QBE Insurance (Australia) Limited v Azar
[2024] NSWPICMP 701
•9 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Azar [2024] NSWPICMP 701 |
CLAIMANT: | Ghanem Azar |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 9 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; thoracic spine; lumbar spine; cervical spine; disc protrusions; claimant suffered injury in a motor vehicle accident on 24 May 2022; Medical Assessor (MA) Assem certified injuries to the cervical spine and lumbar spine were soft tissue injuries and therefore threshold injuries; he certified disc protrusions at T7/8 and T8/9 were not threshold injuries; application for review by insurer on basis claimant not demonstrate two clinical signs to support diagnosis of radiculopathy and therefore injury to thoracic spine was a threshold injury; Held – no dispute soft tissue injuries to cervical and lumbar spine were threshold injuries; not necessary to find radiculopathy where presence of herniated discs means there has been a rupture of the fibrocartilage around both discs; Momand v Allianz Australia Insurance Limited cited; injury to thoracic spine is not a soft tissue injury and not a threshold injury; certificate of MA Assem affirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel affirms the certificate of Medical Assessor Mohammed Assem dated |
STATEMENT OF REASONS
INTRODUCTION
On 24 May 2022 Mr Azar was driving his Toyota Rav 4 when he was involved in a four-car collision on Sunnyholt Road, Blacktown. His vehicle was hit from behind by a utility causing it to be propelled into the vehicle in front which subsequently collided into the next vehicle (the accident).
QBE Insurance (Australia) Limited is the relevant insurer with liability to pay statutory benefits to Mr Azar under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Mr Azar submitted an Application for personal injury benefits dated 31 July 2022.[2] He described his injuries as follows:
“I hurt my neck and back upper and lower. I also hurt my right wrist and have some pain where the seatbelt meats [sic] your ribs (left side). At the time of the accident the front of my head was numb. I’m experiencing constant headaches and sleeplessness and difficulty concentrating, also increased blood pressure.”
[2] Insurer’s bundle p 44.
THRESHOLD INJURY DISPUTE
On 2 September 2022 the insurer determined that Mr Azar had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
On 12 September 2022 and again on 24 May 2023 Mr Azar sought an Internal Review of the threshold injury decision.
On 13 June 2023 the insurer affirmed the determination that the claimant’s injuries met the definition of a threshold injury.[3] Whilst Dr Al Khawaja mentioned the significant disc injury at T6/T7, T7/T8 and T8/T9 the insurer noted there was no nerve compression or cord compression. The insurer concluded there was no clinical evidence in support of a fracture, complete or partial rupture of any ligaments, tendons, menisci, cartilage, or fracture. The insurer reported there was no clinical evidence to support the presence of radiculopathy.
[3] Claimant’s bundle p 49.
On 22 June 2023 Mr Azar filed an application in the Personal Injury Commission (Commission) in respect of the threshold injury dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act and whether proposed treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[4]
EVIDENCE BEFORE THE REVIEW PANEL
[4] Section 7.20 of the MAI Act.
The Review Panel (Panel) issued a Direction to the parties on 21 May 2024 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction on or about 4 June 2024 the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 154 (insurer’s bundle). On 4 June 2024 the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 100 (claimant’s bundle).
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 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 when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(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.
5.9 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.”
In Briggs v IAG Limited trading as NRMA Insurance[5] his Honour Justice Wright stated at [35]:
[5] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Assem in respect of the dispute as to threshold injury were the following:
· thoracic spine injury;
· lumbar spine injury, and
· cervical spine injury.[6]
[6] Insurer’s bundle p 18.
In a certificate dated 7 March 2024 Medical Assessor Assem found that the following injuries caused by the accident were threshold injuries:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
Medical Assessor Assem found that the following injury caused by the accident was not a threshold injury:
· thoracic spine – T7/8, T8/9 large disc protrusions with nerve impingement.
In relation to the thoracic spine Medical Assessor Assem stated:
“His main concern was pain in the thoracic region where he has a large disc protrusion at T7/8 and T8/9 levels that appear to be acute of subacute. I would agree with the opinion expressed by Dr Tej Dugal, Radiologist. Although a disc protrusion by itself would not satisfy the definition of a threshold injury, he did have a band of pain and altered sensation in the left thoracic region and anterior chest wall that would indicate nerve root compression.
Radiculopathy is relatively rare due to the thoracic spine stability and lesser degree of mobility. When it does occur, the most prominent symptoms is pain. It can be a sharp, burning or electric shock pain radiating from the back to the front of the chest in a bandlike pattern. There may be numbness, tingling or sensory changes along the rib cage or chest depending on the dermatomal distribution of the affected nerve. Muscle weakness would be not apparent due to the diffuse innervation of these muscles. Similarly, it is not possible to determine if there is any muscle atrophy or positive nerve tension signs. Given the acute / subacute pathology and the nature of his symptoms, I have given him the benefit of the doubt and accepted that he has radiculopathy. If radiculopathy was excluded because of the absence of two signs (MAA Guidelines, paragraph 6.138, p 108), he would have nerve root impingement which is also outside the definition of a threshold injury.”
Medical Assessor Assem further stated:
“Mr Azar sustained an injury to the thoracic spine as a result of a motor vehicle accident. He has large disc protrusions at T7/8, T8/9 with nerve impingement manifesting with a band of sensory loss in the left thoracic region. An injury to a nerve is not a threshold injury according to the Act.”
REVIEW PROCEDURE
The insurer lodged an application for review of the assessment of Medical Assessor Assem on 2 April 2024 within 28 days of the date on which the certificate of Medical Assessor Assem was made available to the parties.
On 15 May 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[7]
[7] AD2 p 9.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
THE EVIDENCE
Statement of Ghanem (Gary) Azar
Mr Azar provided a statement dated 30 June 2023.[9]
[9] Claimant’s bundle p 88.
He stated prior to the accident he did not have any previous issues with his neck or upper back. He reported an episode of pain in his lower back for which he received chiropractic treatment at Parramatta for two to three months in 2017.
Mr Azar reported following the accident he was immediately aware of pain and shortly afterwards numbness and tingling around the base of his skull. He stated after his discharge from Blacktown Hospital later that day he became more aware of pain affecting his neck and also the middle part of his back which he noticed behind his left shoulder, his left ribs area as well as pain in his lower back and right wrist.
Mr Azar stated he continued to have some pain and stiffness affecting his neck and pain in his right lower back. He also reported suffering very strong pain affecting the middle part of his back and also on the left side of his middle/chest area which was not improving.
Blacktown Hospital notes
Following the accident on 24 May 2022 the claimant attended Blacktown Hospital.[10] It was reported he presented post-accident complaining of headache, head numbness, mid back pain and left sided neck pain. Notably his CT brain and CT cervical spine did not show any fractures. Mr Azar was discharged with paracetamol and to follow up with his general practitioner (GP) the next day.
[10] Insurer’s bundle p 145.
Workers Compensation claim form
In a Workers Compensation Claim form dated 25 May 2022 the body parts injured were listed as “neck, back and wrist”.
Dr James Har, general practitioner (GP)
The records commence on 9 July 2019 with no complaints relating to the cervical, thoracic or lumbar spine until after the accident.
On 25 May 2022 Dr Har reported as follows:
“…
Stiffness in neck post MVA
Was driver of stationary car
When another car hit from behind
Seen at hospital
Nil LOC/blackout
Vision good
Nil headaches
Had scans – normal
Neck stiffness.”[11]
[11] Insurer’s bundle p 83.
On 1 June 2022 Dr Har reported feeling better, “lower lumbar back pain”. On 3 June 2022 and on 8 June 2022 Dr Har reported posterior neck pain and lower lumbar back pain improving. The headaches were slightly better. On 17 June 2022 Dr Har reported increased stress since the accident and provided a referral to a psychologist.
On 1 July 2022 Dr Har reported headaches slightly better and noted Mr Azar had seen a physiotherapist for cervical, thoracic and lumbar back pain.[12]
[12] Insurer’s bundle p 79.
Physiotherapy records
The claimant first saw Lesley Kreig, physiotherapist on 9 June 2022. Ms Kreig reported complaints of constant occipital headaches, cervical spine pain, thoracic spine pain and lumbar spine pain.[13] On 16 June 2022 Ms Kreig reported cervical spine movements were full with pain mainly on right rotation and extension.[14] She noted spasm in the left upper to mid-thoracic spine with hypomobile cost-transverse joints mid thoracic spine. She reported palpation reproduced the thoracic spine pain. She also reported spasm in the right low lumbar spine, hypomobility to the right L5/S1 and L4/5 and noted flexion caused sharp pain.
[13] Insurer’s bundle p 62.
[14] Insurer’s bundle p 66.
Mr Azar commenced treatment with Monique McHugh physiotherapist on 27 June 2022 in relation to the cervical, thoracic and lumbar spine. On 15 July 2022 she reported mobility restriction with left cervical rotation and lateral flexion ½ to ¾ range of movement.[15] She reported symptoms on the low left side of the thoracic spine, aggravated with pushing and pressure on the upper limbs and thoracic rotation. She reported ongoing right side low back pain, aggravated with loading of the right leg. She stated Mr Azar said prior to the accident he was not experiencing low back pain and had not had any treatment for his back since 2017.
[15] Insurer’s bundle p 71.
Imaging/investigations
CT cervical spine, 24 May 2022 – the report concludes:
“No abnormality demonstrated.”
CT cervical and lumbosacral spine, 24 July 2022 – the report concludes:
“Chronic intervertebral disc degeneration at L5/S1 with central posterior disc protrusion but no nerve root compromise.”[16]
[16] Insurer’s bundle p 130.
CT thoracic spine, 29 July 2022 – the report states:
“Mild spondylotic changes of thoracic spine are noted with anterior osteophyte lippings.
At T9/10 disc level, there is posterior central right paracentral and posterolateral discal protrusion indenting right anterolateral aspect of the thecal sac abutting the likely compressing right-sided descending nerve root. Patent neural exit foramina bilaterally at this level.
Intact rest of thoracic discs with no significant disc bulges.
Intact intervertebral body heights with no vertebral body fractures.
Intact facet articulation.
There is no remarkable paraspinal soft tissue abnormality could be detected.
CONCLUSION:
Mild spondylotic changes of thoracic spine with small discal protrusion at T9/T10 level as described.
Otherwise, unremarkable CT study of the thoracic spine.” [17]
[17] Insurer’s bundle p 131.
MRI cervical spine, 17 October 2022 – the report concludes:
“No evidence of cervical spine trauma. Minor disc protrusions at C4/C5 and C5/C6 level without spinal canal or neural exit foraminal compromise.”[18]
[18] Claimant’s bundle p 33.
MRI thoracic spine, 19 October 2022 – the report states:
“No evidence of an acute fracture or subluxation of the thoracic spine.
The bone marrow signal intensity of the thoracic spine is normal.
There is a large central posterior herniated disc located at the T7-T8 level measuring up to 3mm in diameter associated with marked compression of the ventral surface of the thecal sac at this level. There is a large central posterior herniated disc located at the T8-T9 level measuring up to 4mm in diameter.
No neuroforaminal narrowing of the thoracic spine.
The anterior and posterior longitudinal ligaments of the thoracic spine are normal.
The thoracic spinal cord signal intensity is normal. The interspinous ligaments of the thoracic spine are normal.
No soft tissue swelling surrounding the thoracic spine.
Conclusion
No evidence of an acute fracture or subluxation of the thoracic spine.
The thoracic spinal cord signal intensity is normal.
There are large central posterior herniated discs located at the T7-T8 and T8-T9 levels associated with marked extrinsic compression of the ventral surface of the thecal sac at the above described levels.
No evidence of extrinsic compression of the thoracic spinal cord.”[19]
[19] Claimant’s bundle p 25.
MRI lumbar spine, 21 October 2022 – the report concludes:
“No traumatic injury to the bony spine. The spinal canal and neural exit foramina are patent. Degenerative disc change at L5/S1 level.”[20]
[20] Claimant’s bundle p 35.
Multiphase whole body bone scan with SPECT/CT (low dose), 24 October 2022 – the opinion provided is as follows:
“No evidence for bony injuries. Normal appearance to the spine, shoulders, hips and pelvis.”[21]
Medico-legal reports
[21] Insurer’s bundle p 42.
Dr Darweesh Al Khawaja, neurosurgeon
Dr Al Khawaja provided a report to Dr Har dated 19 May 2023.[22] He reported following the accident Mr Azar had experienced neck pain, thoracic pain and right sided lower back pain and gluteal pain. With exercises and physiotherapy his neck pain improved completely, and his lower back pain improved significantly. He reported Mr Azar was left with left sided thoracic pain and anterior chest pain on the lower thoracic area and on the parasternal left side. He stated Mr Azar did not described band type of pain or any tingling or numbness.
[22] Claimant’s bundle p 23.
Dr Al Khawaja reported Mr Azar was seeking Dr Ramachandran for pain management, he had undergone injections and was planning to undergo ablation. Mr Azar was taking Tramadol twice a day and Celebrex once a day.
On examination Dr Al Khawaja reported tenderness around the mid to lower thoracic area on the left side and around the anterior chest wall. He reported the MRI showed significant disc injury at T6/7, T7/8 and T8/9 but no nerve compression or cord compression.
Dr Al Khawaja concluded the injury was as a result of the accident maybe from the seat belt or the steering wheel. He recommended Mr Azar exercise and swim and stick to pain management if he cannot go ahead with radiofrequency and ablations. If all fails he suggested Mr Azar may require surgery to fuse his spine at C7-T8 and T8/T9 levels but only as a last resort.
Dr Tej Dugal, radiologist
Dr Dugal provided an opinion dated 25 July 2023 after reviewing the MRI of the cervical spine dated 17 October 2022 and the MRI of the thoracic spine dated 19 October 2022.[23]
[23] Insurer’s bundle p 136.
His conclusion was as follows:
“Thoracic spine MRI does demonstrate at T8/T9 an acute or subacute disc protrusion right paracentrally compressing the right-sided ventral sac without cord signal alteration. The intermediate signal characteristics of the disc protrusion in the absence of further bony remodelling of the T8/T9 endplates suggests this is likely acute or subacute in nature. In my opinion, these protrusions may be related to the motor vehicle trauma.
The T7/T8 disc is slightly more difficult with respect to ascertaining its time frame but give the adjacent level is also likely to be acute or subacute, in particular given the normal hydration of the T7/T8 nucleus pulposus of the disc in the absence of bone remodelling and the remaining normal levels throughout the thoracic spine.
On balance, I favour the thoracic disc protrusions to be acute or subacute and considered may relate to the timing of the motor vehicle accident.
I also note CT scan of thoracic spine dated 29 July 2022 demonstrated no vertebral fracture and no significant endplate remodelling of the endplates and the posterior vertebral bodies to suggest chronic change. I do note small anterior endplate osteophytes in the mid lower thoracic spine.
At T8/T9, subtle high density on the sagittal series does suggest disc protrusion. The T7/8 protrusion is not confidently seen.
Cervical spine imaging on the CT is unremarkable.”
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 2 April 2024.[24] The insurer submits Medical Assessor Assem fell into error and failed to provide reasons to support his finding that the nerve root impingement constitutes a non-threshold injury.
[24] Insurer’s bundle p 3.
The insurer submits there are specific criteria which need to be satisfied to support a diagnosis of radiculopathy, that is two or more clinical signs are required in accordance with cl 5.8 of the Guidelines.
The insurer provided submissions dated 14 July 2023 in response to the threshold injury dispute.[25] The insurer submits at most the evidence indicates there may be disc protrusions or degenerative pain, which are threshold injuries. A disc protrusion is a threshold injury, as it is not an injury to nerves nor a complete or partial rupture of tendons, ligaments, menisci or cartilage and there is no radiculopathy.
[25] Insurer’s bundle p 14.
The insurer notes that 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.
Claimant’s submissions
The claimant provided submissions dated 21 June 2023 in support of the threshold injury dispute. [26]
[26] Claimant’s bundle p 1.
The claimant relies upon the radiological findings and the report of Dr Al Khawaja to assert he sustained a discal injury.
The claimant argues a discal injury is a not a soft tissue injury for the purposes of s 1.6 of the MAI Act, nor is it an injury to the tissue or supports or surrounds. The claimant submits an injury which has resulted in spinal protrusions represents an alteration to the integrity of the spine analogous to that of a fracture for the purposes of s 1.6 of the MAI Act.
The claimant provided submissions dated 10 April 2024 in response to the application for review.[27] The claimant argues the insurer’s submissions do not take issue with causation and suggests the dispute, therefore, is limited to the characterisation of the medical pathology by reference to the definition of threshold injury.
[27] Claimant’s bundle p 3.
The claimant submits Medical Assessor Assem did provide reasons in support of his conclusions where he identified the difficulties associated with signs and symptoms of radiculopathy that are unique to the thoracic spine. Those difficulties include that muscle weakness may not be apparent due to “diffuse innervation of these muscles” and similar issues with respect to muscle atrophy and positive nervous tension signs. It is also submitted that Medical Assessor Assem suggested radiculopathy can be evidenced by quite sharp, burning or electric shock pain radiating from the back to the front of the chest in a band like pattern.
The claimant also relies upon the radiology and notes that the MRI scan dated
19 October 2022 reported the presence of “quite large central posterior herniated discs located at T7 to T8 and T8 to T9 levels associated with marked extrinsic compression of the ventral surface of the thecal sac at the above levels”.
THE MEDICAL EXAMINATION
Mr Azar attended the medical suites at the Commission and was examined by Medical Assessor Moloney on 4 October 2024. He was unaccompanied.
Pre-accident history
Mr Azar was working full-time as a swimming pool compliance officer with Blacktown City Council at the time of the accident. He lives with his wife and two young children aged 3 and 5. There was a past history of inguinal and umbilical hernia repairs and pilonidal sinus surgery. He stated that he had no previous injuries of the body parts subject to assessment.
History of the accident
Mr Azar was the driver of his work car and was stationary when hit from the rear by a utility. He states that the impact pushed his car into the car in front which then was pushed into the car in front of it. He was wearing a seatbelt at the time but airbags were not deployed. Apparently, the car was a write-off. His boss collected him from the accident site and drove him to Blacktown Hospital for assessment.
History of symptoms and treatment following the accident
At Blacktown Hospital, a CT scan of the cervical spine was undertaken, and he was discharged.
Mr Azar stated he consulted his GP the next day with pain in the wrists, left chest wall and ribs, neck and the right lower lumbar region associated with headaches. He was referred for physiotherapy and further scans.
The thoracic spine CT on 29 July 2022 reported a disc protrusion with a normal CT of the cervical spine and some chronic changes in the lumbar spine. He was referred to a pain specialist, Dr Ramachandran who organised an epidural block which gave temporary relief and a RACZ procedure without any benefit. His GP also referred him to a neurosurgeon,
Dr Al Khawaja who advised him if there was no pain relief that a fusion at the T7 to T9 levels could be undertaken which Mr Azar declined.A pain management program has been undertaken which includes hydrotherapy and an exercise physiologist and follow-up with a psychologist.
History of any relevant injuries sustained since the accident
Mr Azar states that he sustained a soft tissue injury to his left ankle at work a year ago which has now recovered.
Current symptoms
Mr Azar has persistent left-sided mid-thoracic pain which radiates around to the sternum. He also states that there is a patch of numbness or pins and needles posteriorly at this mid-thoracic level.
He occasionally gets an ache in the right buttock region which can shoot down to the toes on the right but settles with movement after sitting. Initially he had some stiffness in the cervical spine but this is much improved and more recently has developed a patch of numbness over the left anterior thigh just above the level of the knee. The wrists are now asymptomatic.
At present he is working 20 hours a week doing the same job which involves driving. He has no difficulty walking.
Current treatment
Present medication is Celebrex 100mg one-a-day, temazepam three to four per week at night, tramadol 50mg two to three per week and Panadol osteo six a day. No manual therapy is being undertaken at present as the funding was ceased.
He consults his GP when necessary and is due to make a follow-up appointment with his pain specialist.
No radiological studies were available for inspection.
Clinical examination
Mr Azar walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His weight was 102kg and his height was 179cm.
Cervical spine
On inspection of the cervical spine there was a normal contour and on testing range of movement a full range of flexion/extension, side bending and rotation with no asymmetry. On palpation no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were equal and of low amplitude with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the upper arms 36cm bilaterally (10cm above the olecranon process) and in the upper forearms 30cm bilaterally (5cm below the olecranon process). There was a full pain free range of movement of both shoulders.
Thoracic spine
On palpation, there was tenderness over the T6 – T9 spines and anterior lower left ribs. There was decreased sensation to light touch over the left paravertebral muscles at the T6 – T9 levels. There was a normal range of flexion/extension, side bending and rotation of the thoracic spine. The scapulae had normal movement and was normal to palpation.
Lumbar spine
Mr Azar walked with a normal gait and was able to walk on his heels and toes and squat normally. On testing range of movement, there was a full range of flexion/extension and side bending. Straight leg raise when lying was 70° bilaterally and limited by tight hamstrings. Sciatic nerve root tension signs were negative. On palpation there was no guarding or spasm noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal and of low amplitude with normal power. No muscle wasting was apparent. The circumference of the lower thighs was 46cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves it was 39cm bilaterally. On testing for sensation, there was decreased sensation in the lower half of the left anterior thigh above the patella and slight decrease in sensation in the lower leg compared to the right which was of a mild degree. This patch of decreased sensation does not correspond to a specific dermatome.
CONSISTENCY
Medical Assessor Moloney found there were no inconsistencies at the time of the medical examination and nor are there any inconsistencies apparent in the histories recorded by medical practitioners who have treated or assessed Mr Azar.
DIAGNOSIS AND CAUSATION
At the time of the examination by Medical Assessor Moloney there were no signs of radiculopathy in the cervical, thoracic or lumbar spine regions.
The claimant was the driver of a Toyota Rav 4 that was involved in a four-car collision on Sunnyholt Road, Blacktown when he was hit from behind by a Utility and propelled into the vehicle in front which subsequently collided with the next vehicle. This was in effect a double collision. He was wearing a seat belt, and the airbag did not deploy. His vehicle was towed away and written off. This was a major accident.
He attended Blacktown Hospital where he had CT of his cervical spine and brain and was given a cervical collar. His neck improved however; he had pain in the mid to lower thoracic region.
A CT scan of the thoracic spine on 29 July 2022 showed a posterior central right paracentral and posterolateral disc protrusion indenting the lateral aspect of the thecal sac in the right sided descending nerve root.
A CT of the lumbar spine of 24 July 2022 showed chronic intervertebral disc degeneration at L5/S1 with small central protrusion.
Mr Azar had pain management with injections which gave temporary relief.
Mr Azar had an MRI of the thoracic spine on 19 October 2022 which showed a large central posterior herniation at T7/8 and T8/9 associated with marked central compression of the ventral surface of the thecal sac. This imaging was reviewed by Dr Tej Dugal, a radiologist, who considered that the thoracic disc protrusions were acute or sub-acute and may be related to the timing of the accident.
When he was reviewed by a neurosurgeon, Mr Azar complained of left sided thoracic pain and a T7/8 and T8/9 fusion was proposed but declined.
Mr Azar continued to have pain in his back with intermittent numbness with a band like distribution over the left side of his chest and a sharp pain in the anterior chest wall, which was exacerbated by heavy lifting, by pushing against resistance and by maintaining static postures. While his low back pain improved with physiotherapy treatment, his thoracic pain persisted and he required analgesia and anti- inflammatory medication, night sedation and Panadol.
When the claimant was assessed by Medical Assessor Assem there was tenderness at the T8/9 level with sensory changes in the left lower region in a band like distribution and the pain appeared to spread across the anterior chest wall. Thoracolumbar movements apparently were satisfactory.
There has been documentation of an injury to the cervical, thoracic and lumbar spine regions recorded by the treating GP and follow-up specialist. The Panel has determined that there was a soft tissue injury to the cervical and lumbar spine due to the subject accident.
There was also a documented injury to the thoracic spine which was investigated with an initial CT and then an MRI. The MRI reported a large central posterior herniated disc at the T7/8 and T8/9 levels associated with marked extrinsic compression of the thecal sac at that level. On 25 July 2023 Dr Dugal, a radiologist assessed the CT and MRI scans and concluded there has been an acute or subacute disc protrusion at the T8/9 level and possibly at the T7/8 level. In his opinion the disc protrusions may relate to the timing of the motor vehicle accident with no evidence of any chronic change.
Whilst causation of the thoracic spine injury has not been challenged, the Panel is satisfied the claimant sustained injury to the thoracic spine having regard to the test as to causation set out in part 5 of the Guidelines which in accordance with Briggs is the test to apply when determining the question of causation for threshold injuries.
The Panel finds not only that the accident could have caused the injury to the thoracic spine but that it did cause the injury where there was no previous history of complaint pertaining to the thoracic spine, where Mr Azar complained of mid back pain when he attended Blacktown Hospital following the accident, where there has been a consistent history of complaint thereafter and having regard to the herniated discs at both the T7/8 and T8/9 levels apparent on imaging shortly following the accident.
The Panel finds the claimant sustained injury to the thoracic spine, namely, large central posterior herniated discs at T7/8 and T8/9 caused by the accident.
THRESHOLD INJURY
Cervical and lumbar spine
There is no dispute the soft tissue injuries sustained to the cervical and lumbar spine caused by the accident are threshold injuries.
Thoracic spine
In Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014 at [69] Harrison AsJ stated:
“It is my view that the Assessor misdirected himself when he omitted to consider the entirety of the findings of the MRI scan to the plaintiff’s cervical spine, namely, an assessment of the individual disc levels throughout the cervical spine is notable for broad-based disc protrusion at C5/C6. This indents the ventral thecal sac and is not associated with central canal compromise. Had he fully appreciated the report of the MRI scan to the plaintiff’s cervical spine, he would have appreciated that there was a disc protrusion at C5/C6 and this indents the ventral sac. The ventral sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material. This injury is not one that falls within the definition of a minor injury. In any event, the assessor did explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, where injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. This ground of review was raised before the delegate.”
It matters not that there is no radiculopathy because there are large central posterior herniated discs at T7/8 and T8/9 levels and this means there has been a rupture of the fibrocartilage around both discs.
Where there has been a rupture of the fibrocartilage around both the T7/8 and T8/9 discs, regardless of the lack of radiculopathy, there has been a rupture to cartilage which in accordance with s 1.6 of the MAI Act is not a soft tissue injury and therefore is a non-threshold injury.
CONCLUSION
The Panel affirms the certificate of Medical Assessor Mohammed Assem dated
7 March 2024.
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