QBE Insurance (Australia) Limited v Gohari

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Gohari [2024] NSWPICMP 279
CLAIMANT:	Amir Gohari
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	7 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; car brakes failed causing rear end collision; claimant subsequently underwent fusion surgery at L5/S1; radiculopathy; presence on prior occasion; David v Allianz applied; meaning of “should” in definition of atrophy (table 6.8 of the Guidelines); ordinary meaning of should does not mean that a precise measurement is mandatory; claimant suffered L3/4 disc injury; no prior symptoms; scan evidence showed disc protrusion; various references in medical opinions of radicular symptoms arising from the L3/4 disc; surgery at L5/S1 for pre-existing pars defect aggravated by the motor accident; unnecessary to decide if surgery resulted in injury being classified as non-threshold; Mandoukos v Allianz discussed; Held – claimant suffered a non-threshold injury.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 5 September 2023 and certifies that the motor accident caused a non-threshold injury at L3/4.

REASONS

BACKGROUND

Mr Amir Gohari (the claimant) suffered injury in a motor accident on 16 May 2018 when the truck he was driving collided into the rear of another vehicle (the motor accident).[1] The claimant alleges that he applied the brakes but that they were defective, and his vehicle did not stop. The police report of the accident noted that “numerous breaks and axels were out of alignment” and that the vehicle had “failed the testing it was subject too”.[2]
[1] Insurer’s bundle, p 56.
[2] Claimant’s bundle, p 66.
The insurer is liable to pay to Mr Gohari any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The following injuries were referred in the medical dispute:
-      cervical spine;
-      lumbar spine, and
-      right wrist.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[4] Section 4.4 of the MAI Act.

STATUTORY AMENDMENT

The Motor Accident Injuries Amendment Act 2022 (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.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.

ORIGINAL MEDICAL ASSESSMENT

The medical dispute was referred to Medical Assessor Assem who issued a Medical Assessment Certificate dated 5 September 2023 (the medical assessment certificate).
Medical Assessor Assem concluded that Mr Gohari sustained soft tissue injuries to the cervical spine, lumbar spine and right wrist which are a threshold injury for the purposes of the MAI Act. The Medical Assessor concluded that the lumbar spine surgery resulted in a non-threshold injury and stated:
“Regarding his lumbar spine, Mr. Gohari had pre-existing conditions, including degenerative pathology, facet joint arthropathy, and chronic bilateral L5 pars defects leading to L5/S1 spondylolisthesis. This pathology is longstanding and degenerative. Before his lumbar spine surgery, his condition would have been categorized as a threshold injury as per the Act.
While most medical examiners, excluding Dr Ghahreman, did not recommend surgical intervention, the workers' compensation insurer approved lumbar spine surgery due to injuries from the accident. Lumbar fusion, a procedure where one or more vertebrae are fused to eliminate movement between them, is typically employed to address conditions like degenerative disc disease, spondylolisthesis, or severe chronic back pain unresponsive to other treatments. The procedure often necessitates hardware, such as screws and rods, to stabilize the spine and may involve bone grafts to aid fusion. Given the invasive nature of lumbar fusion and the associated structural changes, it doesn't qualify as a soft tissue or threshold injury under the Act. While one could argue that the underlying pathology is pre-existing and degenerative, and might have become symptomatic eventually, the available data suggests the accident exacerbated the pre-existing degenerative condition, making it symptomatic. Had it not been for the accident, it's improbable Mr. Gohari would have needed lumbar fusion.”

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the medical assessment certificate.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 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 of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration. The insurer initially objected to some of the material but subsequently accepted that that the matter could proceed if it could file submissions in response.
On 12 December 2023 the Panel accepted that the insurer was entitled to file further submissions. The insurer then filed supplementary submissions pursuant to that leave. These submissions have been addressed elsewhere in these Reasons.
The parties were then advised that the claimant was to bring “all actual scans/x-rays to the medical examination” and were placed on notice that:
“[T]he Panel will consider whether the scans show any increased instability at the L5/S1 level. The parties have liberty to file any further submissions in response, by close of business 29 February 2024.”
The insurer filed submissions in response to this direction. It submitted that procedural fairness required that “it must have access to the same scans/x rays in order to have them reviewed and considered”.
The insurer sought a direction that the scans be provided to it prior to the medical examination.
The claimant arrived at the medical examination with a copy of the MRI scan dated 31 January 2024 on his mobile phone. Given the inability to read the scan, the MRI was of no assistance to the Panel in the determination of whether the claimant suffered a non-threshold injury.
The MRI scan provided to Medical Assessor Dixon post-dated the surgery. The scan showed nothing that the Panel did not already know from the various clinical records describing the surgery and the examination findings by Medical Assessor Dixon.
Accordingly, the Panel concluded that this lumbar spine scan was of no assistance in our conclusion of that the claimant sustained a non-threshold injury.
We observe that the parties should have listed the listed the matter before the Panel if they could not agree on this procedural matter.

STATUTORY PROVISIONS

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 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 Regulations) 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.
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 MIA Act. Version 9.1 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 minor 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    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.”
Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines 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.”
Radiculopathy is defined in cl 5.8 of the Guidelines 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 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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”

SUBMISSIONS

Claimant’s submissions 1 December 2023[13]

[13] Claimant’s bundle, p 1.

The claimant submitted that he had suffered not threshold injuries to the cervical and lumbar spine.
The claimant submitted that he had no prior symptoms or motor vehicle accidents affecting the relevant body parts. It was noted that the claimant underwent the L5/S1 posterior lumber interbody fusion on 15 May 2022.
The claimant noted that he first attended the medical practice of his general practitioner (GP) on 21 May 2018. The initial complaints of pain were to the neck, back, wrist and the knee. The clinical notes of the GP referred to radicular symptoms radiating into both the upper and lower extremities.
The claimant referred to the reports of Dr Ghahreman and referred to the report dated 19 November 2019 which referred to “marked wasting and atrophy of quadriceps and absent knee-jerk on the left support of the diagnosis of left L3 and L4 radiculopathy”.
The report dated 23 June 2020 provided the justification for the surgery including a reference to pain arising from a foraminal herniation at the L3/4 level which may require surgery above the L5/S1 level. Subsequent reports suggested a return of radicular symptoms.
The claimant referred to the opinion of the Associate Professor Sheridan dated 25 March 2021 which referred to the disc protrusion in the cervical spine with no compression consistent with the neck and arm symptoms and damage particularly at the L5/S1 level with nerve compression.
The claimant referred to a series of reports from Dr Ghahreman which referred to radiating pain in the right upper limb which was consistent with the opinion of the Associate Professor Sheridan dated 25 March 2021.
The claimant referred to the opinion of Dr Giblin dated 28 June 2023 when the doctor opined that the claimant suffered radiculopathy in the C6 distribution.
The claimant submitted that a number of reports which were referenced by the insurer actually showed clinical signs of radiculopathy pursuant to clause 5.8 guidelines and referred to the opinions of Dr Mendelsohn, Dr Breit and Dr Gibson.
The claimant otherwise submitted that his condition should be assessed post-surgery and that as a result of the surgery he has sustained a non-threshold injury.

Claimant’s submissions dated 19 April 2023[14]

[14] Claimant’s bundle, p 82.

These submissions are more fully set out in other submissions which have been summarised herein.

Claimant’s submissions dated 12 October 2023[15]

[15] Claimant’s bundle, p 103.

The claimant submitted that there was nothing within the legislation or guidelines which prevented the Medical Assessor from assessing the claimant on current presentation and having regard to exacerbation, deterioration and treatment including surgery.
The claimant referenced Mahony v J Kruschich (Demolitions) Pty Ltd[16] in support for the proposition that the insurer is liable for the injury and the other foreseeable consequences suffered by the plaintiff. He also referenced s 7.24 of the MAI Act and cl 13 of the Motor Accidents Regulations as supporting the proposition that there can be further assessment based on deterioration of the injury.
[16] (1985) 156 CLR 522; [1985] HCA 37.
The claimant noted the description by the Medical Assessor as to what constituted a lumbar fusion noting that the procedure involved insertion of screws and rods to stabilise the spine and made involve bone grafts to stabilise the fusion. In the circumstances the claimant submitted that the surgery involves structural changes to the spine and was not covered by the definition of a soft tissue injury.
The claimant submitted that the insurer has not correctly referenced the decision of Mandoukos and referred to paragraphs 110 to 114 of that decision.
The claimant submitted that the nature of the surgical interventions was discussed in the reasons of the Medical Assessor and submitted that he had determined that the motor accident caused an exacerbation of the claimant’s condition and, as a result, there was a requirement to undergo surgery. That surgery involved structural changes and means that the injury no longer fell within the definition of a soft tissue injury.

Insurer’s submissions dated 8 May 2023[17]

[17] Insurer’s bundle, p 1.

The insurer submitted that the claimant suffered soft tissue injuries only, which resolved shortly after the motor accident that any ongoing pathology was pre-existing and were unrelated to the motor accident. The submitted there was no evidence that the claimant suffered radiculopathy in the lumbar or cervical spines.
The insurer referred to and relied on the report of Dr Gibson dated 5 April 2022. Dr Gibson concluded that the claimant only suffered minor injuries.
The insurer noted that whilst the driver of the vehicle in front was taken to hospital, the claimant first sought medical attention from Dr Khashaiar Shekar (GP) on 21 May 2018. The certificate was completed at that time and referred to a motor vehicle accident and whiplash injury. The insurer emphasised that the first medical treatment was five days after the motor accident.
Dr Dowla, neurologist, provided a report dated 27 June 2018 commenting on the previous MRI scan which showed no abnormality and that the nerve conduction studies showed no evidence of focal generalised neuropathy or radiculopathy. Dr Dowla concluded that the back pain was mechanical in origin and recommended conservative management.
Dr Graeme Mendelsohn, surgeon, was qualified in respect of the workers compensation claim and assessed the claimant on 5 August 2019. The doctor did not report any paraesthesia, pain or numbness in either lower limb apart from occasional numbness in the back of the left calf. Reflexes were present and symmetrical in both lower limbs with some decreased sensation affecting the left lower limb which was in a non-radicular distribution. Muscle wasting was said to be 1 cm reduction in the left thigh. The doctor concluded the claimant does not have any radicular distribution of symptoms and does have symmetrical reflexes.
Dr Robert Breit, orthopaedic surgeon, was qualified by the workers compensation insurer and provided a report dated 6 November 2019. The doctor noted some diminished girth in the left thigh and calf which was not significant and not evidence of radiculopathy (see clause 6.8 of the Guidelines). The doctor noted that sensory testing was inconsistent and there was normal power, tone and reflexes. On examination the doctor concluded there was non-verifiable radicular complaints relating to the lumbar spine with gross pre-existing cervical and lumbar spondylosis at multiple levels.
The insurer submitted that Dr Breit’s examination findings were consistent with those of Dr Mendelsohn.
The claimant was examined by Dr Quain, orthopaedic surgeon, on 4 June 2020 at the request of the workers compensation insurer. The doctor did not diagnose radiculopathy. The doctor opined that the effects of any injury should have resolved within two months.
Dr Gibson, occupational physician, examined the claimant on 5 April 2022 and observed the claimant walked with a normal gait with no asymmetry, muscle spasm or guarding. The doctor observed normal reflexes in the lower limbs was some weakness on power testing of the left lower limb and some minor reduction in calf girth. The doctor concluded there was no evidence radiculopathy as defined in clause 5.8 of the Guidelines.
The insurer noted the claimant’s submissions that Dr Gibson’s findings were consistent with radiculopathy. The insurer submitted that the evidence of weakness of power did not conform to a specific nerve root, evidence of wasting of .5cm in the left leg is not sufficient to be considered sufficient to be considered muscle atrophy (see cl 6.8 of the Guidelines) and the sensory changes identified by Dr Gibson were inconsistent.
The insurer noted that the claimant relied on the opinion of Dr Ghahreman, neurosurgeon who examined the claimant on 19 November 2019 and diagnosed L3 radiculopathy. It submitted that the doctor did not find radiculopathy within the meaning of the Guidelines because the finding of the “left leg giving way” does not conform to a specific nerve root and the findings of marked atrophy was not in accordance with table 6.8 of the Guidelines. It was noted that the absent knee-jerk reflex was a sign of radiculopathy but was not, in isolation, sufficient to meet the criteria for radiculopathy.
The insurer submitted that Dr Ghahreman’s assessment of radiculopathy “cannot be considered accurate or reliable” as the examination findings have not been reproduced by other medical practitioners which cast “doubt on his diagnosis of radiculopathy”.
Furthermore, Dr Ghahreman stated that the recommended surgery was to treat the unstable segment at L5 caused by the bilateral pars defect which was in his opinion the cause of lower back pain noting that the coexisting left L5 radicular features were “currently absent”.
The insurer noted that the findings of persistent back pain with radiation to the left buttock is not verifiable radiculopathy.
The insurer noted that Associate Professor Sheridan diagnosed nerve compression at L5/S1 but did not set out his examination findings to support this conclusion and no weight can be given to this diagnosis.
With respect to causation, the insurer noted:
-      Associate Professor Eftekhar could not elicit any objective motor deficit or other motor neuron signs and and opined that facet arthropathies were the main source of the claimant symptoms;
-      the MRI scan of the lumbar spine in February 2019 identified bilateral pars defect at L4/5 and L5/S1 with degenerative changes;
-      the whole body scan in February 2020 showed no acute focus of facet arthropathy demonstrated and this was consistent with degenerative changes rather than traumatic based arthritic changes;
-      Drs Dowla, Eftekhar, Quain, Breit and Gibson all concluded that the claimant suffered from pre-existing degenerative can arthropathic changes rather than acute changes in the lumbar spine, and
-      the lumbar spine surgery was related to the underlying degenerative changes and not related to the accident.
In June 2018 Dr Dowla concluded that the nerve conduction studies in the upper limb showed no neuropathy and opined that the claimant had mechanical pain. The MRI scan of the cervical spine in May 2018 showed multilevel cervical degenerative changes without neural compromise and the doctor recommended conservative management.
In September 2018 Professor Eftekhar examined the claimant and did not find objective motor deficits of upper motor neuron signs which was consistent with the MRI scan.
In August 2019 Dr Mendelsohn noted no radicular distribution of diminished sensation in the left arm, reflexes were symmetrical and diagnosed soft tissue injury with no objective findings of radicular involvement.
In November 2019 Dr Breit opined there was no evidence of sciatic nerve irritability in the cervical spine. In June 2020 Dr Quain found no complaint of any radicular pain and opined that the changes were long-standing and complaints were exaggerated.
In April 2022 Dr Gibson found no evidence of radiculopathy and opined that the claimant suffered from pre-existing degenerative changes in the cervical spine and opined that the claimant suffered a soft tissue injury only.
The insurer submitted that there was no evidence of radiculopathy in the cervical spine and the claimant suffered a soft tissue injury only.

Insurer’s submission dated 21 September 2023[18]

[18] Insurer’s bundle, p 105.

These submissions were filed seeking leave to review the medical assessment\.
The insurer relied on the decision of Mandoukos v Allianz Australia Insurance Ltd[19] and submitted that treatment is not an injury and that the surgery, of itself, was not capable of turning a threshold injury into a non-threshold injury.
[19] [2023] NSWSC 1023.

Insurer’s supplementary submissions dated 19 December 2023

These submissions were filed by leave and in response to further material filed by the claimant in its bundle.
In response to the claimant’s submission that there was radiculopathy prior to the surgery, the insurer noted that the radicular symptoms recorded by Dr Breit, Dr Gibson and Dr Mendelsohn were not radiculopathy. It further noted that the records which predate the surgery show:
-      in June 2018 Dr Dowla opined that there was no evidence of focal or generalised neuropathy or radiculopathy related to the spine:
-      in September 2018 Professor Eftekhar noted no objective motor deficits or upper motor neuron signs related to the cervical spine, in August 2019 Dr Mendelsohn opined there was no radicular distribution of symptoms in the lumbar spine and no objective findings of radicular involvement in the cervical spine:
-      in November 2019 Dr Breit found non-verifiable radicular complaints in the lumbar spine:
-      in June 2020 Dr Quain did not diagnose radiculopathy and noted no complaint of radicular symptoms in the upper limbs, and
-      in April 2022 Dr Gibson found no evidence of radiculopathy from the lumbar or cervical spine.
The insurer emphasised its previous submissions in relation to the opinion of Dr Ghahreman.
The insurer noted that Dr Mathew Giblin, orthopaedic surgeon, provided a report dated 28 June 2023. This report was commissioned after the claimant had undergone lumbar surgery in May 2022. The insurer submitted that the decision of Mandoukos v Allianz Australia Insurance Ltd[20] was authority for the proposition that “any finding of radiculopathy … which arises from the surgery is not evidence of a non-threshold injury”.[21]
[20] [2023] NSWSC 1023 (Mandoukos).
[21] Insurer’s supplementary submissions, p 2, par 7.
The insurer noted that Medical Assessor Assem found that the claimant did not meet the diagnostic criteria for radiculopathy but opined that the surgery itself could change the claimant’s threshold injury to a non-threshold injury. It submitted that this was inconsistent with the decision of Mandoukos.
The insurer disputed Dr Ghahreman’s opinion that the cervical spine injury was caused by the accident and reference its earlier submission that:
-      Dr Dowla opined in June 2018 that the MRI scan of the cervical spine showed multilevel cervical degenerative changes without neural compromise;
-      Professor Eftekhar examine the claimant in September 2018 and concluded that the facet arthropathy is with a main source of the claimant symptoms and neurosurgical intervention is not required. This opinion was repeated in subsequent reports:
-      the MRI scan of the cervical spine in May 2019 identified multilevel degenerative disc disease with no significant disc protrusion or nerve impingement, and
-      Drs Breit, Quain and Gibson concluded that any residual symptomatology was related to pre-existing degenerative changes and not due to the motor accident.
The insurer submitted that it “would be an error … to ‘prefer’ the reports the claimant relies on over the weight of general medical (and not just medico-legal) opinion.”

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

There were no pre-accident records suggesting any symptomatic condition. The clinical records of the general practitioner commence on 2 September 2017 and support the consistent history provided by the claimant of an absence of pre-accident symptoms.[22]
[22] Claimant’s bundle, pp 38-42.

Post-accident medical records

The police report noted that the claimant’s vehicle was travelling around 45kmph and was approximately 10m behind the other vehicle and he applied his brakes, failed to stop and collided with the rear of the vehicle “resulting in minor damage”.[23]
[23] Claimant’s bundle, p 65.
The claimant attended his GP on 21 May 2018 referring to the motor accident. The general practitioner recorded complaints of pain in the neck, upper back and knee.[24] On that day the claimant underwent X-rays to the cervical, thoracic and lumbar spine and right wrist. There were no fractures identified although the X-ray of the lumbar spine demonstrated a grade 1 anteroloisthesis of L5 on S1 due to bilateral L5 pars defect.[25]
[24] Claimant’s bundle, p 42.
[25] Claimant’s bundle, p 109.
A certificate of capacity dated 25 May 2018 diagnosed whiplash injury.[26] On 25 May 2018 the records of the GP referred to neck pain with radiculopathy and wrist pain.[27]
[26] Insurer’s bundle, p 63.
[27] Claimant’s bundle, p 42.
A claim form completed by the claimant and dated 29 May 2018 stated that the motor accident caused injuries to the neck and right wrist.[28]
[28] Insurer’s bundle, p 57.
On 4 June 2018 the GP recorded complaints of back pain radiating to the leg.[29]
[29] Claimant’s bundle, p 43.
The CT scan of the lumbar spine dated 5 June 2018 noted no recent fracture or dislocation with multilevel lumbar spine spondylitic changes including bilateral chronic pars defect with minimal 2mm anterolisthesis of L5 over S1.[30]
[30] Claimant’s bundle, p 110.
The MRI scan of the lumbar spine dated 13 June 2018 noted multilevel spondylosis, moderate left foraminal narrowing at L3/4, mild to moderate right foraminal narrowing at L3/4 and bilaterally at L4/5 and L5/S1.[31]
[31] Claimant’s bundle, p 112.
An ultrasound of the right wrist dated 21 June 2018 noted a joint space ganglion dorsal synovial thickening of the joint.[32]
[32] Claimant’s bundle, p 113.
Nerve conduction studies were undertaken by Dr Dowla, neurologist, on 27 June 2018.[33] The doctor opined that the upper limb studies showed no evidence of focal or generalised neuropathy, that the MRI scan of the lumbar spine showed no abnormality and the MRI scan of the cervical spine showed multilevel degenerative changes with disc arthrosis at the lower cervical level with narrowing of the cervical canal without neural compromise.
[33] Insurer’s bundle, p 69.
Dr Dowla opined that the motor accident caused “mechanical pain” and that the claimant should continue with intensive physiotherapy.
The lower limb studies dated 4 July 2018 were described by Dr Dowla as showing no evidence of focal generalised neuropathy or radiculopathy.[34]
[34] Insurer’s bundle, p 72.
Associate Professor Eftekhar, neurosurgeon, reviewed the claimant on 4 September 2018.[35] The doctor noted that the claimant experienced significant back and neck pain worse on the left side with no major radicular symptoms. On examination there was no objective motor deficits were upper motor neuron signs.
[35] Insurer’s bundle, p 73.
Associate Professor Eftekhar opined that the facet arthropathies are the main source of the symptoms and neurosurgical intervention was not required. The doctor recommended a trial of left sacroiliac joint and lower lumbar spine facet blocks.
A whole body bone scan dated 12 September 2018 showed mild degenerative arthropathy at C6/7 with no evidence of active facet arthropathy throughout the spine, no abnormality in the right wrist and other non-specific findings of no relevance.[36]
[36] Claimant’s bundle, p 114.
Associate Professor Eftekhar reviewed the claimant on 5 December 2018 and 28 February 2019 and confirmed his previous opinion.[37]
[37] Insurer’s bundle, pp 74-75.
The MRI scan of the lumbar spine dated 15 February 2019 showed multilevel spondylosis, moderate left foraminal narrowing at L3/4, mild to moderate right foraminal narrowing at L3/4 and bilaterally at the lower disc, no cauda equina compression and concluded that it was essentially similar to the previous study of 13 June 2018.[38]
[38] Claimant’s bundle, p 115.
On 17 May 2019 the GP referred the claimant for specialist advice noting “neck and back pain with radiculopathy”.[39]
[39] Claimant’s bundle, p 116.
Dr Corey Cunningham, physician reviewed the claimant on 31 May 2019.[40] The doctor recorded a history of low back and neck pain developing approximate 24 hours after the motor accident. The pain was described as radiating from the neck out to both shoulders and from the central lumbar spine into the posterior aspect of the left thigh. Lower and upper limb power and light touch sensation was normal with bilateral upper trap muscle spasm.
[40] Insurer’s bundle, p 81.
Dr Cunningham opined that the underlying degenerative changes were “flared up” in the motor accident with the current symptoms explained by chronic muscle spasm and chronic pain syndrome.
Reports from Dr Geoffrey Needham, physician, noted the claimant’s high level of “disease conviction and pain focusing”.[41]
[41] Insurer’s bundle, pp 84-86.
Dr Ali Ghahreman, neurosurgeon initially reviewed the claimant in July 2019.[42] The doctor noted a history of significant lower back and lower limb pain and axial cervical pain, upper limb pain on the left side as well as more distal right sided upper limb pain. Pain in the left lower limb was described as providing significant difficulty in terms of gait and mobility. There was normal power in the upper and lower extremity myotomes and no significant deficits upon examination of the reflexes. Sensory function was normal.
[42] Insurer’s bundle, p 87.
The doctor recommended trial injections involving the foramina as well as facet radiofrequency treatment and opined that the motor accident likely triggered inflammation and more acute disc pathology.
Dr Ghahreman repeated his diagnosis in a further report dated 18 September 2019.[43]
[43] Insurer’s bundle, p 88.
Dr Ghahreman provided a further report dated 19 November 2019.[44] Examination then revealed mild antalgic gait with a sensation of the left leg giving way, marked wasting and atrophy of quadriceps and absent knee-jerk on the left supporting a diagnosis of left L3 and L4 radiculopathy.
[44] Insurer’s bundle, p 89.
The doctor opined that the claimant suffered discal injuries at L3/4, L4/5 and L5/S1 with irritation of the L3 nerve root.
On 21 November 2019 Dr Ghahreman performed facet joint radiofrequency ablation and injections on the left side at L3/4, L4/5 and L5/S1 and transforaminal steroid injections at L3/4 and L4/5.[45]
[45] Claimant’s bundle, p 4.
On 22 January 2020 Dr Ghahreman noted that the claimant had responded well to a recent injection in the left lower limb pain which was resolving. The doctor repeated his diagnosis of a left L3 and L4 radiculopathy and otherwise recommended fusion of the unstable segment at L5/S1.[46]
[46] Insurer’s bundle, p 91.
A bone scan dated 10 February 2020 showed no acute inflammation, no localised discovertebral reaction and mild prominence of activity adjacent to L5/S1 disc space without localisation. No acute focus of facet arthropathy was demonstrated.[47]
[47] Insurer’s bundle, p 98.
On 21 February 2020 Dr Ghahreman noted that left leg pain had resolved following spinal injections although there was persistent pain in the lower back on the left side. The doctor recommended treatment of the pars defect at L5 and recommended and L5/S1 posterior lumber interbody fusion.[48]
[48] Insurer’s bundle, p 93.
On 23 June 2020 Dr Ghahreman expressed his dissatisfaction with the refusal to pay for the surgery noting that the claimant had pain attributable to the instability at L5/S1 and was experiencing pain arising from the L3/4 foraminal herniation which had previously responded to injection.
The doctor opined that the claimant required surgical fixation and fusion at L5/S1 with a possibility that the fixation and decompression extend to the L3/4 level.
On 4 August 2020 Dr Ghahreman opined that the cervical MRI scan showed severe discovertebral degeneration at C6/7 with marked annular tear and disruption of the C6/7 disc with radicular symptoms including radiation to the right-hand and associated paraesthesia. The doctor otherwise noted significant quadriceps wasting and atrophy involving the left lower limb.[49]
[49] Insurer’s bundle, p 97.
A referral from the GP dated 1 March 2021 for assessment for neck pain and radiculopathy noted the claimant was “getting worse”.[50] This referral was similarly worded in March 2022.[51]
[50] Claimant’s bundle, p 118.
[51] Claimant’s bundle, p 119.
On 8 March 2021 Dr Ghahreman noted that the claimant had marked aggravation of neck pain radiating to the right upper limb. The doctor noted there were no sensory changes but suspected the symptoms were radicular and sought approval for right sided foraminotomy at C3/4, C5/6 and C6/7.[52]
[52] Claimant’s bundle, p 22.

The claimant was reviewed by Associate Professor Mark Sheridan, neurosurgeon on 17 March 2021 for a second opinion.[53] The doctor opined that the imaging demonstrated disc protrusion in the neck with nerve compression consistent with neck and arm symptoms and in the lower back, particularly at the L5/S1 level, with nerve compression consistent with the symptoms.
[53] Claimant’s bundle, p 56.
On 11 April 2022 Dr Ghahreman again recommended a posterior lumber interbody fusion at L5/S1. The doctor also noted there was some disc extrusion at L3/4 and recommended repeat MRI scan.[54]
[54] Claimant’s bundle, p 25.
On 12 May 2022 Dr Ghahreman performed an internal fixation at L5/S1 with laminectomy and discectomy.[55]
[55] Claimant’s bundle, p 29.
On 13 February 2023 Dr Ghahreman noted that the claimant had made a reasonable recovery following surgery. Updated CT scan of spine showed solid fusion with alignment of the surgical site.[56]
[56] Claimant’s bundle, p 30.
The doctor noted that the claimant had neck pain and arm symptoms with significant foraminal compression caused by the motor accident. The claimant then advised he did not wish to proceed with further surgery.

Qualified opinions

Dr Mendelsohn

Dr Graeme Mendelsohn, general surgeon, was qualified by the claimant and provided a report dated 5 August 2019.[57] The doctor recorded a history of the development of pain in the wrist, back and knee developing two days after the motor accident.
[57] Insurer’s bundle, p 40.
Dr Mendelsohn stated that there was no radicular distribution of diminished sensation in the left arm and reflexes were symmetrical. Examination of the lower spine revealed tenderness from the second lumbar to the first sacral second segment with paraspinal spasm on the left side, reflexes were present and symmetrical in both lower limbs with a decrease in sensation affecting the lower limb in a non-radicular distribution. Straight leg raising was equivocally positive on both sides with a 1 cm reduction in girth of the left thigh and calf compared to the right side.
Dr Mendelsohn opined that the motor accident caused soft tissue injuries to the right wrist, neck and lumbar spine.

Dr Breit

Dr Robert Breit, orthopaedic surgeon, was qualified by the workers compensation insurer and provided a report dated 6 November 2019.[58]
[58] Insurer’s bundle, p 27.
The doctor’s examination noted tenderness in the cervical spine with gross restriction but not symmetrical loss. Examination of the lower limbs revealed no sciatic nerve root irritability, femoral stretch testing was negative. There was normal power, tone and reflexes but sensation was described as “problematic”. The doctor noted that the claimant initially described a loss of sensation in the lateral calf and great toe but then complained of other areas in the left leg. There was a 1 cm diminish girth in both the thigh and calf.
Dr Breit noted that there was gross pre-existing cervical and lumbar spondylosis at multiple sites and opined that the claimant sustained soft tissue injuries to the right wrist, cervical and lumbar spine.

Dr Quain

Dr Stephen Quain, orthopaedic surgeon, was qualified by the workers compensation insurer. In his first report dated 5 June 2020,[59] Dr Quain noted a history of the development of neck pain two days after the accident and the onset of back pain and left leg pain as far as the knee “some days later”.
[59] Insurer’s bundle, p 34.
There was no complaint of any radicular pain in the upper limbs with normal reflexes, no neurological abnormality.
Examination of the lower limbs noted mild restriction of straight leg raising on the left side, reflexes present and no evidence of any wasting of weakness.
Dr Quain opined that the claimant had moderate degenerative changes over multiple levels and did not recommend fusing the lumbosacral level where the radiating pain in the left thigh was coming from a slightly higher level.
In a further report dated 13 July 2020[60] Dr Quain opined that the claimant suffered from lumbar degenerative spondylosis and that the motor vehicle accident was not the main contributing factor to his current presentation.
[60] Insurer’s bundle, p 38.

Dr Gibson

Dr Margaret Gibson, occupational physician, was qualified by the insurer and provided a report dated 5 April 2022.[61]
[61] Insurer’s bundle, p 14.
The claimant reported chronic pain in the neck extending to the upper back and right arm, pain in the outer aspect of the upper arm and forearm and sometimes in “all the fingers”. The low back pain extended to the left posterior thigh, spread to both the anterior and posterior aspects of the left thigh and sometimes extended to the calf.
On examination the doctor noted no muscle wasting, normal power, sensation and reflexes in the upper limbs. Examination of the wrists revealed no abnormality.
Examination of the lower limbs showed normal reflexes, giving way weakness on power testing, left leg girth as 0.5cm less at thigh and calf, inconsistent sensory changes, some reduced sensation over the medial left thigh, lateral left calf and over the entire left foot. The doctor described these as “no radicular findings”.
Dr Gibson opined that the motor accident caused soft tissue injuries to the cervical spine, lumbar spine and right wrist.

Dr Giblin

Dr Matthew Giblin, orthopaedic surgeon, was qualified by the claimant and provided a report dated 28 June 2023.[62] On examination, the doctor noted altered sensation in the C6 distribution with normal reflexes and power limited by pain. Examination of the lumbar spine noted restriction of straight leg raising with no significant peripheral neurological signs. Dr Giblin opined there was radiculopathy due to reproducible symptoms down the arm associated paraesthesia and some numbness in the C6 distribution.
[62] Claimant’s bundle, p 57.

RE-EXAMINATION

The claimant was examined by Medical Assessor Dixon who provided the following report.
“This claimant was seen on 19 April 2024 in the presence of a Persian Interpreter in the Farsi language, Hassan Sagan.
Accident Details
This 54-year-old claimant was the driver of a truck when the brakes failed, and he collided with the rear of another vehicle. The claimant alleges that the brakes were defective. He sustained injuries to his neck, back and right wrist and was referred to the PIC for a medical assessment – threshold injury for cervical spine and lumbar spine.
On examination of 19 April 2024, he complained of pain and stiffness in his neck and low back pain and stiffness of his lumbar segment. After the subject motor vehicle accident, he also complained of pain in the dorsum of his right wrist.
It was noted that the claimant had posterior lumbar interbody fusion (PLIF) with segmental fixation by Dr Ali Ghahreman for pre-existing L5/S1 spondylolisthesis on 12 May 2022.
On examination at the PIC Suites on 19 April 2024 there was stiffness of his cervical spine with flexion decreased by one third and extension by one half. Lateral rotation to the right was decreased by one half and that to the left by one third. He had tenderness on lateral flexion decreased by one third bilaterally. There was tenderness of the right trapezius muscle which was in spasm today and of the right supraclavicular brachial plexus. His brachial plexus stretch test was positive. His foraminal compression test was positive. There was tenderness of the lower cervical facet joints, more marked on the right. There was no neurological deficit in either upper extremity. His thenar power and intrinsic power were grade 5 out of 5 bilaterally and there was mild weakness of grip strength of both hands grade 4 plus out of 5. There was no significant wasting in either upper extremity or objective sensory changes. His reflexes were symmetrical.
He had symmetrical range of motion of both wrists with dorsi flexion 60 degrees, palmar flexion 50 degrees, radial deviation 20 degrees and ulnar deviation 30 degrees with tenderness of the dorsum of his right wrist.
In the lumbar spine flexion was decreased by one third and pain on back extension decreased by one half and lateral flexion decreased by one third bilaterally and he had tenderness of the lumbosacral facet joint region bilaterally and in the left upper buttock. The claimant reported pain was radiating to the left buttock and to the upper thigh today. His straight leg raise was 60 degrees bilaterally and associated with low back pain. There was no neurological deficit in either lower extremity. His power was grade 5 out of 5 and there was no objective sensory loss in a radicular distribution. There was 1cm of wasting of his right thigh and .5cm wasting of the right leg below the knee. His gait was slow, and he was unable to toe and heel walk because of recent onset of pain in his left knee, for which he was wearing a knee guard.
Investigations
His most recent MRI on 31 January 2024 showed bilateral pedicle fixation at L5/S1 with interbody graft at L5/S1 with associated decompression of L5 nerve root with some residual scarring of the soft tissues. There was minimal wedging of T11-1 measuring no more than 5% vertebral body height. The disc spaces were preserved. There were no annular tears. Bilateral pars defects were noted at L5. At L3/4 there were small to moderate disc protrusion eccentric to the left, the facet joints were normal and there was mild spinal and foraminal stenosis with minimal contact with the L4 nerve roots. At L4/5 there was mild angular deformity but no canal stenosis and mild bilateral foraminal stenosis with possible contact of the nerve roots but no perineural fibrosis. At L5/S1 there was partial effusion of the facet joints without significant degenerative change and residual and very mild foraminal stenosis. There were no significant post-operative complications.
In summary this claimant was involved in a motor vehicle accident sustaining injuries to his neck and his lower back in the subject motor vehicle accident.
His diagnoses are:
1.Whiplash injury to his neck with post traumatic dysmetria with right shoulder brachialgia with trapezial muscle pain and a positive brachial plexus stretch test and spasm and mild compression test without radiculopathy in the upper limbs with aggravation of C6/7 spondylosis which is ongoing and did not settle with facet joint injections;
2.Post traumatic stiffness of the lumbar spine where he has had aggravation of L5/S1 spondylolisthesis with previously asymptomatic bilateral pars defects with mild vertebral wedging at T11 to L1 with less than 5% vertebral body height and L3/4 disc protrusion. He has residual radicular complaint with right buttock and upper thigh sciatica. There is no radiculopathy.
Old MRI of the cervical spine on 30 August 2019 showed a C4/5 small posterocentral disc protrusion with mild indentation of the anterior aspect of the thecal sac with a moderate sized C6/7 posterior disc osteophyte complex indenting the anterior thecal sac.
Because of the clinical presentation of his lumbar spine, where he has residual dysmetria and radicular complaint with a post traumatic L3/4 disc protrusion, this is a non-threshold injury.
The injury to the right wrist was a wrist sprain where the ultrasound on 22 May 2018 showed a ganglion arising from the dorsal band of the scapholunate ligament which corresponds to the site of the claimant’s tenderness today. This is a threshold injury.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or not threshold injuries as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[63] and Insurance Australia Ltd v Marsh.[64]
[63] [2021] NSWCA 287 at [40], [41] and [45].
[64] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[65] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[65] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[66] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[67]
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[66] [2022] NSWPICMP 6 at [44]-[62].
[67] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel adopts the report of Medical Assessor Dixon and adds the following reasons.
The insurer suggested that there was a delay in onset of symptoms of five days. The fact that the claimant attended his GP five days after the motor accident does not mean that symptoms commenced at that time. Logically symptoms commence prior to an attendance and arrangements are then made for an appointment and attendance with the medical practitioner.
The insurer otherwise submitted that the claimant had underlying degenerative changes and that the scans indicated no traumatic pathology. Whilst we agree that the claimant had multilevel spondylosis in the cervical and lumbar spines, this does not mean that the motor accident did not aggravate the underlying degenerative pathology. The fact that the claimant had significant underlying degenerative pathology meant that he was more prone to aggravation caused by motor accident by reason of the pre-existing pathology.
The fact that the claimant had a significant underlying degenerative condition does not preclude the conclusion that the condition can be rendered symptomatic and require treatment. That type of scenario was discussed by Brereton JA in Lederer v Insurance Australia Ltd.[68] Further, the conclusion by some doctors that the condition should have resolved in certain number of months is of limited assistance where the claimant was asymptomatic prior to the motor accident, and then complained of continuing symptoms. The statement that the effects should have resulted does not answer the question whether it did resolve when the histories provided to these doctors are inconsistent with their conclusion that there was a resolution.
[68] [2022] NSWSC 322.

Cervical spine injury

We accept that the claimant sustained an injury to the cervical spine evidenced by the contemporaneous complaints, the nature of the motor accident and the claimant’s history of an absence of pre-accident symptoms. The nature of the motor accident was likely to have caused a whiplash injury to the cervical spine which explained the contemporaneous complaints of neck pain.
The recorded histories show an absence of pre accident cervical spine problems.
The X-ray dated 21 May 2018 showed disc osteophyte complexes in the lower cervical spine.[69] The bone scan showed mild degenerative arthropathy at the C6/7 discovertebral joint.[70]
[69] Claimant’s bundle, p 109.
[70] Claimant’s bundle, p 114.
Dr Dowla reported the MRI scan of the cervical spine showed multilevel degenerative changes with unco-disc arthrosis at the lower cervical level with narrowing of the cervical canal without neural compromise. The nerve conduction studies showed no evidence of focal or generalised neuropathy.[71] However, nerve conduction studies are not conclusive evidence of either the presence or absence of radiculopathy.
[71] Insurer’s bundle, p 70.
It is medically plausible and likely given the nature of the symptoms that the motor accident aggravated the pre-existing degenerative changes in the cervical spine.
We agree with the insurer’s submissions that the claimant has not established two objective signs of radiculopathy pursuant to the Guidelines in respect of any injury to the cervical spine. Pain is not a symptom of radiculopathy as defined in the Guidelines. However, pain, correctly identified to a dermatome, is evidence supporting injury to a nerve root.
Accordingly, we are not satisfied that the claimant has discharged the onus of proof in respect of whether cervical spine injury constituted a non-threshold injury.

Low back injury

L3/4

We agree with the claimant’s submission that the motor accident caused disc injury at L3/4 causing radiculopathy.
First, the scan evidence shows significant disc pathology at the L3/4 level which probably irritated that disc.
The CT scan of the lumbar spine dated 5 June 2018 showed moderate broad-based disc bulge at L3/4 with moderate left sided neural exit foraminal narrowing which could potentially cause irritation on that nerve root.[72]
[72] Claimant’s bundle, p 110.
The MRI scan of the lumbar spine dated 13 June 2018 showed broad based disc protrusion at L3/4 with bilateral foraminal narrowing.[73]
[73] Claimant’s bundle, p 112.
The MRI scan of the lumbar spine dated 15 February 2019 showed bilateral foraminal narrowing at L3/4.[74]
[74] Claimant’s bundle, p 115.
Secondly, we accept the claimant’s evidence of an absence of low back symptoms prior to the motor accident. This conclusion is based on the claimant’s consistent histories and the absence of any evidence to the contrary.[75]
[75] The pre-accident clinical notes identify shoulder and left knee pain (Claimant’s bundle, p 40).
Thirdly, we accept that it is medically plausible that the nature of the motor accident could cause discal injury to that level, particularly as there was undoubted degenerative pathology in the lumbar spine. The underlying pathology meant that the claimant was more susceptible to injury, and if injured, the effects would likely be worse.
Fourthly, the onset of low back symptoms commenced with no other identified temporal cause, and accordingly, it is probable that the motor accident caused the onset of the low back symptoms. There was some delay in onset although it was not significant and within an acceptable period. The claimant underwent an X-ray to various body parts including the lumbar spine on 21 May 2018[76] and radicular pain from the back is mentioned in the clinical note on 4 June 2018.[77]
[76] Claimant’s bundle, p 109.
[77] Claimant’s bundle, p 43.
We reject the insurer’s submission to the extent that it submitted otherwise.
Fifthly, there are various references in the medical opinions of radicular symptoms arising from the L3/4 disc. That evidence supports our conclusion that there was trauma to the L3/4 disc caused by the motor accident.
In that respect the claimant has relied on the opinions and findings of Dr Ghahreman.
The Panel accepts those findings because they are consistent with other evidence and should not be brushed aside as the insurer submitted. Those findings are consistent with the findings of Medical Assessor Dixon of “pain radiating to the left buttock and left upper thigh”, that is symptoms in the L3/4 distribution.
Those finding are also consistent with Dr Gibson’s findings of reduced sensation over the medial left thigh. We note that Dr Gibson described “no radicular findings”. However, the description of part of the sensory loss was at the L3/4 level.
Further, Dr Quain recommended against fusing the lumber sacral level as he opined that the back pain “was coming from a slightly higher level radiating into the left thigh”. Whilst this is not a description of radiculopathy, it is a description of symptoms coming from the L3/4 disc.
On 19 November 2019 Dr Ghahreman found “marked wasting and atrophy of quadriceps and absent knee jerk on the left supported the diagnosis of L3 and L4 radiculopathy which is in keeping with the pattern of pain and the disc injuries at L3/4 and L4/5.”[78]
[78] Insurer’s bundle, p 89.
Atrophy is defined in Table 6.8 of the Guidelines as:[79]
“Atrophy is measured with a tape measure at identical levels on both limbs. For reasons of reproducibility, the difference in circumference should be 2 cm or greater in the thigh and 1 cm or greater in the arm, forearm or calf. The medical assessor can address asymmetry due to extremity dominance in the report. Measurements should be recorded to the nearest 0.5 cm. The atrophy should be clinically explicable in terms of the relevant nerve root affected.”
[79] Guidelines, p 106.

The Guidelines do not state that the differences in circumference “must be” greater than 2cm but that the difference “should be” greater. The insurer’s submitted:[80]
“Quadricep muscle wasting would not confirm to the L3/4 nerve root, and Dr Ghahreman did not quantify the muscle wasting, and so there is no evidence to suggest this wasting was 2cm or greater when compared to the right leg. This accordingly cannot be considered evidence of radiculopathy with regards to clause 5.8 of the Guidelines.”
[80] Insurer’s bundle, p 5.
We do not accept the insurer’s unexplained submission that “quadricep muscle wasting would not confirm to the L3/4 nerve root”. It is the medical expertise of the Panel that quadricep muscle wasting conforms to the L3/4 nerve root particularly in light of the absent knee jerk. It is implicit in the treating neurosurgeon’s report that he is of the same view.
We accept the insurer’s submission that wasting could be associated with knee pain and restriction of movement and there is pre-accident reference to these matters. However, the reference to knee pain prior to the motor accident is not repeated in the various reports post-dating the motor accident, indicating that this was not an ongoing issue.
The extent of the wasting was not measured. The insurer’s submission that Dr Ghahreman’s conclusion on wasting “cannot be considered evidence of radiculopathy” is inconsistent with the wording of the Guidelines. The insurer’s submission has treated the word “should” in the applicable Guideline as “must”. We do not endorse the insurer’s submission because the ordinary meaning of “should” does not mean that a precise measurement is mandatory.
Whilst precise measurements would satisfy the Guidelines, the issue is whether Dr Ghahreman’s observation is sufficient to satisfy the meaning of atrophy.
The medical report is a treating report and not written for the purpose of expressing a medico-legal opinion.[81] It is not expected that a treating report will precisely describe symptoms consistent with the Guidelines when that it is not the intended purpose. In keeping with the fact that the treating neurosurgeon did not expressly record a measurement of the extent of the wasting, it was described by the doctor as “marked wasting and atrophy of quadriceps”.
[81] See the discussion in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [93] per Beazley JA (as her Honour then was), Giles and Tobias JJA agreeing, referencing ASIC v Rich [2005] NSWCA 152 at [13].
In our view that statement, which we accept, is a sufficient record to establish atrophy within the meaning of the Guidelines in the L3/4 nerve root.
We earlier noted the finding on absent knee-jerk by Dr Ghahreman. We accept that opinion noting that the doctor appropriately treated the symptoms with injections which provided some resolution of these symptoms. That partial resolution would explain why subsequent doctors did not observe those symptoms.
The claimant referred to Dr Ghahreman’s opinion in his report dated 23 June 2020 that there was a herniation at the L3/4 level.[82] The insurer’s further submissions in reply were that any ongoing symptoms were due to the pre-existing degenerative condition relying on opinions expressed by Drs Breit, Quain and Gibson.
[82] Claimant’s bundle, p 5, par 40.
We accept that the claimant had an underlying degenerative condition in the spine. For the reasons expressed earlier, we have explained why we have accepted that that the symptoms, at least in the L3/4 distribution, were caused by the motor accident. Satisfaction of the test of causation, set out earlier, does not require that the current symptoms be caused solely by either the pre-existing condition or the motor accident. The test of causation expressed by Dr Quain is plainly incorrect.[83]
[83] See [136] herein.
We note that a disc protrusion occurs where the nucleus pulposus has protruded through the annulus fibrosus. The annulus fibrosus is the outer portion of the intravertebral disc that surrounds the nucleus pulposus and is composed of layers of fibro cartilage and ligament fibres.
The case that the disc protrusion at L3/4 was, of itself, a non-threshold injury was not clearly articulated by the claimant. However, we observe that our findings that the motor accident aggravated the degenerative disc at that level involving a further protrusion involving a partial tear of cartilage and ligament would result in the conclusion that this was a non-threshold injury.
We accept that our conclusion is different from some of the views expressed in the matter noting that we do not choose between competing medical opinions but our required to form our own decision.
However, we provide some reasons to the extent that we are required to respond to opinions provided by other medical practitioners.
We note that radiculopathy is not always present and, depending on the extent of the protrusion, may be dependent on swelling at the relevant level. We also note that the injections undertaken by Dr Ghahreman in late 2019 significantly improved the reported symptoms at the L3/4 level.
The insurer referenced the opinion of Associate Professor Eftekhar who undertook left sacroiliac joint and block injections because he was of the view that there was facet arthropathies. The doctor noted that those injections did not produce the response he expected.[84] Ultimately, the doctor opined that the problems were due to “degenerative changes and facet arthropathy” and did not recommend surgical intervention.[85]
[84] Insurer’s bundle, p 74.
[85] Insurer’s bundle, p 75.
We have earlier noted that opinions based on resolution of symptoms within certain months does not address the circumstances of this matter.
Medical Assessor Dixon identified ongoing symptoms from the L3/4 disc, although not sufficient to constitute radiculopathy as defined. Based partly on those examination findings, and by reference to the history analysed above, we are satisfied that the claimant suffered injury to the L3/4 disc causing the symptoms identified by Medical Assessor Dixon and Dr Ghahreman and supported by observations of other practitioners. We are satisfied that in late 2019, the claimant had two signs of radiculopathy in the L3/4 distribution (atrophy and absent left knee jerk) caused by the motor accident.

L5/S1

The claimant otherwise submitted that, by reason of the spinal surgery to the lumbar spine, the injury is non-threshold. Whilst it is self-evident that that surgery would have involved the cutting of tissue, it is unnecessary to determine whether the surgery meant that the injury is classified as a non-threshold injury.
The parties made submissions prior to the determination of the Court of Appeal in Mandoukos v Allianz Australia Insurance Ltd.[86] Given the Panel’s findings that the injury to the L3/4 disc constituted a non-threshold injury it was unnecessary to seek further submissions on the alternative argument.
[86] [2024] NSWCA 71.
However, to the extent that it was argued, we accept that the claimant had a significant asymptomatic pars defect at L5/S1 which was exacerbated by the motor accident evidenced by the onset of symptoms. The medical evidence shows a continuity of symptoms in the lower lumbar spine which, on the treating neurosurgeon’s opinion, warranted surgery at that level give that it was fixation of an unstable segment.
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[87] We accept that fusing the L5/S1 level was appropriate medical treatment to stabilise the segment and reduce the pain from the pars defect.
[87] [2018] NSWSC 1710 (Phillips) at [29].
The Panel’s request for scans to identify trauma to the L5/S1 pars defect did not proceed given the absence of a proper response by the claimant.
In Mandoukos, Stern JA stated:[88]
“In any event, even on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act (a question which, as set out at [54] above, it is unnecessary and inappropriate for this Court to determine) my provisional view is that that would be a ‘different’ injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos’ symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.”
[88] Mandoukos at [99], Leeming and Kirk JJA agreeing.
Her Honour earlier noted that the ordinary meaning of injury in the context of workers compensation legislation was “some definite or distinct physiological change” or “physiological disturbance” citing Military Rehabilitation and Compensation Commission v May.[89] In that respect noting the different statutory context, Her Honour noted that the understanding of the word “injury” provided guidance as to the ordinary meaning of “personal or bodily injury” in s 1.4 of the MAI Act.
[89] [2016] HCA 19 at [45] and [75].
In addition to the passages in May referenced by Stern JA in Mandoukos, we also note that the plurality in May observed that “suddenness” is not necessary to establish an injury.[90]
[90] May at [47].
The surgery undertaken at the L5/S1 level involved screws being inserted into bone at those levels and stabilising rods attached between the screws. While this clearly involves iatrogenic injury to bone, and not soft tissue injury, we are not relying on this to determine whether the injury to the lumbar spine was threshold or non-threshold.
We otherwise question the insurer’s submission cited at paragraph 82 herein. We could not find support for that submission in the first instance decision of Mandoukos.
As we earlier noted, Part 1, cl 4 of the Regulations defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”. The clause notes that the injury may manifest in signs which could include radiculopathy. In that sense, radiculopathy is not the injury but the consequences of the injury to the specific nerve root caused by the motor accident. The insurer’s submission that radiculopathy occurring subsequently, and following surgery is not considered, is inconsistent with the ordinary meaning of “manifests” in clause 4 of the Regulations.
The insurer referred to the first instant decision of Mandoukas as setting a precedent as rejecting the proposition that surgery transformed the injury into one classified as non-threshold. His Honour rejected the proposition that surgery “necessarily” meant that the injury was transformed into a non-minor injury and stated that whether this occurred in each case was a “question of fact”.[91] His Honour did not ultimately decide that issue as that case was not advanced before the original Medical Assessor.
[91] Mandoukos [2023] NSWSC 1023 at [110].
As previously noted, we have not determined this issue as it is not essential to the determination of the medical dispute.

CONCLUSION

For these reasons the Panel also concludes, albeit for different reasons, the claimant sustained a non-threshold injury, that is injury to the L3/4 disc causing radiculopathy. Whilst we have reached the same conclusion as the original Medical Assessor, we have revoked the medical assessment certificate and issued a new Medical Assessment Certificate attached at the commencement of these Reasons.

[2024] NSWPICMP 279

7 May 2024