Rafeletos v QBE Insurance (Australia) Limited
[2024] NSWPICMP 854
•11 December 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Rafeletos v QBE Insurance (Australia) Limited [2024] NSWPICMP 854 |
| CLAIMANT: | Sophia Rafeletos |
| INSURER: | QBE (Insurance) Australia Limited |
| REVIEW PANEL | |
| MEMBER: | Terence O’Riain |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 11 December 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; Review of Medical Assessor (MA) Kuru’s certificate dated 31 May 2024 finding the accident did not cause referred injury; claimant injured in roundabout collision on 28 April 2023; assessment by the Medical Review Panel of whether the claimant suffered a threshold injury as cervical spine injury, disc bulge at right C5/6; C5/6 left foraminal narrowing and disc bulge; with radiculopathy signs including right arm tingling and numbness and muscle weakness; radicular symptoms after accident but no verifiable radiculopathy; re-examination; no objective verifiable radiculopathy in line with Guidelines; credible claimant; Panel considered whether referred injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage; claimant’s imaging showed disc bulge at C5/6; no history of cervical conditions before accident; collision capable of causing disc bulge; consistent symptoms; Panel considered Briggs No 2 on causation and Momand v Allianz Australia Insurance Limited on threshold injury; Held – referred injury is not a threshold injury under the Act; Panel was satisfied that the claimant accident caused a traumatic protrusion which caused a tear of the outer annular fibres of the disc; MA Kuru’s certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Threshold Injury This certificate is issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) 1. The Review Panel revokes Medical Assessor Kuru’s certificate dated 31 May 2024. 2. The Panel find the motor accident caused the following injury: · cervical spine injury–disc bulge at right C5/6; C5/6 left foraminal narrowing and disc bulge; with signs of radiculopathy including right arm tingling and numbness and muscle weakness. 3. This is a non-threshold injury under the s 1.6(2) definition. 4. The claimant has established the accident caused her to suffer a non-threshold injury for the purposes of the MAI Act. |
REASONS
Background
Ms Rafelotos was injured on 28 April 2023 in a motor vehicle accident. She alleges that the accident injured her cervical spine.
The insurer insured the owner and/or driver of the vehicle at fault for liability to pay to the claimant any statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act). She lodged an application for personal injury benefits to claim statutory benefits under part 3 of the MAI Act for treatment and care benefits under Division 3.4.
The insurer issued a Liability Notice – Benefits After 52 Weeks on 25 October 2023 advising that liability for the payment of statutory benefits would cease on 28 April 2024. The insurer based that decision on the claimant having sustained a ‘threshold injury’ under s 1.6 of the MAI Act in the accident.
The claimant disputed that view and sought an internal review, which affirmed the earlier decision. The claimant applied to the Personal Injury Commission (Commission) to resolve this dispute.
Medical Assessor Kuru conducted the original medical assessment and produced a certificate dated 31 May 2024. Medical Assessor Kuru found that the accident did not cause the cervical spine injury – disc bulge at right C5/6; C5/6 left foraminal narrowing and disc bulge; with signs of radiculopathy including right arm tingling and numbness and muscle weakness; and declined to assess whether it was a threshold injury for the purposes of the MAI Act.
The claimant applied to the Commission’s President to refer Medical Assessor Kuru’s certificate to a Review Panel (this Panel) within 28 days after the parties were issued with the original certificate.
On 2 July 2024, the President’s delegate after considering the particulars set out in the application referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect.
The President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Kuru’s certificate (the Review).
Legislative framework
This is set out at Appendix A with reference to the the Motor Accident Guidelines (Guidelines) and authorities on causation.
Review
On 3 September 2024, the Panel met via Teams.
The Panel considered all aspects of the assessment under review.
The Panel is satisfied that the accident was capable of causing an injury to the claimant’s cervical spine.
It appears Medical Assessor Kuru’s assessment focused only on the referred injury, but did not assess whether the accident injured the claimant’s neck in another way and assess that injury as to whether that injury was a threshold injury for the purpose of s 1.6 of the MAI Act.
The Panel considered the need for re-examination in the light of the Court of Appeal’s decision in Sydney Trains v Batshon,[1] which prescribes a presumption favouring re-examining claimants in reviews.
[1] [2021] NSWCA 143 (Batshon) at [41] per Leeming JA, White and McCallum JJA agreeing.
The Panel considered re-examining the claimant in person would assist the panellists to decide the facts in issue.
It was decided Medical Assessor Gibson would examine the claimant on behalf of the Panel on 1 November 2024 at her rooms.
The claimant attended and provided the Panel with access to the online scans.
The Panel met again on 18 November 2024 to discuss the matter further and deliberate.
Documentation
The Panel considered the following documentation:
· Review application – claimant's submissions dated 11 June 2024;
· President's delegate's decision dated 2 July 2024;
· claimant's submissions – non-threshold injury application;
· insurer's submissions before Medical Assessor Kuru, dated 27 February 2024;
· insurer's submissions in response to review application dated 24 June 2024;
· Medical Assessor Robert Kuru's certificate dated 31 May 2024;
· insurer's liability notice dated 25 October 2023;
· insurer's internal review certificate dated 3 January 2024;
· Medical certificate of capacity dated 9 May 2023;
· Cervical scans dated 2 May 2023, 8 May 2023 and 8 December 2023;
· Physiotherapy Allied Health Recovery Request number 1 dated 2 June 2023;
· Physiotherapy Allied Health Recovery Request number 2 dated 27 June 2023, and
· Physiotherapy Allied Health Recovery Request number 3 dated 27 September 2023.
The parties did not submit additional evidence with the review application.
SUBMISSIONS
Claimant’s submissions
The claimant was in a significant accident, which resulted in her car being written off.
The claimant seeks to establish that she suffered radiculopathy as a result of the accident. She relies upon an AHRR dated 2 June 2023, which diagnosis C5/6 left foraminal narrowing and disc bulge with signs of reduced muscular strength, which is an indicator of radiculopathy.
A second sign was found in the claimant's CT scan report dated 8 December 2023 referring to a history of "tingling and numbness to the right arm" and referring to the changes at C5/6 on the right side.
Noting, that this may not satisfy the Guidelines clause 5.8 which lists the requirements to establish verifiable radiculopathy the claimant refers to the decision in Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014 (Momand), where the Supreme Court held that evidence of a disc protrusion by reason of a partial or complete rupture of the cartilaginous tissue comprising the disc could satisfy the non-threshold injury definition.
The claimant has a C5/6 disc protrusion, which could be found to be a non-threshold injury.
The claimant submits whether that protrusion is attributable to the subject accident must be assessed following clause 6.7 of the Guidelines, which sets out the relevant test of causation, which is expressed in appendix A of this decision.
The accident on 28 April 2023 could be a contributing cause to the claimant's cervical spine pathology, even if it were not the sole cause.
The claimant refers to Briggs No. 2 [2022] NSWSC 372 (Briggs), which is also referred to in appendix A, which reminds the Panel that the test in relation to causation does not require scientific certainty. The Panel must consider whether the accident made a material contribution to the claimant's condition.
The claimant asks the Panel to consider the following when deciding whether the subject accident materially contributed to the claimant’s condition:
(a) the lack of any cervical spine injury or pain before the accident;
(b) the significant forces in the collision, and
(c) the scans taken after the accident showing a disc bulge at right C5/6 and C5/6 left foraminal narrowing along with radicular symptoms since the accident.
Insurer’s submissions
The insurer submits that the claimed injuries are threshold injuries in accordance with the MAI Act.
The insurer submits the evidence does not support the claimant sustaining an injury in the accident that would fall outside the definition of a soft tissue injury.
The insurer refers to a lack of immediate treatment as supporting that proposition. The insurer submits that the Panel should treat the claimant's account of the accident as questionable for this reason. It is questionable whether the accident could have contributed materially to the claimant's cervical spine injury.
CT scans refer to changes in the claimant's cervical spine as being degenerative and existing before the accident. The insurer refers to Guidelines cl 5.8 and to the lack of any examination showing two or more clinical signs of radiculopathy together at any time since the accident.
The insurer refers to the claimant's minimal cervical pain symptoms.
The insurer disputes that the decision in Momand can apply because:
(a) radiological imaging indicates that the changes in the claimant’s cervical spine were degenerative and pre-existed the subject accident, and
(b) the claimant has not provided any radiological evidence of any damage or tear to the thecal sac in her cervical spine, being the cartilaginous material of the spine. The claimant reports only having suffered a disc protrusion.
Accordingly, in the absence of evidence of any complete or partial rupture to tendons, ligaments, cartilage and menisci, the insurer submits the claimant has only suffered a threshold injury as a result of the accident.
Clinical examination
Ms Rafeletos was unaccompanied when she attended the re-examination with Medical Assessor Gibson.
PRE-ACCIDENT MEDICAL HISTORY AND RELEVANT PERSONAL DETAILS
Ms Rafeletos lives alone in a townhouse.
She is independent in self-care and domestic chores, and she drives a manual car.
Ms Rafeletos had been working as a freelance makeup artist for six years before the subject accident. She said she had possibly taken a few weeks off work after the accident but then resumed her normal duties. She is not sure how many days she had off subsequently, but estimates about seven days in total, and she has had two days off work in the last two weeks.
Before her current role, she was employed as makeup artist for about 12 months and she spent two years employed as a bank teller and trainee personal banker before that. She has had consistent employment.
She started a Bachelor of Education (Early Childhood and Primary), but left this after 18 months as she wanted to pursue her current career.
Ms Rafeletos denied any history of neck pain, or any symptoms or investigations before the accident.
She said she has never been admitted to hospital, apart from tonsillectomy/adenoidectomy as a child.
There were no other injuries, either motor vehicle or work related before the accident.
She takes no regular medication. She has a penicillin allergy.
HISTORY OF THE SUBJECT ACCIDENT
Ms Rafeletos said on 28 April 2023 she was driving her car with her seatbelt fastened at about 6am on her way to the gym.
She was moving through the roundabout when a 4-wheel drive vehicle, which was fitted with a bull bar, entered the roundabout on her left, colliding with the left hand side of her car. She said the passenger door was damaged and scraping extending to the back panel and the left front tyre was deformed.
A bystander arrived to assist her. She remembered being in shock at the time and she hadn’t immediately realised that her car had been pushed to the middle of the roundabout with the impact.
She stayed in the car and was able to drive it about 6m to the side of the road in order to get out of the way of traffic.
On specific questioning, she could not recall her body making any direct impact with the inside of her car. Although there were airbags installed in the car, they did not deploy.
Police and ambulance did not attend. Her car was towed and later written off for insurance purposes.
Ms Rafeletos contacted her sister who picked her up and drove her to her mother's house. A few hours later there was pain over the right side of her neck, and by the next day this was much worse, so she visited general practitioner, Dr Haddad. He told her to rest over the weekend and return on Monday. After seeing her again on the Monday the doctor arranged neck imagingon 2 May 2023. The doctor advised her she had a bulging disc.
She was referred to physiotherapy treatment, attending Physio Fix in Ramsgate twice a week for a several months, then weekly for another few months. Her last visit was around April this year. She said the treatment was helping to a degree, although there was discomfort with the mobilisation treatment. By the next day her symptoms had improved, however they returned a few days later.
She visited a remedial massage in Padstow Heights once to twice a month after ceasing physiotherapy.
She said that since the subject accident she has only being taking over-the-counter medications, because she drives a lot for work and is concerned stronger analgesics will make her less alert on the road. She added that she sometimes drives up to 200km a day and can work anywhere from Chatswood, Cronulla, Hurstville, Palm Beach or even Nowra. She now drives a manual i30 Hyundai sedan.
CURRENT SYMPTOMS
Ms Rafeletos described right sided neck pain, which extends down over the trapezius region. In particular she notices this with any lifting activities.
On occasion there is a sharp stabbing sensation felt behind her right ear, and right temple greater than her left temple.
There is a tingling sensation, rather than any numbness, over the dorsum of her right hand involving the phalanges of the index and middle finger but not extending beyond the MCP joints or into the wrist. She said this can be quite severe and last for a whole day. She thinks this came on about two weeks after the accident. The tingling sensation was not present today.
On specific questioning, there were no other complaints.
PHYSICAL EXAMINATION
Ms Rafeletos was 163cm tall and weighed 61kg. She was right hand dominant. She had a normal gait. She appeared comfortable when seated during the course of the examination.
On examination of the neck, there was normal posture. There was three-quarters normal flexion and extension. Right rotation was three-quarters normal range, left rotation normal range. Lateral flexion was to three-quarters normal range on the right and normal range on the left. There was some muscle guarding with movements to the right.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, forearms measuring 26cm bilaterally and forearms 24cm on the right and 23cm on the left. There was normal power, sensation and reflexes bilaterally.
Screening examination of the shoulders revealed normal range with some complaints over the right trapezius right side of neck.
INVESTIGATIONS
Ms Rafeletos brought no imaging with her, but she authorised the Panel to access her images online. Medical Assessor Gibson reviewed the imaging and found the following reports:
(a) CT scan cervical spine dated 2 May 2023 reported as showing “No acute bony injury or degenerative changes identified. Minimal broad-based posterior disc bulge at C5/6. No CT evidence of spinal canal stenosis or neural exit foraminal narrowing on either side. minor C5/6 protrusion without evidence of central lateral recess or foraminal stenosis.”
(b) MRI scan cervical spine dated 8 May 2023 reported as showing “Small broad based posterior disc protrusion at the C5/C6. C5/6 level without associated impingement of the cervical spinal cord or exiting C6 nerve roots. No significant acute bony or ligamentous injury identified.”
(c) CT scan dated 6 December 2023 on the Lumus Imaging PACS site demonstrates minor C5/6 protrusion without evidence of central lateral recess or foraminal stenosis. This confirms the above MRI report confirming similar changes.
(d) CT scan cervical spine dated 11 December 2023 reported as showing “… degenerative changes seen in the cervical spine. Most significant changes are identified at the C5-6 level on the right side.”
SUMMARY AND OPINION
Ms Rafeletos is a 32 year old woman who was involved in the subject accident on 28 April 2023 and suffered a soft tissue injury to her neck. Dr Surinder Kaur’sCertificate of Capacity on 9 May 2023 noted the date of accident and “MVA injury to neck”.
According to Part 5.8 of the Motor Accident Guidelines, Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination:
• loss or asymmetry of reflexes;
• positive sciatic nerve root tension signs;
• muscle atrophy and/or decreased limb circumference;
• muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
• reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
When Medical Assessor Gibson clinically examined Ms Rafelotos there were no objective findings of any of the signs of radiculopathy. The earlier reports in the physiotherapist’s Health Recovery Requests do not satisfy the Guidelines test for verifiable signs of radiculopathy.
Accordingly, Ms Rafeletos on that criteria would have sustained a threshold injury as defined in s 1.6 of the MAI Act as this includes a “soft tissue injury” as defined in Section 1.6(2) of the MAI Act.
However, the Panel must consider whether under the same subsection the claimant suffered “…an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Panel deliberations
The Panel decided it would adopt Medical Assessor Gibson’s examination report and her conclusions as evidence.
The Panel was satisfied that the examination satisfied the Guidelines cl 5.6 because Medical Assessor Gibson had obtained a comprehensive accurate history, reviewed all the relevant records, described the claimant’s current symptoms, and performed a careful and thorough examination.
The Panel discussed the imaging the claimant made available at the examination.
Medical Assessor Gibson confirmed the claimant behaved consistently and was cooperative with the examination. There were no inconsistencies to put her about previous assessments or observations.
Although the insurer raises the claimant’s credit in respect of the severity of the collision, the Panel did not find it was justified to give that any weight.
The Panel also discussed the insurer’s submission that the changes are solely degenerative. This is based on the CT scan report dated 6 December 2023, but the Panel noted that the earliest CT scan report on 2 May 2023 specified a lack of degenerative changes.
The Panel must satisfy itself there is sufficient evidence that would allow the Panel to feel persuaded that the injury probably occurred in the subject accident, which goes beyond conflicting inferences of equal degrees of probability that the claimant had, inter alia, sustained injury.
The Panel’s Medical Assessors agreed it was medically feasible that the accident mechanism was sufficient to cause cervical spine injuries.
On balance, the evidence supports a nexus with the 2023 accident and Ms Rafelotos’ cervical spine injury. The question remains whether it caused the disc bulge at right C5/6; C5/6 left foraminal narrowing and disc bulge; with signs of radiculopathy including right arm tingling and numbness and muscle weakness.
The Panel considered whether the disc protrusion is trauma related. Although statistically such findings are common in the population, there is no evidence the claimant had a disc protrusion before the accident. However, the bulge was not demonstrated until the claimant underwent scans shortly after what reads like a high impact or at least more than trivial collision.
Further, although it was not verifiable radiculopathy after the accident there was a sudden onset of radicular type complaints in the cervical spine. These symptoms have persisted.
Even if there were an annular fissure existing before the accident, the Panel looking at the evidence above could not exclude the accident trauma causing the fissure to grow and become chronically symptomatic due to a cycle of injury, spasm, and further tearing. The sudden onset of symptoms, which have remained consistent, support this.
The Panel considered Briggs No 2 which reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty.
The Panel considered Momand, and decided that the injury was such that there was likely – on the balance of probability – to be a traumatic protrusion which caused a tear of the outer annular fibres of the disc.
This makes the injury non threshold under the s 1.6(2) MAI Act definition.
Causation
The subject motor accident caused the diagnosed injuries for the reasons set out above.
CONCLUSION
Ms Rafelotos has established the accident caused her to suffer a disc bulge at right C5/6, which is a non-threshold injury. The Panel revokes Medical Assessor Kuru’s certificate dated 31 May 2024 because our examination had a different clinical finding.
All the injuries referred to the Panel for assessment have been assessed and determined as caused by the motor accident.
Member O’Riain, Medical Assessor Gibson and Medical Assessor Rosenthal have viewed this certificate and confirmed they are in agreement.
APPENDICES
APPENDIX A
Statutory Provisions
The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act so that from 1 April 2023 the term “threshold” substitutes for “minor”. The terms are interchangeable. This decision will retain the former term when talking about Medical Assessor Woo’s decision and the insurer’s earlier decision, but the current term will be used when addressing our certificate.
At the time this dispute became apparent s 1.6 of the MAI Act defined a minor injury to include a “soft tissue injury” or a “threshold psychological or psychiatric injury.” Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on
1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess the threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in clause 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(e) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
In Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014 at [69] Harrison AsJ stated:
“It is my view that the Assessor misdirected himself when he omitted to consider the entirety of the findings of the MRI scan to the plaintiff’s cervical spine, namely, an assessment of the individual disc levels throughout the cervical spine is notable for broad-based disc protrusion at C5/C6. This indents the ventral thecal sac and is not associated with central canal compromise. Had he fully appreciated the report of the MRI scan to the plaintiff’s cervical spine, he would have appreciated that there was a disc protrusion at C5/C6 and this indents the ventral sac. The ventral sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material. This injury is not one that falls within the definition of a minor injury. In any event, the assessor did explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, where injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. This ground of review was raised before the delegate.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury will be assessed as a threshold injury.
Part 5 of the Personal Injury Commission Act 2020 (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 merit reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were threshold or satisfying the threshold as defined under the MAI Act.
The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh.
The Review Panel adopts the reasoning in David v Allianz Australia Ltd that radiculopathy can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.
We also adopt the reasoning in Lynch v AAI Ltd that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
The rules of evidence do not apply to this Review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
The claimant must satisfy this Panel on the balance of probabilities that the 2023 accident caused her cervical spine injury.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.
However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a threshold injury, it is unclear and unlikely the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment apply to assessing causation in threshold injury disputes. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.
In order to promote consistency and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in clauses 6.6 and 6.7 of the Guidelines.
Part 6 of the Guidelines dealing with permanent impairment states:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:
“One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.
Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.
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