Rana v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 241
•4 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Rana v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 241 |
CLAIMANT: | Paramjeet Rana |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 4 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; claimant’s vehicle was stationary when it was rear-ended; claimant had four previous motor accidents (in 2017, 2018, 2019 and 2020) before the subject motor accident in 2021; claimant had a lumbar spine injury before the subject accident; MRI radiology before and after the subject accident showed an L5/S1 disc protrusion; Review Panel was not satisfied that there was a further disc tear; Review Panel satisfied that the subject accident caused an exacerbation of pre-existing L5/S1 disc disease; no radiculopathy at Review Panel’s re-examination or in the documentation; Held – MAC revoked; new certificate issued; injuries caused by the motor accident are threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017. The Review Panel: 1. Revokes the certificate issued by Medical Assessor Kuru dated 29 July 2024. 2. Confirms that the following injuries caused by the motor accident: · injury to the lumbar spine – period of persistent low back pain – exacerbation of pre-existing L5/S1 disc disease, and · left leg pain and sensation of weakness, are THRESHOLD INJURIES for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Mr Rana (the claimant) was involved in a motor accident on 12 January 2021. He says his vehicle was stationary at a red light when another vehicle failed to stop and crashed into the rear of his vehicle. He went to his general practitioner who diagnosed “lower back pains – sciatica, sacroiliitis”.
The claimant made a claim for statutory benefits with NRMA, the third-party insurer of the vehicle that he says caused the motor accident.
A medical dispute arose about whether the claimant’s injuries were threshold or non-threshold injuries and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.
On 29 July 2024, Medical Assessor Robert Kuru issued a certificate of assessment which found the claimant’s injuries to be not caused by the motor accident. As such, there was no determination with respect to whether the injuries were threshold or non-threshold injuries.
The claimant lodged an application with the Commission seeking review of the Medical Assessor’s decision. The President’s delegate accepted the review application and this Panel was convened to conduct the review.[1]
[1] Section 7.26(5) of the MAI Act.
RELEVANT STATUTORY PROVISIONS
Threshold injury
Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[2]
[2] The terminology for accidents that occurred before 1 April 2023 was “minor” injury and statutory benefits were only paid for up to 26 weeks.
For physical injuries, a threshold injury is defined as a “soft tissue injury”.[3]
[3] Section 1.6(1) of the MAI Act.
A “soft tissue injury” is defined as:
“An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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.”[4]
[4] Section 1.6(2) of the MAI Act.
A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[5]
[5] Section 4(1) of the Motor Accident Injuries Regulation 2017.
The Motor Accident Guidelines (the Guidelines)[6] defines radiculopathy as:
“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
(c) muscle atrophy and/or decreased limb circumference
(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.”[7]
[6] The applicable version of the Guidelines is version 9.3.
[7] Clause 5.8 of the Guidelines.
Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.[8]
[8] Clause 5.9 of the Guidelines.
Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.
Diagnostic imaging is not considered necessary to assess threshold injury.[9] 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 of the insurer.[10]
[9] Clause 5.4 of the Guidelines.
[10] Clause 5.5 of the Guidelines.
Causation
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes.[11]
[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
Clauses 6.6 and 6.7 state:
“6.6 Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following”
1. The alleged factor could have caused or contributed to the worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 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.”
ASSESSMENT UNDER REVIEW
Medical Assessor Kuru was asked to assess whether a disc annular tear at L5/L1 with central disc protrusion and broad-based disc bulge was causally related to the motor accident and whether it was a threshold or non-threshold injury.
The claimant told the Medical Assessor that he was involved in a previous motor accident in 2019 where he suffered a back injury. He stated this injury resolved and he was asymptomatic at the time of the subject motor accident in January 2021.
The Medical Assessor noted pre-accident and post-accident MRI investigations of the lumbar spine and tabulated a summary of the findings:
DATE
INVESTIGATION
COMMENTS
15/08/2017
MRI lumbar spine
Desiccated L5/S1 disc with a central disc protrusion.
01/03/2021
MRI lumbar spine
Desiccated L5/S1 disc with a central disc protrusion.
15/03/2014
MRI lumbar spine
Desiccated L5/S1 disc with a central disc protrusion.
The Medical Assessor also noted a letter from Dr Rosenberg, spinal surgeon, dated
18 March 2021 who reviewed the MRI from before and after the motor accident and noted no significant change in the imaging. Dr Rosenberg did conclude, however, that the claimant aggravated[12] a pre-existing injury.
[12] The Panel notes that the actual word used by Dr Rosenberg is “exacerbated” not “aggravated”.
The Medical Assessor diagnosed the claimant as having non-specific back pain as a result of the motor accident with imaging demonstrating pre-existing disc changes at L5/S1. This represented a musculoligamentous injury to the lumbar spine, which is a threshold injury.
SUBMISSIONS
The claimant submits that the Medical Assessor failed to apply the “but for” causation test in that “but for” the motor accident on 12 January 2021, the claimant would not be suffering the current physical injuries. The claimant says there was a failure in the assessment process of obtaining a comprehensive and accurate history, including the drastic change in lower back symptoms from being asymptomatic 12 months before the subject motor accident.
The insurer says the annular tear found in the post-accident MRI was likely pre-existing and that the subject motor accident may have rendered the pre-existing pathology symptomatic. The insurer submits that the Medical Assessor was correct to conclude that the claimant had non-specific back pain as a result of the motor accident and that the claimant’s injury fits the legislative definition of a threshold injury.
DOCUMENTATION
Directions were issued requiring the parties to lodge with the Commission indexed and paginated bundles of all documents relied upon. Both parties duly responded with the claimant’s bundle comprising of pages 1-108 and the insurer’s 1-29.
At its preliminary conference, the Panel issued further Directions requiring the parties to provide general practitioner’s clinical notes of Dr Basavaraj for the period from 2017 to 2021. The insurer provided these, albeit with the inclusion of records before the claimant’s first car accident in 2017 which were considered of minimal relevance to the real issues in dispute.
Below is a summary of the documentation relevant to the assessment of the threshold injury dispute.
Clinical notes of Dr Basavaraj – 2017 car accident – soft tissue injury / lower back pains / neck pains. No radicular pains. MRI lumbar spine showed small central disc protrusion; Some radicular pain into legs. Generally feels better after Chiro.
2021 subject car accident – neck pain, upper and lower back. Entry two weeks later
(25 January 2021) stating lower back pain “is gone”. Then in 13 February 2021 lower back pain “on and off”. Feeling better with pain medication. MRI lumbar spine showed disc annular tear at L5/S1. Was told improvement with Chiro. Less lower back complaints towards end of 2022 and 2023. Lower back with referred pain/weakness into legs resumed in 2024. Conservative treatment (physio).
Certificates of Capacity of Dr Basavaraj – Various, covering the early motor accident period from 22 January 2021 to 16 April 2021. Noted back pain when the claimant’s stationary car was rear-ended by another vehicle. Early certificates diagnosed “sciatica, sacroiliitis” while later certificates diagnosed “broad-based disc protrusion with annular tear at L5/S1 with thecal indentation”.
Report of Dr Rosenberg, spinal surgeon, dated 18 March 2021 – Noted a similar motor accident in 2017 where the claimant’s vehicle was rear-ended. This caused back and left leg pain which eventually resolved and the claimant was completely pain free 12 months before the subject motor accident. Noted old and new MRI showing a lumbosacral disc which is somewhat desiccated and protruding centrally. Stated that the subject motor accident exacerbated the lumbosacral disc injury initially sustained in 2017.
Report of Dr Diwan, spinal surgeon, dated 6 Match 2024 – Noted that the claimant had recovered fully from the low back pain sustained in the previous accident in 2017. Following the subject motor accident, the claimant had chronic non-radiating low back pain which is aggravated on and off for no rhyme or reason. MRI scans dated 1 March 2021 and then subsequently on 19 January 2024 were reviewed which showed “a small contained herniation which is central at L5-S1. There are no endplate changes. There is no compression of any neural elements…”
MRI Lumbar spine (x3) – These have been considered and summarised in Medical Assessor Gorman’s re-examination report below.
RE-EXAMINATION FINDINGS
At the preliminary conference on 11 February 2025, the Panel determined that a re-examination of the claimant was required. Below is the Panel re-examination report of Medical Assessor David Gorman.
Mr Paramjeet RANA – Medical Review Panel Examination
14 March 2025
Assessor David Gorman
PIC rooms, 1 Oxford St, Darlinghurst
Who attended the assessment
Mr Rana attended the examination alone.
HISTORY
Pre-accident medical history and relevant personal details
Mr Rana is a 28-year-old right-handed man.
He lives with his parents.
He is a non-smoker and does not drink alcohol.
He works in the inventory section of the Apple Store in George St Sydney. He has done this for 8 years.
I note his first investigation for low back pain was on 24 February 2024. He had an X ray which showed only a mild scoliosis with no loss of disc height.
He has had a total of 4 car accidents before the subject accident in 2021:
2017 – mild whiplash and back pain with left leg pain – the pain was severe enough to lead him to have an MRI – however, it resolved as also noted in Dr Diwan’s report.
2018 – mild whiplash - resolved
2019 – mild whiplash with back pain - resolved
2020 – mild whiplash - resolved
He has had back pain for a few years but stated that he could “do everything” – he could dance, go to the gym and work full-time hours. He was pain free he said before the accident.
History of the motor accident
On the 12 January 2021 Mr Rana was stationary at a red light. A vehicle collided with the rear of his vehicle. He was immediately aware of low back pain.
History of symptoms and treatment following the motor accident
He said he had had problems on and off with back pain since and was regularly seeing a physiotherapist or chiropractor for massage and acupuncture.
He saw Dr Rosenberg, Spinal Surgeon dated 18 March 2021 who documented the accident. Dr Rosenberg notes that he reviewed the MRIs from before and after the accident, demonstrating no significant change in the imaging. He concluded Mr Rana has exacerbated a pre-existing injury and anticipated that he will improve with time and further nonoperative treatment.
In 2021 he continued treatment and returned to work on limited hours.
This continued in 2022.
In 2023 he was mainly doing self-directed exercises.
He also saw Dr Diwan (Spinal Surgeon) on 6 March 2024. Dr Diwan notes two MRIs subsequent to the accident showing minor degenerative protrusion of the L5/S1 disc. He notes “MRI scans from 1 March 2021 and then from 19 January 2024. Essentially he has a small contained hernia which is central at L5-S1. There are no endplate changes. There is no compression of any neural elements”. Dr Diwan suggested continuation of conservative care and did not suggest any spinal injections or surgery.
Mr Rana has had intermittent flares of back pain and had good days until January 2024, when it has become more persistent.
On 18 January 2024 the pain was so bad that he called the Paramedics. He felt that the aggravation followed a physiotherapy massage. He was not admitted to hospital.
He was off work for a large part of 2024 after this he reported but gradually returned to work.
Details of any relevant injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
Mr Rana has pain that extends across his back bilaterally. It is particularly there when he wakes up.
He can only last at the Gym for 1-2 hours.
He gets pain if he bends. Sneezing can also causes increases in pain.
He was back at his usual hours of work at Apple but cannot do his “side-business” which was providing wedding cars.
In December 2024 he again went on a Rehabilitation Plan and is back on 6 hours per day 3 days per week. He has less physical roles such as doing the phone answering rather than walking and carrying items.
He said that his mental health is not great as he cannot do the things he likes such as dancing at Indian cultural events.
Current and proposed treatment
He is continuing his treatment with deep tissue massage and acupuncture.
When the pain was severe, he was on Endone and Lyrica – these have been ceased.
CLINICAL EXAMINATION
General presentation
On examination, Mr Rana was a well looking man in no obvious distress. He was wearing an elastic back brace.
His height was 171cm and his weight was 70.6kg.
Trendelenburg’s test was normal. Heel-toe stance was normal.
Neurological examination of the lower limbs demonstrated normal and symmetrical knee and ankle reflexes.
Power was normal.
Sensation was normal.
Straight leg raise was to 90° in a sitting position without tension signs.
Lumbar range of motion showed 2/3 normal flexion to the proximal third of the tibia. Extension was also 2/3 normal.
Lateral flexion was normal reaching the knees on the right and left sides.
Comments on consistency
Mr Rana was cooperative and consistent throughout the assessment.
Summary of relevant radiological and medical imaging and other investigations
Pre-accident:
15/08/2017 - MRI lumbar spine – this scan was viewed - desiccated L5/S1 disc with a small central disc protrusion.
Post accident:
01/03/2021 - MRI lumbar spine - Desiccated L5/S1 disc with a disc annular tear resulting in a broad-based central disc protrusion.
Dr Rosenberg, Spinal Surgeon, reviewed this MRI and the MRI pre-accident – he stated that there was no significant change in the imaging.
19/01/2024 - MRI lumbar spine - L5/S1 central disc protrusion causing mild central canal stenosis (no comment in the report as to whether an annular tear).
DETERMINATIONS – THRESHOLD INJURY
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[13]
[13] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[14]
[14] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Gorman and adopts the findings in their entirety. The Panel reconvened on 31 March 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis and reasons
The claimant has low back pain subsequent to his motor vehicle accident.
Imaging demonstrated pre-existing disc changes at L5/S1. There were no end-plate changes to suggest more acute injury in either 2021 or 2024.
In the Panel’s view, while the accident did cause a period of exacerbation of the low back pain and that persists to some extent, the injury did not cause the disc annular tear at L5/S1.
The motor accident could cause a tear in the fibro-cartilaginous disc but noting the absence of any changes on MRI scanning, the Panel believes the ongoing pain is likely through another mechanism – these could be muscular strain, ligamentous strain or irritation and inflammation of the disc without “tearing”. All of these would be threshold injuries - these other mechanisms could cause referred pain in the left leg and the sensation of weakness but there has never been any radiculopathy with objective weakness.
The same finding applies to the provided clinical notes of Dr Basavaraj where the Panel noted complaints of bilateral leg pain/weakness following the subject 2021 motor accident but with no objective weakness or the satisfaction of the criteria for a diagnosis of radiculopathy under the Guidelines.[15]
[15] Clause 5.8 of the Guidelines.
Dr Rosenberg, spinal surgeon, states “He remains symptomatic from a lumbosacral disc injury sustained in 2017. This has been exacerbated by the latest accident but there is every chance he will improve slowly but surely.” The Panel agrees and does not believe that the exacerbation was caused by a partial tear in the fibrocartilaginous disc.
Causation and reasons
The following injuries WERE caused by the motor accident:
· injury to the lumbar spine – period of persistent low back pain – exacerbation of pre-existing L5/S1 disc disease, and
· left leg pain and sensation of weakness.
The following injuries WERE NOT caused by the motor accident:
· disc annular tear at L5/S1 with central protrusion and broad-based disc bulge, and
· injury to the left leg; weakness in the left leg.
Threshold injury
Subsequent to the accident, the claimant has had nonspecific back pain. This represents a musculoligamentous injury to the spine, which is a threshold injury. Section 1.6(1) of the Act states that: “For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following— (a) a soft tissue injury, (b) a psychological or psychiatric injury that is not a recognised psychiatric illness.” Section 1.6(2) of the Act states: “A soft tissue injury is (subject to this section) an 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.”
Schedule 1 [2] cl 4 of the Motor Accident Injuries Regulation 2017 states: “1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.” The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.
Regarding the injuries caused by the motor accident:
· Injury to the lumbar spine – period of persistent low back pain – there is no radiculopathy; the disc annular tear is most likely pre-existing – on the balance of probabilities, while the accident may have caused a further disc tear, the Panel believes that in this case it did not and the tear seen on the post-accident MRI is part of the degenerative disease with the L5/S1 disc protrusion seen in pre-accident MRIs – therefore this is a threshold injury.
· Left leg pain and sensation of weakness – the pain and sensation of weakness are not associated with a diagnosable radiculopathy – therefore this is a threshold injury.
CONCLUSION – THRESHOLD INJURY
The Panel concludes that the claimant’s injury caused by the motor accident is a threshold injury. While the Panel agrees with Medical Assessor Kuru’s finding that the disc annular tear at L5/S1 was not caused by the motor accident, the Panel accepts that the motor accident caused an injury to the lumbar spine, which is a threshold injury as described above. Medical Assessor Kuru found none of the injuries were causally related to the motor accident.
The certificate issued by Medical Assessor Kuru dated 29 July 2024 is therefore revoked. A new certificate is issued at the front of this determination.
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