Rim v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Rim v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 64
CLAIMANT:	Sarah Rim
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Bridie Nolan
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	5 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Claimant involved in a multi-vehicle collision while stationary on the M4 motorway; reported injuries to the cervical spine, right shoulder, right hand, lumbar spine, and right foot; claimant had a documented history of a workplace injury in 2020 affecting the neck and right shoulder; Review Panel found no evidence that the motor accident caused or materially aggravated the claimant’s pre-existing conditions; no radiological or clinical findings supporting structural changes attributable to the motor accident; lumbar spine symptoms inconsistent with radiculopathy and more likely related to degenerative changes; right hand and right foot complaints lacked objective verification; Held – motor accident did not cause or aggravate the claimed injuries; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Panel affirms the certificate of Medical Assessor, Mohammed Assem dated 6 December 2022 that the following injuries were NOT caused by the motor accident: • cervical spine- aggravation of pre-existing neck injury; • right shoulder- aggravation of pre-existing right shoulder injury; • right foot injury; • lumbar spine- radiculopathy, and • right hand injury. 2. A certifcation as to whether these injuries are threshold injuries is not required for the purposes of the Motor Accident Injuries Act 2017.

INTRODUCTION

Sarah Rim, the claimant, was involved in a motor vehicle accident on 4 May 2021 (the motor accident) while driving her Toyota Corolla in an easterly direction along the M4 motorway near the Church Street exit ramp in Parramatta. The motor accident occurred in wet weather conditions when the claimant was required to stop her vehicle due to a build-up of traffic ahead. While stationary, her vehicle was struck from behind by another vehicle, causing it to be pushed forward into the vehicle in front. The motor accident involved several vehicles.
At the time of the motor accident, the claimant was wearing her seatbelt, and the airbags in her vehicle did not deploy. The claimant reported that her hands were on the steering wheel at the moment of impact, and she claimed this caused injuries to her hands, which radiated to her shoulders. Additionally, she reported experiencing numbness in her right thigh following the collision.
Neither the police nor ambulance services attended the scene of the motor accident. The claimant remained at the scene for approximately 30 minutes before exchanging details with the driver of the vehicle that collided with her car. She then drove her vehicle home. The claimant later estimated that repairs to her vehicle cost between $4,000 and $5,000. No medical treatment was sought at the scene, and the claimant reported that she consulted her general practitioner (GP) several days later.
A dispute arose between the claimant and the insurer as to whether the injuries which the claimant claimed were caused by the motor accident were threshold injuries, as that term is defined in Motor Accident Injuries Act 2017 (the Act).

MEDICAL ASSESSMENT MATTERS

Threshold injuries

The dispute was referred to the Personal Injury Commission (Commission) for assessment. Whether the injuries the claimant claims were caused by motor accident constituted threshold injuries or not is a medical assessment matter under Schedule 2, cl 2(e) of the Act.
The Commission was tasked with evaluating the following injuries:
(a)    cervical spine- aggravation of a pre-existing right neck injury;
(b)    right shoulder- aggravation of a pre-existing right shoulder injury;
(c)    right hand- a reported new injury;
(d)    lumbar spine- a reported condition of radiculopathy, and
(e)    right foot- a reported new injury.
Whether an individual’s injuries are classified as threshold or non-threshold under the Act significantly affects entitlement to statutory benefits and damages. Statutory benefits for loss of earnings and treatment expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries.” Furthermore, a claimant cannot recover damages under the Act if their “only injuries resulting from the motor accident were minor injuries.” The classification of the claimant’s right shoulder injury is therefore critical to determining his ongoing entitlements.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented to on 28 November 2022, with various amendments coming into force on 1 April 2023. Following these amendments, the terminology “minor injury” was replaced with “threshold injury,” and “minor injuries” became “threshold injuries.” Crucially, the substantive definition of what constitutes a minor injury remains unchanged and continues to apply to threshold injuries.
Any reference within these reasons to “minor injury” is to be understood as “threshold injury.” Similarly, references to the term “minor” when describing an injury allegedly caused by the motor accident should be interpreted as “threshold.”
A threshold injury is defined under s 1.6 of the Act as including a “soft tissue injury” or “a psychological or psychiatric injury that is not a recognised psychiatric illness.” Sub-section 1.6(2) of the Act provides that a “soft tissue injury” means:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
The Act also allows for regulations to specify which injuries are included or excluded as threshold injuries. Clause 4 of Part 1 of the Motor Accident Injuries Regulation 2017 (MAI Regulation) explicitly includes within the definition of threshold injury “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy).”
Part 5 of the Motor Accidents Guidelines (the Guidelines), promulgated under s 10.2 of the Act, provides the procedural framework for determining whether an injury caused by a motor accident qualifies as a threshold injury. Version 9.1 of the Guidelines, effective from
1 April 2023, applies to motor accidents occurring on or after 1 December 2017.
The Guidelines prescribe the following process for determining threshold injuries:
(a)    The assessment must determine whether the injury is a soft tissue injury, or a threshold psychological or psychiatric injury caused by the motor accident.
(b)    Insurers must not require diagnostic imaging solely to determine if an injury qualifies as a threshold injury, as imaging is not considered necessary for this purpose.
(c)    A diagnosis for a threshold injury decision must be based on a clinical assessment by a medical practitioner or suitably qualified person independent of the insurer.
(d)    The assessment must include evidence derived from:
(i)a comprehensive and accurate medical history, including pre-accident conditions;
(ii)a review of all relevant records available at the time of the assessment;
(iii)a detailed account of the injured person’s symptoms;
(iv)a thorough physical and/or psychological examination, and
(v)diagnostic tests provided these correspond with symptoms and findings on examination.
For injuries to the neck and spine, the Guidelines at cll 5.7–5.9, further address the necessity of assessing radiculopathy:
(a)    Determining whether an injury to the neck or spine qualifies as a soft tissue injury requires an assessment of radiculopathy.
(b)    Radiculopathy is defined as dysfunction of a spinal nerve root where two or more clinical signs are present, including:
(i)loss or asymmetry of reflexes;
(ii)positive sciatic nerve root tension signs;
(iii)muscle atrophy or decreased limb circumference;
(iv)anatomically localised muscle weakness, and
(v)reproducible sensory loss aligned with a spinal nerve root distribution.
(c)    If neurological symptoms do not meet these criteria, the injury will be assessed as a threshold injury.
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372; 100 MVR 232 at [35], Wright J addressed the issue of causation in determining whether an injury qualifies as a threshold injury. His Honour observed that while causation is not explicitly addressed in Part 5 of the Guidelines, it is dealt with in Part 6, which pertains to assessments of permanent impairment. Wright J concluded that the principles applicable to causation in Part 6 should also apply to determinations of threshold injuries.
Part 6 of the Guidelines defines causation as requiring both a medical determination and a non-medical informed judgment. Specifically, causation requires verifying:
(a) Whether the alleged factor could have caused or contributed to the impairment (a medical determination).
(b) Whether the alleged factor did cause or contribute to the impairment (a non-medical determination).
Wright J further explained that causation does not require the motor accident to be the sole cause, provided it was a contributing cause that was more than negligible. This aligns with the broader approach articulated in the Guides and the principles applied in common law.
In AAI Ltd T/as GIO v McGiffen [2016] NSWCA 229; 77 MVR 348, the Court of Appeal stressed that causation requires considering whether the motor accident materially contributed to the injury, even if there were other contributing factors.

MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW

By certificate and reasons dated 6 December 2022 (the MAC), the Medical Assessor, Mohammed Assem (the Medical Assessor), determined that none of the injuries referred by the claimant as arising from the motor accident were causally related to the motor accident.
The Medical Assessor reviewed the claimant’s account, in which she described being involved in a multi-vehicle collision while driving her Toyota Corolla on the M4 motorway. The collision occurred when her vehicle was rear-ended and pushed into the vehicle in front. The airbags did not deploy, and no police or ambulance attended the scene. The claimant rested for 30 minutes before exchanging details with the other driver and driving herself home.
The claimant reported injuries to her cervical spine, right shoulder, right hand, lumbar spine, and right foot. She asserted that she sought medical attention from her GP, Dr Genua, two days after the accident. However, the Medical Assessor noted that the medical records showed her first consultation occurred six weeks later, on 16 June 2021 (this is an error and should be 1 June 2021). The Medical Assessor considered that this significant delay in seeking treatment became a central factor in the Medical Assessor’s reasoning.
The Medical Assessor identified inconsistencies in the claimant’s account. Although the claimant initially denied any prior musculoskeletal injuries or compensation claims, documentation revealed she had sustained a workplace injury in October 2020, involving her neck and right shoulder. That injury had rendered her unfit for work and required ongoing treatment, including physiotherapy, acupuncture, and massage therapy. She had also been diagnosed with fibromyalgia and plantar fasciitis by her rheumatologist, Dr Andrew Jordan, both of which were unrelated to the motor accident.
During the physical examination, the claimant exhibited tenderness and limited motion in the cervical spine, lumbar spine, and right shoulder. Despite this, the Medical Assessor noted a lack of objective evidence to support her reported symptoms. There was no muscle guarding, spasm, or significant neurological deficit. Sensation was mildly reduced at the tips of the claimant’s right fingers, but the findings did not meet the clinical criteria for radiculopathy. The Medical Assessor also noted that the claimant’s responses during the examination included pain behaviours, such as grimacing, which further detracted from the credibility of her reported symptoms.
The Medical Assessor thoroughly reviewed the available documentation, including the insurer’s submissions, medical records, and imaging reports. He observed that no investigations, such as radiological imaging, were available to support the claimant’s allegations of significant injury. Additionally, the claimant’s application for personal injury benefits completed in July 2021 omitted any mention of a lumbar spine or right foot injury, further calling into question the consistency of her reported symptoms.
Relying on the principles established in Bugat v Fox [2014] NSWSC 888; 67 MVR 150 (Bugat v Fox), the Medical Assessor stated that while contemporaneous evidence is not strictly determinative, its absence, coupled with the lack of corroborative evidence, was significant. He concluded that if the claimant had sustained any significant trauma or aggravated her pre-existing conditions, she would have sought medical attention promptly, undergone investigations, and received treatment. The six-week delay in seeking medical attention and the absence of substantial trauma at the scene further undermined her claims.
The Medical Assessor made the following determinations regarding the claimant’s injuries:
(a)    Cervical spine: No evidence of aggravation of a pre-existing neck injury attributable to the motor accident.
(b)    Right shoulder: No evidence of aggravation of a pre-existing shoulder injury attributable to the motor accident.
(c)    Right hand: No evidence of a new injury attributable to the motor accident.
(d)    Lumbar spine: No evidence of radiculopathy or other significant injury attributable to the motor accident.
(e)    Right foot: No evidence of a new injury attributable to the motor accident.
Consequently, the Medical Assessor concluded that none of the injuries reported by the claimant were causally related to the motor accident, and therefore no classification of injuries under the Act was required.

APPLICATION FOR REVIEW

The claimant applied for a review of the MAC arguing that that the Medical Assessor erred materially in concluding that her injuries were not causally related to the motor accident. Specifically, the Medical Assessor misinterpreted the medical evidence by asserting there was a delay of six weeks before the claimant sought medical attention from her treating GP, Dr Luigi Genua. The claimant referred to a certificate of capacity dated 16 June 2021, which indicated the claimant first consulted Dr Genua regarding the injuries on 1 June 2021—less than four weeks after the accident.
The claimant also contended that the MAC contained internal inconsistencies regarding whether her injuries constituted threshold injuries. While the Medical Assessor stated that a decision on threshold injury status was unnecessary, he simultaneously concluded that there was no evidence of a non-threshold injury. The claimant submitted that this internal inconsistency, or the lack of reasoning for the conclusion, rendered the MAC materially incorrect.
Further, the claimant submitted that the Medical Assessor failed to properly apply the test of causation as outlined in Bugat v Fox. The decision emphasised that while contemporaneous evidence of injury is relevant to causation, it is not determinative if other evidence is available. The claimant asserted that the Medical Assessor disregarded this legal principle by relying solely on the perceived delay in treatment and failing to consider the available corroborative evidence, including the documented symptoms and findings on examination, such as reduced sensation at the fingertips.
The claimant submitted that these errors provided reasonable cause to suspect that the MAC was incorrect in a material respect and sought to have the matter referred to a Review Panel for reconsideration.
The insurer submitted that the claimant’s injuries sustained in the motor accident were threshold in accordance with s 1.6 of the Act. It was noted that the claimant sought medical attention from her GP, Dr Luigi Genua, on 16 June 2021, approximately six weeks after the motor accident. Based on this timeline and the available medical evidence, the insurer submitted that the claimant’s injuries were primarily soft tissue in nature and did not demonstrate clinical signs consistent with radiculopathy as required by the Guidelines. It was further noted that the airbags in the claimant’s vehicle had not deployed during the accident, which the insurer suggested indicated the relative minor nature of the incident.
The insurer emphasised that a diagnosis of radiculopathy necessitates evidence of at least two clinical signs of spinal nerve root dysfunction, such as loss of reflexes or muscle atrophy, which were not present in the claimant’s medical records.
Additionally, the insurer pointed to the claimant’s pre-existing neck, shoulder, and psychological conditions from a prior workplace injury in October 2020, which had led to an extended period off work before the motor accident. The insurer argued that the claimant’s current symptoms represented an exacerbation rather than a new injury or aggravation.
Under s 7.26 of the Act, the President’s delegate was required to consider whether there was reasonable cause to suspect that the medical assessment was materially incorrect. The delegate determined that the claimant had raised valid grounds to suspect that the Medical Assessor’s reasoning on causation may have been flawed, particularly in failing to fully consider whether the accident contributed to the injuries to a degree that was more than negligible.
The delegate, having reviewed the application, supporting documents, and the Medical Assessor’s certificate and reasons, concluded that there was reasonable cause to suspect that the assessment was materially incorrect. Accordingly, the review application was accepted, and the matter was referred to this Review Panel, presently constituted (the Panel) for a new assessment on review.

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 MAI 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. A summary of the relevant material provided is set out below.

MATERIAL ON THE REVIEW

On 26 February 2020, the claimant was diagnosed with multinodular goitre, which necessitated a thyroidectomy.
On 16 September 2020, fibrous dysplasia and hypercholesterolemia were documented.
Dr Collis conducted an ultrasound of the claimant’s right shoulder on 12 February 2021, prior to the motor accident. The findings indicated no significant structural damage, with the rotator cuff confirmed to be intact. There was no evidence of tears, nerve damage, or abnormalities consistent with an acute or ongoing injury.
On 8 April 2021, Workforce Australia conducted a vocational assessment focusing on the claimant’s capacity for employment following her workplace injury sustained on

6 October 2020. The assessment highlighted significant functional limitations, particularly in her neck and right shoulder, which impeded her ability to work or engage in daily activities.
A return-to-work report dated 6 May 2021, two days after the motor accident, recorded the claimant’s continued inability to perform work-related tasks or daily activities due to persistent neck and shoulder pain. These limitations were directly attributed to her pre-existing workplace injury.
Again, following the motor accident, an entry on 11 May 2021 recorded complaints of neck pain and discomfort in both arms. The reason for the visits was identified as “worker’s compensation”. The note was that “needs to be pain [sic] for her time off work”.
On 17 May 2021, WorkFocus Australia prepared a Work Duties Plan outlining the claimant’s rehabilitation and treatment for her workplace injury. The plan, which spanned various dates, identified neck and shoulder pain as significant barriers to her return to work and emphasised the need for physiotherapy and psychological interventions to manage her symptoms.
On 24 May 2021, the claimant presented for a consultation concerning her workers compensation situation and vaccination advice. During the visit, the claimant expressed significant anxiety and distress related to workplace pressure to return to work. She reported financial strain, receiving only $99 per week in compensation, and ongoing pain in her right arm, which she attributed to an injury sustained during a workplace assault. Dr Genua noted that the claimant was becoming increasingly anxious and depressed due to her circumstances, which he believed would prolong her time off work. He confirmed that the claimant remained unfit for work and unable to participate in work assessments. Dr Genua recorded plans to contact the rehabilitation provider, Workforce, and documented the claimant’s increasing psychological and financial difficulties.
On 1 June 2021, during a phone consultation with Dr Genua, the claimant reported her involvement in the motor accident, describing it as a nine-car pile-up where her vehicle was the seventh involved. She expressed being profoundly shocked by the incident and reported increased anxiety, as well as pain in her right hand and foot since the accident. Dr Genua recorded her complaints but did not document any physical examination findings. The primary focus appeared to be on addressing the claimant’s mental health concerns and the reported symptoms following the motor accident. A letter regarding workers compensation was printed and prepared as part of the consultation.
On 9 June 2021, the claimant attended another consultation to discuss her workers compensation and ongoing challenges. She continued to report significant financial hardship, receiving only $99 per week due to her limited work history prior to her injuries. The claimant expressed severe anxiety and depression, which she attributed to her financial situation and uncertainty about returning to work. Dr Genua documented that her insurance company was pressuring her to return to work, and plans were made for a meeting with her rehabilitation provider, Workforce. The insurance company had reportedly suggested that she consider alternative employment, further compounding her distress. No physical examination findings or further details on her motor accident injuries were recorded in this consultation.
On 16 June 2021, the claimant returned with further complaints of lower back strain with radiation to the right leg and persistent pain in the right hand. The consultation focused on administrative actions related to the claimant’s condition post-accident. It does not detail the investigation undertaken in the consultation giving rise to the matters certified thereto.
Dr Genua issued a Certificate of Capacity/Fitness approximately six weeks after the motor accident. The certificate diagnosed the claimant with shock with increased anxiety, lower back strain with radiation to the right leg, and a right-hand injury. It certified that the claimant had no work capacity from 4 May 2021 to 29 June 2021.
On 8 July 2021, during a phone consultation, Dr Genua addressed the claimant’s symptoms of a blocked and runny nose, along with her ongoing anxiety and distress related to her workers compensation claim. The claimant reported no improvement in her condition under the Workcover scheme and continued to struggle emotionally. Medications, including Bisolvon, Lexapro, Sudafed, and Zyrtec, were prescribed, and a workers compensation letter was prepared. This consultation related to the workers compensation claim.
On 6 August 2021, the claimant reported worsening back and leg pain, alongside sinus issues, including a bad nasal smell. A sinus rinse and a short course of Voltaren were recommended. The claimant’s symptoms were attributed to her workers compensation claim, and a related letter was prepared.
On 25 August 2021, during a phone consultation, the claimant described ongoing nervousness, palpitations, and disrupted sleep. A part-time work capacity of 20–25 hours per week with a 5 kg lifting restriction was discussed. Recommendations included a referral to an exercise physiologist to develop a home program. This consultation pertained to the workers compensation claim.
On 1 September 2021, the claimant reported persistent pain in her neck, shoulders, back, and legs, with difficulty rising after sitting. A certificate of capacity was reprinted, and a referral to a specialist was considered. A form for WorkFocus Australia was completed. The issues discussed related to the workers compensation claim.
On 8 September 2021, the claimant attended Dr Genua again regarding her workplace injury on 6 October 2020, recounting physical trauma to her head, neck, and back caused by a client attack. Dr Genua referred the claimant to Dr Andrew Jordan, a consultant rheumatologist, for an expert evaluation of her ongoing symptoms resulting from a workplace injury. The referral detailed that during the incident, a client assaulted the claimant, pulling her hair, punching her in the head, neck, and back, and twisting her left arm in the struggle. This attack led to persistent pain and other symptoms that significantly impacted her daily functioning and overall quality of life. Her medical history included depression diagnosed in December 2015, multinodular goitre in June 2016, a thyroidectomy in February 2020, and hypercholesterolaemia identified in September 2020. This consultation was related entirely to the workers compensation claim.
A Rehab Management Initial Needs Assessment dated 16 September 2021 evaluated the claimant’s ability to perform daily activities following the motor accident. The assessment noted reported limitations in standing, sitting, and lifting due to pain in the neck, back, and shoulder. While the report acknowledged these functional impairments, it did not provide an analysis linking the claimant’s symptoms to the motor accident.
On 20 September 2021, the claimant described an unusual sensation in her head but reported stability in her Workcover status. A pathology referral was issued for routine blood tests, and follow-up monitoring of her blood pressure was suggested. This consultation pertained to the workers compensation claim.
In his report dated 27 September 2021, Dr Jordan described how the claimant suffered a severe workplace injury, during which she was assaulted by a client. The attack involved hair pulling, kneeing her back, and punching her head, neck, thoracic, and lumbar spine for approximately 20 minutes. This incident caused significant physical injuries and psychological trauma, including widespread pain, anxiety, and panic attacks. As a result, she had been unable to return to work and was largely confined to her home, relying heavily on her daughter for assistance with daily activities. Clinically, Dr Jordan observed no synovitis but noted widespread tenderness, particularly in the right arm, leg, and rhomboid region, along with restricted movement in the lumbar spine, thoracic spine, and right shoulder. He identified her symptoms as likely due to fibromyalgia or central pain sensitisation, triggered by the assault. To exclude structural or systemic causes, he recommended an MRI of the cervical and lumbar spine and blood tests. He initiated treatment with Endep, starting at
10 mg nocte and increasing to 20 mg if tolerated, to improve her sleep and alleviate her symptoms.
On 29 September 2021, in a surgery consultation the claimant noted fluctuating muscle and joint pain, alongside increased anxiety. She was advised to continue counselling, physiotherapy, and seek assistance for domestic tasks such as cleaning and gardening. This consultation related to both the motor accident and the workers compensation claim, as the claimant reported symptoms connected to both incidents.
The MRI of the cervical and lumbar spine for the claimant, ordered by Dr Jordan on

27 September 2021 and reported on 19 October 2021, reported as follows.
For the cervical spine, the imaging revealed a loss of the normal cervical lordosis, likely attributed to muscle spasm. Minor central disc bulges were identified at the C2/3, C3/4, and C4/5 levels, with no evidence of neural compression or exit foraminal stenosis. At the C5/6 level, a broad-based disc bulge with a right paracentral component was observed, along with disc osteophytic encroachment on the left exit foramen, impinging upon the exiting C6 nerve root. Minor facet joint arthropathy was also noted. The C6/7 level showed no significant disc bulging or herniation but exhibited disc osteophytic encroachment on the left exit foramen. The remaining cervical levels (C7/T1) were unremarkable, with preserved vertebral artery flow voids and normal paraspinal musculature. The findings were consistent with cervical spondylitic changes, with the loss of normal lordosis attributed to muscle spasm.
For the lumbar spine, the imaging similarly revealed a loss of the normal lumbar lordosis, also likely caused by muscle spasm. A band of sclerosis was identified at the L5 vertebral body, potentially indicative of prior trauma, requiring correlation with a plain radiograph. Disc desiccation was noted at the L3/4, L4/5, and L5/S1 levels, with no pathological marrow infiltration. At the L3/4 level, a broad-based disc bulge was identified, with disc osteophytic encroachment on the right exit foramen and bilateral facet joint arthropathy. The L4/5 level exhibited a right paracentral disc bulge and disc osteophytic encroachment on the right exit foramen, impinging on the exiting L4 nerve root, with bilateral facet joint arthropathy. At L5/S1, there was a broad-based disc bulge contacting the S1 nerve roots in the lateral recesses of the spinal canal, accompanied by bilateral disc osteophytic encroachment and facet joint arthropathy. Central spinal canal compromise was identified, and the paraspinal musculature was unremarkable.
On 26 October 2021, Dr Jordan conducted a telehealth consultation with the claimant and noted improvements in her sleep following an increase in Endep to 20 mg nocte, although she reported mild morning drowsiness. He reviewed her MRI and blood test results, which revealed cervical spondylosis without neural impingement and lumbar spondylosis with right L4 nerve impingement. The claimant reported worsening symptoms in both legs, particularly numbness on the right. Dr Jordan recommended a CT-guided perineural steroid injection at the L4 nerve level, but the patient declined this intervention. He planned to monitor her progress with Endep and physiotherapy, with a follow-up review in six weeks.
On 9 November 2021, the claimant described increased anxiety, disrupted sleep, and numbness in her legs, particularly on the right side. Treatment options included continued physiotherapy and Endep, with steroid injections to be considered if her condition did not improve. This consultation focused on symptoms related to the workers compensation claim.
On 25 November 2021, the claimant reported knee and ankle swelling, which she attributed to a recent vaccination. Voltaren was recommended for temporary relief. This consultation related to symptoms arising after the motor accident.
A subsequent Certificate of Capacity/Fitness, dated 25 November 2021 and also issued by Dr Genua, reiterated the claimant’s diagnoses of anxiety, lower back strain, and a right-hand injury. The claimant was certified as remaining unfit for work with no improvement in her functional capacity.
On 4 February 2022, Dr Jordan, consultant rheumatologist, provided a report identifying the claimant’s primary diagnoses as fibromyalgia/central pain sensitisation and plantar fasciitis. Dr Jordan documented the claimant’s ongoing pain and paraesthesia in her legs, with intermittent symptoms in her fingers. He explicitly attributed these conditions to her pre-existing workplace injury in 2020 and did not identify any causal connection to the motor accident. He recorded that an increase in Endep to 20 mg nocte had improved her sleep and reduced paraesthesia. He introduced Lyrica, starting at 25 mg nocte and increasing gradually to 75 mg nocte, advising that Endep should be reduced to 10 mg nocte when Lyrica reached 50 mg to mitigate sedative effects. Plantar fasciitis in the left heel was identified as a significant source of discomfort, causing limping. Tenderness at the plantar fascia insertion was consistent with this diagnosis. Dr Jordan referred her for an ultrasound and provided exercises for home management.
On 9 February 2022, the claimant reported persistent pain in her neck, head, and legs, as well as increased anxiety. Medications, including Lyrica, were prescribed, and pathology testing was requested. This consultation related to both the motor accident and the workers compensation claim.
The ultrasound of the claimant’s left ankle reported on 11 February 2022, was ordered by

Dr Andrew Jordan to investigate plantar fascial pain and potential plantar fasciitis or tear. The findings revealed minimal dorsal and plantar calcaneal spur formation. The proximal plantar fascia was noted to be minimally thickened and heterogeneous, measuring 4.5 mm in depth, consistent with mild fasciitis. The mid and distal fascial regions were normal, as were the Achilles tendon and deep retrocalcaneal bursa. The conclusion of the report confirmed mild plantar fasciitis, with no evidence of more severe structural abnormalities or tears.
On 15 March 2022, psychiatric and occupational therapy reports confirmed the claimant was suffering from an adjustment disorder related to her workplace injury. Recommendations included continuing treatment and gradually resuming work, starting with one day per week. This consultation focused on the workers compensation claim.
On 18 March 2022, Dr Jordan reported continued pain, including bilateral heel pain diagnosed as plantar fasciitis. The left heel remained particularly problematic, limiting the claimant’s mobility. Although she was wearing heel cups and performing stretches, her symptoms persisted. Lyrica was adjusted to 50 mg nocte, improving her sleep and pain, although she experienced nausea when taking the medication in the morning. An ultrasound confirmed mild plantar fasciitis without tears. Dr Jordan provided a referral for ultrasound-guided steroid injections if her condition did not improve and scheduled a two-month follow-up.
On 20 June 2022, the claimant described severe back pain and dizziness, largely attributed to anxiety. A pathology referral and a workers compensation letter were prepared. This consultation related to the workers compensation claim.
In his correspondence dated 25 July 2022, Dr Jordan noted that the claimant continued to experience pain and sleep disturbances, which had prevented her from returning to work. Lyrica was discontinued due to limited efficacy, and Endep was increased to 25 mg nocte. Bilateral heel pain from plantar fasciitis persisted, and the claimant remained reluctant to pursue steroid injections. She had implemented footwear modifications and performed exercises. Dr Jordan prescribed Celebrex at 200 mg daily for two weeks and sought approval for physiotherapy to manage her plantar fascia pain.
On 14 September 2022, Dr Jordan responded to a request for a detailed report regarding the claimant’s conditions. He confirmed that the primary diagnoses of fibromyalgia and anxiety were directly triggered by the workplace injury. He explained that fibromyalgia is a diagnosis of exclusion, with widespread pain resulting from abnormalities in central pain processing rather than structural damage. Dr Jordan stated that further investigations were unnecessary, as her symptoms were entirely consistent with the mechanism of the workplace injury. He observed no evidence of symptom exaggeration and attributed her restricted movement to fibromyalgia. Additionally, he noted no inconsistencies between her symptoms and her level of incapacity, emphasising that fibromyalgia inherently lacks structural abnormalities on imaging. Dr Jordan further clarified that her plantar fasciitis was unrelated to her employment and attributed her weight gain to medications and reduced activity rather than workplace factors.
On 9 August 2022, the claimant reported that her pain had worsened since the motor accident, with specific complaints about knee and foot pain. She also described limited tolerance for higher doses of Endep. This consultation primarily related to the motor accident.
On 23 August 2022, the claimant described dizziness and worsening pain following a functional capacity assessment. She attributed significant increases in pain to the motor accident. This consultation focused on the motor accident.
On 6 September 2022, the claimant continued to report persistent knee and foot pain. Her overall health was stable, and her Workcover restrictions were maintained. This consultation pertained to the workers compensation claim.
On 6 February 2023, the claimant reported worsening pain in her right arm, back, and shoulder. She also expressed dissatisfaction with the handling of her case by the insurer. This consultation pertained to the workers compensation claim.
On 21 March 2023, the claimant reported severe neck pain with radiating arm symptoms, sharp head pain, and persistent sleep issues. An MRI of the cervical spine and blood tests were ordered. The Panel has not been able to locate this MRI.
On 9 May 2023, the claimant expressed frustration with her compensation benefits and lack of support from her insurer, including being told to look for alternative employment. She noted reliance on Centrelink benefits. This consultation related to the workers compensation claim.
On 24 May 2023, in a phone consultation the claimant described lower back and hip pain and requested updated prescriptions. A review of Dr Jordan’s reports and additional imaging were planned. This consultation related to the workers compensation claim.
In a consultation on 30 May 2023, the claimant reported ongoing back pain. She indicated that she was receiving acupuncture and massage therapy and required a renewal of her prescriptions. The consultation was conducted in relation to her workers compensation claim. Additionally, a letter was prepared for Centrelink to address the claimant’s ongoing needs related to her medical and occupational circumstances.

In a consultation on 5 June 2023, the claimant presented with severe back pain. The visit was conducted in relation to her workers compensation claim.
In a consultation on 27 June 2023, the claimant reported increasing pain throughout her body and expressed concern about lumps on her fingers. The consultation identified early osteoarthritis as a potential diagnosis. The visit was conducted in connection with her workers compensation claim.
On 28 September 2023, the clinical notes reflected ongoing management of the claimant’s hypercholesterolemia and fibromyalgia, with continued complaints of pain in the neck, back, and extremities.
In a telephone consultation recorded on 5 October 2023, the claimant sought a WorkCover certificate in relation to her ongoing treatment. Her restrictions remained unchanged, and she continued to receive psychological support. During the consultation, she expressed an interest in pursuing a course in administration or as a teacher’s aide and was encouraged to explore this option.

RECONSIDERATION BY THE PANEL

To determine causation, it is essential to assess whether the motor accident materially contributed to the claimant’s injuries, considering the documented pre-existing workplace injury sustained in 2020. The evidence before the Panel indicates that the cervical spine and right shoulder injuries were long-standing issues attributed to the workplace assault, which caused significant and persistent symptoms. Clinical records consistently show that the claimant sought regular treatment under the workers compensation scheme for these injuries, and they were a central feature of her medical history.
Regarding the cervical spine, imaging before and after the motor accident consistently revealed degenerative changes, including spondylosis and disc bulging. Reports from

Dr Genua and Dr Jordan confirm that these findings are chronic and directly linked to the workplace injury. While the claimant reported increased neck pain following the motor accident, no radiological evidence of acute trauma or structural changes supports a causal link to the motor accident. Although the temporal relationship between the motor accident and the reported exacerbation of symptoms suggests a possible aggravation, the absence of objective findings strongly indicates that any impact from the motor accident was negligible and temporary.
For the right shoulder, medical records establish that the workplace injury in 2020 caused significant impairment, including pain and restricted movement. Imaging from February 2021 showed no structural damage, and subsequent assessments consistently attributed the claimant’s symptoms to the workplace incident. Although the claimant reported worsening shoulder pain after the motor accident, no new imaging findings or objective evidence substantiate any further injury caused by the collision. The evidence supports the conclusion that the motor accident had, at most, a negligible effect on the pre-existing condition.
The claimant’s right hand complaints were not associated with the workplace injury, which suggests this could represent a new injury. Clinical notes dated 1 June 2021 document the claimant’s report of hand pain radiating to the shoulder, which she attributed to the motor accident. While the mechanism described—bracing on the steering wheel—could explain soft tissue strain, the absence of objective and verifiable findings, such as swelling or bruising, undermines the causal link. Moreover, the lack of earlier complaints raises questions about the temporal consistency of the injury with the motor accident. In the absence of any verifiable clinical evidence of injury to the hand, of which there is none other than self-reporting (that is, there is no clinical evidence of any examination or observation of symptoms) the Panel would only be speculating if it were to conclude the claimant suffered a soft tissue injury to her right hand as a result of the motor accident. In those circumstances, it cannot reasonably be satisfied on the material that the claimant has presented in respect of her claim that she suffered an injury to the right hand the motor accident.
On the material before the Panel, the lumbar spine was not initially documented as part of the workplace injury, but references to back pain were made in subsequent consultations and reports as related to that incident. On 16 June 2021, the claimant consulted her GP and complained, for the first time, of lower back strain with radiation to the right leg and persistent pain in the right hand, attributing this to the motor accident. However, subsequent medical records demonstrate that back pain was being addressed under the claimant’s workers compensation claim. For instance, on 6 August 2021, the claimant reported worsening back and leg pain during a consultation where her symptoms were attributed to her workplace injury. Subsequent consultations, including one on 8 September 2021 with Dr Genua, explicitly linked the claimant’s back pain to the workplace assault, during which she was physically attacked, sustaining trauma to her head, neck, and back. This was corroborated by Dr Andrew Jordan’s report dated 27 September 2021, which noted restricted movement in the lumbar spine and attributed the claimant’s widespread pain to fibromyalgia or central pain sensitisation triggered by the workplace incident.
Importantly, the GP’s clinical notes from 16 June 2021 do not detail any investigation or objective findings to verify the claimed lower back strain with radiation to the right leg. There is no indication of referrals for radiological imaging or specialist evaluation to substantiate the claimed nature of the condition. Moreover, the medical certificate of incapacity issued following this consultation overlapped with the claimant’s ongoing certification of incapacity due to the workplace injury, further blurring the issue of causation. The absence of independent, verifiable evidence, beyond the claimant’s late self-reporting prevents the Panel from being satisfied that the claimant suffered a lumbar spine injury causally linked to the motor accident. This lack of clarity in the medical evidence underscores the continued dominance of the workplace injury in explaining the claimant’s back-related symptoms.
Further, imaging of the lumbar spine revealed degenerative changes at multiple levels, but clinical assessments did not confirm radiculopathy. The reported temporal onset of symptoms post-accident provides limited support for causation, yet the absence of clinical signs such as reflex loss or muscle atrophy weakens the nexus. The degenerative changes evident on imaging are more probably the primary cause of the symptoms, suggesting the motor accident played a negligible role, if any, in aggravating the pre-existing asymptomatic condition.
No evidence links the foot symptoms to the workplace injury. While the Panel acknowledges the practical difficulties posed by the absence of documented physical findings in the GP consult on 1 June 2021, the mere possibility of an injury being causally linked to the incident does not satisfy the requisite legal standard. Although it is possible that the mechanism of the accident as reported (foot on the brake) could possibly have caused the claimant’s right foot complaints, first documented after the motor accident, they were assessed via an ultrasound in February 2022, which identified mild plantar fasciitis. Although the temporal proximity to the motor accident raises the possibility of causation, the ultrasound findings are consistent with a non-traumatic condition, making it improbable that the motor accident was a contributing factor. Were the Panel to find the accident caused some soft tissue injury to the foot, it would only be speculating, and this cannot form the requisite basis upon which a finding of causation is maintained.
Causation requires demonstrating that the motor accident materially contributed to the injuries beyond a negligible degree. The evidence overwhelmingly supports that the cervical spine and right shoulder injuries are primarily attributable to the workplace injury, with the motor accident having only a minimal and temporary impact, if any.
The right hand, lumbar spine, and right foot complaints lack sufficient evidence to establish a causal connection to the motor accident. The test is not only whether the motor accident could have caused the injuries, but whether it probably did. A causal connection must be more than a theoretical possibility—it must be inferred from evidence that supports a probable connection rather than mere conjecture.
Applying this principle, the Panel remains unpersuaded that the right foot and right hand injuries meet the threshold for causation beyond a mere possibility. While the Panel does not dispute that the mechanism of injury could conceivably result in such injuries, there is insufficient objective verifiable evidence to elevate this from conjecture to a reasonable inference of probability. Inference must be distinguished from speculation, and in the absence of objective findings contemporaneous with the motor accident, the connection remains tenuous. Alternative explanations, including pre-existing conditions and unrelated diagnoses, are more probable.
Under the Act, soft tissue injuries are defined as those involving tissues that “connect, support or surround” structures of the body, excluding nerve injuries or ruptures of tendons, ligaments, or cartilage. The cervical spine symptoms, despite their degenerative nature, fall within this definition as they involve connective tissues without evidence of nerve damage. Similarly, the right shoulder symptoms align with the definition of a soft tissue injury, as imaging confirms intact structures with no rupture. The right hand also qualifies as a soft tissue injury, given the absence of structural damage. For the lumbar spine, the lack of confirmed radiculopathy supports classification as a soft tissue injury, though this would change if clinical signs of nerve root dysfunction were to have been established, which they were not by any of the evidence before the Panel including the examination by the Medical Assessor. The documented plantar fasciitis in the right foot similarly meets the definition of a soft tissue injury, as there is no evidence of nerve involvement or structural rupture.
The Panel carefully considered the lack of cogent evidence supporting causation and that the injuries were anything other than soft tissue injuries, thereby falling under the definition of threshold injuries within the Act. Motivated by this insufficiency, the Panel initially sought the production of materials from the worker’s compensation insurer to further clarify the claimant’s treatment and assessment history under her workers compensation claim. A direction for production was issued on 6 December 2024. The solicitors for the agent of the insurer, iCare, responded to the direction by objecting to production on the basis that the material sought was a “fishing expedition” and an “abuse of process”. In the Panel’s view, this objection lacked merit and reflected a misunderstanding of the Panel’s role. The production of material was not speculative or unduly broad; it was directly relevant to assessing the causal link between the claimant’s injuries and the motor accident, particularly given the extensive treatment history under the workers compensation scheme. However, in light of the objection raised by the solicitors for the insurer, and the further delay that pursuit of the direction would occasion, the Panel reconsidered the necessity of pursuing the direction further and determined not to proceed with the direction. The Panel’s determination in this regard was informed by the overarching objects of the Act, particularly the encouragement of cost-effective, just, and timely dispute resolution. The Panel concluded that the available evidence already satisfactorily substantiated the findings of causation and threshold injuries and was very unlikely to be altered by additional material.
Further to this consideration, the Panel elected not to examine the claimant as part of its de novo examination and assessment. This decision was based on a clear lack of utility or necessity for such an examination given the comprehensive medical evidence and clinical findings already available and the Panel’s conclusions on the material presented by the claimant as to the causation of her claimed injuries. In the Panel’s view, the clinical records and medical reports from Dr Genua and Dr Jordan, along with imaging studies, provided sufficient information to determine the nature, extent, and causation of the claimant’s injuries. An examination would not have added materially to the analysis, nor would it have addressed the evidentiary deficiencies inherent in the claimant’s claim. The claimant bears the burden of proving that her injuries meet the requisite threshold for causation and classification as non-threshold injuries under the Act. It is not the role of the Panel to construct or substantiate her case; the duty lies solely with the claimant to present compelling and corroborative evidence supporting her claims.
In conclusion, the cervical spine, right shoulder, right hand, lumbar spine, and right foot injuries all qualify as soft tissue injuries under the Act. However, the evidence overwhelmingly indicates that the cervical spine and right shoulder symptoms are attributable to the 2020 workplace injury, with the motor accident having negligible impact. The remaining injuries lack sufficient evidence to establish causation from the motor accident and are more likely explained by unrelated factors or pre-existing conditions.
Accordingly, the Panel has determined no basis upon which to revoke the MAC, and affirms the MAC.

[2025] NSWPICMP 64

5 February 2025