Ozun v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 807
•20 October 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ozun v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 807 |
| CLAIMANT: | Ismet Ozun |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Bridie Nolan |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | David McGrath |
| DATE OF DECISION: | 20 October 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Review Panel; assessment under section 7.23; whether aggravation and exacerbation of multilevel degenerative spinal conditions constitute “injuries” within the meaning of section 1.4; claimant with longstanding, symptomatic cervical, and lumbar spondylosis reported increased pain following low-speed collision; pre-and post-accident imaging showed no structural change; clinical signs did not meet criteria for radiculopathy under clause 5.8 of the Motor Accident Guidelines; no new physiological disturbance or evidence of rupture, inflammation, or nerve involvement; Review Panel held post-accident symptom amplification without identifiable structural change did not satisfy statutory definition of “injury”; Held – alleged aggravations were not “injuries” under section 1.4. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate of Medical Assessor Alan Home dated 18 February 2025 regarding whether the claimant’s injuries are threshold injuries, and issues a replacement certificate determining that the following conditions referred to the Review Panel: · Cervical spine: aggravation and exacerbation of multilevel degenerative change with canal and foraminal stenosis, and · Lumbar spine: aggravation and exacerbation of multilevel degenerative change with anterolisthesis at L3/4 and L4/5, and disc protrusions at L4/5 and L5/S1, are NOT INJURIES for the purposes of s 1.4 of the Motor Accident Injuries Act 2017 (NSW). |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mr Ismet Ozun, was injured in a motor vehicle accident that occurred on
23 May 2023. The claimant was the unaccompanied and seatbelt-restrained driver of a Toyota Aurion travelling on Woodland Road, Lidcombe, when a vehicle entered from a side street and struck the front-right corner of his vehicle. The claimant’s vehicle sustained significant front-end damage and was subsequently written off. The claimant did not attend hospital following the accident. He was collected from the scene by a friend and driven home. In the days that followed, he developed symptoms of neck pain and increased low back pain.
The insurer, Insurance Australia Limited trading as NRMA Insurance, accepts liability for statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (the MAI Act).
A dispute has arisen as to whether the injuries sustained by the claimant are threshold injuries for the purposes of the MAI Act. The matter was referred for medical assessment under s 7.23(1) of the MAI Act. On 18 February 2025, Medical Assessor Dr Alan Home (the Medical Assessor) issued a certificate determining that the injuries to the cervical and lumbar spine were threshold injuries. The claimant subsequently lodged an application for review of that certificate.
By certificate dated 2 April 2025, the President’s delegate determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to a Medical Review Panel under s 7.26(5) of the MAI Act.
The review proceeds by way of a new assessment of all matters with which the original medical assessment was concerned. The Review Panel comprises a legally qualified Member and two Medical Assessors. The claimant was re-examined by the Panel
30 June 2025 with the assistance of a NAATI-accredited Turkish interpreter.
MEDICAL ASSESSMENT THE SUBJECT OF REVIEW
Following a clinical examination conducted on 11 February 2025, the Medical Assessor concluded that the following injuries were caused by the subject motor accident were threshold injuries within the meaning of the MAI Act:
(a) Cervical spine: soft tissue injury. Underlying multilevel degenerative change, and
(b) Lumbar spine: soft tissue injury. Underlying multilevel degenerative change.
The Medical Assessor noted that the claimant had not attended hospital following the accident but developed neck and back symptoms in the days thereafter, for which he sought care from his general practitioner, Dr Ogut, and subsequently underwent imaging.
In relation to the cervical spine, the Medical Assessor referred to MRI imaging dated
6 June 2023, which demonstrated multilevel degenerative changes and foraminal narrowing at C3/4, C4/5, and C5/6. The Medical Assessor also had regard to prior cervical MRI dated
3 February 2021, which showed near-identical findings. He concluded there was no evidence of acute disc herniation, fracture, or ligamentous injury. On clinical examination, the claimant displayed restricted cervical range of motion with pain, but normal upper limb reflexes, power, and sensation. The criteria for cervical radiculopathy under cl 5.8 of the Motor Accident Guidelines (the Guidelines) were not met.
In relation to the lumbar spine, the Medical Assessor relied on CT and MRI imaging obtained in June and September 2023, which showed grade 1 anterolisthesis at L3/4 and L4/5, multilevel disc protrusions, and degenerative facet arthropathy. These findings were consistent with prior imaging from 21 January 2021, which also recorded multilevel degenerative change, spinal canal stenosis, and foraminal narrowing. On examination, lumbar flexion and extension were reduced to one-quarter of normal range. Straight leg raise was to 70 degrees bilaterally. There was no clinical evidence of radiculopathy, and neurological examination of the lower limbs was normal.
The Medical Assessor found no evidence of a complete or partial rupture of a tendon, ligament, meniscus, or cartilage, nor of nerve injury. He concluded that both the cervical and lumbar spine injuries satisfied the statutory definition of threshold injury as soft tissue injuries under the MAI Act.
APPLICATION FOR REVIEW
The Medical Assessment Certificate (MAC) was the subject of an application for review under s 7.26 of the MAI Act, on application made by the claimant.
In written submissions dated 11 March 2025, the claimant contended that the MAC was incorrect in a material respect. It was submitted that the Medical Assessor failed to adequately consider whether the post-accident symptomatology and radiological progression were consistent with a non-threshold injury. The claimant submitted that he had developed lower limb neurological symptoms, including numbness, paraesthesia and burning pain, which were not pre-existing and were suggestive of radiculopathy. It was further submitted that the Medical Assessor placed undue weight on the imaging studies and did not adequately consider the functional impact of the accident-related injuries.
The insurer submitted that the claimant had a well-documented history of chronic spinal pathology, and that imaging before and after the subject accident demonstrated no material change. The insurer submitted that the symptoms reported by the claimant were disproportionate to the objective findings, and that no two or more clinical signs of radiculopathy, as required under cl 5.8 of the Guidelines, were ever recorded by any treating clinician or found on examination.
By written determination dated 2 April 2025, the President’s delegate determined that there was reasonable cause to suspect that the MAC was incorrect in a material respect. The delegate noted that while the Medical Assessor had considered the presence of pre-existing degenerative changes, further scrutiny was warranted regarding whether the reported post-accident neurological features were appropriately excluded as signs of radiculopathy, and whether all relevant clinical observations had been fully assessed under the Guidelines. On that basis, the matter was referred to a Medical Review Panel for determination under
s 7.26(5) of the MAI Act.
REVIEW
Clause 14F of Schedule 1 to the Personal Injury Commission Act 2020 (NSW) (the PIC Act) provides that the review provisions introduced by the Act apply to decisions of a “new decision-maker”, as defined in cl 14A(1) of Schedule 1. As the certificate of the Medical Assessor in this matter was issued on 18 February 2025, the new review provisions apply.
Pursuant to those provisions, a review is conducted by a Review Panel comprising two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. In accordance with that procedure, the President’s delegate referred the matter for determination by this Panel, as presently constituted.
Part 5 of the PIC Act empowers the Commission to make rules governing the practice and procedure of proceedings before it, including proceedings before a Review Panel. Rules 127 to 130 of the Personal Injury Commission Rules 2021 are made under that authority and apply to this proceeding.
The Review Panel is empowered to determine the manner in which it conducts the review, and may elect to proceed on the papers or to re-examine the claimant. In this matter, the Panel determined that a re-examination was appropriate and directed the parties to produce a joint bundle of all relevant material in support of their respective positions.
The re-examination was conducted on 30 June 2025 at the Commission medical suites, with the assistance of a NAATI-accredited Turkish interpreter.
A review under s 7.26 of the MAI Act is by way of a new assessment of all matters with which the original medical assessment was concerned. Section 7.25 of the MAI Act provides that the Panel may adopt any agreement reached between the parties as to the nature of the injury or whether the injury is a threshold injury, without requiring that those matters be formally re-assessed.
The injuries referred to the Panel for review are as follows:
(a) Cervical spine: Aggravation and exacerbation of multilevel degenerative changes of the cervical spine with multilevel canal and foraminal stenosis at C3–4, C4–5 and C5–6, and
(b) Lumbar spine: Aggravation and exacerbation of multilevel degenerative changes of the lumbar spine, including facet arthropathy at L3–4 with grade 1 anterolisthesis of L3 on L4, facet arthropathy at L4–5 with grade 1 anterolisthesis of L4 on L5, and broad-based central/right subarticular disc protrusion contributing to mild canal narrowing and mild to moderate narrowing of the right subarticular recess, potentially affecting the L5 nerve root.
The Panel issued procedural directions requiring the parties to file a joint bundle of material to be relied upon on the review. That direction was complied with. The Panel has reviewed the material in the joint bundle and sets out a summary of that material below.
In addition, the parties were directed to file written submissions on the review specifically addressing whether an aggravation and exacerbation of the claimant’s cervical and lumbar spine conditions constitute (a) an injury, and (b) a threshold injury under the MAI Act. The parties’ responses to the directions for submissions are set out within the section on their submissions below.
MATERIAL BEFORE THE PANEL
The claimant had a documented history of longstanding low back pain prior to the subject motor accident. He has been in receipt of a Disability Support Pension since 2017, primarily due to spinal and knee conditions. The medical evidence discloses that the claimant had undergone spinal imaging on multiple occasions prior to the subject accident, revealing multilevel degenerative changes affecting both the cervical and lumbar spine, including canal stenosis and foraminal narrowing.
A Job Capacity Assessment dated 18 August 2016 recorded that the claimant had a history of hypertension with a recent exacerbation, lumbosacral disc protrusion with canal stenosis, cervical canal stenosis, and chronic pain. The report noted complaints of severe neck and back pain, pain radiating to the left leg, and difficulty lifting heavy objects or maintaining prolonged periods of sitting, standing, or walking. The Medical Assessor concluded that the claimant’s physical condition was likely to persist for more than 24 months and deteriorate over time.
In addition to the musculoskeletal conditions, the claimant was recorded as having longstanding psychiatric comorbidities, including major depression, anxiety disorder, dysthymia, and post-traumatic stress disorder, originating from events in 1998–1999.
The assessment determined that, taking into account the combined impact of the claimant’s physical and psychological conditions, he had a baseline work capacity of zero to seven hours per week, reflecting the extent of functional limitation and reduced endurance associated with his permanent impairments. With targeted intervention, his future work capacity within two years was estimated at 8-14 hours per week, restricted to light, unskilled duties, such as light pick-packing or similar sedentary work.
The clinical records from the Main Street Family Medical Centre disclose a longstanding history of spinal pain with radicular features predating the subject accident.
On 11 May 2020, the claimant presented with mid to low back pain radiating anteriorly, associated with abdominal discomfort. On 7 June 2020, he again attended for chronic low back pain radiating to the left leg, noting a known disc prolapse, together with chronic right shoulder pain and chronic neck pain secondary to disc prolapse.
On 18 January 2021, the claimant reported low to mid-back pain and neck pain radiating into the arms, consistent with cervical and lumbar nerve root involvement. A subsequent entry dated 24 January 2021 recorded CT findings of multilevel disc and nerve compression, and symptoms of thoracic spine pain radiating to the right chest wall.
The imaging evidence demonstrates a pattern of longstanding and progressive degenerative change affecting both the cervical and lumbar regions.
An MRI of the cervical spine dated 3 February 2021 revealed multilevel degenerative changes with canal and foraminal stenosis at several levels. A CT scan of the lumbosacral spine dated 21 January 2023 demonstrated severe degenerative disease throughout the lumbar spine, with potential compression of the L3 and L4 nerve roots.
Following the collision, the claimant attended his general practitioner, Dr Ogut, on 29 May,
19 June and 3 July 2023. Dr Ogut recorded that the claimant experienced increasing pain in the neck and lower back with radiation into the left leg, together with restricted range of motion and muscular guarding. The claimant reported that symptoms developed over several days following the impact. Imaging of the cervical and lumbar spine revealed multilevel degenerative changes.
Following the subject motor accident, the claimant underwent MRI and CT imaging.
CT and MRI of the lumbar spine dated 6 June 2023 and 22 September 2023 showed grade 1 anterolisthesis at L3/4 and L4/5, broad-based disc protrusions with mild canal narrowing and moderate narrowing of the right subarticular recess at L4/5, potentially affecting the traversing L5 nerve root. These findings were materially unchanged from the pre-accident CT of 21 January 2021, which documented moderate to severe spinal canal stenosis and bilateral foraminal narrowing at multiple levels.
A SPECT/CT bone scan performed on 22 September 2023 demonstrated mild-to-moderate uptake in the facet joints at L3/4 and L4/5, consistent with active facet arthritis. Moderately active degenerative changes were also identified in the cervical and thoracic spine, but there was no indication of acute inflammatory or post-traumatic change.
On 2 August 2023, the claimant was reviewed by Dr Jun Kim, neurosurgeon. Dr Kim recorded a history of lower back pain and left-leg numbness which had worsened progressively in the weeks following the subject motor accident. On examination, he observed numbness in the L3–L4 dermatomal distribution, with a negative straight-leg raise and preserved power. Review of pre-existing CT imaging showed degenerative lumbar spondylosis with moderate canal stenosis at L3–4. Dr Kim concluded that the claimant’s symptoms represented an aggravation of pre-existing degenerative pathology, and recommended an MRI and bone scan to assess for facet arthropathy, together with ongoing physiotherapy.
The Oncue MWMT physiotherapy records, covering consultations from 13 July to
20 September 2023, record a consistent presentation of neck and low back pain following the motor vehicle accident of 23 May 2023.
Across the treatment period, the claimant reported persistent lumbar pain with radiation to the left leg, and cervical pain extending to the shoulders and upper limbs, accompanied by stiffness, disturbed sleep, and difficulty sitting, standing, or walking for extended periods. The notes record recurrent reference to “burning pain” in the lower back and “referral” or “nerve pain” in the left leg.
The physiotherapist, Mr Gokce Oncu, documented limited range of motion in both the cervical and lumbar regions and muscular tightness in the paraspinal, gluteal, and trapezial groups. Notations such as “pain with flexion,” “L3–L5 myotomes 4/5,” and “decreased deep tendon reflexes L4/L5” appear in several entries, together with references to left-sided weakness or sensory disturbance.
General practice records dated 11 September 2023 record the claimant’s use of rosuvastatin, irbesartan/hydrochlorothiazide (Karvezi 300/25 mg daily), and paracetamol twice daily for pain management. The claimant was noted to have no drug allergies, and his active medical problems were listed as hypertension, lumbar disc bulge, and chronic back pain.
In a report dated 8 November 2023, Dr Nathan Taylor, pain specialist, recorded the claimant’s account of ongoing spinal pain and associated symptoms. On examination, the claimant was noted to be tender over the left L3 to L5 region, consistent with localised lumbar irritation. However, no neurological deficit was detected in the lower limbs.
SUBMISSIONS
The claimant does not make any direct submission on whether an aggravation or exacerbation of degenerative disease constitutes an “injury” within the meaning of s 1.4(1) of the MAI Act but rather proceeds on the assumption that it does.
The claimant submits that the injuries to the cervical and lumbar spine extend beyond a soft-tissue classification and that the findings of the Medical Assessor fail to account for symptoms consistent with radiculopathy and aggravation of pre-existing degenerative disease.
The claimant submits that the medical evidence discloses neurological features arising after the accident, including radiating pain, numbness and paraesthesia. The claimant relies particularly on the opinions of Dr Jun Kim and Dr Nathan Taylor. Dr Kim noted numbness in the L3–L4 dermatomes and recorded that the claimant’s back symptoms, though pre-existing, had become “significantly worse” after the motor accident. Dr Taylor described left-sided back pain radiating to the knee and lateral calf, consistent with nerve root irritation.
The claimant contends that these findings demonstrate an aggravation of pre-existing spinal pathology producing persisting neurological symptoms, and that the Medical Assessor erred in failing to identify or explain that aggravation. It was further submitted that any inconsistency between the claimant’s clinical presentation and the documentary medical evidence should have been put to the claimant for explanation at the assessment. The omission to do so, it is said, denied the claimant procedural fairness and undermined the reliability of the conclusion that there was no radiculopathy.
The claimant maintains that his condition reflects an accident-related exacerbation of multilevel degenerative change in both the cervical and lumbar spines, resulting in continuing pain, stiffness and neurological disturbance. On that basis he submits that the injuries are non-threshold within the meaning of the MAI Act and the Guidelines, and that the Panel should so find.
The insurer submits, by contrast, that the claimant sustained soft-tissue injuries only to the cervical and lumbar spines, each of which constitutes a threshold injury under the MAI Act. It is said that the available imaging demonstrates no new pathology and no aggravation or exacerbation of pre-existing conditions.
The insurer relies on the comparative imaging reviewed by the Medical Assessor:
(a) the MRI of the lumbar spine dated 22 September 2023, which showed no changes beyond those evident on the CT of 21 January 2021, allowing for differences in modality, and
(b) the MRI of the cervical spine dated 6 June 2023, which likewise disclosed no additional pathology compared with the 2021 pre-accident scans.
It submitted that the claimant’s ongoing symptoms represent pain and stiffness alone, which do not of themselves constitute an “injury” within the statutory definition. The insurer contends that neither Dr Kim nor Dr Taylor recorded clinical findings satisfying the diagnostic criteria for radiculopathy set out in cl 5.8 of the Guidelines—namely, loss of reflexes, muscle atrophy, localised weakness, or reproducible sensory loss.
The insurer refers to AAI Ltd t/as AAMI v Shamsirad [2022] NSWPICMP 284 as confirming that an injury will exceed the threshold only if the accident causes additional structural damage, such as a new tear, and submits that no such additional pathology is present.
RE-EXAMINATION
The medical re-examination was undertaken by Medical Assessor McGrath on
30 June 2025. The history taking section of the re-examination was attended by Member Nolan.
History
Pre-accident medical history and relevant personal details
The claimant is 63 years of age. He has three daughters aged 40, 35 and 15. He separated from his wife around 10 years ago.
He emigrated from Turkey at age 37 to Australia. In Turkey, he obtained a high school qualification and was intending to become a teacher but did not complete that qualification. Instead, he became a businessman running coffee shops.
On coming to Australia, he obtained work as a labourer, a position he maintained until 10 years ago, around the time of his separation. He became deeply depressed and has not been able to return to work since. He was initially under the care of a psychiatrist, but this management has been taken over by his general practitioner.
The claimant records sporting interests in soccer and table tennis. He was pursuing these activities up to the time of the current accident.
There is no history of falls, broken bones or surgery. He developed high blood pressure around 10 years ago and borderline diabetes for the last three years.
The claimant was in a motor vehicle accident in 2019. In this accident, his car was hit on the left-hand side, and it led to neck and lower back pains. He was treated with physiotherapy and analgesics. He states that he was not completely symptom free by the time of the subject accident.
Accident circumstances and immediate presentation
The claimant stated that on 23 May 2023 he was the sole occupant and driver of a Toyota Aurion when his vehicle was struck from the front-right side. He confirmed that he experienced no pain at the time of the collision, did not remain at the scene for treatment, and did not request or receive ambulance assistance. A friend drove him home. He did not seek medical attention that night.
He said that overnight he developed severe pain about the neck and lower back. He came under the care of his general practitioner who treated him with physiotherapy and normal analgesic medication. He stated that this was not particularly effective, and he remains distressed and worried about his ongoing pain.
The claimant completed a body pain diagram. He indicated that he had two areas of pain. The first and most disabling was at the base of his neck which distributed to the upper borders of both shoulder blades and descended to around the elbow level on both sides. This pain is constant. His second pain is centralised lower back pain which is also constant.
He says that both pains interfere with his lifestyle. He has been unable to return to recreational soccer and table tennis. He has diminished capacity for normal domestic tasks. His nephew helps with gardening and house maintenance. He records a reduced capacity for sitting, standing and walking. Sitting and standing is rated at around 20 minutes before the need to change posture. He can walk around 1km. His sleep is disturbed with three to four awakenings during the night.
Onset of symptoms post-accident
Neck
The claimant reported that he first became aware of neck pain in the early hours of the morning following the accident, upon waking. He described the pain as central in the posterior cervical spine, radiating down both arms posteriorly to the level of the elbows. The radiation was described in general terms, without precise anatomical detail.
He did not initially mention any neurological symptoms. However, in the course of the conversation — and not in response to a direct question — he volunteered that he experiences tingling in his fingers. He did not specify laterality, which fingers were affected, or the circumstances in which the tingling occurred. He did not describe associated weakness, clumsiness, or grip difficulty.
He did not provide any dermatomal pattern of symptoms and did not report features consistent with a radiculopathy under cl 5.8 of the Guidelines.
Back
He stated that lower back pain also began the following morning, describing it as central and low in the lumbar spine, constant in character, and aggravated by standing or walking. He denied any radiation of pain to the legs, numbness, tingling, or weakness. No bowel or bladder disturbance was reported.
Current function and activity
The claimant reported persistent axial spinal pain affecting both the neck and lower back. He stated that he walks approximately one kilometre per day, as part of his routine to manage diabetes and weight gain, despite experiencing discomfort. He said that walking increases his back pain but that he continues to do it for general health reasons.
He stated that he now avoids or limits:
(a) prolonged standing or unsupported sitting;
(b) lifting or bending, and
(c) household tasks that involve repetitive physical effort.
He no longer performs heavier physical tasks and reported reduced independence in activities of daily living, including housework and manual labour. He does not use walking aids or braces.
Pre-accident symptoms and activity level
When asked about his condition before the subject accident, the claimant acknowledged a history of intermittent low back pain, which he described as mild, manageable, and non-restrictive. He said it did not interfere with walking, lifting, or household tasks, and that he did not seek active treatment for it in the period immediately prior to the subject accident.
The claimant did not expressly deny having neck pain before the subject accident, but he did not report any history of cervical symptoms during the discussion of his pre-accident condition. He referred to the neck and arm symptoms — including radiation to the elbows and tingling in the fingers — as new. He said he had not previously experienced symptoms of that kind.
Accordingly, his account implied that the neck pain and neurological features began after the accident, although no explicit denial of prior neck pain was made.
He stated that, prior to the subject accident, he was independent and physically capable, managing walking, bending, and lifting without difficulty.
Employment and medical background
The claimant stated that he has not worked in paid employment for approximately ten years, though previously held roles in construction labouring, hospitality, and general business operations. He is in receipt of a Disability Support Pension, which he attributed in part to spinal and knee issues.
He did not describe any acute spinal deterioration prior to the subject accident and said he was functionally independent before the incident.
Presentation
The claimant presented as animated and emotionally driven and was focused throughout the re-examination on his belief that he requires spinal surgery. He frequently referred to a recommendation made by a Turkish surgeon and was argumentative and self-advocating in his responses.
He repeatedly used questions as opportunities to assert the seriousness of his condition and to advocate for compensation or surgical intervention. This tendency impacted the clarity of his answers and made it difficult for the Panel to elicit targeted responses to discrete factual questions.
CLINICAL EXAMINATION
The affected areas were examined.
Cervical Spine
The neck was carefully examined. His overall posture is good with no significant postural deformity in the cervicothoracic region. He had a symmetrically restricted range of motion in the neck in axial rotation and flexion/extension. He recorded discomfort or pain at end range on all these movements. No muscle guarding or spasm was observed during the examination. He did not have non-verifiable radicular complaints. His symptoms did not conform to any dermatomal distribution.
A neurological examination was conducted. He had normal deep tendon reflexes, power and sensation. There were no signs of muscular atrophy. He did not have dural tension signs. He did not satisfy the requirements for radiculopathy.
Lumbar Spine
The claimant has a uniformly restricted range of motion in the lumbar spine. He has a loss of flexion, extension and lateral flexion with reported pain and discomfort. Muscle spasm or guarding was not observed.
A neurological examination was conducted. He had normal deep tendon reflexes, power and sensation. There was no observable atrophy in the lower limbs. Straight leg raising was normal but restricted by lower back pain. He did not satisfy the requirements for radiculopathy.
Upper Extremity
The active range of motion of the shoulders was observed, measured by goniometer and tabulated below:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
170°
170°
Extension
50°
50°
Adduction
40°
40°
Abduction
160°
160°
Internal Rotation
80°
80°
External Rotation
60°
60°
In essence, he has a mild restriction of shoulder motion with discomfort towards the base of the neck and not localising to the shoulders.
Consistencies
No inconsistencies were observed.
PANEL’S CONSIDERATION
The medical evidence demonstrates that the claimant had long-standing, multilevel degenerative disease of the cervical and lumbar spines well before the accident. Imaging in 2021 showed multilevel canal and foraminal stenosis in the cervical spine and severe lumbar spondylosis with potential L3–L4 root compression. General-practice notes from 2020 and 2021 record chronic neck and back pain, limb radiation, and functional limitation. These records, together with the 2016 Job Capacity Assessment, confirm that the spinal pathology was well-established and clinically significant long before the subject motor accident.
Following the subject motor accident, the claimant reported delayed-onset neck and lower-back pain developing overnight. His general practitioner recorded restricted motion and guarded movement, with left-leg pain. However, post-accident imaging in June and September 2023 showed no new pathology when compared with earlier scans: the pattern of anterolisthesis at L3–L4 and L4–L5, disc protrusions, and facet arthropathy was unchanged. The SPECT/CT bone scan of 22 September 2023 demonstrated mild-to-moderate uptake at L3–L4 and L4–L5 consistent with degenerative facet activity but no evidence of acute inflammatory or traumatic process.
The specialist opinions are uniform. Dr Kim, neurosurgeon, found numbness in an L3–L4 distribution but normal motor power and reflexes; he attributed the symptoms to an aggravation of pre-existing degeneration. Dr Taylor, pain specialist, noted localised tenderness at L3–L5 but no neurological deficit. Physiotherapy notes from Oncue MWMT recorded persistent axial pain and subjective limb referral, but no objective neurological findings.
The Panel’s re-examination mirrored those findings. In the cervical spine, there was symmetrical restriction of range with end-range pain but normal reflexes, power, and sensation, no dural tension signs, and no atrophy. The symptoms did not conform to any dermatomal distribution. In the lumbar spine, movement was limited by pain, but reflexes, power, and sensation were again normal, with no muscle wasting and a negative straight-leg raise except for back pain. In neither region were two or more of the criteria for radiculopathy under cl 5.8 of the Guidelines satisfied.
The claimant argues that the post-accident increase in pain and the reports of tingling or “burning” sensations demonstrate an injury. The difficulty is that, on the material before us, the accident did not produce any new structural or neurological change capable of explaining those symptoms. Imaging demonstrates only chronic degeneration; clinical examination reveals no physiological disturbance of nerves, ligaments, or discs. The presentation is therefore one of heightened pain perception in an already degenerated spine, not one of new physical change or occurrence.
The preliminary question before the Panel is not simply whether the claimant’s condition amounts to a “soft-tissue injury”, but whether the presentation following the subject motor accident of 23 May 2023 amounts to an “injury” at all within the meaning of the MAI Act.
Section 1.4(1) of the MAI Act defines “injury” as “personal or bodily injury caused by the motor accident”.
In this statutory context, s 1.6(2) further distinguishes a “soft-tissue injury”, being an injury to connective or supporting tissues such as muscles, tendons, ligaments and fascia, from injuries involving nerves or structural rupture.
The concept of “injury” under s 1.4 of the MAI Act has recently been examined by the Court of Appeal in Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71 (Mandoukos). Although the case was concerned with the scope of a “medical dispute” under s 7.17, Stern JA’s analysis of the meaning of “injury”, and its application to the facts of a cervical spine already affected by spondylotic (degenerative) changes, provides direct guidance for present purposes.
In Mandoukos, the claimant had long-standing cervical spondylosis with multilevel foraminal stenosis. Following a motor accident, he experienced neck pain and underwent a C5/6 foraminotomy, a procedure involving the removal of bone to decompress the nerve root. The claimant contended that this procedure demonstrated that his condition could not be a “minor injury” (viz. threshold injury) within the meaning of s 1.6(2) because, by definition, soft-tissue injuries exclude damage to bone or nerves.
Stern JA rejection of that argument turned upon the fact that the medical dispute referred for assessment was confined to whether the accident-related cervical spine injury was a minor injury. The question of whether the later surgical removal of bone constituted a different or additional injury was not part of that dispute and therefore did not have to be addressed by the Medical Assessor (at [67]–[84]).
However, in dealing with that submission, Stern JA took the opportunity to express what her Honour called a provisional view about the proper construction of “injury” in s 1.4(1) and its application to spondylotic or degenerative changes. That view rests squarely on the reasoning of the High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May).
Stern JA observed (at [50] – [52]) that “injury” in s 1.4(1) is to be given its ordinary, primary meaning, namely, “a definite or distinct physiological change or disturbance for the worse” which if not sudden, at least identifiable (citing May at [45] and [75]) and that this meaning provides guidance at least in regard to physical as opposed to psychological injuries. In consequence, a mere symptomatic aggravation of pre-existing spondylotic change, without structural or neurological alteration, is not an injury in the statutory sense. The physiological state of the claimant’s spine must have changed; it is not enough that it was painful.
In May, the High Court rejected the notion that subjective experience of symptoms could itself be an injury, holding instead that symptoms are the body’s response to injury, not the injury itself (May at [57]).
Those principles apply directly to cases of spinal degeneration. The claimant’s condition is one of chronic multilevel spondylosis, with canal and foraminal stenosis at C3–C6 and facet arthropathy with anterolisthesis at L3–L5. The radiological pattern is unchanged from the pre-accident studies. The post-collision scans show no rupture, tear, or nerve-root compression, and the SPECT/CT bone scan records only degenerative uptake consistent with long-standing degenerative disease. Clinical findings are equally stable: reflexes, power, and sensation are intact; there is no atrophy, no dural tension, and no objective sign of inflammation or radiculopathy.
The increase in pain reported after the subject motor accident does not, in itself, constitute a physiological change. It reflects the body’s response to its existing pathology, not a new physiological disturbance within the body. As May and Mandoukos both make clear, pain is evidence that the body is reacting, not that it has changed. Degenerative spondylosis, by definition, is a chronic disease process; making it symptomatic does not convert disease into injury. Only where trauma causes an identifiable alteration, e.g. a disc rupture, ligamentous tear, or other structural failure, does it satisfy the statutory conception of injury under s 1.4(1).
On the evidence before the Panel, no such alteration is shown. The imaging demonstrates the same pattern of degeneration that pre-dated the subject motor accident, and the clinical examinations reveal no physiological occurrence by which the law could mark a definite or distinct disturbance in the sense described in May. The claimant’s pain is genuine, but it is the manifestation of disease, not the occurrence of a new and distinct injury.
Conclusion
The Panel is satisfied that the subject motor accident did not cause a bodily injury within the ordinary meaning of that term. What occurred was an increase in the intensity of symptoms from pre-existing degenerative conditions, without identifiable physiological change. While the claimant’s pain is genuine, the absence of new anatomical or functional disturbance means the presentation does not rise to the level of a compensable injury for the purposes of the MAI Act.
The Panel accepts, for completeness, that it is theoretically possible for a motor accident to provoke a temporary inflammatory response or mechanical irritation within the connective tissues supporting a degenerated spine. Such a response, if established, would fall within the statutory description of “soft-tissue injury” in s 1.6(2) of the MAI Act as it would involve only transient disturbance of muscles, ligaments, or fascia. However, that is not the injury which has been referred for determination. The injuries referred to this Panel are the alleged aggravations and exacerbations of multilevel degenerative change in the cervical and lumbar spines. The Panel’s task under s 7.26 of the MAI Act is confined to deciding whether those referred conditions constitute “injuries” for the purposes of the MAI Act.
The medical evidence establishes that they do not. Imaging before and after the subject motor accident shows no new pathology, no change in the morphology or alignment of the spine, and no acute inflammatory or traumatic process. The multilevel spondylosis, anterolistheses and facet arthropathy visible on the 2023 studies are identical to those recorded years earlier. Clinically, both treating specialists and the Panel observed normal neurological function, with no signs of nerve-root compromise, atrophy, or objective inflammation. The only change after the accident was a reported increase in the subjective experience of pain.
It follows that the alleged aggravations and exacerbations of the claimant’s degenerative spine are not “injuries” within the meaning of s 1.4(1). They reflect the manifestation of pre-existing spondylotic disease, not a bodily occurrence caused by the collision. Even if, as a matter of speculation, one were to infer a transient soft-tissue irritation, that would constitute a different injury from the one referred, and would therefore lie outside the scope of the present review. The medical evidence does not compel, or even justify, drawing such an inference.
The Panel therefore concludes that the conditions referred for review, being the alleged aggravations and exacerbations of pre-existing degenerative changes in the cervical and lumbar spines, are not “injuries” for the purposes of s 1.4 of the MAI Act. As no new bodily injury has been established, there is no basis on which the Panel can progress to characterise any part of the claimant’s post-accident presentation as a threshold or non-threshold injury under the MAI Act.
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