QBE Insurance (Australia) Limited v Harris
[2025] NSWPICMP 21
•9 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Harris [2025] NSWPICMP 21 |
CLAIMANT: | Melissa Harris |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Nolan |
MEDICAL ASSESSOR: | Lahz |
MEDICAL ASSESSOR: | Couch |
DATE OF DECISION: | 9 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of injuries; claimant involved in a motor vehicle collision resulting in a mild traumatic brain injury, soft tissue injury to the cervical spine, and a subsequent fall causing a fractured right big toe; mild traumatic brain injury (TBI) resolved within three months post-accident; not a threshold injury; cervical spine soft tissue injury assessed as cervicothoracic DRE Category II, resulting in 5% whole person impairment (WPI); right big toe fracture causally linked to the motor accident under principles of causation and classified as a non-threshold injury due to bony fracture; WPI assessed at 1% for loss of interphalangeal joint flexion; Held – injuries caused by the motor accident resulted in a combined 6% WPI; cervical spine injury classified as a threshold injury; toe fracture classified as a non-threshold injury; Medical Assessor’s findings partially revised. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 WHETHER THE INJURY CAUSED BY THE MOTOR ACCIDENT IS A THRESHOLD INJURY FOR THE PURPOSES OF THE ACT WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% 1. The Review Panel revokes the Certificate of Medical Assessor Ian Cameron dated · head – mild traumatic brain injury, and · right big toe – fracture of the phalanx. 2. The following injury caused by the motor accident is a threshold injury for the purpose of the Act: · cervical spine – soft tissue injury. 3. The following injuries caused by the motor accident give rise to a permanent impairment that is not greater than 10% (6%): · head – mild traumatic brain injury; · cervical spine – soft tissue injury, and · right big toe – fracture of the phalanx. |
STATEMENT OF REASONS
INTRODUCTION
Melissa Harris, the claimant, was involved in a motor vehicle accident that occurred on
20 March 2019 (the motor accident). The motor accident occurred at the corner of Canterbury Road and Gould Street, Canterbury, when another vehicle made an illegal right-hand turn across her lane, causing a collision. The claimant was the driver of her vehicle and described immediate confusion and a lack of awareness for approximately an hour and a half. She was transported by ambulance to Canterbury Hospital, where she was discharged later the same day with a diagnosis of whiplash and concussion.
In the days following the accident, the claimant experienced cognitive fatigue, tinnitus, noise sensitivity, headaches, and visual difficulties. She also reported challenges with tasks requiring concentration, such as reading, driving, and using a computer.
On 15 May 2019, the claimant experienced a fall at home while descending stairs, resulting in a fracture of the distal phalanx of her right big toe. The fall was attributed to her balance issues and cognitive fatigue, both of which she linked to the motor accident.
The claimant contends her injuries are not threshold injuries, citing post-concussion syndrome, cognitive fatigue, and memory loss, as well as the toe fracture caused by a fall linked to motor accident-related balance issues, and resulted in permanent impairments that continued to significantly affect her daily life and ability to work.
The insurer by decision on internal review dated 19 May 2021 determined that the injuries sustained by the claimant were classified as “minor injuries” under the Motor Accident Injuries Act 2017 (the Act) concluding that the claimant’s head and neck injuries met the statutory definition of soft tissue injuries. It determined that the toe fracture was not causally linked to the motor accident under the Act, and the claimant’s psychological symptoms, while significant, did not meet the DSM-5 criteria for a recognised psychiatric illness, placing them within the minor injury category.
By an Application for Personal Injury Benefits, dated 10 December 2020, the claimant referred, relevantly, the following injuries to the Personal Injury Commission (Commission) for assessment:
(a) brain - mild traumatic brain injury; post-traumatic concussion; cervicomedullary injury; post-traumatic migraine;
(b) cervical spine - high cervical cord injury; cervical cord lesion, and
(c) toes - fracture base of distal phalanx of right big toe.
The medical assessment matters referred to the Commission for determination, in respect of these injuries are:
(a) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act: Schedule 2, cl 2(e) of the Act, and
(b) the degree of permanent impairment hat has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than 10%): Schedule 2, s 2(a) of the Act.
THRESHOLD INJURIES
Whether an individual’s injuries are classified as threshold or non-threshold under the Act significantly affects entitlement to statutory benefits and damages. Statutory benefits for loss of earnings and treatment expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries.” Furthermore, a claimant cannot recover damages under the Act if their “only injuries resulting from the motor accident were threshold injuries.”
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented to on 28 November 2022, with various amendments coming into force on 1 April 2023. Following these amendments, the terminology “minor injury” was replaced with “threshold injury”, and “minor injuries” became “threshold injuries”. Crucially, the substantive definition of what constitutes a minor injury remains unchanged and continues to apply to threshold injuries.
Any reference within these reasons to “minor injury” is to be understood as “threshold injury.” Similarly, references to the term “minor” when describing an injury allegedly caused by the motor accident should be interpreted as “threshold”.
A threshold injury is defined under s 1.6 of the Act as including a “soft tissue injury” or “a psychological or psychiatric injury that is not a recognised psychiatric illness”. Sub-section 1.6(2) of the Act provides that a “soft tissue injury” means:
“[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.”
The Act also allows for regulations to specify which injuries are included or excluded as threshold injuries. Clause 4 of Part 1 of the Motor Accident Injuries Regulation 2017 (MAI Regulation) explicitly includes within the definition of threshold injury “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy).”
Part 5 of the Motor Accidents Guidelines (the Guidelines), promulgated under s 10.2 of the Act, provides the procedural framework for determining whether an injury caused by a motor accident qualifies as a threshold injury. Version 9.1 of the Guidelines, effective from
1 April 2023, applies to motor accidents occurring on or after 1 December 2017.The Guidelines prescribe the following process for determining threshold injuries:
(a) The assessment must determine whether the injury is a soft tissue injury, or a threshold psychological or psychiatric injury caused by the motor accident.
(b) Insurers must not require diagnostic imaging solely to determine if an injury qualifies as a threshold injury, as imaging is not considered necessary for this purpose.
(c) A diagnosis for a threshold injury decision must be based on a clinical assessment by a medical practitioner or suitably qualified person independent of the insurer.
(d) The assessment must include evidence derived from:
(i)a comprehensive and accurate medical history, including pre-accident conditions;
(ii)a review of all relevant records available at the time of the assessment;
(iii)a detailed account of the injured person’s symptoms;
(iv)a thorough physical and/or psychological examination, and
(v)Diagnostic tests provided these correspond with symptoms and findings on examination.
For injuries to the neck and spine, the Guidelines at cls 5.7–5.9, further address the necessity of assessing radiculopathy:
(a) Determining whether an injury to the neck or spine qualifies as a soft tissue injury requires an assessment of radiculopathy.
(b) Radiculopathy is defined as dysfunction of a spinal nerve root where two or more clinical signs are present, including:
(i)loss or asymmetry of reflexes;
(ii)positive sciatic nerve root tension signs;
(iii)muscle atrophy or decreased limb circumference;
(iv)anatomically localised muscle weakness, and
(v)reproducible sensory loss aligned with a spinal nerve root distribution.
(c) If neurological symptoms do not meet these criteria, the injury will be assessed as a threshold injury.
For traumatic brain injuries (TBI) the Guidelines provide specific criteria for assessing brain injuries, particularly those involving cognitive, emotional, and functional impairments. According to paragraph 6.164, a brain injury assessment requires evidence of a significant head impact, cerebral insult, or high-velocity motor vehicle accident, supported by medically verified abnormalities such as an initial post-injury Glasgow Coma Scale (GCS) score, medically verified post-traumatic amnesia, or brain imaging abnormalities.
Cognitive and mental status evaluation is addressed in paragraph 6.166 through the use of the Clinical Dementia Rating (CDR), a tool for assessing mental status and integrative functioning. Memory is treated as the primary category, with secondary categories like judgment, orientation, and personal care influencing the overall CDR score (paragraphs 6.167–6.168).
Emotional and behavioural disturbances caused by brain injuries are assessed under paragraph 6.170 using Table 3 of the Guides, which evaluates psychological impacts such as anxiety or depression. Paragraph 6.171 further addresses sleep and arousal disorders, which are common in cases of mild TBI, by providing criteria for assessing their functional and clinical impact. Additional impairments, such as visual disturbances or trigeminal nerve sensory issues, are evaluated through specialised assessments outlined in paragraphs 6.172–6.173.
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372; 100 MVR 232 at [35], Wright J addressed the issue of causation in determining whether an injury qualifies as a threshold injury. His Honour observed that while causation is not explicitly addressed in Part 5 of the Guidelines, it is dealt with in Part 6, which pertains to assessments of permanent impairment. Wright J concluded that the principles applicable to causation in Part 6 should also apply to determinations of threshold injuries.
Part 6 of the Guidelines defines causation as requiring both a medical determination and a non-medical informed judgment. Specifically, causation requires verifying:
(a) whether the alleged factor could have caused or contributed to the impairment (a medical determination), and
(b) whether the alleged factor did cause or contribute to the impairment (a non-medical determination).
Wright J further explained that causation does not require the motor accident to be the sole cause, provided it was a contributing cause that was more than negligible. This aligns with the broader approach articulated in the Guides and the principles applied in common law.
In AAI Ltd T/as GIO v McGiffen [2016] NSWCA 229; 77 MVR 348, the Court of Appeal stressed that causation requires considering whether the motor accident materially contributed to the injury, even if there were other contributing factors.
MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW
The claimant was previously assessed by Medical Assessor Ian Cameron (the Medical Assessor) on 17 October 2023, and a certificate was issued on 31 October 2023 (the MAC). The original assessment concluded that the claimant’s right toe injury was causally related to the motor accident and was not a “threshold injury” as defined under the Act.
The Medical Assessor reviewed the claimant’s medical records, imaging studies, and the documentation submitted as part of the assessment process. The ambulance records noted that airbags had not deployed, and the claimant exhibited symptoms such as dizziness and lethargy. Hospital discharge summaries further documented headaches, neck pain, and lethargy, while imaging studies revealed no significant abnormalities. Specialist evaluations, including those conducted by neurologists and physiotherapists, supported findings of soft tissue injuries, post-concussion syndrome, and whiplash-associated disorder.
The Medical Assessor documented that the claimant had been a healthy individual with no significant pre-existing conditions and had worked as a special education teacher primarily with deaf students. Post-accident, the claimant reported ongoing symptoms, including cognitive fatigue, dizziness, balance issues, and neck pain. The Medical Assessor found that symptoms were consistent with the diagnosed injuries and reflected the impact of the motor accident. The Medical Assessor considered the claimant’s fall, which resulted in a fracture of the claimant's right big toe’s distal phalanx was causally linked to balance difficulties associated with the primary accident-related injuries.
Upon examination, the claimant’s cervical spine exhibited moderately reduced range of motion (approximately 70% of normal) symmetrically in all planes, but there was no evidence of muscle spasm, guarding, or radicular symptoms. Reflexes and strength were normal, and no neurological deficits were observed. Examination of the lower extremities revealed restricted movement in the claimant’s right big toe but no instability or atrophy. These findings, along with the claimant’s gait and general physical condition, were consistent with the reported symptoms.
The Medical Assessor evaluated whether the injuries met the statutory definition of “threshold injuries” under the Act. He determined that the soft tissue injuries to the claimant’s head and cervical spine met the threshold injury criteria, as defined by the Act. However, the toe fracture, while causally linked to the motor accident due to balance issues, was considered not to be a “threshold” injury.
The Medical Assessor classified the claimant’s head and cervical spine injuries as threshold injuries but assigned them a 0% whole person impairment (WPI), indicating no lasting impairment. The claimant’s toe fracture, while causally linked to the accident, was deemed a non-threshold injury and similarly assessed at 0% WPI.
APPLICATION FOR REVIEW OF THE MEDICAL ASSESSMENT
The insurer filed an application under s 7.26 of the Act, seeking a review of the MAC. Specifically, the insurer claimed that the Medical Assessor failed to properly consider the issue of causation with respect to the claimant’s right toe injury and did not adequately explain how the claimant’s apparent balance difficulties or symptoms experienced post-accident could have been caused by the motor accident. The insurer asserted that while the claimant reportedly experienced dizziness, nausea, and lethargy immediately after the motor accident, the Medical Assessor did not provide any reasoning to support a conclusion that these symptoms persisted for the two months leading to the claimant’s fall and subsequent toe injury. The insurer emphasised the absence of clear evidence or explanation linking the balance difficulties to the motor accident itself.
The claimant opposed the insurer’s application.
After considering the insurer’s application and supporting documentation, as well as the claimant’s submissions, the President’s delegate concluded that there was reasonable cause to suspect the assessment was incorrect in a material respect. This conclusion was based on the failure of the Medical Assessor to engage with and substantively address the causation issue regarding the persistence of symptoms and their alleged connection to the claimant’s right toe injury.
The delegate referred the matter to the Review Panel, presently constituted (the Panel).
REVIEW
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (NSW) (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 new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Review Panel, presently constituted (the Panel), to assess.
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.
Rules 127 to 130 of the 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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a direction dated 16 January 2024, with which the parties complied, that the parties provide a joint bundle of all the material upon which they relied for consideration by the Panel on review.
The following is a summary of the relevant material contained in that joint bundle.
MATERIAL ON REVIEW
The Ambulance NSW report dated 20 March 2019 recorded that the claimant, was involved in a motor accident on 20 March 2019 in Canterbury, NSW. She was assessed by emergency services and subsequently transported to Canterbury Hospital for further evaluation. The ambulance crew noted that the patient was responsive but presented with symptoms indicative of post-accident trauma. These symptoms included headache, dizziness, lethargy, generalised weakness, and left neck pain described as generalised aching. The primary survey conducted by paramedics found no immediate life-threatening injuries, and the patient’s respiratory and cardiovascular systems were observed to be normal.
The claimant reported experiencing dizziness and lethargy approximately 15–60 minutes post-accident, which compelled her to pull over and rest. She was unable to recall how long she had slept following the incident, but upon waking, she contacted her employer to report that she was unwell. Although initially lethargic and disoriented, she later provided an account of the events leading to the accident, stating that she felt “just wanting to sleep” immediately afterward. These cognitive symptoms, coupled with the physical manifestations, strongly suggested post-traumatic effects requiring further medical investigation.
The claimant’s vital signs remained stable throughout the assessment. Her pulse ranged from 55–60 beats per minute, and her blood pressure varied between 120/90 and 130/90 mmHg. Her temperature was recorded as 36.6°C, and her respiratory rate was normal, with no signs of distress. Despite these stable metrics, the patient’s reported symptoms of dizziness and lethargy, alongside her inability to recall certain details of the incident, necessitated medical intervention. Paramedics administered 1000 mg of Paracetamol, which provided partial relief for her pain, and reassurance was provided to the patient throughout the treatment.
The claimant’s pre-existing medical history revealed mild asthma, which was managed with Ventolin. She reported no known allergies and was not taking any other medications at the time of the incident. The ambulance crew documented the absence of significant physical injuries, noting only minor seatbelt abrasions and no airbag deployment. The nature of her symptoms, however, was consistent with post-accident neurological and cognitive disturbances, which required careful evaluation.
The claimant was transported as a Category 1 emergency to Canterbury Hospital. Upon arrival, her primary complaints remained headache, dizziness, lethargy, and generalised weakness. The paramedics observed no change in her condition during transit. While her vital signs and physical assessments were largely unremarkable, the cognitive and neurological symptoms reported by the claimant were indicative of a potential traumatic injury arising from the motor vehicle accident.
On 20 March 2019, the claimant was assessed and discharged from the Emergency Department at Canterbury Hospital following the motor accident. She presented with symptoms of nausea, headache, and left-sided neck pain. The motor accident occurred earlier that day when a car reportedly pulled out in front of her vehicle while she was travelling at approximately 50–60 kmph. The claimant braked suddenly, wore her seatbelt, and was unsure if her head or neck had been struck. She was able to exit the vehicle and mobilise but subsequently reported feeling unwell.
Upon arrival at the hospital, the claimant underwent a thorough examination. Her physical findings were notable for mild tenderness on the left side of the neck. No bruising, seatbelt marks, or significant musculoskeletal injuries were identified. Her chest, abdomen, and limbs were non-tender, and she exhibited full range of motion in all limbs. Her airway was patent, her lungs were clear, and her neurological examination was unremarkable. The absence of overt neurological signs was significant in mitigating concerns of serious traumatic brain injury, though minor head injury and whiplash were not excluded.
The clinical impression recorded was that of a low-speed motor accident with possible whiplash and minor head injury. No airbag deployment occurred during the motor accident, and the claimant’s symptoms of headache and neck pain were determined to require conservative management. A blood alcohol sample was obtained, and a workers’ compensation certificate of capacity was issued.
The discharge plan provided clear instructions for follow-up care. The claimant was advised to consult her general practitioner to continue workers’ compensation arrangements, monitor symptoms, and arrange physiotherapy if necessary. Specific recommendations included the use of paracetamol and ibuprofen as directed, application of heat packs to the neck, and adherence to the provided head injury information sheet. The claimant was further instructed to return to the Emergency Department if she experienced worsening symptoms, including persistent headache, vomiting, vision changes, abdominal or chest pain, or difficulty breathing.
The medical records reflected no pre-existing conditions, allergies, or medications at the time of presentation. The claimant’s social history indicated that she lived alone, was a non-smoker, and did not consume alcohol.
On 23 March 2019, the claimant attended the Emergency Department at the Sutherland Hospital presenting with persistent symptoms of lethargy, significant concentration impairment, and headache. She reported no loss of consciousness at the time of the motor accident. It was documented that she had previously been assessed at Canterbury Hospital immediately following the motor accident.
The claimant subsequently consulted her general practitioner, Dr Kristen Ochs, who documented her ongoing symptoms, including severe fatigue, cognitive difficulties, memory impairment, and persistent headaches. Dr Ochs diagnosed the claimant with mild traumatic brain injury (TBI), characterised by 1.5 hours of anterograde amnesia, whiplash, and cognitive fatigue. In a handwritten report to the workers' compensation insurer, Dr Ochs noted that the injury was consistent with the rapid deceleration forces of the motor accident, which likely caused axonal damage within the brain. The claimant’s confused state and memory loss immediately following the accident further supported the diagnosis of mild TBI, despite normal findings on CT imaging.
During her assessment at the Sutherland Hospital, the claimant underwent a neurological examination, which revealed no significant abnormalities. A CT scan of the brain was performed, and the results showed no acute intracranial pathology. Her medical team concluded that her symptoms were consistent with a head injury, but there was no indication of severe trauma or long-term neurological damage at the time of discharge. Her overall condition at the time of discharge was stable, and she was deemed fit to be managed in an outpatient setting.
On 17 April 2019, correspondence was sent by the claimant’s worker’s compensation insurer to Dr Ochs regarding the claimant following her involvement in the motor accident. The purpose of the correspondence was to seek clarification on the diagnosis of “mild traumatic brain injury” in light of the claimant’s reported symptoms and CT scan findings, which showed no evidence of intracranial bleeding or direct impact with the dashboard or windscreen.
Dr Ochs opined that the claimant likely sustained a mild traumatic brain injury due to the rapid deceleration forces experienced during the motor accident. It was noted that such injuries can occur without external head trauma and are consistent with the acceleration-deceleration forces acting on the brain. The claimant’s immediate post-accident confusion and lethargy were deemed indicative of this condition. Based on these observations, Dr Ochs recommended a structured recovery approach, which included a focus on further medical evaluation and rehabilitation strategies.
Dr Ochs highlighted the need for a cautious return to activities involving significant cognitive demands, such as work and driving. It was advised that this should occur gradually, with careful monitoring for potential triggers that could exacerbate symptoms. Physiotherapy was recommended to address any associated whiplash symptoms, and a neurology review was suggested to provide further assessment of the claimant’s cognitive and neurological function. The claimant’s symptoms were to be closely monitored, and escalation to more intensive medical care was advised if there was no improvement or if her condition worsened.
In relation to the claimant’s prognosis and return-to-work (RTW) planning, Dr Ochs confirmed that no pre-existing medical conditions were affecting her recovery. A trial RTW plan was proposed to commence in early May, with significantly reduced hours and duties to allow for an assessment of the claimant’s cognitive endurance and overall capacity to resume her role. The ultimate goal was identified as a full return to the claimant’s pre-injury duties, provided this could be achieved without compromising her recovery.
Dr Ochs expressed optimism for a gradual but full recovery, though further input from a neurologist was anticipated to refine the long-term prognosis. A conservative and phased approach was deemed essential to ensure the claimant’s sustained improvement and to avoid any setbacks.
The claimant underwent an MRI of the brain on 30 April 2019. The imaging was conducted to evaluate potential abnormalities following the motor accident. The report confirmed that the brainstem and cerebellum were within normal limits, with no signal abnormalities identified on the diffusion-weighted sequence.
A small ovoid focus of increased signal intensity was noted in the left anterior to midfrontal periventricular white matter. Additionally, there were scant tiny foci of increased signal intensity in the hemispheric white matter bilaterally, which were peripherally distributed. These findings were minor and did not indicate any focal parenchymal lesion or abnormal parenchymal signal intensity.
The corpus callosum was reported as normal in both morphology and signal intensity. No parenchymal or extra-axial blood products were identified on the susceptibility-weighted sequence. The ventricular system and subarachnoid spaces were within normal limits, as was the cervicomedullary junction.
On 2 May 2019, the claimant was reviewed by Dr Adeniyi Borire, neurologist, approximately six weeks after the motor accident. The claimant presented with a chronic daily headache, slow mentation, generalised fatigue, and post-concussion symptoms. She reported experiencing difficulties with attention and concentration, which affected her ability to perform cognitively demanding tasks.
The claimant described the incident as occurring while she was driving at approximately 60 kmph when another car struck her vehicle, resulting in a whiplash neck injury. She denied any head strike or airbag deployment, and she remained conscious throughout the incident. The initial period following the motor accident was characterised by headaches, which she described as a sensation of pressure originating from the frontal region and progressing globally. These headaches were reported to occur two to three times daily, lasting for several hours, and were occasionally severe enough to disrupt her daily activities. They were accompanied by photophobia but not by nausea, vomiting, or other features suggestive of migraines or autonomic dysfunction.
The claimant also reported a marked decline in cognitive efficiency, including slow thinking processes and difficulty maintaining conversations or performing tasks requiring sustained focus. However, her speech, language, and executive functioning, including spatial perception and judgment, remained unaffected. There was no evidence of mood changes, personality alterations, or other significant psychological symptoms. Her medical history was otherwise unremarkable, and she reported no prior headaches, neurological disorders, or relevant conditions.
On examination, the claimant displayed no abnormalities in eye movements, cranial nerves, or motor or sensory function. Reflexes were normal, and there was no evidence of upper or lower limb weakness. Additionally, her gait and coordination were intact, and fundoscopy revealed no signs of raised intracranial pressure. A recent brain MRI was reviewed and noted as normal.
Dr Borire concluded that the claimant’s symptoms were consistent with post-concussion syndrome following the motor accident. He emphasised that her condition was likely to improve with time but noted the difficulty in prognostication given the severity and frequency of her symptoms. He recommended a conservative management plan, including craniocervical exercises, massage therapy, acupuncture, and maintaining a headache diary.
Dr Borire planned to review the claimant in four weeks to assess her progress and provide further recommendations. The report underscored the need for ongoing monitoring and supportive therapies to facilitate recovery while balancing the claimant’s gradual return to occupational and daily activities.
On 30 May 2019, the claimant attended a follow-up appointment with Dr Borire to review her progress with post-concussion syndrome. Dr Borire noted significant improvement in the claimant’s headaches since commencing Endep (amitriptyline) at a daily dose of 25 mg. While the claimant had not experienced a completely headache-free day, the intensity of her headaches had reduced substantially. She continued to report symptoms of fogginess, slow mentation, and poor concentration. Additionally, it was noted that the claimant recently experienced a fall resulting in a foot injury, though she could not recall the details of the incident.
Dr Borire recommended that the claimant continue her current dose of Endep and gradually increase it over the following weeks. The plan included increasing the dose to 37.5 mg daily after one week and then to 50 mg daily after an additional two weeks, provided the medication was well-tolerated. Dr Borire emphasised that recovery from post-concussion syndrome can vary significantly, with most patients achieving full recovery within six to twelve months. He also highlighted the importance of gradually returning to work, with potential adjustments to her schedule and activities as required.
Dr Borire expressed satisfaction with the claimant’s progress at this stage and planned to review her condition again in three months to reassess her recovery and provide further guidance.
On 15 May 2019, the claimant attended the Emergency Department at the Sutherland Hospital following a fall down three stairs while carrying her dog. She reported slipping and landing awkwardly on her right foot and both knees, resulting in significant pain, bruising, and swelling in the right big toe. She was unable to bear weight on the affected foot at the time of presentation. The claimant denied experiencing dizziness, light-headedness, or loss of consciousness preceding the fall and reported feeling well prior to the incident.
The claimant’s medical history was noted to include post-concussion syndrome for which she had been under the care of a neurologist and had recently commenced Endep (amitriptyline). She lived independently and was managing her activities of daily living without assistance.
On examination, the claimant presented with bruising and swelling over the dorsal aspect of the right big toe and mild tenderness over the medial aspect of the proximal phalanx. No obvious deformity or broken skin was noted, and the neurovascular status of the foot remained intact. Passive movement of the foot revealed some pain but preserved range of motion. The claimant was able to bear weight during the examination. Imaging, including X-rays reviewed with the surgical registrar, suggested a possible small fracture at the base of the distal phalanx, though no displacement or dislocation was identified. A formal radiology report was pending at the time of discharge.
The claimant was discharged with an orthopaedic shoe and provided with instructions to follow up with her general practitioner within one week for repeat imaging and further assessment. She was advised to monitor symptoms and seek medical attention if concerns arose. The use of analgesia as needed, and weight-bearing as tolerated were also recommended.
On 12 July 2019, the claimant was reviewed by Dr Peter Lam, orthopaedic foot and ankle surgeon, regarding an injury to her right big toe sustained eight weeks earlier after falling down stairs. An X-ray taken on 26 June 2019 revealed a slightly displaced dorsal avulsion fracture at the base of the distal phalanx of the right big toe. The claimant had been treated in a short walker boot since the injury.
Examination of the right big toe revealed moderate swelling, particularly over the interphalangeal (IP) joint area. Tenderness was noted over the dorsal base of the distal phalanx. The alignment of the big toe was normal, and the claimant was able to actively extend the big toe without extensor lag. There was no mallet deformity of the IP joint.
Dr Lam concluded that the claimant had sustained a dorsal avulsion of the extensor hallucis longus (EHL) attachment at the base of the distal phalanx. Despite the slightly displaced fracture, the EHL remained functional. Dr Lam advised the claimant to begin weaning out of the walker boot and to wear a pair of sneakers for at least one month to provide additional foot support. He recommended a gradual increase in walking as comfort allowed and advised avoiding activities that involved excessive flexion or extension of the big toe IP joint to prevent further displacement of the fracture.
On 12 July 2019, the claimant was reviewed by Dr Lam. An X-ray taken on 26 June 2019 revealed a slightly displaced dorsal avulsion fracture at the base of the distal phalanx of the right big toe. The claimant had been treated in a short walker boot since the injury. Examination of the right big toe revealed moderate swelling, particularly over the IP joint area. Tenderness was noted over the dorsal base of the distal phalanx. The alignment of the big toe was normal, and the claimant was able to actively extend the big toe without extensor lag. There was no mallet deformity of the IP joint.
Dr Lam concluded that the claimant had sustained a dorsal avulsion of the EHL attachment at the base of the distal phalanx. Despite the slightly displaced fracture, the EHL remained functional. Dr Lam advised the claimant to begin weaning out of the walker boot and to wear a pair of sneakers for at least one month to provide additional foot support. He recommended a gradual increase in walking as comfort allowed and advised avoiding activities that involved excessive flexion or extension of the big toe IP joint to prevent further displacement of the fracture.
On 30 August 2019, Dr Raymond Schwartz provided a second opinion regarding the claimant, who was presenting with post-traumatic headache syndrome accompanied by post-traumatic stress disorder following the motor accident. Dr Schwartz noted that Amitriptyline, which had been prescribed for the claimant, did not provide any significant benefit and was associated with side effects such as drowsiness. These side effects, according to Ms Harris, contributed to her experiencing a fall. Dr Schwartz referenced evidence published in the New England Journal of Medicine showing that Amitriptyline and Topiramate were no better than placebo in preventing migraines and were frequently accompanied by significant side effects. He acknowledged that these medications remain standard migraine prophylactic treatments in Australia, despite their limitations.
Dr Schwartz advocated for a more holistic approach to managing the claimant’s condition. He recommended referral to a clinical psychologist for mindfulness-based interventions and cognitive behavioural therapy (CBT). He also suggested evidence-based natural therapies, such as BioCeuticals Migraine Care or Blackmores REME-D, combined with simple analgesics for acute exacerbations. Dr Schwartz emphasised that the claimant should take these measures as soon as symptoms of a breakthrough headache appear.
Dr Schwartz further proposed exploring Botox treatment under the PREEMPT protocol, citing evidence that this approach has shown a 50% reduction in headache severity for patients with chronic migraines. He noted that physiotherapy sessions with Rob Watson and colleagues at the Sydney Headache Clinic had been particularly beneficial for the claimant and recommended that she continue this therapy.
In a report dated 11 November 2019, Dr Sean Flanagan, ENT Surgeon, reviewed the claimant. The claimant experienced significant ongoing headaches and the development of bilateral tinnitus, which was likely exacerbated during treatment with Endep as a neuromodulatory agent. The tinnitus worsened with higher doses of Endep but persisted even after the medication was weaned off. The tinnitus, in conjunction with her other symptoms, had significantly impacted her overall quality of life.
Dr Flanagan discussed the pathophysiology of tinnitus with Ms Harris, explaining that any form of inner ear damage or physiological/emotional stress could lead to the formation of alternate neural pathways, thereby worsening tinnitus symptoms. He noted that it is common for whiplash injuries to uncover or worsen underlying tinnitus. Ms Harris’ audiological evaluation showed high-frequency sensorineural hearing loss, which was identified as the likely source of her tinnitus.
Dr Flanagan supported Dr Raymond Schwartz’s holistic approach to non-pharmacologic management of Ms Harris’ headache syndrome. He recommended interventions such as sound therapy or masking to aid in the habituation and modulation of tinnitus. He further advised protection from significant noise exposure as part of long-term management.
An X-ray of the claimant’s right foot was conducted on 27 September 2019 to assess the progress of an undisplaced comminuted fracture at the base of the distal phalanx of the right big toe (1st digit).
On 1 October 2019, the claimant was reviewed at the Sydney Headache & Migraine Centre for post-concussion syndrome and whiplash following the motor accident. At the six-month mark since the motor accident, the claimant continued to experience persistent symptoms, including headaches, fatigue, and tiredness aggravated by activities such as computer work or extended conversations.
On assessment, the claimant reported ongoing headaches with an intensity of 5/10 after engaging in tasks such as computer work or one hour of conversation. Fatigue was identified as a limiting factor for both physical and mental activities. While she exhibited some positive responses to oculomotor exercises, there were residual balance deficits and cervical dysfunction, particularly on the right side.
The claimant continued attending treatment at the Sydney Headache & Migraine Centre for persistent post-concussion symptoms. On 16 March 2020, it was recorded that her main challenges included difficulties with concentration and focus, as well as noise sensitivity. Significant progress was noted in areas such as headaches, oculomotor testing, and physiological endurance, with swimming being a key addition to her rehabilitation program. The claimant attended swimming sessions three times per week, which helped improve her physical fitness and addressed limitations in other areas.
Specific improvements included increased neck range of motion by 2 cm into bilateral rotation and no symptoms during oculomotor testing using Visual Motion Sensitivity (VMS). However, neck hypomobility in the upper cervical spine (UCS) remained but showed signs of improvement. The claimant’s concentration abilities during tasks like computer work or focused discussion were limited to 60–90 minutes, and loud noise continued to exacerbate hyperacusis, ear pain, and headaches. Swimming was highlighted as a beneficial activity for improving her physiological fitness and alleviating some of these symptoms.
The claimant was referred for treatment at the Sydney Headache & Migraine Centre for post-concussion syndrome. In a report dated 7 April 2022, it was noted that at six months into her rehabilitation, the claimant reported persistent symptoms, including cognitive fatigue, general fatigue, headaches, and tinnitus, which occurred daily. While showing signs of improvement, her symptoms were still aggravated by tasks such as computer work and focused conversations.
During the assessment, the claimant continued to experience headaches rated at an intensity of 5/10 after engaging in tasks such as computer use or one hour of conversation. Fatigue limited her capacity for physical or mental activities beyond this timeframe. While her balance was progressing well, some neck dysfunction persisted, particularly on the right side.
The claimant underwent psychological assessment and treatment following the motor accident, the claimant reported post-concussion syndrome, whiplash, and ongoing symptoms including tinnitus, hyperacusis, headaches, cognitive fatigue, and sleep disturbances. These symptoms were exacerbated by cognitive demands and noise exposure, significantly impacting her quality of life.
In a report dated 6 December 2019, the claimant is reported to have expressed strong emotional distress over her tinnitus, describing feelings of frustration, anxiety, and an inability to relax. Her hyperacusis had also led to increased sensitivity to noise, resulting in pain, fatigue, and avoidance of social, work, and leisure activities. She attributed her sleep disturbances to her tinnitus and reported difficulties in resuming normal activities.
As part of her psychological intervention, the claimant completed six sessions under a Mental Health Care Plan from October to December 2019. Treatment included psycho-education on tinnitus and hyperacusis, sound enrichment for desensitisation, breathing exercises, meditation, cognitive behavioural therapy (CBT), and mindfulness. Improvement was observed in the claimant’s ability to manage tinnitus, with reduced awareness of symptoms during daily activities and improved energy levels. However, her hyperacusis remained a significant challenge, with heightened sensitivity to specific noises, such as children’s voices or loud environments, leading to emotional distress and avoidance behaviours.
The claimant was diagnosed with post-concussion syndrome and adjustment disorder with anxiety. Despite some improvement, ongoing therapy was recommended to address hyperacusis and further develop self-management skills. The psychologist proposed an additional four sessions to continue progress on desensitisation, strengthen coping strategies, and manage the psychological impact of her auditory symptoms.
The claimant was assessed by an optometrist on 14 September 2020 and diagnosed with post-trauma vision syndrome. She presented with a range of significant visual symptoms, including motion sensitivity, photophobia, poor blink reflex, dry eye, headaches, blurred vision, and memory difficulties. She also faced challenges with reading, writing, and convergence and accommodative insufficiency. Fatigue following extended screen use or computer work further compounded her difficulties.
Vestibular/Oculomotor Screening (VOMS) indicated severe dysfunction. The claimant experienced nausea, headaches, and brain fog during vertical and horizontal head movements and repeated convergence tests. These symptoms notably impacted her daily activities, including rendering her unable to drive safely.
Ms Melanie Woodhouse recommended a series of interventions to manage the claimant’s symptoms. These included prescribing spectacles for both distance and near/reading and implementing specific vision and movement exercises to address cerebellar and vestibular dysfunction. The claimant was advised to undertake daily sessions of 15 minutes of reading and listening to improve comprehension and focus. Additionally, topical lubricants and dry eye treatments were prescribed to manage her ocular surface issues.
Dr Rowena Mobbs, a neurologist at Harbour Neurology Group, in correspondence to
Dr Ochs dated 25 January 2021, provided an evaluation of the claimant following a concussion-related whiplash from the motor accident two years prior. The claimant had a history of two prior concussions: one at age 16 during a cycling accident and another in her 30s following a collision with a minibus. The motor accident was recorded as resulting in severe persistent symptoms, including focal and generalised headaches, photo- and phonophobia, mental clouding, difficulty concentrating, intermittent nausea, and heaviness. The claimant also reported challenges with word finding, reading, and maintaining focus. Pain relief was achieved to some degree with Panadol and Nurofen. Neurological examination and prior neuroimaging were unremarkable.
Dr Mobbs noted the claimant’s self-care through swimming and regular physiotherapy. She confirmed a diagnosis of post-traumatic severe migraine syndrome of chronic nature and recommended botulinum toxin therapy, which had already been administered during this consultation. Dr Mobbs suggested monitoring for any allergic reaction and proposed additional occipital nerve injections and repeat botulinum toxin therapy in three months, if necessary. If ineffective, CGRP antagonists would be considered.
The claimant underwent further botulinum toxin therapy with Dr Mobbs on 24 February 2021, for chronic migraine using the PREEMPT protocol, receiving 155 units distributed across multiple sites, including the procerus, corrugator, frontalis, temporalis, occipitalis, cervical paraspinal, and trapezius muscles.
By correspondence dated 31 March 2021, Dr Mobbs, reported that the claimant responded positively to botulinum toxin therapy but continued to experience persistent symptoms, including prodrome and triggers such as exercise. She reported tinnitus, ear pain, and a bruised sensation in her ears, raising the possibility of Ménière’s disease. Dr Mobbs recommended a review by Dr Brian Williams and suggested occipital nerve injection before the next botox therapy.
By correspondence dated 2 June 2021 Dr Mobbs stated that the claimant responded well to the initial botulinum toxin therapy for post-traumatic migraine, with a reduction in pain severity, frequency, and duration. However, she continued to experience non-headache symptoms, including clouding, fatigue, dizziness, and tinnitus. Dr Mobbs recommended further botox treatment as needed, perineural occipital injection as a next step, and Emgality as an option for symptom resolution. A second botox treatment was administered following the PREEMPT protocol.
By correspondence dated 19 July 2021 Dr Mobbs stated that the claimant continued to experience persistent headaches, clouding, and general unwellness alongside other migraine-related features. Dr Mobbs recommended approval for the use of Emgality to address these symptoms and provided a prescription. She noted that an occipital nerve injection was being reserved as a treatment option and planned to review the claimant’s condition in four weeks.
Dr Mobbs in a report to Dr Kristen Ochs dated 11 October 2021 outlined that the claimant had been undergoing treatment with Emgality, specifically for post-traumatic migraine, and had demonstrated a positive response to the therapy. Dr Mobbs recommended an extension of the treatment for an additional two months, with a follow-up review to assess progress. Further therapeutic options, including CGRP antagonist therapy or botulinum toxin therapy, were suggested as potential alternatives if required.
In correspondence to Dr Diana Merhi and dated 24 January 2022, Dr Mobbs reported that the claimant had continued to improve under the Emgality treatment regimen. The claimant reported successfully managing mild side effects, including constipation and weight gain, without additional intervention. A neurology review was proposed in four months to monitor progress and make any necessary adjustments to the treatment plan.
Dr Rowena Mobbs, in her report to Dr Diana Merhi dated 28 July 2022, discussed the claimant’s ongoing symptoms related to post-concussion syndrome. While the claimant’s post-traumatic migraine symptoms showed improvement with Emgality, the treatment led to intolerable constipation, necessitating its discontinuation. Alternative pharmacological therapies were deemed ineffective, though some positive effects were noted from physiotherapy and eye training exercises. She recommended that the claimant continue engaging with allied health interventions, such as physiotherapy, to facilitate further improvement over time. No follow-up appointments were scheduled.
Michael Butters, a physiotherapist at St Leonards Physiotherapy, in a letter dated
30 January 2021, detailed the claimant’s condition and treatment progress following the motor accident. The claimant’s symptoms included clamp-style headaches with sharp pain over the eyes, fatigue, cognitive difficulties such as poor concentration, neck stiffness, heightened sensitivity to light and noise, and overall reduced physical fitness. At the time of the report, the claimant was undergoing visual neuro-optometry rehabilitation and physiotherapy, with swimming incorporated into her treatment plan to improve mobility and strength. Stiffness in the upper cervical spine was identified as a significant contributing factor to the claimant’s headaches. Mr Butters recommended alternative manual therapy techniques and supervised exercise sessions aimed at enhancing strength and reducing symptoms. Weekly reviews were planned to monitor her progress.
Michael Butters provided an in-depth progress report dated 1 July 2021, summarising the claimant’s physiotherapy treatment following her motor vehicle accident. The claimant had attended 15 physiotherapy sessions focusing on manual therapy and a graded exercise programme targeting the upper cervical and thoracic spine.
The claimant’s primary symptoms persisted, including clamp-like headaches, fatigue, cognitive difficulties, and neck stiffness. Increased left shoulder and blade pain, suspected to be early-stage adhesive capsulitis, was also reported.
Dr Paul Teychenné, consultant neurologist, prepared a medico-legal report for the claimant following her consultation on 17 November 2021. He recorded that the claimant was involved in the motor accident on 20 March 2019, during which she sustained an acute flexion-extension injury to her neck while travelling at 60 kmph. Although no direct head strike occurred, the claimant exhibited immediate symptoms of spinal shock, including tremors, limb weakness, and confusion, as well as a one-and-a-half-hour period of amnesia. Within hours, she developed bifrontal headaches radiating to the occiput, neck pain rated 8/10, and symptoms consistent with post-concussion syndrome, which persisted for six weeks before slightly subsiding. A CT scan of the brain was unremarkable, but her injuries were attributed to the flexion-extension mechanism of the collision.
Subsequent months saw limited improvement. The claimant reported persistent cognitive difficulties, severe fatigue, tinnitus, photophobia, and noise sensitivity. Attempts to resume light work exacerbated her symptoms, leading to migraines and coordination deficits. She also experienced falls, including one resulting in a dorsal avulsion fracture of her right big toe, which was causally linked to the motor accident and her prescribed medications.
Neurological assessments revealed upper motor neuron weakness, intrinsic hand muscle dysfunction, sensory loss at T9/T10, and reflex abnormalities indicative of a high cervical cord lesion. These findings, combined with her ongoing symptoms, were consistent with cervicomedullary involvement and potential brainstem concussion. Dr Teychenné assessed the claimant’s WPI at 26%, comprising 16% for paroxysmal disorder (amnesia and episodic neurological dysfunction), 7% for upper extremity dysfunction (impaired fine motor control), and 5% for station and gait disorder (leg weakness and balance instability), in accordance with AMA Guidelines and SIRA criteria.
Ms Catherine Ebert, a clinical psychologist, conducted a psychological assessment of the claimant on 6 October 2022. The evaluation documented significant post-accident impairments, including chronic headaches, noise and light sensitivity, tinnitus, visual disturbances, and substantial fatigue. Neuropsychological testing revealed deficits in processing speed, working memory, and attention, with symptoms exacerbated by mental and physical fatigue. Psychological testing indicated mild depressive symptoms, though no significant anxiety or personality disruptions were observed.
Dr Sara Lucas in a report dated 20 October 2022 provided a neuropsychological assessment of the claimant, who described ongoing cognitive and physical difficulties following the motor accident on 20 March 2019. The claimant underwent testing both in person and via telehealth. She reported a period of “lost awareness” after the motor accident, along with headaches, tinnitus, noise sensitivity, neck pain, and profound fatigue that worsened with mental or physical activity. Although her brain imaging was normal, she had received extensive treatment for post-concussion symptoms, including physiotherapy, neuro-optometry, and medical interventions for migraines and tinnitus. Despite these measures, she had not returned to her previous full-time role, instead managing only part-time tutoring.
Neuropsychological testing indicated that her effort was within normal limits, ruling out exaggeration. Her pre-accident intellectual level was likely in the high end of the Average range. Current testing placed her overall intellectual functioning in the Average range, with Low Average processing speed—particularly as she became fatigued. She showed intact attention and working memory when not overly tired, but had difficulty with divided attention tasks and mental flexibility under strain. Memory was largely average, although some tasks in the later session were borderline for her age, likely reflecting increasing fatigue, tinnitus, and headaches. Her self-reported mood suggested mild depression, but was not sufficient to account for her ongoing symptoms. She demonstrated no personality changes; her difficulties appeared linked more closely to persistent post-concussion issues.
Dr Lucas opined that, at most, the claimant might have sustained a mild traumatic brain injury with no permanent organic brain impairment. The delayed onset of transient memory disturbance was seen as atypical for standard post-traumatic amnesia. Nonetheless, since the motor accident she had experienced severe and debilitating symptoms—classified as post-concussion syndrome, migraines, and noise sensitivity—that limited her function. Her quality of life had been significantly impacted, and her capacity to work full-time had been greatly reduced. Dr Lucas recommended ongoing rehabilitation efforts, including home-based occupational therapy sessions to assist with planning and pacing in her tutoring, and further psychological support for injury adjustment and pain management. Prognosis was considered guarded, given the persistence of her symptoms beyond three years post-accident and the significant fatigue associated with daily tasks.
Dr Grant Walker, in a report dated 26 October 2022, summarised the claimant’s medical history, diagnosis, and treatment following the motor accident. Dr Walker disagreed with the opinion of Dr Paul Teychenne, who suggested a diagnosis of incomplete high cervical cord lesion. Dr Walker found no evidence supporting this diagnosis or any traumatic brain injury. He concluded that the claimant’s symptoms were more likely related to underlying mental health factors. The claimant’s functional capacity remained affected, with her inability to return to her pre-injury teaching role attributed to ongoing neck pain, headaches, and psychological distress. Dr Walker assessed the claimant’s WPI as 0%, noting that her tinnitus was unrelated to the motor accident.
Ms Catherine Ebert, a clinical psychologist in a report dated 2 October 2023 reported that the claimant had withdrawn socially, and found she could not attend family gatherings or continue her teaching career. She felt anxious and depressed on a daily basis. Previous assessments by Dr Mobbs and Dr Schwartz had suggested diagnoses of post-traumatic headaches/migraines, mild traumatic brain disorder, and post-traumatic stress disorder. The claimant stated that her insurer had not recognised any psychological injury from the motor accident, and up until recently she had only received psychological intervention for tinnitus. She had, however, been undergoing vision therapy with Ms Melanie Woodhouse, who recommended further psychological support.
The claimant described symptoms of persistent postural perceptual dizziness (PPPD), including severe light-headedness, imbalance, nausea, intense fatigue, extreme visual discomfort, and anxiety responses. She also reported severe post-traumatic stress disorder that had originated from the motor accident, explaining that she believed she had died at the time. This resulted in a sense of derealisation and persistent hypervigilance for personal safety. She regularly experienced intrusive memories, panic attacks, nightmares, and insomnia, and avoided any triggers that might worsen her post-traumatic stress disorder, including attending her father’s funeral. Her ongoing low mood led to hopelessness, passive suicidal ideation, and marked fatigue with occasional episodes of “blacking out.” She felt worthless and believed life was meaningless.
Psychometric measures suggested severe PPPD, extremely severe post-traumatic stress disorder, extremely severe depression, anxiety, and stress, as well as extremely severe post-concussion symptoms.
Kim Hawkins MACP, a specialist in vestibular rehabilitation and balance therapy, in a report dated 3 November 2023 provided an assessment of the claimant, identifying ongoing impairments following the motor accident. The claimant sustained a moderate traumatic brain injury (TBI) resulting in a loss of consciousness and post-traumatic amnesia for 90 minutes. Post-accident symptoms included persistent headaches, migraines, spatial disorientation, cognitive impairment, post-traumatic stress disorder, and vestibular dysfunction. Initial imaging, including CT scans, showed no acute abnormalities. She recorded the claimant’s treatment history including physiotherapy, vestibular rehabilitation, and medications such as Endep, Botox, and Emgality, with limited success due to side effects including tinnitus and persistent migraines. Vision therapy improved spatial awareness and convergence insufficiency, while psychological therapy addressed post-traumatic stress disorder and dizziness. Despite these interventions, the claimant’s symptoms persisted, with daily migraines, noise and light sensitivity, and cognitive fatigue limiting her ability to work and socialise. Physical endurance was noted to be severely restricted, with exacerbation of symptoms following minimal exertion.
Objective assessments revealed mild left head tilt, impaired near vergence, and low-grade positional nystagmus. The Buffalo Bike Test identified a heart rate symptom threshold of 120-130 bpm, reflecting reduced exercise tolerance. Functional limitations include reliance on pacing strategies for cognitive and physical activities, and avoidance of social interactions due to symptom triggers.
Ms Hawkins evaluated the claimant following a Functional Gait Assessment on
27 November 2023. The claimant achieved a score of 30/30, with a preferred gait speed of 1.20 m/s, demonstrating normal step length and no significant imbalance when walking with head motion. Despite presenting with a heavy head and fatigue, the claimant reported having a “good” balance day during the assessment. However, she described severe clumsiness, unsteadiness, and the need for conscious effort in every step during episodes of strong fatigue, visual changes, and headaches. These symptoms were noted to fluctuate, potentially indicating a functional movement disorder. The claimant’s Dizziness Handicap Inventory score was 60/100, reflecting severe handicap primarily due to dizziness, with functional and emotional subscores most affected and the physical subscore least affected. The report concludes with plans for ongoing progression of the claimant’s home exercise programme.
Dr Wayne Mason provided a psychiatric report dated 4 August 2023, which assessed the claimant, via a telehealth consultation conducted on 3 August 2023. Dr Mason concluded that the claimant’s psychological symptoms, including anxiety and depressive mood, were secondary to her post-concussion syndrome and physical injuries. He diagnosed her with an adjustment disorder with mixed anxiety and depression but determined that her psychiatric condition was not the primary barrier to her recovery or return to work. He attributed her ongoing functional impairments to her post-concussion symptoms rather than her psychiatric condition. Dr Mason noted that no further psychiatric treatment was necessary and expressed confidence that the claimant’s psychological symptoms would resolve as her post-concussion syndrome improved. Dr Mason rated her psychiatric impairment as minimal, assigning a WPI of 0%, as her condition had not independently affected her ability to perform self-care or maintain social connections.
Dr Linton Meagher, consultant psychiatrist, provided an assessment of the claimant, on
2 February 2024, addressing psychological and cognitive impairments resulting from the motor accident. The claimant was diagnosed with post-traumatic stress disorder, panic disorder, and generalised anxiety disorder. Citalopram was reported to have been beneficial, with no evidence of a current major depressive episode. However, social isolation and mild cognitive impairments persisted.
The claimant’s cognitive assessment indicated mild impairments, with deficits in retrograde memory, phonemic fluency, naming, and recall, consistent with mild cognitive impairment exacerbated by anxiety. Mental state examination showed a euthymic mood and reactive affect, with no psychotic features or acute safety concerns. The claimant also experienced ongoing fatigue, panic attacks, and physical symptoms linked to stress and anxiety, which continued to limit her daily activities.
Key stressors included the end of worker’s compensation salary support in March 2024 and the demolition of her rental property later in the year. Despite improvements following treatment, the claimant’s symptoms remained disabling, impacting her ability to work and socialise effectively.
Dr Meagher reviewed the claimant on 29 February 2024. The claimant scored 91/100 on the Addenbrooke’s Cognitive Examination (ACE-R), indicating mild cognitive impairment with specific deficits in retrograde memory, phonemic fluency, naming, and recall. Visuospatial and motor functions were normal, and she scored 30/30 on the MMSE. Anxiety was assessed as a contributing factor to her cognitive difficulties.
On mental state examination, her mood was euthymic, her affect was reactive, and no psychotic features, perceptual abnormalities, or acute safety concerns were observed. Recommendations included continuing Citalopram at 20 mg daily, minimising naps to improve sleep, gradually increasing exercise with the aim of daily activity, and fortnightly reviews.
SUBMISSIONS
The Panel issued directions on 18 March 2024, requiring the parties to provide further submissions addressing:
(a) Whether the motor accident caused:
(i)a TBI as defined under the Guidelines, particularly referencing paragraphs 6.164 and 6.165, which detail the criteria for TBI diagnosis, and
(ii)alternatively, a cervical spine soft tissue injury or whiplash-associated disorder injury.
(b) Whether either or both of the above-referenced injuries (TBI or cervical spine soft tissue/whiplash injury) contributed causally to the fall that resulted in the claimant’s right big toe injury.
(c) Whether these issues form the full extent of the medical assessment dispute to be considered in the review, or whether there are additional matters in dispute that should also be identified and addressed.
In submission dated 16 April 2024, the insurer disputed that the motor accident caused a TBI to the claimant, based on the criteria in cls 6.164 and 6.165 of the Guidelines. It submitted that these clauses require evidence of significant head impact or cerebral insult and medically verified abnormalities, such as abnormal Glasgow Coma Scale (GCS) scores, post-traumatic amnesia (PTA), or imaging abnormalities. The insurer relied on medical records that showed no evidence of a significant head impact during the motor accident. Paramedics and hospital staff documented normal neurological findings immediately after the incident, including GCS scores of 15/15 and a lack of PTA. Brain imaging, including CT and MRI scans, was normal. Furthermore, multiple medical experts, including Dr Sara Lucas and Dr Grant Walker, confirmed that the claimant did not sustain a traumatic brain injury.
Dr Lucas concluded that, at most, the claimant may have experienced a mild TBI, which did not meet the Motor Accident Guidelines’ criteria for mental, emotional, or behavioural impairment. Dr Walker described the motor accident as minor and emphasised that no evidence supported the diagnosis of a traumatic brain injury.
On the alleged cervical cord lesion, the insurer maintained that the claimant only sustained a minor soft tissue whiplash injury. It rejected the report by Dr Paul Teychenne, who speculated about a cervical cord lesion without objective evidence, basing his conclusions on unverified biomechanics of the motor accident. The insurer highlighted inconsistencies and the absence of abnormalities in post-accident medical assessments. Multiple examinations revealed a full range of motion in the cervical spine, no tenderness upon palpation, and normal neurological findings. Dr Walker confirmed that the claimant’s injury was consistent with a whiplash injury and not a high cervical cord lesion.
The insurer also addressed causation regarding the claimant’s fall at home two months after the motor accident, which resulted in a fractured toe. It argued that the fall was too remote in time and circumstance to be causally linked to the motor accident. The claimant alleged that drowsiness from Endep, a medication prescribed for post-concussion syndrome, contributed to the fall. The insurer refuted this, stating that Endep-induced drowsiness did not qualify as an “injury” under the Motor Accident Guidelines. It relied on Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023; 105 MVR 225 (Chen J), which it submitted established that treatment side effects are not consequential injuries that can elevate a threshold injury to a non-threshold injury. The insurer contended that any number of factors unrelated to the motor accident could have caused the fall and that any alleged drowsiness from Endep would have had a negligible effect. It concluded that the fractured toe was not causally related to the motor accident.
In submissions dated 19 July 2024, the claimant addressed the causation of injuries sustained in a motor accident and raised concerns regarding the deficiencies in the assessment conducted by the Medical Assessor. It was contended that the Medical Assessor failed to comply with the mandatory requirements under the Guidelines and did not adequately consider the available evidence, resulting in flawed and unsustainable conclusions.
The Guidelines provided that paragraph 6.164 offered non-mandatory guidance for diagnosing mental status impairments, while paragraph 6.165 imposed a mandatory obligation to utilise Table 6.9 of the Motor Accident Guidelines. The Medical Assessor, however, failed to apply Table 6.9, neglecting to correlate the neuropsychological findings with the claimant’s symptoms as required. Furthermore, the Medical Assessor failed to properly consider the complexity of cerebral processes as outlined in paragraph 4.1 of the Guides, which emphasised the importance of integrative functions in the assessment of neurological injuries. The claimant contended that these omissions constituted a serious departure from the requirements of the applicable guidelines.
The claimant submitted that her medical history, as recorded by Ambulance NSW and the treating hospital, had been selectively quoted by the insurer, thereby omitting key details relevant to causation. A full and accurate account of the claimant’s post-accident symptoms—including dizziness, lethargy, and cognitive difficulties—demonstrated the traumatic nature of the incident. The available evidence supported the conclusion that the motor accident was a high-velocity impact, satisfying the requirements of paragraph 6.164(a) of the Guidelines. Although paragraph 6.164(b) was not met, the diagnosis by Dr Sarah Lucas, who identified a probable mild traumatic brain injury, was compelling and should have been afforded significant weight by the Medical Assessor.
The submissions contended that the Medical Assessor’s conclusion that the claimant’s head injury constituted a “soft tissue” injury was erroneous. The Medical Assessor failed to properly distinguish between injury and impairment, conflating these separate issues and thereby undermining the integrity of the assessment. This approach was inconsistent with the legal and medical framework required by the Guidelines.
In addition to the TBI, the claimant had sustained cervical spine and soft tissue injuries as a result of the motor accident. While these injuries were accepted to constitute threshold injuries and were not disputed, the submissions focused on the causal link between the motor accident and the subsequent fall that resulted in the claimant’s injury to her big toe.
The evidence demonstrated that the motor accident caused the claimant to develop vestibular dysfunction, which materially impaired her ability to navigate stairs. This condition was further exacerbated by the side effects of the prescribed medication Endep. The vestibular dysfunction directly caused the claimant to fall, leading to the injury to her toe. The report of Ms Melanie Woodhouse provided compelling support for this causal relationship. Ms Woodhouse noted that the claimant exhibited rotational movement and stepping difficulties during the Fukuda step test, consistent with vestibular dysfunction. She further observed that negotiating stairs with striped patterns—a recognised trigger for depth perception challenges—exacerbated the claimant’s difficulties and increased her risk of falling. Photographic evidence of the stairs was also submitted to support this claim.
RE-EXAMINATION
A medical examination was undertaken on 24 July 2024 by Medical Assessor Michael Couch, in person at the Commission’s suites with Medical Assessor Sophia Lahz attending by video link.
The claimant aged 55 is right-handed. She attended the medical assessment with her friend whom she said, would remind her of things she would likely forget when being asked many questions. She said that she found comfort in knowing her friend was there to help out if necessary. The claimant explained that she has tried making notes although she then struggles to find the specific note on the page, when necessary.
She confirmed her involvement in the motor accident, which she said was a “T-bone” collision. The claimant was the restrained driver of a 1998 Honda travelling on Canterbury Road towards the city (between schools) at 50-60 kmph when suddenly, without warning, another vehicle turned right, directly across her path. Her car struck the passenger side of the second vehicle. No airbags deployed (although it was unclear if her vehicle, given its age, had been fitted with airbags. There was no secondary impact and the claimant’s car was drivable immediately afterwards, whereas the other involved vehicle was a write-off, requiring towage.
At the time of the motor accident, the claimant was employed full-time as a Special Education teacher of deaf children. She holds a Masters' Degree in Deaf Education. She worked at various schools which before the motor accident, she regularly drove between. She explained that she had been in excellent general health before the motor accident, having no headaches and no problems with neck pain, vision or else dizziness.
The claimant said that she had recently had a “memory back” of being pushed forward toward the steering wheel in the motor accident. The claimant told the Medical Assessors that she did not hit her head. She could exit the vehicle and walk around at the scene. No emergency services attended. She explained that she then re-entered her car and drove to a nearby side street from whence, she then called the insurance company who asked whether she was injured. At that stage, she told them that she was not injured.
The claimant further explained that the insurance call worker then asked her about the condition of the other involved vehicle whereupon the claimant found herself inspecting a nearby parked car, describing a few dents and then later realising that this was not actually the vehicle involved in the crash.
Later, she saw the involved vehicle further along the road, which was “smashed up” and written off.
Subsequently, the claimant drove her car a few hundred metres before deciding that she was unable to continue driving. She had to pull over, feeling as though she had to rest. At this stage, she believes that her vehicle was positioned under a tree. Subsequently, the claimant then called her boss to say she had been in an accident and did not feel well enough for work.
Her next memory is of a man tapping on the driver's window to check on her wellbeing. He told her that she had been there for a “long time” (about 90 minutes) of which she told the Panel, she has no memory.
Shortly afterwards, Ms Harris' boss arrived at the scene, being concerned about her non-appearance at work and the lack of further communication. Ms Harris' manager called the ambulance after arriving on the scene and observing that the claimant was still in the car.
The ambulance took the claimant to hospital where she was observed for several hours. The claimant was vague as to the specific events at hospital. “They said I was concussed, and I had whiplash. I had a heavy head. I could go home providing someone was there to watch me”. At hospital, the claimant underwent some scans, received Nurofen and also a medical certificate for a few days off work.
Subsequently, the claimant was discharged and went to stay with a friend. She in fact stayed there for six months.
Three days later, the claimant returned to hospital, this time Sutherland Hospital, complaining of headaches. She was advised to see a neurologist soon regarding these.
Ongoing, the claimant has been complaining of frequent headaches, “cognitive fog”, dizziness, visual disturbance, motion induced nausea, neck pain and fatigue. Physical symptoms have also given way to significant psychological symptoms with depression and anxiety. The claimant has since received various diagnoses inclusive of post-traumatic migraine, post concussive syndrome/mild brain injury, post-traumatic stress disorder, vestibular dysfunction, persistent postural perceptual dizziness and functional neurological disorder.
Since the motor accident, the claimant has consulted three neurologists who have tried myriad treatments inclusive of various medication such as Endep, Emgality and Botulinum Toxin for headache. She has also received extensive specialist physiotherapy for “whiplash” and “concussion” with several providers.
Dr Borire, the initial neurologist the claimant consulted, prescribed Endep which made her feel very drowsy akin to a “zombie”. However, the headaches were very incapacitating and despite the side effects, she was still keen to continue taking this. Approximately two months after the motor accident, she was walking downstairs at home, carrying her small dog when she suddenly found herself on the floor at the bottom of the stairwell, being uncertain as to how she got there.
The claimant could rise to her feet, noting a painful, swollen big toe, compelling her to remove her shoe. Subsequently, she was diagnosed with a fracture involving the big toe IP (interphalangeal) joint. The latter was non-operatively managed and has progressed to fracture healing although there is residual big toe mechanical soreness and stiffness.
Dr Rowena Mobbs (neurologist) gave her a series of Botulinum toxin injections to the head and neck, and also a trial of Emgality (for headache). However, whilst medications sometimes reduced frequency and intensity of headaches, she often experienced adverse effects from the treatment, forcing her eventually to cease all treatment.
Dr Schwartz, another neurologist advised holistic management of Ms Harris' post concussive symptoms via various allied health interventions, particularly specialist physiotherapy targeting neck pain, vestibular function and chronic headache.
The claimant did not drive for 10 months after the motor accident due to fatigue, visual symptoms, dizziness and “cognitive fog”. Eventually, in January 2019, the claimant attended an OT (occupational therapy) driving assessment at RRCS (Royal Ryde Rehabilitation Centre) which she passed, despite experiencing substantial nausea during the assessment. She was nonetheless deemed safe to drive short distances.
A treating physiotherapist became sufficiently concerned about Ms Harris' visual complaints to recommend her referral to a behavioural optometrist (Ms Melanie Woodhouse) whom the claimant started consulting about 18 months after the motor accident. Ms Woodhouse performed various assessments requiring the claimant to read “left to right” and “top to bottom”. Subsequently, Ms Woodhouse prescribed the claimant various pairs of spectacles with tapes/prisms to assist “matching” of visual function with the surroundings.
Ms Woodhouse also stopped the claimant from driving for a period until the visual function could improve with treatment.
Since the motor accident, according to the claimant, there has been a chronic mismatch between her eyes and the objects seen in her environment. The claimant described this in the following terms: “My eyes are not doing what the brain thinks they ought to be doing”. On this basis, the claimant quickly becomes overwhelmed in crowds and busy environments such as supermarkets, which she avoids.
The claimant reported that Ms Woodhouse's treatment (exercise, prisms, spectacles) did help her resume some reading which had hitherto been impossible due to frequently missing words on the page, which just looked a “jumble”. The claimant still undergoes regular optometric assessment and spectacle adjustment with Ms Woodhouse to remediate persistently altered vision.
The claimant has been unable to sustain return to work since the motor accident although fortunately, the Workcover insurer covered her salary until March 2024. About 18 months after the motor accident, the claimant tried to resume limited 1:1 tutoring, comprising six 45-minute sessions per week in a quiet library. However, unfortunately, she found that the cognitive effort of this only served to worsen headache, tinnitus, dizziness and “cognitive fog”. The claimant explained too that following a single teaching session, she would need several days to recover. Further, she could not cope with the required planning for these teaching sessions and often found herself cancelling sessions.
The claimant’s teaching position at the school was held open for five years until February 2024 and it is only very recently (June 2024) that she received correspondence confirming termination from her position (which she had been anticipating).
The claimant presently has an application in with Centrelink for a Disability Support Pension and she is also in process of applying for early release of her superannuation. She explained that a social worker had been assisting her with this kind of paperwork and other documentation concerning taxation matters because from a cognitive perspective, she simply cannot focus on these tasks.
The claimant thought her condition had been gradually improving for the first two years after the motor accident. She said that she liked working with Dr Rowena Mobbs who offered her numerous interventions although in the finish, Dr Mobbs informed her that there was nothing else she could offer. At the same time, according to Ms Harris, Dr Mobbs suggested that her condition would likely improve with the passage of time.
More recently, the claimant’s mental health has greatly deteriorated with the development of phobia, nightmares and significant depression. She told the Panel that she has also received a diagnosis of post-traumatic stress disorder and been commenced on Citalopram (SSRI antidepressant).
The claimant said there had also been an instance of hospital presentation due to “seizing up” of the neck with muscle spasm. During such episodes, the claimant can be rendered unable to swallow.
The claimant has recently undergone an MRI scan of the cervical spine which she reported had shown an abnormality (the claimant could not be more specific) for which she has recently been referred to a neurosurgeon, whom she will be seeing in the next few weeks.
The claimant’s current medications are Sandomigran (headache prevention), Panadol (six tablets per day), Citalopram 10 mg daily and Temazepam (approximately one per fortnight, for sleep).
Current symptoms
The claimant complains of a frequent “pressure” in her head associated with a frontal headache. She characterised the headache as a “clamp”. There are sometimes associated nausea and photosensitivity although there is no vomiting. Headaches can last for days to hours.
After a headache flare, there is reliably worse “cognitive fog” with specifically an inability to think, plan and organise herself. It can take all day to make breakfast and have a shower. If she takes a walk, the brain fog is often worse afterwards. Thought processes can also only proceed very slowly after a severe headache bout.
The claimant spends much time at home because it is difficult to leave the house in view of headache, fatigue and brain fog. She often spends time sitting in the sun, listening to music or having a daytime nap (although she has been advised to limit these). Regarding daytime naps, she explained that her brain “simply has to shut down”.
She reported that she can often think and feel “all right”, that is, until she tries doing something which requires concentration. “I feel like I can't think‚…I can't figure things out‚...I can't bring information together‚…I can't summarise it…”. There is then a headache, worsening with increased effort and cognitive demands. At this stage, her legs can become weak and wobbly, and she can find herself unable to stand or move for approximately 20 minutes. “If I keep reading, talking etc, I become fatigued and then the headache starts‚...despite preventive medication (currently Sandomigran)”. The claimant experiences headaches on more than half the days of every month.
She explained as well that headaches typically worsen as the day progresses.
The claimant has become socially isolated due to difficulties which she experiences on leaving her unit. She does a have daughter who lives in Brisbane although they are unfortunately rarely in touch.
The claimant complains of left-sided neck pain worsened by driving and computer usage. Neck pain typically tends to flare up then settle down. Flare-ups can last for several weeks.
Neck pain is associated with tingling sensations in the left lateral arm, reaching the fingers, most often the middle finger.
The claimant found it difficult to describe the dizziness sensation, referring again to the visual difficulties/mismatch sensations with resultant nausea on movement. However, she could say that the dizziness complaints do not entail a rotary sensation. “I feel sick on moving as though I’m on a roller coaster” she explained.
She explained too that if she lies on her right side, then often the entire right hand becomes numb.
Sleep patterns are poor due to nightmares and pain. She goes to bed around 10pm although sleep is frequently broken due to nightmares. The claimant reported that she never feels “fresh” in the morning.
There are ongoing visual symptoms. The claimant continues to avoid crowded busy environments which are overwhelming. She orders groceries online. She used to enjoy attending the Hare Krishna temple although she can no longer tolerate this.
She also reported painful ears with excessive noise exposure.
Some days are better than others although there is never a day on which she is asymptomatic and feels as she had done before the subject motor accident.
Examination
On examination, the claimant was polite, cooperative and quietly spoken. There was moderate adiposity with height 177 cm and weight 85 kg.
There were no overt cognitive difficulties during the interview.
A formal cognitive assessment was not undertaken in view of the detailed relatively recent neuropsychological assessment undertaken by Dr Sara Lucas.
Eye movements were full in all directions with normal smooth pursuit and saccadic movements. There was no nystagmus.
On the Unterberger (vestibular function) test, she rotated toward the right by 90 degrees in 60 seconds.
There was normal cervical spine posture without tenderness. The left shoulder sat approximately 1-2 cm higher than the right. There was visible and palpable spasm of the left trapezius without associated tenderness.
Cervical flexion was 2/3 normal range, extension ½ normal range, rightward rotation 1/3 normal range, leftward rotation 2/3 normal range and lateral flexion ½ normal range to either side. There was cervical dysmetria.
Upper limb reflexes were moderately brisk and symmetrical. There was no significant measurable wasting of the arms (35) at the right arm and 34 cm at the (non-dominant) left arm. At the forearms, the girths measured equally at 27 cm. There was normal light touch sensation over the upper limbs.
There was a normal lower limb neurological examination with respect to power, sensation, reflexes and muscle bulk.
Gait was unremarkable. She could slowly perform a tandem gait. Romberg's test was negative. There was some sway on the sharpened Romberg. She could stand briefly on either leg.
At the great toe there was reduced IP (interphalangeal) flexion 10 degrees, along with normal metatarsophalangeal extension.
DIAGNOSES, CAUSATION AND THRESHOLD INJURY
Cervical spine soft tissue injury - grade 2 whiplash injury
The Panel found no evidence of any upper cervical cord injury. The Panel's clinical examination findings differed from those of Dr Paul Teychenne (neurologist). The cervical spine injury is a threshold injury.
Traumatic brain injury
Paragraph 6.164 of the Guidelines requires for an assessment of mental status impairment and emotional and behavioural impairment there should be:
(a) evidence of a significant impact to the head or a cerebral insult, or that the motor accident involved a high-velocity vehicle impact, and
(b) one or more significant, medically verified abnormalities such as an abnormal initial postinjury Glasgow Coma Scale score, or post traumatic amnesia, or brain imaging abnormality. (our emphasis)
As to paragraph 6.164(a) of the Guidelines, the claimant told the Panel that she did not strike her head in the collision; however, the Panel is satisfied that the motor accident was consistent with a high-velocity impact. Based on the claimant’s multiple histories provided to medical professionals and the Panel, as well as her submissions and her Application for Personal Injury Benefits, the Panel is satisfied that she was travelling at approximately 60 kmph at the time of the collision. This consistent account of speed establishes a factual basis for appreciating the forces involved, especially given that the vehicle at fault was written off and towed from the scene. The Panel finds that, at such a speed, the crash likely produced substantial momentum that materially contributed to the claimant’s documented injuries, including her mild traumatic brain injury. These circumstances satisfy paragraph 6.164(a) of the Guidelines, demonstrating that the motor accident involved a sufficiently significant impact to cause a head injury, even absent direct head contact.
As to paragraph 6.164(b) of the Guidelines, the phrase “such as” should be understood as providing illustrations rather than imposing a restriction on what constitutes “one or more significant, medically verified abnormalities.” The reasoning for this interpretation is as follows.
First, in ordinary English usage, “such as” generally serves to offer examples or illustrations, not to define an exclusive or exhaustive list. If the intention were to limit the category of “medically verified abnormalities” exclusively to the listed instances, more emphatic wording such as “limited to” or “only” would be expected. By contrast, “such as” highlights typical or paradigmatic examples without foreclosing other, similarly qualifying conditions.
Second, grammatically and contextually, the words “one or more significant, medically verified abnormalities” are already broad in scope. The addition of “such as an abnormal initial post-injury GCS score, or post-traumatic amnesia, or brain imaging abnormality” simply directs attention to classic or commonly encountered examples. Nothing in the language or structure of the text indicates an intent to restrict “medically verified abnormalities” to those three. On the contrary, the inclusion of “such as” indicates that further medically verified abnormalities of a comparable kind may also qualify.
Third, interpreting “such as” non-exhaustively aligns with the general legal presumption that enumerations introduced by phrases like “for example,” “including,” or “such as” are intended to illustrate typical instances rather than to set rigid limits. Exclusivity is not inferred absent clearly limiting language. This principle ensures that the scope of the provision remains dynamic, allowing for analogous abnormalities that meet the defined standard of being “significant” and “medically verified”, even if not specifically enumerated.
Finally, reading “such as” broadly also accords with the underlying policy and practical considerations in medical or diagnostic contexts. Medical knowledge and clinical practices evolve constantly, and restricting abnormalities strictly to the listed items could thwart the very purpose of recognising new or emerging conditions that meet the same threshold of clinical significance. Allowing a broader interpretation ensures that the requirement of “significant, medically verified abnormalities” remains effective and adaptable, reflecting the latest medical understanding without unduly narrowing the scope of inquiry.
In the aftermath of the collision, the claimant presented with significant, medically verified abnormalities that align with the criteria set forth in the Guidelines. Upon hospital assessment, she was diagnosed with whiplash and concussion. Over the ensuing days, her symptoms included cognitive fatigue, tinnitus, noise sensitivity, headaches, and visual difficulties. She also reported pronounced difficulty performing concentration-intensive tasks such as reading, driving, and computer use. Of particular note is the claimant’s report of a 90-minute window of memory loss (post-traumatic amnesia, or PTA) soon after the accident, which treating practitioners—including Dr Ochs—recorded in their clinical documentation. The presence of PTA, especially of this duration, is a recognised indicator of a head injury’s severity and underscores the clinically significant nature of her condition.
Paragraph 6.165 of Guidelines states that the results of psychometric testing if available must be taken into consideration.
The Panel noted the findings on neuropsychological assessment of Dr Sara Lucas dated
20 October 2022. Dr Lucas determined that the claimant’s premorbid intellect was within the high average range. She found that the claimant made good effort during the neuropsychological assessment and there was no evidence of either symptom exaggeration or else underperformance. Processing speed and working memory were average whilst memory was normal although the claimant struggled with unstructured verbal learning tasks and there was also reduced mental flexibility.
Dr Lucas commented that it was unusual in the circumstances that the claimant recalled the accident and the period 15-20 minutes afterwards. Dr Lucas was not convinced that the subjective report of 90 minutes of amnesia represented a true period of post-traumatic amnesia.
Dr Lucas concluded that the available information indicated “at most” a mild traumatic brain injury, the cognitive effects which ought to have resolved. Dr Lucas found no permanent cognitive deficits from the motor accident although cognition was made worse when the claimant was fatigued.
However, Dr Lucas noted presence of ongoing severe headaches, fatigue post activity and mild depressive symptoms. She recommended psychiatric review of the claimant for consideration of a somatic condition/disorder.
In the foregoing, the Panel is satisfied that that the claimant has incurred a mild traumatic brain injury, the effects of which would have resolved by three months post-accident.
A mild TBI does not qualify as a threshold injury under the Act because it involves neurological damage to the brain’s axons and neuronal pathways, which extends beyond the definition of a soft tissue injury. A mild traumatic brain injury disrupts normal brain function by causing mechanical and biochemical damage to the brain’s nerves, primarily through axonal stretching or shearing during rapid acceleration or deceleration events. This disruption impairs signal transmission due to axonal injury and alterations in synaptic connections, often compounded by a neurometabolic cascade that results in ionic imbalances and energy deficits. Additionally, the injury triggers neuroinflammation, which exacerbates neuronal dysfunction, and may impair neuroplasticity, affecting the brain's ability to reorganise and recover.
While mild TBI symptoms typically resolve, some individuals experience post-concussion syndrome due to persistent disruptions in neuronal signalling and neurotransmitter imbalances, leading to cognitive, emotional, and physical impairments, such as those affecting the claimant. When these symptoms merge and globally impair function, they are best understood as having transformed into persistent symptoms after a traumatic event rather than as persistent symptoms due to mild traumatic brain injury (given that similar symptoms can occur in injured persons without a traumatic brain injury). Accordingly, the Panel is satisfied that the claimant’s mild TBI has resolved.
The Panel has considered the claimant’s continuing symptomology and considers that it may be explained by a functional neurological disorder with persistent postural perceptual dizziness which will often be preceded by mild traumatic brain injury. Key symptoms will be chronic dizziness, unsteadiness, swaying, rocking, non-spinning vertigo exacerbated by own movements and exposure to motion rich, complex environments. The prevalence of this disorder is up to 20% among all patients with vestibular symptoms and up to 40% in a dizziness clinic. Patients with this condition have visual dependence causing degradation of dynamic visual acuity when exposed to moving visual stimuli. Perceptual and reflex responses dissociate with thresholds for conscious detection of rotary stimuli reduced by more than 50% whereas vestibular ocular reflex responses remain unchanged. This condition may be present in the claimant. However, the Panel is not qualified to make this diagnosis.
Fracture of the distal phalanx of her right big toe
The claimant’s fracture of the distal phalanx of her right big toe should be considered causally related to the motor accident, based on medical evidence and the reasoning applied in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 (Mandoukos).
The motor accident caused documented balance disturbances, cognitive fatigue, and dizziness, consistent with mild TBI and post-concussion syndrome. These impairments directly affected the claimant’s stability and coordination, as confirmed by treating doctors, including Dr Ochs and Dr Borire. The fall on 15 May 2019, which led to the toe fracture, occurred less than two months after the motor accident, during a period when the claimant was actively experiencing accident-related post-concussion symptoms.
Further, the claimant was prescribed amitriptyline to manage post-concussion symptoms, including headaches and cognitive fatigue. This medication caused significant drowsiness and cognitive fog, which exacerbated her balance issues and created the conditions leading to the fall. As highlighted in Mandoukos, causation is established when an injury arises from impairments or symptoms that are a foreseeable consequence of the motor vehicle accident, even if the injury is not immediate. Here, the toe fracture was not an independent or unrelated event but the direct result of accident-induced impairments and their management.
The Court of Appeal’s reasoning in Mandoukos underscores that subsequent injuries linked to impairments caused by the initial accident fall within the chain of causation. The balance disturbances and medication effects were a continuation of the motor accident's consequences, making the toe fracture a foreseeable and direct outcome of the motor accident. Therefore, the fracture is properly classified as an injury causally linked to the motor accident.
The fracture is a non-threshold injury because it is not a soft tissue injury. There has been a bony injury, a fracture with discontinuity of bone.
ASSESSMENT OF WHOLE PERSON IMPAIRMENT
There is no attributable WPI for the mild traumatic brain injury the effects of which has resolved.
However, given that she fell down the stairs within three months of the motor accident, the Panel decided it was reasonable to accord 1% WPI for loss of great interphalangeal joint flexion due to the fracture.
There is 5% WPI for the cervical spine soft tissue (dysmetria) injury for cervicothoracic DRE category II (Table 6.7, page 103 Guidelines, instructions, page 104, Guides).
In summary, there is 5% WPI for the cervical spine, which is combined with 1% for the great toe giving total 6% WPI caused by the motor accident.
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