Rahimi v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Rahimi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 31
CLAIMANT:	Fariba Rahimi
INSURER:	NRMA
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Dixon
MEDICAL ASSESSOR:	Barnsley
DATE OF DECISION:	14 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; physical injuries; review of Medical Assessment Certificate (MAC); whether permanent impairment exceeded the 10% statutory threshold; claimant involved in a motor accident causing neck pain, lower back pain, and radicular symptoms; pre-existing cervical and lumbar spine conditions considered; cervical spine assessed at Diagnosis-Related Estimate (DRE) Cervicothoracic Category II with 5% whole person impairment (WPI); bilateral shoulder stiffness attributed to trapezial muscle pain with 2% WPI for each shoulder; lumbar spine assessed at DRE Lumbosacral Category I with 0% WPI due to soft tissue injury without evidence of acute structural damage or radiculopathy; delayed onset of radicular symptoms noted but deemed unrelated to motor accident; claimant’s symptoms primarily linked to motor accident but exacerbated by degenerative conditions; combined impairment assessed at 9% WPI; Held – permanent impairment resulting from motor accident does not exceed the statutory threshold of 10%; MAC affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Mohammed Assem dated 15 February 2023 regarding the assessment of injuries caused by the motor accident which give rise to a permanent impairment of 9% which is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

On 2 February 2018, Fariba Rahimi, the claimant was driving a 2015 Toyota Yaris with a colleague seated in the front passenger seat. While navigating a roundabout on Park Road in Auburn, another vehicle collided with the left rear corner of her car. The impact caused her to lose control of her vehicle causing her ultimately to crash into an electricity box located in front of a nearby property (the motor accident).
At the time of the motor accident, the claimant was wearing her seatbelt, and the airbags did not deploy. She reported experiencing pain in her neck and lower back, along with a headache and episodes of vomiting. Although she was in shock, she managed to exit the vehicle without assistance. Her colleague did not report any physical injuries. The vehicle, which sustained significant damage, was later towed and repaired.
Emergency services attended the scene, and the claimant was transported by ambulance to Auburn Hospital. Medical records from the hospital documented complaints of persistent neck and central chest pain, which worsened with deep breaths. No other injuries were recorded during her visit, and an X-ray of her cervical spine revealed no acute abnormalities.
There is a dispute about a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accident Injuries Act 2017 (the Act) concerning the degree of permanent impairment sustained by the claimant as a result of injuries arising out of the motor accident exceed the statutory threshold of 10%.
The Personal Injury Commission (Commission) referred several injuries for assessment:
(a)    cervical spine- musculoligamentous strains and a musculoskeletal injury;
(b)    lumbar spine- musculoligamentous strains and a musculoskeletal injury;
(c)    bilateral legs- musculoligamentous strains and a musculoskeletal injury, and
(d)    right hand-musculoligamentous strains and a musculoskeletal injury.

MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW

The medical assessment matter was initially referred to Medical Assessor Mohammed Assem (the Medical Assessor).
By Certificate and Reasons dated 15 February 2023, the Medical Assessor assessed the claimant’s physical injuries she claimed arose from the motor accident to determine whether the injuries resulted in a whole person impairment (WPI) exceeding 10% (the MAC).
The claimant, a 46-year-old woman, had a history of motor vehicle accidents in 2006 and 2010, which caused injuries to her cervical and lumbar spine and resulted in chronic pain. Following the motor accident, the claimant reported neck pain, lower back pain, and radicular symptoms in her left lower extremity. These symptoms were said to have significantly affected her daily activities and her ability to work.
The assessment of the cervical spine considered the claimant’s long-standing symptoms, which predated the motor accident. The claimant reported persistent neck pain and stiffness, which she rated as severe, with some radiating symptoms. Clinical examination revealed tenderness, muscle guarding, and symmetrical restrictions in cervical movements. However, no neurological deficits were observed, and the radicular symptoms were classified as non-verifiable. The cervical spine was assessed as Diagnosis-Related Estimate (DRE) Cervicothoracic Category II, equating to 5% WPI. The Medical Assessor concluded that pre-existing conditions did not significantly contribute to the current impairment.
The claimant also reported ongoing lower back pain, radiating to her left lower extremity. Radiological investigations, including MRI and CT scans, showed mild degenerative changes in the lumbar spine but no findings correlating with radicular symptoms. During examination, the claimant exhibited restricted lumbar spine movements without muscle guarding, spasm, or neurological deficits. The lumbar spine was classified as DRE Lumbosacral Category I, resulting in a 0% WPI. The Medical Assessor noted that radicular symptoms in the left lower extremity were first documented 16 months after the motor accident and determined they were not causally related to the motor accident.
The claimant demonstrated restricted movements in her shoulders, which she attributed to secondary symptoms from her neck injuries. Examination revealed inconsistencies in her range of motion and muscle guarding in the upper trapezius. The Medical Assessor determined that the symptoms were likely referred pain from the cervical spine rather than independent injuries. An analogous rating was applied, attributing 2% WPI to each shoulder, resulting in a combined 4% impairment for both shoulders.
The claimant also complained of radicular symptoms in her left leg and pain in her right hand, specifically at the first metacarpal joint. Examination did not reveal significant abnormalities or evidence of nerve root compression. The Medical Assessor concluded that the radicular symptoms in the left leg and the right-hand pain were unrelated to the accident, and no impairment ratings were assigned for these areas.
The overall determination concluded that the injuries caused by the motor accident resulted in a WPI of 9%, which did not meet the 10% threshold for non-economic loss compensation. The total impairment consisted of 5% for the cervical spine and 4% for both shoulders, with no impairment assigned to the lumbar spine, bilateral legs, or right hand. The Medical Assessor acknowledged the claimant’s ongoing symptoms but found insufficient evidence to attribute impairment to the motor accident.

APPLICATION FOR A REVIEW

The claimant sought a review of the MAC, alleging errors regarding the assessment of her lumbar spine injury. The claimant argued two primary grounds for review.
First, it was asserted that the Medical Assessor’s determination lacked transparency and a clear reasoning pathway. Specifically, the report noted her pain and symptoms post-accident, including radiating lower back pain with associated numbness and difficulty performing routine activities. While radiological investigations, including an MRI, revealed disc protrusions and nerve root impingement, the Medical Assessor erroneously described the imaging as “unremarkable” and concluded an impairment of 0%. This, she submitted, contradicted clinical records and observations, which indicated findings consistent with DRE category II impairment. The claimant argued that this represented a failure to provide adequate reasoning.
Second, the claimant alleged a misapplication of the Motor Accident Permanent Impairment Guidelines (the Guidelines). Based on the findings of radiating symptoms, the claimant contended the lumbar spine impairment should have been assessed at DRE category II, equating to at least 5%. The Medical Assessor’s failure to address or justify disregarding these symptoms, coupled with the omission of explanations for the 0% impairment conclusion, was deemed erroneous and left an impartial observer unable to discern the reasoning process, as required by the case law.
The claimant further noted that a correct assessment of the lumbar spine at DRE category II would have resulted in a total impairment of at least 14%, materially altering the outcome.
The insurer, in its submissions dated 22 March 2023, responded to the claimant’s application for review.
Regarding the first ground, the insurer contended that the Medical Assessor had provided a clear and sufficient path of reasoning throughout the certificate. The Medical Assessor acknowledged reviewing all submitted materials, detailed the examination findings, including the absence of muscle guarding, and thoroughly discussed relevant documentation and radiological imaging. Furthermore, the reasoning behind the categorisation of the claimant’s condition as consistent with DRE Lumbosacral Category I was explicitly linked to specific sections of the Guidelines. The insurer highlighted the claimant’s assertion that the radiological investigations were not unremarkable but noted the absence of contrary medical opinions in the claimant’s submissions.
On the second ground, the insurer argued that the Medical Assessor adequately justified the 0% impairment rating for the lumbar spine. It emphasised the Medical Assessor’s reasoning that symptoms in the claimant’s left leg were not causally linked to the motor vehicle accident. The insurer also pointed out the claimant’s failure to specify how the alleged radiating symptoms impacted the Medical Assessor’s determination.
On 13 April 2023, the President’s delegate determined that the material presented provided reasonable cause to suspect error in the assessment, particularly in its consideration of the lumbar spine impairment.
Consequently, the case was referred to a Review Panel originally constituted by Member Nolan, Medical Assessor Dixon and Medical Assessor Berry. However, upon Medical Assessor’s retirement, the Review Panel was reconstituted to substitute Medical Assessor Barnsley (the Panel).

REVIEW PROCEDURE

Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Section 7.26(5A) of the Act provides 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 Panel to assess.
Section 41(2) 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 Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 of the PIC Rules provides that 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.
By directions issued on 14 July 2023, the parties were directed to provide the Panel a joint bundle of material on which they relied upon the Review. That direction was complied with. The following is a summary of the relevant material provided.

MATERIAL BEFORE THE PANEL ON REVIEW
Clinical records

On 26 June 2007, following a motor vehicle accident, the claimant reported mild abdominal pain and headaches after striking her forehead against the steering wheel. Examination revealed mild tenderness in the cervical area, particularly at the C5-C6 level. Diagnostic imaging, including a CT scan of the head and cervical spine X-rays, were ordered.
On 24 April 2009, the claimant presented with knee pain, swelling, and increased discomfort that had persisted for two years. Mobic was prescribed, and she was referred for a knee X-ray and specialist consultation.
Clinical notes for 24 December 2010 record that the claimant consulted Dr Hung Ma after a motor vehicle accident on 1 December 2010. She reported pain in her left shoulder, neck, and arm. Dr Ma noted restricted range of motion to 90 degrees for shoulder abduction, positive supraspinatus impingement, and poor internal and external rotation. Imaging was requested, including a shoulder ultrasound and a cervical spine X-ray, to investigate potential rotator cuff injury. Voltaren Rapid was prescribed for pain management.
On 7 January 2011, Dr Ma reviewed imaging results showing probable mild subacromial bursitis in the left shoulder. A joint injection with lignocaine and steroid was recommended, though the claimant was advised to consider it further.
The chiropractic report from St. Ives Chiropractic Centre, dated 6 May 2011, details the treatment of the claimant’s neck, shoulder, and arm pain, predominantly on the left side, with referral of symptoms to the hand in the C7 and C8 dermatomes. Imaging revealed disc bulging and protrusion, which were identified as the source of her symptoms. The issues were reported to have originated following a motor vehicle accident in 2010.
Over the course of six weeks, the claimant’s symptoms in the arm and hand had improved; however, she continued to experience pain in the neck, shoulder girdle, and upper chest, indicating involvement of the upper and mid-cervical spine. The chiropractor encouraged the claimant to continue taking her prescription medication and to discuss the possibility of injection therapy with her treating physician.
On 19 April 2012, the claimant was referred to physiotherapy by Dr Mohammad Hamid to address chronic musculoskeletal symptoms related to earlier motor vehicle accidents in 2006 and 2010.
The clinical records of Dr Balqees Omar document that on 5 January 2015 the claimant presented with chronic neck pain and limited neck movement due to a cervical disc bulge. She reported stiffness and radiation of pain to the left arm without sensory loss. Pain management strategies were discussed, and Voltaren was prescribed.
On 21 May 2015, the claimant underwent a neurological assessment for chronic neck pain and numbness in her left hand, which had persisted for four years. Cervical spondylosis and restricted shoulder movement were noted during the examination. A referral to a neurologist was made, and nerve conduction studies were conducted, which showed no significant radiculopathy. Dr Fatemeh Nazaran’s clinical records for the claimant document consultations addressing injuries from motor vehicle accidents and other health concerns.
The surgery consultation recorded by Dr Mohammad Omer Mohmand on 16 June 2015 addressed the claimant’s complaints of headache, neck pain, and shoulder pain. The claimant was diagnosed with cervical spondylosis and rotator cuff tendinosis, which were identified as the reasons for her visit.
On 13 January 2016, the claimant presented with worsening pain in her left shoulder over the preceding five days, along with numbness in three medial fingers. A soft tissue ultrasound of the left shoulder was ordered to investigate potential tendon injuries. Panadol Osteo and Fenac EC were prescribed for pain relief, and Otocomb Ointment was recommended for itchy ears. A routine Pap smear was also conducted during this visit.
On 1 September 2016, Dr Hamid documented the claimant’s ongoing neck and back pain and the functional limitations they caused.
Dr Hamid’s clinical records record that on 27 February 2018, shortly after the motor accident, the claimant consulted Dr Hamid for neck and back pain. A care plan was created, and medications, including Panadeine Forte, were prescribed for pain relief. Physiotherapy was recommended under Medicare to address musculoskeletal injuries.
On 9 March 2018, additional pain management measures were implemented, and Endep was prescribed to support pain relief. A medical certificate was also issued, documenting her incapacity to work due to her physical condition.
On 13 March 2019, Dr Hamid prescribed Endep and Celebrex to help address ongoing pain in her cervical and lumbar spine.
On 10 May 2019, X-rays of the cervical spine and hands were ordered to further investigate persistent pain and numbness in these areas. Normison was also prescribed to aid with sleep disruptions caused by her physical discomfort.
On 1 June 2019, the claimant reported ongoing neck and hand pain, alongside back and knee pain, obesity, severe constipation, and symptoms indicative of sleep apnoea, including heavy snoring and waking up gasping for air. The symptoms were linked to the motor accident.
On 16 June 2019, Dr Hamid ordered imaging studies for the cervical spine and hands to investigate the claimant’s ongoing pain and made significant adjustments to the claimant’s medication regimen.
On 27 June 2019, a CT scan of the lumbar spine identified low-grade facet joint arthropathy at L4/5 and L5/S1. The claimant was informed of the findings and was advised to engage in exercises to manage her back and knee pain.
By 7 August 2019, the claimant reported persistent pain and restricted movement in the cervical spine, leading to a referral for physiotherapy to address musculoskeletal issues.
On 11 December 2019, the claimant reported an acute exacerbation of lower back pain radiating to her left leg, accompanied by paraesthesia in both lower limbs. The pain was severe enough to significantly disrupt her sleep.
On 22 April 2020, Dr Hamid ordered imaging for the lumbar spine and prescribed Normacol Plus for associated discomfort. Endep was continued as part of her pain management strategy.
On 15 September 2020, Dr Nazaran reviewed the claimant, for several ongoing issues, including lumbar and cervical spine concerns. The claimant had been recently reviewed by Dr Daud, with an MRI of the lumbar spine revealing congenitally short pedicles and disc protrusions at L3/4 and L5/S1. These findings showed left L3 nerve root impingement and disc contact with both L5 nerve roots. The claimant was advised to start core muscle strengthening exercises and a weight-loss program. She also reported neck pain radiating to both arms, accompanied by numbness in her hands, as well as amenorrhoea for the past four months.
On examination, the claimant had a height of 157 cm, a weight of 84.1 kg, and a BMI of 34.1. She presented with back pain accompanied by bilateral radiculopathy, cervical radiculopathy, and associated neck pain, as well as constipation. The management plan included patient education about her condition, dietary advice, and weight reduction strategies. The claimant was prescribed Lyrica (25 mg nocte) for two weeks, with the dosage gradually increased, and was advised on the use of Movicol for constipation management.

Medical imaging

An MRI of the full spine was conducted on 19 May 2008 following the claimant’s motor vehicle accident in 2007. The findings noted that vertebral body height and alignment were preserved, and the marrow signal appeared normal except for minimal bright T2/STIR signal changes immediately inferior to the superior endplate of C6. These changes were interpreted as reactive rather than indicative of a fracture. At the C5/6 level, small posterior endplate osteophytes and a posterocentral disc protrusion were observed, indenting the anterior spinal cord but without evidence of abnormal cord signal. Mild bilateral foraminal stenosis was noted, attributed to the disc and osteophytes. Additional minor posterior endplate osteophytes were present at the C3/4 and C4/5 levels, and the findings at the C7/T1 level included minimal posterior osteophytes without significant central canal or foraminal stenosis.

The thoracic and lumbar spine showed no significant abnormalities, and the spinal cord signal was normal, with the conus medullaris terminating at the L1 level. There was no evidence of significant central canal stenosis, foraminal stenosis, or epidural fluid collection. However, the thyroid gland appeared bulky and prominent, particularly at the isthmus and right lobe, warranting further clinical correlation and possible ultrasound evaluation.
Dr Karunaratne concluded that the findings were consistent with early cervical spondylotic changes, most prominent at C5/6, with mild degenerative features elsewhere.
The X-ray and ultrasound report dated 24 September 2010, focused on the claimant’s left shoulder. The X-ray findings revealed that the clavicle and acromioclavicular joint had normal appearances for her age. There was no evidence of spur formation, and the subacromial space, humeral head, and proximal shaft were preserved and appeared normal. The glenohumeral joint, scapula, and underlying ribs were also noted to be unremarkable.
The ultrasound findings confirmed that the biceps tendon had a normal appearance with no distension of the tendon sheath. The subscapularis and infraspinatus tendons, along with the posterior labrum, were intact and normal. There was no evidence of joint effusion, tears, or impingement. The supraspinatus tendon was normal in thickness (0.6 cm) and appearance. No bursal distension was observed. The overall conclusion of the imaging was a normal study, with no abnormalities or significant findings.
The CT of the cervical spine performed by Dr Joseph Sanki on 28 October 2010 revealed minimal spondylotic changes in the discovertebral joints, characterised by the formation of endplate osteophytes. The posterior longitudinal ligament showed ossification at the C5, C6, and C7 levels. These findings are indicative of early degenerative changes that likely developed over time. Importantly, there were no signs of acute trauma, disc herniation, or significant neural compression. The imaging suggested chronic wear and tear on the cervical spine, consistent with spondylotic progression rather than any acute injury.
The MRI of the cervical spine conducted by Dr David Ho on 7 December 2010 revealed moderate focal posterior protrusions at the C5-6 and C6-7 levels, causing mild compression and flattening of the cervical cord. Despite these changes, no evidence of myelomalacia (softening of the spinal cord) or oedema (swelling) was observed, which ruled out severe acute injury or ongoing inflammation. The findings highlighted degenerative changes likely resulting from chronic conditions, with some impingement of adjacent structures but no acute or severe pathological processes.
The report from Merrylands Imaging Centre, dated 7 January 2011, provided an assessment of the claimant’s cervical spine and left shoulder. The cervical spine X-ray revealed a partial loss of the usual lordosis (natural curvature), which may indicate muscle spasm or chronic postural changes. However, the overall alignment of the cervical spine was normal. There were no bony deformities, and the disc spaces appeared preserved. Soft tissues were within normal limits, and no acute bony changes were observed.
The ultrasound of the left shoulder identified a mild prominence of the subacromial bursa, suggesting some inflammation consistent with mild bursitis. However, there was no evidence of impingement during arm elevation. The claimant’s arm elevation was limited by pain at approximately 140 degrees. The anterior and posterior rotator cuff tendons appeared structurally normal, and no joint effusion was noted. The findings supported a diagnosis of probable mild subacromial bursitis as the cause of the claimant’s shoulder pain and restricted range of motion.
The X-ray of the lumbar spine reviewed by Dr Veena Chari on 27 January 2012 demonstrated a mild curvature of the lumbar spine, with a convexity directed to the left and an apex centred on L4. This finding is suggestive of mild scoliosis, possibly age-related or secondary to degenerative changes. Anterior wedging of the T11/12 and L1 vertebrae was noted, likely due to mild compression deformities. These findings are compatible with early chronic degenerative changes. Vertebral body heights and disc spaces were well preserved, and there was no evidence of vertebral slippage (listhesis). The alignment of the posterior elements was normal, and the prevertebral soft tissues were unremarkable, ruling out acute or significant pathological changes.
The MRI of the cervical spine reported by Dr Pramod Phadke on 14 June 2012 identified degenerative disc lesions at the C5/C6 and C6/C7 levels. The imaging also showed posterior disc bulges that caused mild narrowing of the neural foramina, particularly at C6/C7. These changes were not to have the potential lead to nerve root irritation or mild compression. However, no significant spinal cord compression, myelopathy, or acute pathology was detected.
The whole body bone scan with SPECT/CT performed by Dr Bill Mouratidis on

17 October 2014 demonstrated degenerative changes, particularly arthritic involvement of the medial aspect of the right hip joint and a healing fracture of the right inferior pubic ramus. Minor arthritic changes were also detected in the right first TMT joint, left first MCP joint, and left first MTP joint.
The ultrasound of the left shoulder conducted by Dr Vincent Caristo on 5 February 2016 showed no abnormalities. The supraspinatus tendon was normal in thickness (0.6 cm) and structure, with no signs of tears or tendinosis. The posterior labrum, subscapularis, and infraspinatus tendons were intact, and no effusion or impingement was observed. Additionally, no bursal distension was detected. These findings ruled out any structural damage or pathology in the left shoulder, confirming normal sonographic results.
The MRI of the cervical spine reported by Dr Pascal Bou-Haidar on 16 February 2016 demonstrated a mild increase in the size of a broad-based posterior disc protrusion at C6/C7 compared to earlier studies. This protrusion extended slightly into the left foramen, causing minimal ventral cord indentation and narrowing of the lateral recesses. Mild spondylosis was also noted at C5/C6, alongside a mild diffuse disc bulge at C4/C5. Despite these findings, there was no significant nerve root compression or acute neural irritation.
The cervical spine X-ray conducted on 3 February 2018 revealed no fractures, dislocations, or acute abnormalities. All cervical vertebrae were visible on the lateral views, with no abnormal prevertebral soft tissue swelling or damage to the dens. The accompanying chest X-ray showed normal cardiomediastinal contours, clear lungs, and pleural spaces, with no pneumothorax or rib fractures identified.
The CT scan of the lumbar spine performed on 24 June 2019 was conducted to investigate complaints of left-sided lower back pain radiating to the left leg.
The findings revealed normal spinal alignment with no scoliosis or spondylolisthesis. Assessment of the individual disc levels demonstrated no disc protrusion or evidence of neural compression, and the exiting nerves were noted to pass freely at all levels. However, low-grade arthropathy of the facet joints was observed at L4/5 and L5/S1, without significant osteophytic hypertrophy. The pars interarticularis was intact, and the paraspinal soft tissues appeared normal. There was no indication of marrow infiltration within the limits of the CT imaging. The conclusion of the report highlighted low-grade facet joint arthropathy at L4/5 and L5/S1, but no disc protrusion was identified to account for the claimant’s radiculopathy symptoms.
An MRI of the lumbar spine dated 7 August 2020 was conducted to evaluate the claimant’s ongoing lower back pain and L5 radiculopathy following the motor accident. The findings indicated no significant abnormalities at the L1-L2 level, with no disc protrusion or foraminal stenosis, but mild facet joint arthropathy was observed. At the L2-L3 level, there was mild broad-based disc protrusion and mild to moderate facet joint arthropathy, along with left foraminal narrowing. This narrowing caused early impingement of the exiting left L3 nerve root. The L3-L4 level showed mild left lateral disc protrusion and mild facet joint arthropathy without significant canal or foraminal stenosis. At the L4-L5 level, mild broad-based disc protrusion and mild facet joint arthropathy were noted, accompanied by narrowing of the neural foramen. The disc was reported to be in contact with the exiting L5 nerve roots, with more pronounced impingement on the right side.
The conclusion highlighted congenitally short pedicles, mild disc protrusions at L3-L4 and L5-S1, and early impingement of the exiting left L3 nerve root. Additionally, the report confirmed disc contact with the exiting L5 nerve roots at L4-L5.

Medical reports

The report by Dr Joan Chen dated 23 September 2008, detailed the medical evaluation of the claimant following a motor vehicle accident on 19 June 2007. The assessment was conducted to evaluate the claimant’s injuries, functional limitations, and the impact on her personal and professional life.
The claimant reported that she was stationary in her vehicle when it was rear-ended, causing her car to move forward approximately 10m. She stated that she felt immediate neck pain, and within a few days, experienced pain in her shoulders, lower back, and girdles. At the time of the accident, the claimant had been recovering from the flu and was already in a weakened condition. She subsequently consulted her general practitioner (GP), Dr Hamid, who prescribed analgesic medication. Over the following months, she underwent 22 sessions of physiotherapy, which included soft tissue massage, heat treatment, and therapeutic exercises. While she reported short-term improvement, she stated there was no lasting benefit.
The claimant participated in a gym-based exercise program from March to June 2008. She reported that stretching exercises improved her symptoms temporarily but noted that her neck and back pain remained chronic. She also received psychological counselling, which focused on cognitive behavioural strategies for managing pain and building resilience. However, Dr Chen noted limited improvement in the claimant’s insight into her condition or her ability to manage daily activities effectively.
The claimant reported significant difficulties in her domestic and professional life. She ceased most household tasks, including vacuuming, mopping, and cooking, relying on her children and husband for assistance. In her professional capacity, she stated that she could no longer perform sewing duties for extended periods due to neck and back pain. She had reduced her teaching load but continued to manage some sessions at TAFE.
On examination, the claimant demonstrated restricted cervical spine movement accompanied by tenderness and pain during flexion and extension. There was no evidence of dysmetria, radicular complaints, or muscle guarding. Her lumbar spine exhibited limited flexion and extension, with pain radiating to the midline. Neurological assessments revealed no deficits, and radiological imaging showed degenerative changes in the cervical spine, particularly at the C5/6 level, without evidence of radiculopathy.
Dr Chen diagnosed the claimant with soft tissue strain injuries to the cervical and lumbar spine, as well as somatic referred pain to the shoulders. The claimant’s impairments were consistent with a DRE Cervicothoracic Category I classification, with no permanent impairment of the cervical spine. Her lumbar spine condition was classified as DRE Lumbosacral Category II, resulting in 5% WPI. Dr Chen noted that the claimant’s reported disabilities were disproportionate to the underlying injuries and attributed this to cultural and psychosocial factors, including fear avoidance behaviours.
In conclusion, the report acknowledged the claimant’s limitations and ongoing chronic pain, recommending the continuation of restricted duties in her professional roles. Dr Chen emphasised the importance of psychological and physical rehabilitation to improve her coping strategies and functional outcomes. The overall permanent impairment arising from the accident was assessed at 5%, and apportionment was deemed unnecessary, as there was no evidence of pre-existing symptomatic impairment.
Dr Shareef Dowla’s report, dated 24 July 2008, evaluated the claimant for chronic neck, shoulder, and lower back pain stemming from her motor vehicle accident in 2007. The claimant reported persistent discomfort in these areas, which significantly impacted her daily activities and work performance.
The neurological examination and nerve conduction studies performed by Dr Dowla showed no evidence of radiculopathy or neurological abnormalities that could explain her symptoms. Despite the absence of objective findings, the claimant exhibited reduced shoulder mobility and reported ongoing pain consistent with musculoskeletal strain.
Dr Dowla attributed the claimant’s symptoms primarily to post-traumatic stress disorder and recommended an increased dose of Endep (amitriptyline) to manage both her physical pain and psychological symptoms. He also suggested a comprehensive physiotherapy program to address her musculoskeletal limitations and improve her functional capacity.
Dr Patrick’s report dated 22 July 2009 assessed the claimant’s injuries sustained in the motor vehicle accident on 19 June 2007. The report detailed the mechanism of the injury, the claimant’s medical history, reported symptoms, clinical findings, and functional limitations, as well as the long-term impact on her capacity to work.
The accident occurred while the claimant’s vehicle was stationary, waiting to make a right turn. A Nissan Pulsar collided with the rear of her car with significant force, propelling it forward. The claimant immediately experienced pain in her neck, mid-back, lower back, and right shoulder, as well as a headache. Her infant son, who was in the vehicle at the time, remained uninjured. She described the collision as severe, causing her body to be violently thrust forward and backward.
In the days following the accident, the claimant consulted her GP, Dr Hamid, who prescribed analgesics and referred her for physiotherapy. Despite these interventions, she reported ongoing symptoms, including persistent pain in her cervical, thoracic, and lumbar spine, and difficulty performing daily activities and household tasks. She also experienced pain in her right shoulder, particularly during lifting or overhead movements.
Dr Patrick’s clinical examination identified significant physical limitations. He diagnosed non-specific soft tissue injuries to the cervical, thoracic, and lumbar spine, along with a minor injury to the right shoulder. Radiological imaging did not reveal radiculopathy but demonstrated hyperextension and flexion injuries to the cervical zygapophyseal joints and thoracic and lumbar facet joints. Dr Patrick found the claimant’s reported symptoms to be consistent with her injuries and deemed her presentation genuine and credible.
The report concluded that the accident-related injuries had a profound impact on the claimant’s ability to perform her pre-injury roles, including both professional and domestic duties. Dr Patrick assessed a WPI of 15%, with 5% each allocated to the cervical, thoracic, and lumbar spine based on DRE category II classifications. He recommended significant work restrictions, including avoidance of heavy lifting, frequent bending, prolonged stooping, and activities that involved jolting or jarring of the spine. He deemed her fit only for part-time light duties, limited to 25–30 hours per week. Additionally, he advised that the claimant would require ongoing medical care, including consultations with GPs and specialists, physiotherapy, chiropractic treatment, imaging studies, and household assistance for 4–6 hours weekly.
Dr Grant Walker’s report, dated 10 December 2010, assessed the claimant’s condition following her motor vehicle accident in 2007. The claimant was noted to have experienced chronic neck and shoulder pain since the accident. Imaging, including an MRI of the cervical scan, identified degenerative changes at the C5/6 level, but no significant abnormalities were observed in the thoracic or lumbar spine at that time.
By approximately October 2010, the claimant reported the onset of pain in her left arm, which was accompanied by numbness affecting the first to third fingers of her left hand and extending into the radial forearm. Dr Walker indicated that these symptoms were likely a progression of the cervical issues associated with her prior accident. Despite the worsening of her symptoms, there was no evidence of acute structural damage or new injuries on imaging.
Dr Walker concluded that the claimant’s ongoing pain and neurological symptoms in her left arm were consistent with her history of cervical spine degeneration and chronic soft tissue injuries stemming from the 2007 accident. The report highlighted that her condition was primarily degenerative and exacerbated by the earlier trauma, with no evidence of significant acute pathology.
Dr David Spencer’s report dated 18 March 2011, provided an assessment of the claimant’s condition following the motor vehicle accident in December 2010. The claimant had pre-existing cervical and right trapezius pain, which intensified after the accident. She also developed left arm pain, associated with paraesthesia, primarily affecting the thumb, index, and middle fingers. Additional complaints included chest wall pain, difficulty carrying objects with her left arm, and sleep disturbances.
Upon examination, Dr Spencer noted no loss of muscle bulk, but cervical movements were restricted. While he could not reproduce radicular arm pain, the claimant exhibited pain and tenderness around the left scapulothoracic region. Reflexes were equal, and sensory abnormalities were not definitively demonstrated. Power reduction in the left arm was attributed to pain rather than neurological compromise.
Dr Spencer highlighted that the claimant had experienced some improvement through chiropractic treatment and exercises, though significant pain persisted. To further investigate her symptoms, he recommended an MRI and encouraged her to continue her current rehabilitation program.
Dr Spencer’s report, dated 22 July 2011, documented the claimant’s ongoing symptoms primarily involving pain in the cervical spine, the right shoulder, and the right leg. During the examination, the claimant’s cervical spine movements were noted to be very restricted. While the right shoulder exhibited a normal range of movement, it provoked significant discomfort in the trapezius region. There were no neurological signs identified during the examination, and Dr Spencer could not define any abnormalities with the right leg.
Dr Spencer acknowledged that the claimant seemed to benefit from her prescribed medication, Tofranil, at a dosage of 10 mg at night. Additionally, he saw no contraindications to initiating a hydrotherapy program at the Leagues Club to support her recovery. He expressed his willingness to see the claimant periodically as needed to monitor her progress and adjust treatments accordingly.
Dr Sam Perla’s report dated 20 December 2011 provided an evaluation of the claimant following the motor vehicle accident on 1 December 2010. The claimant presented with multiple symptoms, including neck pain, lower back pain, shoulder discomfort, and bilateral knee pain. She also reported radicular symptoms in all four limbs, including tingling and weakness, which she attributed to injuries sustained during the accident. The claimant described her pain as constant and debilitating, significantly impacting her ability to engage in daily activities and reducing her functional capacity.
During the physical examination, Dr Perla observed significant illness behaviour, which raised concerns about the reliability of the claimant’s subjective symptom reports. He noted that some of her responses during the assessment were inconsistent and did not align with expected clinical patterns. Neurological testing revealed no objective evidence of nerve root compression or radiculopathy, despite her complaints of widespread symptoms. Muscle strength and reflexes were within normal limits, and there were no identifiable neurological deficits.

Dr Perla diagnosed the claimant with a whiplash-associated disorder affecting the cervical spine and soft tissue injuries in the lumbar spine. He acknowledged her extensive complaints but emphasised the lack of correlating objective findings to support the severity of her reported symptoms. Imaging studies did not show significant structural damage or acute abnormalities that could explain the radicular symptoms in her limbs.
Importantly, Dr Perla apportioned 50% of her ongoing symptoms to her prior 2007 motor vehicle accident, which had already resulted in chronic neck and shoulder pain, and 50% to the December 2010 accident. He noted that her pre-existing conditions likely played a significant role in her current presentation. Due to the absence of sufficient clinical evidence, Dr Perla refrained from assigning a WPI rating, citing the need for a more comprehensive assessment of her pre-existing impairment before the accident.
Dr David Maxwell’s report, dated 12 July 2012, assessed the claimant regarding injuries sustained in a motor vehicle accident on 1 December 2010.
The claimant described ongoing pain in her neck, lower back, shoulders, and knees, as well as numbness and tingling in her hands. She reported significant limitations in her ability to engage in daily activities due to persistent discomfort. Dr Maxwell observed inconsistencies during the physical examination and noted non-organic responses, suggesting some degree of symptom exaggeration. Despite this, he evaluated the claimant’s condition objectively based on her reported complaints and the examination findings.
The physical examination revealed moderately reduced cervical spine movement, with no muscle spasm or guarding and no evidence of radicular symptoms. Shoulder movement was inconsistent, reportedly due to pain, and there was no significant abnormality in the upper extremity joints apart from localised discomfort in the first carpometacarpal joints. Lower back examination showed markedly reduced lumbar spine movement, but again, no radicular symptoms or neurological deficits were noted. The claimant demonstrated a normal gait, and there was no evidence of muscular atrophy or neurological abnormalities in either the upper or lower extremities.
Dr Maxwell expressed difficulty in arriving at a conclusive diagnosis due to the inconsistencies in the claimant’s presentation. He acknowledged her reported symptoms but did not observe objective findings to substantiate the severity of her complaints. The report concluded that the claimant’s presentation was complex and likely influenced by both physical and psychological factors.
Dr Maxwell classified the cervical spine under DRE Cervicothoracic Category I, corresponding to 0% WPI. He noted a symmetrical range of motion without muscle spasm, guarding, or radicular symptoms. The examination of the shoulders revealed voluntary restriction in range of motion, which Dr Maxwell attributed to the claimant’s self-imposed limitations rather than any specific injury. Consequently, no impairment was assigned to the shoulders. Similarly, for the lumbar spine, Dr Maxwell identified symmetrical but generally restricted movement, again without evidence of muscle spasm, guarding, or radiculopathy. The lumbar spine was classified under DRE Lumbosacral Category I, equating to 0% WPI. No specific injuries to the knees were identified, and no WPI was assigned for that region either.
Dr Maxwell concluded that there was no pathological condition to treat and that further medical interventions or specialist reviews were unnecessary. He also expressed the view that the claimant was fit to resume her pre-injury duties as a sewing teacher and self-employed dressmaker without restrictions and did not require personal or domestic assistance. This assessment underscored the expressed belief that the claimant’s reported disability was largely influenced by her perception rather than physical injury.
Dr Jonathon Parkinson’s report dated 5 December 2012 provided an evaluation of the claimant following her motor vehicle accident in December 2010. The claimant reported experiencing severe neck pain since the accident, alongside difficulty carrying objects due to perceived weakness in her hands. She also described intermittent numbness and tingling in her hands, which involved the entirety of her hands rather than following a dermatomal distribution.
On examination, Dr Parkinson found it difficult to assess the strength in her hands due to poor patient compliance. However, there was no evidence of increased muscle tone or stiffness in her gait to suggest cervical myelopathy. A review of her MRI scan revealed degenerative changes in the lower cervical spine but showed no significant cord or nerve root compression that could explain her symptoms. Dr Parkinson reassured her that there was no structural cause for her symptoms visible on imaging and suggested nerve conduction studies to rule out peripheral causes for her hand numbness.
Dr Dowla’s report dated 21 May 2015 provided a neurological evaluation of the claimant with a focus on her chronic neck pain and radicular symptoms following the motor vehicle accident in 2010. The claimant reported persistent neck pain radiating to her left shoulder, arm, and hand, which had been exacerbated in the four days prior to her consultation. Her symptoms included reduced shoulder mobility and discomfort affecting daily activities.
The neurological examination identified reduced movement in the left shoulder, accompanied by tenderness and pain during specific manoeuvres. Nerve conduction studies were performed, which did not reveal evidence of radiculopathy or significant neurological abnormalities. Based on the findings, Dr Dowla diagnosed chronic neck pain with radicular features and recommended a physiotherapy regimen to improve mobility and reduce discomfort. Additionally, he prescribed Effexor to manage the claimant’s symptoms, particularly focusing on associated anxiety and discomfort.
Dr Philippa Harvey-Sutton’s report dated 23 June 2016 provided an evaluation of the claimant following the motor vehicle accident on 1 December 2010. The claimant reported persistent pain in her neck, shoulders, and lower back, with additional symptoms of numbness and weakness in her arms. She attributed these issues directly to the accident and denied having any significant pre-existing disc problems, although the medical records suggested otherwise.
The claimant described the circumstances of the accident, stating that her vehicle had been rear-ended, causing it to collide with another car. She reported seeking medical attention from her GP, Dr Hamid, and undergoing imaging investigations that revealed disc issues, which she claimed were a direct result of the accident. Following the accident, the claimant pursued a range of treatments, including physiotherapy, chiropractic care, and hydrotherapy, but noted that the relief provided by these interventions was only temporary.
In her medical history, the claimant mentioned traveling to Afghanistan in 2013 and 2015, during which she sought additional treatment for her symptoms, such as hydrotherapy. However, she did not undergo any surgical interventions. She described ongoing difficulties with her daily activities and functional limitations, citing persistent pain as the primary factor affecting her quality of life.
Dr Harvey-Sutton conducted an examination and reviewed the claimant’s medical history, identifying inconsistencies in her account and presentation. The physical examination did not reveal any significant neurological deficits or structural abnormalities that could explain the severity of the claimant’s reported symptoms. The imaging findings and clinical history indicated pre-existing degenerative changes that were likely exacerbated by the accident but not caused by it.
The report concluded that the claimant’s ongoing symptoms and functional impairments were not entirely attributable to the 2010 accident. Dr Harvey-Sutton emphasised that the claimant had already received extensive medical care, including various therapies, and did not recommend further treatment. She also noted that the claimant’s impairments were minimal relative to the reported incident and suggested that other factors, including psychological components, may be contributing to her symptom presentation.
Dr John Bentivoglio’s report, dated 19 March 2021, assessed the claimant for injuries sustained in the motor accident. Dr Bentivoglio found that the claimant reported ongoing pain in her neck and lower back, with radiating pain into the shoulders. She described her symptoms as persistent and disruptive to her daily activities. On examination, the claimant demonstrated symmetrical movement in her neck and lumbar spine, with no evidence of muscle guarding or asymmetry. Abnormal sensory changes were identified in both the upper and lower limbs but did not correlate with a specific nerve root. The findings were consistent with degenerative changes and chronic pain rather than acute injuries from the motor accident.
Dr Bentivoglio assessed her injuries determining DRE Category II impairment of the cervical spine, with a base impairment of 5% WPI. However, he attributed her cervical symptoms entirely to pre-existing conditions, resulting in a 100% deduction and 0% WPI. Similarly, he classified her lumbar spine condition as DRE Category II, warranting a 5% WPI, but again applied a 100% deduction for pre-existing degenerative changes, resulting in 0% WPI.
The report concluded that the claimant’s ongoing symptoms were primarily related to pre-existing degenerative changes and chronic pain from prior motor vehicle accidents.

Dr Bentivoglio stated that any injuries sustained in the motor accident had resolved and that her current functional limitations were unrelated to that incident.
Dr Ruhaida Daud’s report, dated 16 July 2021, recorded that the claimant reported persistent lower back pain radiating to both legs, affecting the posterior and lateral aspects of her legs and toes. She described worsening symptoms when lying down and noted improvement with walking. Bladder function was noted as normal. A prior CT scan of the lumbar spine, dated 24 June 2019, revealed mild facet joint arthropathy at L4-L5 and L5-S1 but showed no evidence of disc protrusion that could explain her radiculopathy.
On examination, the claimant demonstrated positive straight leg raising tests bilaterally and reduced ankle jerk reflexes on both sides. Despite her symptoms, she was able to stand on her toes and heels. No other significant neurological deficits were noted. The claimant’s medications included Lyrica, Duromine, fluvoxamine, Movicol, Celebrex, and Voltaren, alongside over-the-counter analgesics.
Dr Daud recommended an MRI to further evaluate the lumbar spine for potential nerve root impingement, particularly at the S1 level. The report also advised weaning off Panadol Osteo due to excessive use of paracetamol and noted that the claimant might benefit from targeted nerve root injections if significant impingement was confirmed.

Centrelink documents

The claimant’s Centrelink file includes details relevant to her physical injuries:
(a)    The claimant was a recipient of the DSP for physical injuries until it was cancelled on 8 August 2018. The DSP was initially granted due to ongoing chronic pain from a cervical spine disorder, as well as related functional impairments.
(b)
A medical certificate from Dr Hamid, dated 13 March 2019, confirmed that the claimant was unfit to work due to “multiple conditions”, specifically a spinal disorder categorised as “other”. The unfit-to-work period spanned from

13 March 2019 to 13 June 2019.
(c)    A Job Capacity Assessment conducted on 30 April 2018 noted that the claimant’s ability to work was limited to 15-22 hours per week due to her permanent degenerative neck condition. The assessment highlighted that her endurance limitations restricted her ability to perform tasks involving neck movements, as well as pushing, pulling, gripping, or overhead activities.
(d)    Prior to the motor accident, the claimant worked six hours per day, five days per week (30 hours weekly), as a disability attendant with the Department of Education. She also ran her own sewing and pattern-making business. The motor accident reportedly caused severe physical pain and functional impairments, leading to her inability to return to work.

Medical assessments

Medical Assessor Ian Cameron’s certificate and reasons, dated 18 December 2015, provided an assessment of the claimant in relation to injuries sustained during the motor vehicle accident on 1 December 2010. The evaluation focused on her cervical spine, left shoulder, and lumbar spine, with the objective of determining the degree of permanent impairment and whether it exceeded the 10% threshold for substantial impairment under the Motor Accidents Compensation Act 1999.
The claimant had a documented history of chronic musculoskeletal pain, including persistent neck pain that predated the 2010 accident, which she attributed to a motor vehicle accident in 2007. Following the 2010 accident, the claimant reported worsening neck pain, along with new symptoms involving stiffness and discomfort in her left shoulder and lower back. She also described radicular symptoms, such as tingling and weakness in her arms. Previous imaging studies reviewed by Medical Assessor Cameron revealed degenerative changes in the cervical spine and mild abnormalities in the lumbar spine consistent with age-related wear and tear. The claimant had undergone extensive conservative treatment, including physiotherapy, chiropractic care, and hydrotherapy, which provided only temporary relief.
Medical Assessor Cameron’s examination of the cervical spine found moderately reduced range of motion, approximately 70% of normal, but no evidence of muscle spasm, guarding, or radicular symptoms. Neurological testing of the upper limbs showed no sensory deficits or weakness. Imaging studies confirmed degenerative changes, including mild disc bulging, but there were no acute findings attributable to the 2010 accident. Using the DRE guidelines, Medical Assessor Cameron classified the cervical spine under Cervicothoracic Category I, corresponding to 0% WPI.
The claimant also reported ongoing pain and functional limitations in her left shoulder, particularly with lifting and overhead movements. Examination findings included tenderness and restricted range of motion, but variability in the claimant’s effort during testing raised concerns about the consistency of her presentation. Imaging studies of the left shoulder did not reveal significant structural abnormalities, such as rotator cuff tears or joint degeneration, to explain her symptoms. Despite this, Medical Assessor Cameron awarded 1% WPI for the left shoulder, reflecting mild functional impairment resulting from residual soft tissue injury.
Regarding the lumbar spine, the claimant described persistent lower back pain, which she attributed to the 2010 accident, although her medical history included pre-existing complaints. Examination showed normal posture and alignment with no evidence of muscle spasm, guarding, or radiculopathy. Range of motion in the lumbar spine was mildly restricted, and neurological testing of the lower extremities revealed no deficits. Imaging studies demonstrated degenerative changes typical for the claimant’s age, without acute trauma or abnormalities directly linked to the accident. Medical Assessor Cameron classified the lumbar spine injury under DRE Lumbosacral Category I, corresponding to 0% WPI.
Medical Assessor Cameron concluded that the claimant’s injuries resulted in a permanent impairment below the 10% threshold. The cervical spine and lumbar spine injuries were consistent with minor soft tissue damage and did not result in measurable impairment. The 1% WPI awarded for the left shoulder accounted for residual symptoms despite the absence of structural abnormalities. Medical Assessor Cameron highlighted that the claimant’s pre-existing degenerative changes likely contributed to her ongoing symptoms and that her functional limitations were minimal in relation to the 2010 accident.
Dr Alexander Woo assessed the claimant on 4 January 2020 in relation to injuries she sustained in the motor accident. The claimant reported ongoing symptoms involving her cervical spine, lumbar spine, bilateral legs, and right hand, which she attributed to the accident. Upon review of medical records and a thorough clinical examination, Dr Woo identified musculoligamentous strains and soft tissue injuries affecting the cervical and lumbar spine. These injuries were found to be threshold injuries, with no significant functional impairment or lasting structural damage noted. The reported symptoms in the bilateral legs and right hand were unsupported by contemporaneous medical evidence or diagnostic imaging and were determined not to be directly attributable to the subject accident.
Dr Woo further considered the claimant’s pre-existing musculoskeletal and degenerative conditions, which included prior documented injuries and chronic pain in the affected regions. He concluded that the accident had likely exacerbated these pre-existing issues but did not cause new or distinct injuries.

SUBMISSIONS

The claimant in her submissions provided a comprehensive background of her personal and medical history. Born in Afghanistan, the claimant endured significant trauma, including the loss of her family in an explosion during her childhood, forced marriage at a young age, and further hardships after the death of her first husband. Despite these adversities, she migrated to Australia in 2003, raised her children, and successfully established businesses, including a fashion design business and hair salon, while also working as a supervisor for disabled children.
Prior to the motor accident, the claimant had been involved in motor vehicle accidents in 2006 and 2010, resulting in injuries to her neck, back, and shoulders. These injuries were treated, and her symptoms had reportedly resolved, except for mild intermittent discomfort, by the time of the motor accident.
The motor accident occurred when the claimant’s vehicle was struck at a roundabout, causing it to collide with an electricity box. She experienced immediate neck and back pain, numbness in her left leg, and shock. Medical investigations revealed musculoskeletal injuries and degenerative changes in her cervical and lumbar spine. She also began experiencing severe psychiatric symptoms, including persistent depressive disorder, anxiety, and reduced functionality in daily activities.
The claimant’s ongoing disabilities included chronic pain, limited range of motion, and difficulty performing routine tasks. Her psychiatric symptoms manifested as depressed mood, social withdrawal, sleep disturbances, and preoccupation with negative thoughts. She became increasingly dependent on pain relief and psychiatric medications, including Lyrica, Celebrex, and Lexapro.
The claimant argued that her symptoms, particularly those affecting her lumbar spine and radiculopathy in her left lower extremity, were consistent with the injuries caused by the motor accident. She claimed that medical imaging supported this, showing degenerative changes and mild disc protrusions in her lumbar spine, which were aggravated by the motor accident.
The insurer acknowledged that the claimant’s alleged physical injuries to her cervical spine, lumbar spine, bilateral legs, and right hand. However, the insurer relied on the medical report of Dr Bentivoglio, which concluded that the claimant’s physical injuries were consistent with pre-existing degenerative changes and did not result in significant functional impairment. This report assessed her physical WPI at 0%, attributing her ongoing complaints to her prior accidents in 2006 and 2010.
The submission addressed the claimant’s pre-existing physical conditions, including degenerative changes and injuries from prior accidents. It contended that these conditions likely accounted for her current complaints, rather than the motor accident. The insurer also emphasised the delayed onset of certain symptoms, such as lower limb radiculopathy, which emerged 16 months after the accident, arguing that these were unrelated.

RE-EXAMINATION

The claimant was re-examined by Medical Assessor Drew Dixon. The following is the contemporaneous examination report.

Accident details

The claimant was the driver of a Toyota Yaris and was travelling through a roundabout at Park Road, Auburn when a vehicle struck the left rear corner of her car and the collision caused her to lose control of the vehicle, colliding with an electricity box in the front of a nearby property. She was wearing a seat belt. The air bags did not deploy. At the time of the accident, she experienced neck pain and headaches, vomiting and low back pain. She was able to self-extricate from the car and a colleague, who was travelling in the front seat with her, did not sustain physical injuries. Her vehicle was towed away and then repaired.
An ambulance attended the scene, and she was taken to Auburn Hospital where she complained of neck and central chest pain and there were no other injuries reported. An

X-ray of her cervical spine did not show any acute abnormalities.
She did attend her local doctor on 6 February 2018 complaining of pain in her neck, shoulders, back and knees but it was not until 24 June 2019 that she complained of left sided back pain with radiation down her left leg with numbness in the left great toe. She did state in the examination by the Medical Assessor that prior to the motor accident she did not have any symptoms involving her lower extremities. She also reiterated to the Medical Assessor that the symptoms involving her upper extremities had resolved prior to the motor accident.

Past history

She was previously examined after reporting injuries following a motor vehicle accident on

1 December 2010 where she sustained injuries to her neck, left shoulder and lumbar spine. The matter was assessed initially by Medical Assessor Ian Cameron who, in his certificate dated 18 December 2015 found that there was symmetrically reduced range of motion of her cervical spine and inconsistent movement of her shoulders and no definite neurological abnormalities in the upper extremities. He found symmetrical restriction of motion of the lumbar spine without muscle spasm and guarding and no neurological abnormality in the lower extremities and the claimant walked with a normal gait. His assessment back then was that there was a soft tissue injury to the cervical spine, left shoulder and lumbar spine and found DRE category I for the neck and lumbar spine and used an analogous assessment of the right shoulder of restriction of elevation to 160 degrees, giving 2% upper extremity impairment (UEI) and 1% WPI.
The claimant, however, reports that she has deteriorated since that review and had review of her cervical spine and lumbar spine by the Medical Assessor and in the MAC he gave impairment of DRE category II for the cervical spine but he did opine that the shoulder movements were inconsistent on repetitive testing, although did allow for stiffness of the shoulders of 2%WPI for referred pain to both shoulders, as per Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351; 58 MVR 296. These injuries were not listed by the parties but were caused by the subject motor accident.

Examination

On examination at Commission’s suites on 3 November 2023 the claimant was 160cm tall and weighed 80kg. She presented in a straightforward manner and localised pain in the cervical spine extending to both trapezius muscles and reported occipital headaches. She reported there had been intermittent paraesthesia to the little and ring fingers of both hands.
There was stiffness of her cervical spine with flexion and extension decreased by one third as was lateral flexion and lateral rotation was decreased by one half. There was tenderness of the trapezius muscles and of the mid and upper cervical facet joints. Her cervical foraminal compression test was negative as was her brachial plexus stretch test. The supraclavicular brachial plexus was non-tender. There was no gross neurological deficit of either upper extremity or wasting. There were no objective sensory changes in the ulnar two digits of either hand. Her intrinsic power, thenar power and grip strength were both grade 5 out of 5. Her reflexes were symmetrical and there was no measurable wasting of either upper extremity.
There was stiffness on elevation of her shoulders which was associated with trapezial muscle pain with forward flexion 160 degrees, active abduction 150 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 60 degrees. There was no impingement on abduction and shoulder girdle power was grade 4 out of 5 bilaterally.
She reported pain in her lower back with lumbar stiffness and had some pain radiating to the left buttock and thigh and occasionally to the leg and a small area of numbness at her lateral left heel. Flexion was decreased by one third as was back extension. There was no erector spinae muscle spasm. Her straight leg raise was 70 degrees on the right and 60 degrees on the left associated with some sciatic pain in the left buttock and thigh. On the left the sciatic nerve root stretch test was positive. There was a small area of sensory change at the lateral heel. Her Babinski signs were negative. Her reflexes were symmetrical. She had pain in her back on toe and heel waking and squat testing. There was no wasting of either lower extremity.
She reported her back pain disturbs her sleep and that she had difficulty with sitting and standing with a sitting and standing tolerance of 20 minutes and a walking tolerance of 15 minutes and was able to drive an automatic car for less than half an hour and tended to do local driving only. She reported that the injuries impacted on her activities of daily life particularly with foot care, doing her toenails and dressing and doing heavy cleaning at home, prolonged standing to do meal preparation and cooking and difficulty with repetitive tasks such as ironing and bed making. She reported no recreational pursuits and was only working in a clerical manner, supervising her NDIS business which was staffed by her three children. She had previously run a dress making business.
Her investigations had included an MRI of the cervical spine back on 6 December 2010 which showed moderate focal posterior protrusion at C5/6 and C7 discs with some mild compression of the cervical cord and an MRI on 14 June 2012 showed degenerative disc bulge at C5/6 and left paracentral posterior disc herniation at C6/7 and a whole body bone scan with SPECT/CT on 17 October 2014 showed arthritic change in the right hip with healing fracture involving the right inferior pubic ramus with arthritic changes in her thumbs.
MRI of her cervical spine on 16 February 2016 showed there had been mild increase in the size of the broad based posterior disc protrusion at C6/7 particularly on the left extending into the foramen, indenting the ventral cord and narrowing of the lateral recesses as well as indenting the left foraminal C7 nerve and additional levels of potential neural irritation or impingement and mild spondylosis at C5/6 and diffuse disc bulge at C4/5.
MRI of the lumbar spine on 4 August 2020 showed mild disc protrusion at L3/4 and L5/S1 with early impingement on the exiting left L3 nerve root and just touching the exiting L5 nerve roots.
CT of the lumbar spine on 24 June 2019 had shown low grade L4/5 and L5/S1 facet joint arthropathy.

PANEL’S CONCLUSIONS

In summary, the claimant sustained neck and back strain injuries in the motor accident. She has bilateral shoulder pain, which appeared to be due to trapezial muscle pain. She did have radicular complaint with intermittent paraesthesia in the little and ring fingers of both hands, without radiculopathy. Note is made of the latest MRI in 2016 which showed broad based posterior disc protrusion at C6/7 extending into the foramen and the left foraminal C7 nerve although her symptoms today appeared to be in a C7/C8 distribution.
In the lumbar spine there was radicular complaint with some sciatica reported in the left buttock and thigh and dermatological loss of sensation in the lateral left foot with mild disc protrusions reported in the MRI of 4 August 2020 at L3/4 and L5/S1. However, the Panel is satisfied that the claimant sustained a low back strain injury, only. It notes the delayed presentation of radicular complaint when the claimant was reviewed by her GP on

24 June 2019. She currently complained of sciatica in the buttock and thigh without radiculopathy with mild disc protrusion at L3/4 and L5/S1, just touching the exiting L5 nerve roots.
Nevertheless, the Panel has determination that the lumbar spine injury is a soft tissue injury for these reasons.
First, there was no evidence of acute structural damage. Imaging studies, including the MRI and CT scans of the lumbar spine, did not reveal significant abnormalities or acute trauma directly related to the motor accident. The findings showed mild disc protrusions at L3/4 and L5/S1, along with low-grade facet joint arthropathy, but these changes were noted to be degenerative and typical for the claimant’s age, rather than indicative of a traumatic injury.
Second, the absence of immediate radicular symptoms supports the conclusion that the injury was limited to soft tissue. The claimant’s radicular complaints, such as sciatica and sensory changes in the left buttock, thigh, and foot, were reported 14 months after the motor accident. This delayed onset is inconsistent with acute nerve root compression, which would typically present shortly after the injury. The significant temporal gap further suggests that the initial injury did not involve major neurological components.
Third, clinical examination findings align with the characteristics of a soft tissue injury. There was no evidence of muscle spasm or guarding, which are common indicators of more severe spinal injuries. The claimant exhibited stiffness and pain during movement, consistent with a soft tissue strain. Although the straight leg raise test was positive on the left side and sensory changes were noted, these findings were not supported by imaging evidence of acute nerve root compression.
Finally, the injury exhibits hallmark characteristics of a soft tissue strain. Such injuries involve damage to muscles, ligaments, or tendons, rather than bones or nerves. The Panel noted that the claimant experienced localised stiffness and pain in the lumbar region, which are typical symptoms of soft tissue strain. These injuries often cause discomfort and functional limitations without appearing on imaging studies.
She has bilateral shoulder stiffness due to trapezial muscle pain as per Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351; 58 MVR 296. She has low back strain injury with radicular complaint with sciatica in the buttock and thigh without radiculopathy with mild disc protrusion at L3/4 and L5/S1 just touching the exiting L5 nerve roots.
These injuries should not be considered pre-existing for several reasons.
First, there is a clear temporal connection between the claimant’s injuries and the motor accident. The claimant experienced immediate neck and back pain, as well as cervical paraesthesia and radicular symptoms that developed in the months following the accident. This timeline strongly suggests that the injuries were causally linked to the motor accident rather than pre-existing.
Second, the symptoms presented post-accident were new and distinct from those associated with the claimant’s prior medical history. While there is evidence of degenerative changes in the cervical and lumbar spine predating the accident, complaints such as paraesthesia in the upper extremities, had not been documented before. Imaging studies conducted prior to the accident, such as the MRI on 16 February 2016, showed degenerative disc protrusions at C5/6 and C6/7, but there was no evidence of associated radicular symptoms at that time. This indicates that the accident either caused new injuries or significantly exacerbated existing conditions.
Third, clinical examination findings also support the conclusion that the injuries are not pre-existing. Post-accident assessments revealed stiffness, tenderness, and movement restrictions in the cervical and lumbar spine, none of which were noted in prior evaluations. In contrast, Medical Assessor Ian Cameron’s earlier assessment did not find muscle spasm, guarding, or radicular symptoms in the cervical or lumbar spine. He attributed the claimant’s symptoms to degenerative changes rather than acute injuries. He classified the cervical spine under DRE Cervicothoracic Category I with 0% WPI and the lumbar spine under DRE Lumbosacral Category I with 0% WPI, emphasising that these findings were consistent with age-related changes. Conversely, Medical Assessor Assem concluded that the cervical spine should be classified under DRE Cervicothoracic Category II, assigning 5% WPI, but he noted that pre-existing conditions did not significantly contribute to the current impairment. For the lumbar spine, he classified the condition as DRE Lumbosacral Category I, resulting in 0% WPI, based on the delayed onset of radicular symptoms and imaging findings that showed no evidence of nerve root compression directly related to the motor accident.
The re-examination by Medical Assessor Dixon, also documented significant stiffness in the cervical spine and tenderness in the trapezius muscles. These findings were not reported in the earlier assessments and suggest a worsening of symptoms post-accident, indicating that the injuries were caused or significantly aggravated by the motor accident rather than being solely attributable to pre-existing conditions. Medical Assessor Assem’s assessment also noted referred pain and trapezial muscle tenderness in the shoulders, which contributed to 2% WPI for each shoulder due to stiffness and movement limitations, findings that align with Medical Assessor Dixon’s observations.
For the left shoulder, Medical Assessor Cameron noted restricted range of motion and tenderness but raised concerns about the consistency of the claimant’s effort during testing. He awarded 1% WPI for residual soft tissue injury. Medical Assessor Assem attributed 2% WPI to referred pain affecting both shoulders, acknowledging their connection to the cervical spine injury. Medical Assessor Dixon similarly found bilateral shoulder stiffness associated with trapezial muscle pain, further supporting the notion that the accident caused or exacerbated these symptoms.
In conclusion, the Panel is satisfied that these physical findings, coupled with the claimant’s post-accident complaints and imaging studies, align more closely with injuries sustained in the motor accident than with pre-existing degenerative conditions or previous motor vehicle accident-related injuries.
There is no separate injury to account for the reported symptoms in the bilateral legs and right hand.

WHOLE PERSON IMPAIRMENT

That for the lumbar spine is DRE Category I, 0% WPI the Panel is satisfied that the claimant suffered a soft tissue injury to her back, for the reasons given.
The impairment assessment for the cervical spine is DRE Category II, with radicular complaint which includes occipital headaches and intermittent paraesthesia of the little and ring fingers with disc protrusion on the MRI of the cervical spine dated 16 February 2016 showing increase in size of the posterior disc protrusion at C6/7 narrowing the lateral recesses, giving 5% WPI.
That for the shoulders is from Pie Charts 38, 41 and 44, 3% UEI which equates to 2% WPI for each shoulder.
This gives a total from the Combined Values Chart of 9% WPI.
This confirms the impairment in certified in the MAC. Accordingly, the Panel affirms the MAC.

[2025] NSWPICMP 31

14 January 2025