadequate effort, inadequate attention, or other psychological causes. It was unlikely due to organic causes when considering his performance in conversation and general cognitive functions. The arithmetic test result was considered within normal limits, considering his academic performance, work experience, and the fact he has not worked for a long time. Abstract thinking and executive function were within normal limits.
The Panel noted that there was no documented PTA (post-traumatic amnesia) assessment, no abnormal brain radiologically findings, and no documented abnormal Glasgow Coma Scale (GCS) scores. There was no documented loss of consciousness, and no anterograde or retrograde amnesia. Clinically there was no evidence of cognitive impairment from the subject MVA. However, mental screening may not detect subtle changes in mild traumatic brain injury, and a comprehensive neuropsychological may clarify the situation but this was not within the ambit of the Panel review.
CERVICAL SPINE (Cervicothoracic)
Examination of the neck showed mild diffuse tenderness over the occipital and both trapezius areas but no muscle spasm or guarding. There was no evidence of non-verifiable radicular complaints, and there were no features of radiculopathy. Initially there were severe restrictions in movements in all directions which was not consistent with the findings reported in other medical reports, and inconsistent to observations when not in formal examination. I advised the claimant about the inconsistency, and he responded that there was pain. I asked to give his best effort and repeated the measurements. There was some improvement in the consistency. There were mild to moderate restrictions in active movements of the neck but no evidence of dysmetria (asymmetrical loss of motion).
[All the measurements are those of active movements. All the active ranges of movements (ROM) of the spine were measured using a goniometer]:
Cervical spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
3/5 normal
3/5 normal
2/5 normal
2/5 normal
3/5 normal
3/5 normal
THORACIC SPINE (Thoracolumbar)
Examination of the upper back showed mild tenderness over both trapezius region but no muscle spasm or guarding. Active movements of the thoracic spine were symmetrical and within normal limits. There was no evidence of any non-verifiable radicular complaints nor radiculopathy:
Thoracic spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
Normal
Normal
Normal
Normal
Normal
Normal
LUMBAR SPINE (Lumbosacral)
Examination of the lower back showed no tenderness muscle spasm or guarding. Active movements of the lumbar spine were mildly restricted, but there was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints:
Lumbar spine
Flexion
Extension
Rotation to right
Rotation to left
Lateral flexion to right
Lateral flexion to left
ROM found
4/5 normal
4/5 normal
Normal
Normal
normal
normal
Straight leg raising was 70° in on both sides; in supine position but 90° in on both sides in sitting position.
UPPER EXTREMITY
Examination of the upper limbs showed no gross muscle wasting. Measurements of mid-arm circumference showed that the right side was 0.5 cm smaller than the left side, which was within the normal limits, given that he is left hand dominant. Measurement of mid-forearm circumferences showed that the right side was 0.5 cm smaller than the left side, which was within the normal limits. Muscle power was normal in both upper limbs, both proximally and distally. Reflexes were normal and symmetrical in the upper limbs. Sensation was normal in both upper limbs.
Examination of the shoulders showed tenderness in both trapezius muscle regions, but no tenderness in AC joint or glenohumeral joints. No crepitation was found on moving shoulders. Active movements were initially severely restricted in all directions, which was not consistent with the findings reported in other medical reports, and inconsistent to observations when not in formal examination. I advised the claimant about the inconsistency, and he responded that there was pain. I asked to give his best effort and repeated the measurements. There was only slight improvement in the consistency as follows:
[All the measurements are those of active movements. All the active ranges of movements (ROM) of the limbs were measured using a goniometer]:
Shoulder
Flexion
Extension
Abduction
Adduction
Internal Rotation
External rotation
Right °
90, 120,140
30,40,40
70,40,140
20,30,40
70,80,80
70,70,80
Left °
90,130,140
30,40,40
70,40,140
20,30,40
70,80,80
70,70,80
Examination of the elbows showed no tenderness or swelling. Active movements of the elbows were symmetrical and within normal limits.
Examination of the wrists and hands showed no deformity or swelling. Active movements of the wrists, hands and fingers were all symmetrical and within normal limits.
LOWER EXTREMITY
Examination of the lower limbs showed no gross muscle wasting. Measurement of mid-thigh circumference and mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was no sensory over skin graft area, but otherwise sensation was normal in the lower limbs.
Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was reduced on both sides. Active movements of the hips were normal bilaterally.
Examination of the knees showed no deformity, swelling or effusion. There was no crepitation on moving the knees. There was no excessive antero-posterior or medial-lateral laxity, suggesting the cruciate and collateral ligaments were intact on both sides. McMurray’s test was normal, suggesting the menisci were intact on both sides. There was mild restriction in flexion of the right knee. Active movements of knees were within normal limits.
Examination of the ankles showed no deformity or swelling. Active movements of the ankles and feet were symmetrical and largely within normal limits.
Examination of the chest and abdomen was unremarkable.
· Consistency of Presentation
I have already mentioned above the inconsistency in the cervical and shoulder examinations.
5. Review of Documentation
· Relevant Imaging Studies and Other Investigations
The claimant did not bring any X-ray films to the assessment. However, he showed the examining Panel member the following report (no films were available):
o CT Thoracic spine of 16/4/2024, taken at Lumus Imaging Merrylands, reported by Dr Vladimir Davydenko – Which showed early spondylosis. There was no disc building, central canal or neural foraminal stenosis.
The Panel Members have reviewed the reports of the following investigations enclosed in the supporting documentation:
· MRI Brain, cervical spine and lumbar spine of 1/5/2023, taken at Medscan Merrylands, reported by Dr Ankur Srivastava – which showed incidentally few T2/Flair hyperintense non-specific lesions in the supratentorial brain, which might represent very early minor chronic small vessel changes, but no acute infarct, midline shift mass effect or hydrocephalus.
MRI cervical spine showed no high-grade central canal or neural exit foramen stenosis, and no nerve root impingement.
MRI lumbar spine showed mild L4/5 disc desiccation, no high-grade central canal, neural exit foramen stenosis, and no nerve root impingements.
There were no other radiological investigations (MRI or ultrasound scans) available for review.
Summary of Relevant Documentation Provided for the Initial Assessment
There was no Ambulance record.
According to Digital claim Form Evidence, “Application for Personal Injury Benefits” (APIB), dated 17 April 2023, the accident occurred at Rawson Road, Guildford, NSW. the injuries included “Head, neck, back and shoulders”. The claimant was a security manager of ‘Neat N Safe service Pty Limited’.
In a PIC medical assessment certificate dated 27/1/2024,Medical Assessor Cameron stated he assessed the claimant on 16/1/2024. He decided that cervical spine injury, lumbar spine injury, head injury, left shoulder injury and right shoulder injury were all soft tissue injuries and threshold injuries. He mentioned that, “… There was inconsistent movement at both shoulders that Mr Noun said was due to variable pain from both shoulders…”. Regarding head injury examination, he stated, “… Mr Noun was co-operative. However, he was emotionally distressed and found it difficult to concentrate. Brief cognitive assessment confirmed that…”. He did not give details of the “brief cognitive assessment”.
In a report dated 31 May 2023, Dr Bassel Hassan, a neurologist, stated he examined the claimant at the request of his GP Dr Barich. He mentioned that, “… His brain, C-spine and lumbosacral spine MRI do not show any significant abnormalities. There is reported minor chronic cerebral white matter hyperintensities which are common in people with raised BMI and cigarette smoking. He has minor degenerative spondylosis in the cervical spine and lumbosacral spine which of no significant significance…
“…Examination: Mr Noun appears objectively well in no distress. He has normal affect, normal speech and normal attention span. He has normal speech and can give a good account of himself. The neck is supple. The optic disc are normal bilaterally… “. He concluded that, “… Mr Noun has benign sounding post-concussion headache and non-specific musculoskeletal sounding pain in the neck and his lower back. His neuroimaging is essentially normal. Regarding the cerebral white matter hyperintensities, I recommended to him cigarette cessation and a regular exercise program…”.
In a clinical record of ‘Trinity Health Care centre’ printed on 18 May 2023, the earliest entry was dated 29/6/2012, by Dr Ramis Gayed, with a diagnosis of URTI. Apparently the claimant consulted Dr Gayed, and other doctors of the clinic, from time to time for complaints unrelated to the injuries of the subject MVA, such as anal pain, reflux oesophagitis or COVID. In an entry dated 25/5/2022, Dr Gayed stated, “… chronic headache. Advised to have his eye checked…”. Treatment was Nurofen plus.
In an entry dated 27/3/2023 (4 days after the subject MVA), Dr Antwan Barich stated, “… Thursday at 8:35pm MVA when someone hit his car and his car hit front. Since c/o neck pain, whiplash and shoulders and between blades and lumbar spine. Severe headache since accident, and Nuromol helping short term. Exam consist tenderness and related to MVA and no phx of chronic pain. Attended for help treatment advice. Eye exam normal. No neural defect upper limbs. Bilateral calf muscle legs but no neuro defects. Shoulders movement ok with pain… Low back pain, Headache, Neck pain with radiculopathy MVA 23/3/23…. MRI Scan-Brain…Cervical spine… Lumbar spine…Anaprox…”.
In the next entry dated 17/4/23, Dr Barich stated, “…. Neck pain associated with headache aggravated by neck movement. Back pain still but less tense than the neck. ROM decreased in C spine and L spine. No neurological symptoms apart from aggravated headache with mobility. Awaiting MRI assessment ASAP…”.
In an entry dated 24/4/2023, Dr Barich stated, “…. Neck and headache associate with insomnia. Anxiety, insomnia since the accident. Tiredness and depressed mood and decreased memory ?PTSD. counselling and advice… “.
In an entry dated 8/5/22023, Dr Barich stated, “…neck pain worse and numbness hands… MRI’s discussed in detail… referral to neurologist…”,
In an entry dated 15/5/2023, Dr Barich stated, “… complicated MVA personal injury. Neck pain and migraine type is new… Neck pain with radiculopathy…”.
This was the last entry of this record.
There were multiple certificates of capacity/certificate of fitness (COC) usually issued by Dr Barich. The diagnosis was “Neck, Back, Shoulders pain and headache…”
The Panel has reviewed an Allied Health Recovery Form (AHHR) by John Hutchings, physiotherapist,
The Panel has reviewed the Clinical records of Dr Leory Onuoha, a psychologist.
The Panel has reviewed the ‘Internal Review – certificate of Determination’ of the insurer, dated 9 August 2023.
Summary of Other Relevant Documentation
The Panel has reviewed the “Claimant’s submission in relation to the application review of a medical assessment” dated 26 February 2024.
The Panel has reviewed the “Submissions of the insurer” dated 11 March 2024.
The Panel has reviewed the PIC determination of an application for review of a medical assessment, dated 5 April 2024, by President’s Delegate Ms Stephanie Wigan.
The Panel has reviewed all the available documentation.
6. Conclusions
Diagnosis and Causation
Head injury/Brain injury – post-concussion headache.
There is no evidence of a traumatic brain injury (TBI): there is no documented observed loss of consciousness, no documented abnormal GCS scores, and no evidence of brain imaging abnormalities. There was no documented LOC. Mental status screening could not demonstrate any cognitive impairment. Executive functions were intact. There was no evidence of concussion from the subject MVA, although the Panel could not rule out the possibility of soft tissue injury to the head. However, any soft tissue injury had resolved when examined by the Panel member on 5 December 2024, which was 1 ½ year after the subject MVA.
The Panel noted that the GP mentioned chronic headache in his entry dated 25/5/2022, approximately 10 months prior to the subject MVA. Dr Hassan, the treating neurologist, opined that the cerebral white matter hyperintensities seen in the MRI were most likely related to cigarette smoking and raised BMI (obesity). There were significant psychosocial factors and pain behaviours observed in this case, which may contribute to the headache.
Cervical spine - Discal injury with mild bilateral neural exit foramen narrowing at the C3/4, C4/5 and C5/6 levels and radiculopathy into the upper limbs
Considering the circumstances of the accident, it was possible that the claimant sustained soft tissue injury to the neck from the subject MVA. There was tenderness over the trapezius muscles region, and occipital area, but there was no muscle spasm or guarding. There was inconsistency in the examination of the cervical spine, but overall the Panel assessed that there were mild to moderate restrictions in active movements of the cervical spine, but no dysmetria. There was no evidence of radiculopathy, using the criteria of radiculopathy listed in Clause 6.138, Motor Accident Guidelines (MAG): there was no loss or asymmetry of reflexes, no positive nerve root tension sign, no muscle atrophy, no muscle weakness or reproducible sensory loss that was anatomically localised to an appropriate spine nerve root. Radiological findings alone cannot be used to diagnose radiculopathy unless they correlate with the clinical findings. Nevertheless, the radiologist in the MRI report dated 1 May 2023 concluded that for the cervical spine there was “No high-grade central canal or neural exit foramen stenosis. No nerve root impingement…”.
The Panel also noted that the treating neurologist Dr Hassan also concluded, “… nonspecific musculoskeletal sounding pain in the neck and his lower back. His neuroimaging is essentially normal…”.
Lumbar spine - Discal injury with mild bilateral neural exit foramen narrowing at the L4/5 level and radiculopathy into the lower limbs.
Considering the circumstances of the accident, it was possible that the claimant sustained soft tissue injury to the lower back from the subject MVA. However, the claimant confirmed that there are no current symptoms to the lower back now, and any soft tissue has resolved.
There was no evidence of radiculopathy, using the criteria of radiculopathy listed in Clause 6.138, Motor Accident Guidelines (MAG): there was no loss or asymmetry of reflexes, no positive nerve root tension sign, no muscle atrophy, no muscle weakness or reproducible sensory loss that was anatomically localised to an appropriate spine nerve root. Radiological findings alone cannot be used to diagnose radiculopathy unless they correlate with the clinical findings. Nevertheless, the radiologist in the MRI report dated 1 May 2023 concluded that for the lumbar spine there was “… No high-grade central canal or neural exit foramen stenosis. No nerve root impingement…”.
The Panel also noted that the treating neurologist Dr Hassan also concluded that, “… nonspecific musculoskeletal sounding pain in the neck and his lower back. His neuroimaging is essentially normal…”.
Left shoulder - Rotator cuff injury/ referred pain from cervical spine.
There was no muscle wasting, and the pain and tenderness in the left shoulder was mainly over the trapezius muscle. Considering the circumstances of the accident, it was possible that there was soft tissue injury to the left shoulder. However, there was no clinical or radiological evidence (MRI or ultrasound) to show rotator cuff injury or ligaments injury to the shoulder joint (glenohumeral) or AC (acromioclavicular) joint. Clinically there was only tenderness (but muscle spasm or guarding) in the trapezius regions. There were mild to moderate restrictions in movements of the shoulder, but since there was significant inconsistency in physical findings, the ROM measurements would not be valid for permanent impairments assessment.
Right shoulder - Rotator cuff injury/ referred pain from cervical spine
There was no muscle wasting, and the pain and tenderness in the right shoulder was mainly over the trapezius muscle. Considering the circumstances of the accident, it was possible that there was soft tissue injury to the right shoulder. However, there was no clinical or radiological evidence (MRI or ultrasound) to show rotator cuff injury or ligaments injury to the shoulder joint (glenohumeral) or AC (acromioclavicular) joint. Clinically there was only tenderness (but muscle spasm or guarding) in the trapezius regions. There were mild to moderate restrictions in movements of the shoulder, but since there was significant inconsistency in physical findings, the ROM measurements would not be valid for permanent impairments assessment.
· Summary of Injuries Listed by the Parties and Caused by the Accident
The following injuries WERE caused by the motor accident:
(a) Cervical spine – soft tissue injury
(b) Head – soft tissue injury. There was no evidence of concussion, and the head was not causally related to the subject MVA.
(c) Lumbar spine – soft tissue injury.
(d) Left shoulder – soft tissue injury.
(e) Right shoulder – soft tissue injury.
CONCLUSION – THRESHOLD INJURY
The following injuries WERE threshold injuries:
(a) Cervical spine – soft tissue injury
(b) Head – soft tissue injury.
(c) Lumbar spine – soft tissue injury.
(d) Left shoulder – soft tissue injury.
(e) Right shoulder – soft tissue injury.
The Panel adopts the findings of Medical Assessor Wan.
REASONS
The following injuries were referred by the Commission for assessment of threshold injuries:
(a) cervical spine - discal injury with mild bilateral neural exit foramen narrowing at the C3/4, C4/5 and C5/6 levels and radiculopathy into the upper limbs;
(b) head - post-concussion headache;
(c) lumbar spine - discal injury with mild bilateral neural exit foramen narrowing at the L4/5 level and radiculopathy into the lower limbs;
(d) left shoulder - rotator cuff injury/ referred pain from cervical spine, and
(e) right shoulder - rotator cuff injury/ referred pain from cervical spine.
The Panel enquired of the parties if the referral of a head injury was one requiring a cognitive assessment or if it was regarded as a physical injury only, for assessment. The insurer responded that the injury should be regarded as a physical injury only and to be assessed accordingly. The Medical Assessor did not undertake any cognitive testing and concluded that it was a soft tissue injury only.
The claimant, despite several attempts by the Dispute Officer on behalf of the Panel to obtain a response, did not ever provide a response about assessment of the head injury.
The Panel therefore proceeded on the basis that regarding the assertion of post-concussion headache, this would be assessed as something not affecting the claimant’s cognitive ability.
The claimant submits that he was previously diagnosed with radiculopathy and that the Panel should note and accept this. In support of this, the claimant relies on David’s case. The Panel agrees with the reasons in David’s case and takes no issue with the proposition that the principles mandated by this authority, which provide that the claimant’s pathology and recorded complaints of radiculopathy made at any time after the accident and not exclusively at the time of the subject assessment, must result in a ‘non-threshold’ injury finding, provided that such complaints and pathology satisfy the provisions of s 1.62 of the Act.
The Panel is not satisfied though that the medical evidence relied upon by the claimant which he says establishes a diagnosis of radiculopathy, is correct, or sufficient to come within the terms of cl 5.6 of the Guidelines.
The claimant has asserted that there was a diagnosis of radiculopathy however the claimant has provided no evidence that cl 5.6 of the Guidelines has been complied with and how any assessment of radiculopathy was undertaken. The Panel therefore cannot rely on this assertion and any conclusion that may have been reached about the existence of radiculopathy at any time prior to the claimant being examined on behalf of the Panel.
The Panel, to be satisfied that the clinical assessment previously made was appropriate, must in turn be satisfied that cl 5.6 of the Guidelines was complied with and an assessment was undertaken on that basis. Then, at that assessment, two or more clinical signs must have been identified and established at that assessment in terms of cl 5.6 of the Guidelines.
The diagnosis of “WAD 3” does not assist the Panel without provision of details of how the assessment was made in terms of cl 5.6 of the Guidelines.
In terms of cl 5.6 of the Guidelines, the Panel is not satisfied that any assessment relied upon by the claimant of whether an injury caused by the accident is a threshold injury for the purposes of the Act is based on the evidence available and includes 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, and
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
The claimant’s GP in his clinical notes noted a diagnosis of “Neck pain with radiculopathy” but provided no more information to support those four words. This is not compliance with cl 5.6 of the Guidelines and not something about which the Panel can be satisfied.
The claimant says that in the MRI scan dated 1 May 2023, it was recorded that the claimant’s cervical spine had sustained ‘mild disc desiccation’ and ‘mild bilateral neural exit foramen narrowing’ at the C3/4, C4/5 and C5/6 levels. The claimant’s lumbar spine was also found to have ‘mild disc desiccation’ and ‘mild bilateral neural exit foramen narrowing’ at the L4/5 level. The claimant’s pain and neurological symptoms are consistent with the radiological findings in his cervical and lumbar spine MRI.
The claimant has submitted that it should be noted that a disc desiccation can lead to radiating pain, which the claimant says is also known as radiculopathy, which as provided in the clinical file of Greystanes Physiotherapy and Sports Injury Clinic, the claimant did present with at the time he attended upon his treating doctors, which subsequently led to a diagnosis of a WAD (grade 3). The Panel does not accept this. Pain is not one of the five signs of radiculopathy in cl 5.8 of the Guidelines.
In addition, the claimant says that in the in the Certificate of the Medical Assessor, it was observed that the ‘circumferences of the upper extremities were right 26cm and left 27cm’. The Medical Assessor also noted that ‘there was inconsistent movement at both shoulders that Mr Noun said was due to variable pain from both shoulders’. The claimant is left hand dominant. The measurements relied upon by the claimant are not indicative of atrophy, as submitted by the claimant and do not verify a sign of radiculopathy.
The Panel has undertaken its own examination and assessment of the claimant concerning radiculopathy.
The Panel has not seen objective signs of radiculopathy. None of the “signs” relied upon by the claimant satisfy the criteria in cl 5.8 of the Guidelines. For these reasons, the Panel considered that it was necessary for the claimant to be medically examined by it and for that purpose, a medical examination took place, to establish if the claimant did have two or more objective signs of radiculopathy, at that time of examination.
As was stated by Medical Assessor Wan in his examination report, the claimant did not demonstrate two or more objective signs of radiculopathy.
The Panel is satisfied that the claimant could have suffered injuries in the accident of the nature referred to it for assessment. However, the Panel is not satisfied that these injuries are anything other than soft tissue injuries and is satisfied that they are threshold injuries for the purposes of the Act.
CONCLUSION
For the reasons previously discussed, the Panel is not satisfied that at any time prior to the examination by Medical Assessor Wan and at the time of the examination by Medical Assessor Wan, two signs of radiculopathy were observed, to satisfy the provisions of cl 5.8 of the Guidelines.
DETERMINATION
The Panel affirms the certificate of Medical Assessor Cameron dated 27 January 2024.
The following injuries were caused by the motor accident:
(a) cervical spine – soft tissue injury;
(b) head – soft tissue injury, there was no evidence of concussion, and the head was not causally related to the subject motor vehicle accident;
(c) lumbar spine – soft tissue injury;
(d) left shoulder – soft tissue injury, and
(e) right shoulder – soft tissue injury.
The following injuries are threshold injuries:
(a) cervical spine – soft tissue injury;
(b) head – soft tissue injury;
(c) lumbar spine – soft tissue injury;
(d) left shoulder – soft tissue injury, and
(e) right shoulder – soft tissue injury.
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