Sam v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Sam v QBE Insurance (Australia) Limited [2025] NSWPICMP 1
CLAIMANT:	Sam Sam
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	6 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 9 December 2019; claimant suffered various injuries and skin abrasions; the dispute related to whether the injury was a threshold injury; claimant re-examined; chronic pre-accident history of neck and back pain; claimant did not establish that the motor accident caused or aggravated discal pathology in neck or back; no basis to conclude the other injuries (other than skin injury) were not a threshold injury; decision of Supreme Court in Allianz Australia Insurance Ltd v The Estate of the Late Summer Abawi; binding precedent; Favelle Mort Ltd v Murray; skin abrasion to right forearm constitutes a non-threshold injury; Held – claimant suffered a skin abrasion which was not a threshold injury; original assessment revoked.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 27 January 2024 and certifies that the motor accident caused a skin abrasion to the right forearm which is not a threshold injury.

REASONS

BACKGROUND

Mr Sam Sam (the claimant) suffered injury in a motor accident on 9 December 2019 when the insured vehicle turned to the wrong side of the road and collided with the claimant’s vehicle.[1]
[1] Claimant’s bundle, p 19.
The insurer is liable to pay to Mr Sam any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The following injuries were referred in the medical dispute:
-      left and right ankle;
-      right arm;
-      cervical spine;
-      lumbar spine;
-      left and right elbow;
-      right foot;
-      head;
-      pelvis;
-      right shoulder, and
-      right wrist.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[3]
[3] Section 4.4 of the MAI Act.

STATUTORY AMENDMENT

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.

ORIGINAL MEDICAL ASSESSMENT

The medical dispute was referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 27 January 2024 (the medical assessment certificate).
Medical Assessor Cameron concluded that Mr Sam sustained soft tissue injuries to the cervical spine and “possibly other body areas”. The examination showed no neurological abnormalities in the upper or the lower extremities except that the left ankle jerk was absent.

OTHER MEDICAL ASSESSMENT

In an assessment in October 2023 Professor Grainge concluded that the sleep apnoea was not caused by the motor accident.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the medical assessment certificate.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
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.
The review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8]
[8] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
On 15 October 2024 the Panel issued the following directions:
“The claimant is to provide any pre-accident scans of the lumbar/sacral spine.
The claimant is to provide all medical and claim records for the 2018 motor accident including any qualified reports served.
The Panel assumes that Dr Awaba is the sole GP treating the claimant for the period pre and post motor accident and all his records have been served. Please advise if this assumption is incorrect.
The claimant is to advise whether he concedes that any claimed body parts are only threshold injuries.
The claimant is to be medically examined by Medical Assessor Lahz …”
The claimant provided a bundle of 347 pages. Neither party made any further submissions in response to these documents.

STATUTORY PROVISIONS

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MIA Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[9]
[9] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”

SUBMISSIONS

Claimant’s submissions dated 27 February 2024[12]

[12] Claimant’s bundle, p 2

The claimant alleged that the motor accident caused the injuries to the head, cervical spine, right shoulder, right arm, left and right elbow, right wrist, lumbar spine, pelvis, left and right ankle, right foot and psychological injury.
The claimant noted that he was taken by ambulance to St George Hospital and discharge the same day and subsequently consulted his general practitioner (GP).
The claimant submitted that the Medical Assessor did not provide adequate reasons as to why the motor accident did not cause an aggravation of degenerative disc disease.
The claimant submitted that the medical assessor did not apply the proper test of causation and referred to clauses 1.7-1.9 of the Guidelines applicable to the Motor Accidents Compensation Act 1999.[13]
[13] These submission refer to the incorrect Guidelines.
The claimant submitted that the MRI scan of the lumbar spine dated 4 September 2020 showed a right foraminal disc protrusion at L3/4 impinging on the L3 nerve root. This protrusion was a non-threshold injury. The clinical records of Dr Ghahreman should have also been considered noting the doctor diagnosed the claimant with degenerative disc disease and undertook a discectomy at L3/4.
The claimant also referred to the MRI scan of the cervical spine dated 11 June 2021 which showed changes at C3/4, C4/5 and C5/6. The report of Dr Ghahreman dated 23 December 2023 recommended that the applicant undergo an anterior cervical discectomy and fusion at C5/6 and C6/7.

Insurer’s submission dated 17 April 2024[14]

[14] Insurer’s bundle, p 6.

These submissions were filed opposing leave to review the medical assessment.
The insurer noted that the Medical Assessor found that the injuries were caused by the motor accident were soft tissue. There was an extensive pre-existing history of spinal complaints in pathology noted by the Medical Assessor.
The insurer noted that the claimant bore the burden of proof that he suffered an intervertebral disc injury caused by the motor accident.
The insurer noted that the Medical Assessor considered the MRI scan of the lumbar spine dated 4 September 2020, the MRI scan of the cervical spine dated 27 February 2020, the ambulance report dated 9 December 2019 and the clinical notes of Dr Ghahreman.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

The clinical records of the GP in 2009 refer to a motor accident causing neck and back pain.[15]
[15] Insurer’s bundle, p 53.
Hospital records dated 29 July 2009 refer to left-sided neck pain, arm pain, back pain radiating into left leg following the motor accident.[16]
[16] Insurer’s bundle, p 470.
A CT scan dated 21 October 2019 recorded the clinical history of severe disabling low back pain and showed a minimal broad-based disc bulge at L4/5.[17]
[17] Insurer’s bundle, p 471.
An X-ray of the cervical spine dated 22 October 2009 referred to a clinical history of disabling pain post motor accident and showed a small posterocentral disc protrusion at C5/6 with no compression.[18]
[18] Insurer’s bundle, p 472.
On 22 October 2009 the GP noted that the CT scan of the lumbar spine referred to a minimal broad based circumferential disc bulge at L4/5.[19] In November 2009 the claimant referred to pins and needles in the left leg and left arm.
[19] Insurer’s bundle, p 56, p 186.
Subsequent records refer to neck and back pain in 2010,[20] back pain with radiation to the left foot in 2011,[21] constant back and neck pain,[22] C5/6 discopathy,[23] neck and back pain and endone prescribed in 2012[24] and 2013,[25] X-rays of cervical and lumbar spine in February 2015[26] and severe lumbar spine pain into the buttock in August 2017.[27]
[20] Insurer’s bundle, pp 59-62.
[21] Insurer’s bundle, p 63, p 69.
[22] Insurer’s bundle, p 66.
[23] Insurer’s bundle, p 66.
[24] Insurer’s bundle, p 70.
[25] Insurer’s bundle, p 73.
[26] Insurer’s bundle, p 82.
[27] Insurer’s bundle, p 89.
An MRI scan of the spine dated 21 September 2009 noted a clinical history of low back pain and left foot drop following the motor accident six weeks previously. The scan was reported as being essentially normal.[28]
[28] Insurer’s bundle, p 467.
On 25 October 2012, Dr Kohan noted the claimant had significant disability with ongoing left-sided body pain including the neck, left arm and chest as well as significant lumbosacral pain with left leg pain and foot drop on the left side. The doctor noted that the claimant was on a cocktail of opiates, benzodiazepines as well as antidepressants.[29]
[29] Insurer’s bundle, p 465.
In a report dated 3 November 2012, Dr Awaba noted that the claimant had constantly pain associated with intermittent numbness, pins and needles in the fingers of both hands, constant lower back pain affecting whole spine shooting to the left lower limb into the sole of the left foot and variable left foot drop.[30] The doctor recommended that the claimant required a full-time carer.
[30] Insurer’s bundle, p 170.
The MRI scan of the cervical spine dated 15 March 2013 showed mild spondylotic changes, no disc protrusion or significant neural compression and mild narrowing of the right C5/6 intervertebral foramen.[31] The injections in both L4/5 and lumbosacral facet joints.[32]
[31] Insurer’s bundle, p 461.
[32] Insurer’s bundle, p 462.
In March 2013 Dr Kohan, neurosurgeon, noted that the cervical MRI scan did not explain the ongoing neck and arm pain and that repeat facet injections resulted in improvement of back pain.[33]
[33] Insurer’s bundle, p 168.
Records in 2009 refer to a long history of depression.[34] In 2012 Dr Younan noted the claimant was in marked distress and continued to be affected psychologically by chronic pain and incapacity.[35] In 2013 the claimant presented with marked paranoia.[36]
[34] Claimant’s bundle, pp 74-80.
[35] Claimant’s bundle, p 82.
[36] Claimant’s bundle, p 88.
Endone was prescribed by the GP over an extensive period for the claimant’s pain.
In February 2015 the GP notes refer to cervical and lumbar spine X-rays.[37]
[37] Further bundle, p 30.
On 26 September 2018 the claimant attended his GP in respect of the motor accident complaining of neck, back, chest and bilateral shoulder pain.[38] The clinical notes then refer to lower back and neck pain[39] and occasional shoulder pain. The certificate of that date is in similar terms to the clinical note.[40]
[38] Insurer’s bundle, p 92.
[39] Insurer’s bundle, pp 94-99.
[40] Further bundle, p 14.
In January 2019 the claimant reported worsening lower back pain and severe neck pain to his GP.[41]
[41] Further bundle, p 42.
In February 2019 the claimant was assessed in the St George Hospital pain management unit for back and neck pain.[42] Dr Cox then noted that the claimant was consuming 20 tablets of Endep per week for neck pain radiating to the shoulders and low back pain.[43] The claimant was otherwise assessed by the physiotherapy unit at the Hospital.[44]
[42] Insurer’s bundle, p 118.
[43] Insurer’s bundle, p 226.
[44] Insurer’s bundle, p 446.

The claim form dated 21 March 2019 reported severe neck pain, pain between the shoulders, lower back injury and “numbing/pins and needles down” both arms caused by the 2018 motor accident.[45]
[45] Further bundle, p 3.
In May 2019 the claimant was assessed for bilateral tinnitus, mild vertigo and occasional pain in the left ear.[46]
[46] Insurer’s bundle, p 122.
In June 2019 the claimant was assessed and cleared of right rib fractures.[47] An X-ray dated 5 July 2019 showed no rib fractures.[48]
[47] Insurer’s bundle, p 132.
[48] Further bundle, p 84.
In August 2019 the claimant reported severe back pain to his GP and that he couldn’t get out of bed.[49]
[49] Further bundle, p 45.
An ultrasound of the left ankle dated 13 September 2019 identified no cause for the claimant’s symptoms.[50]
[50] Claimant’s bundle, p 96.
An ultrasound and X-ray of the left shoulder dated 15 October 2019 showed no rotator cuff tendinopathy or tear with mild subacromial bursitis.[51] The GP then reported that the claimant was using Endone and due to see Dr Cox for review.[52]
[51] Insurer’s bundle, p 374.
[52] Further bundle, p 46.
On 30 October 2019 Dr Awaba applied for authority to prescribe a schedule 8 drug for pain management for severe lumbar spine pain/discopathy and noted referral to a neurosurgeon.[53]
[53] Insurer’s bundle, pp 246-252.
The claimant consulted Dr Al Khawaja, neurosurgeon, on 30 October 2019 complaining of neck and left arm pain tingling to both arms and lower back pain.[54] The doctor recommended MRI scans of the cervical and lumbar spines with subsequent review.
[54] Insurer’s bundle, p 266.
On 5 November 2019 the Pain Unit noted the claimant was on four tablets of Endone daily, and complained of ongoing neck, shoulder and back pain.[55] The claimant reported that he had not worked for six months because of pain.
[55] Insurer’s bundle, p 270.
On 14 November 2019, Dr Hugh Jones, orthopaedic surgeon, noted neck pain radiating into the hands associated with left shoulder pain.[56] Examination showed positive impingement signs without significant rotator cuff weakness on the left shoulder.
[56] Insurer’s bundle, p 256.
On 21 November 2019 the GP issued an authority until 20 May 2020 for the continuing use of Endone.[57]
[57] Further bundle, p 47.

Post-accident medical records

The ambulance report noted that the claimant’s vehicle collided with the other vehicle “off set head on with turning vehicle”. The report referred to cervical pain, right shoulder pain, right forearm pain, right foot pain and headache.[58]
[58] Claimant’s bundle, p 44.
The claimant attended St George Hospital. The discharge record noted right shoulder pain associated with the seatbelt, left muscular pain, superficial abrasion to the right forearm and right ankle pain.[59]
[59] Insurer’s bundle, p 310.
The claimant attended his GP on 10 December 2019 with endone and panadeine forte prescribed.[60] There are subsequent references to neck and back pain in the GP notes.
[60] Insurer’s bundle, p 100.
The claimant was reviewed by Dr Jones on 10 December 2019 who noted the recent MRI scan of the left shoulder showed minor rotator cuff tendinosis. The doctor noted the recent motor vehicle accident with the observation that the claimant had well-defined anterior right dominant shoulder pain.[61]
[61] Insurer’s bundle, p 308.
A CT aortogram dated 11 December 2019 noted the motor accident with recent chest pain described similar to previous cardiac pain. The scan showed an old right anterior sixth rib fracture, no acute aortic pathology and no acute intra-abdominal pathology.[62]
[62] Insurer’s bundle, p 422.
A Certificate of Capacity dated 12 December 2019 referred to the motor accident causing cervical spine whiplash, headaches, bilateral elbow pain, pelvic pain, bilateral ankle pain, back pain, right shoulder tendinitis and severe anxiety.[63] That certificate refers to pre-existing cervical and lumbar spine strain.
[63] Claimant’s bundle, p 41.
The Certificates of Capacity dated 4 January 2020, 1 February 2012, 3 March 2020, 30 March 2020, 30 April 2019 referred to similar injuries although removed the references to the back and the ankle.[64]
[64] Claimant’s bundle, p 23, p 26, p 29, p 32, and p 38.
A claim form completed by the claimant and dated 17 December 2019 noted the motor accident causing injuries to the head, neck, right shoulder, right arm, rib fracture, back, pelvis, tinnitus, legs, right foot, elbows, ankles, right wrist, and psychological injury.[65]
[65] Claimant’s bundle, p 19.
A CT scan of the head dated 9 January 2020 was normal.[66]
[66] Claimant’s bundle, p 102.
The Allied Health Recovery request dated 14 January 2020 referred to the neck strain, right shoulder strain, right forearm/elbow lacerations, mid back strain, right sixth rib fracture, lower back strain and bilateral ankle sprain.[67] It noted a prior accident in 2009 involving a “full recovery” and the 2018 motor accident.
[67] Insurer’s bundle, p 18.
Dr Cox, pain specialist, provided a report dated 4 February 2020 noted the motor accident aggravated pain in the neck, upper chest and left shoulder as well as over the crown of the head and some right shoulder pain.[68] The doctor noted that the claimant advised that there may have been a small fracture in the right hand as well as a cracking in one of the ribs although no imaging was brought to the consultation.
[68] Insurer’s bundle, p 264.
Dr Cox opined that the claimant had not suffered any serious physical damage and that he should gradually improve following stretching exercises particularly for the neck and shoulders.
The MRI scan of the cervical spine dated 27 February 2020 showed mild spondylitic changes at various levels with no evidence of disc protrusion or neural compression.[69]
[69] Insurer’s bundle, p 382.
Nerve conduction studies of the lower limbs dated 17 June 2020 were reported as normal.[70]
[70] Insurer’s bundle, p 206.
An MRI scan of the lumbar spine dated 4 September 2020 showed mild spondylitic change and a small right foraminal disc protrusion at L3/4 with mild impingement of the right L3 nerve root.[71]
[71] Claimant’s bundle, p 97.
An ultrasound of the right wrist dated 4 September 2020 was normal.[72]
[72] Claimant’s bundle, p 103.
In October 2020 Dr Cox noted the claimant had ceased Endep and was taking tramadol 50mg.[73]
[73] Insurer’s bundle, p 300.
An X-ray and ultrasound of the right shoulder dated 25 January 2021 showed normal bony alignment, no fractures or dislocations, no full-thickness rotator cuff tear with subacromial bursitis.[74]
[74] Claimant’s bundle, p 100.
On 1 March 2021 the claimant underwent an ultrasound injection of the right shoulder.[75]
[75] Insurer’s bundle, p 292.
The specialist’s clinical notes for the indications for surgery in early 2021 were “lower back pain and right thigh pain” described as a right L3 radiculopathy.[76]
[76] Insurer’s bundle, p 451.
In April 2021 the claimant underwent a right L3/4 lateral discectomy which resolved limb pain and some back pain. Dr Ghahreman noted that the claimant did not respond to an injection into the L3/4 foramen. Subsequent review in June 2021 noted that the claimant’s lower back and leg pain had completely resolved although he continued to complain of neck pain.
In a letter to the physiotherapist dated 30 April 2021, Dr Ghahreman noted the operation was for a “degenerate disc”.[77] The doctor also noted that the claimant was referred to him because of “severe right thigh pain”.[78]
[77] Insurer’s bundle, p 452.
[78] Insurer’s bundle, p 453.
An MRI scan of the cervical spine dated 11 June 2021 showed mild cervical spondylosis with no evidence of disc protrusion or neural compression.[79]
[79] Insurer’s bundle, p 416.
The claimant underwent injections into the C5/6 and C6/7 facet joints in August 2021.[80]
[80] Insurer’s bundle, p 398.
AN MRI scan of the cervical spine dated 13 March 2013 again showed mild spondylitic changes with no disc protrusion or significant neural compression although mild narrowing of the right C5/6 intervertebral foramen was noted at that time.[81]
[81] Insurer’s bundle, p 420.
The report of Dr Ghahreman dated 23 December 2023 noted a significant car accident 2018 resulting in severe neck pain and radiation to the trapezius and shoulders and the development of lower back pain.[82]
[82] Claimant’s bundle, p 131.
Dr Ghahreman noted the MRI scan of the cervical spine in 2020 showed disc injuries at C5/6 and C6/7 which represented early injuries that had evolved over time. The doctor recommended anterior cervical discectomy and fusion at the lower levels with a chance of reducing or eliminating pain and radicular symptoms.
Dr Ghahreman opined that the disc injuries at C5/6 and C6/7 occurred in 2018, and the claimant had experience progression of these changes over time. The doctor also opined that the claimant had low back pain since the 2018 accident with a significant deterioration in 2021 with the event of lumbar radicular pain and undergoing microdiscectomy to relieve the leg pain. The doctor also opined that these symptoms were caused by the 2018 motor accident.

Qualified opinions

Dr Bosanquet

Dr John Bosanquet, orthopaedic surgeon, was qualified by the insurer and provided a report dated 2 March 2022.[83]
[83] Insurer’s bundle, p 29.
The doctor noted a history that the claimant suffered an injury of on 25 September 2018, was off work for two weeks, went back to work for two months and then did not continue to work.
Dr Bosanquet opined that the September 2018 motor accident caused soft tissue injuries to the cervical and lumbar spines noting surgery had been performed for a right sided radiculopathy. He opined that the motor accident caused an aggravation of pre-existing degenerative changes which have been managed by cortisone injections and surgery to the lumbar spine.

RE-EXAMINATION

The claimant was examined by Medical Assessor Lahz who provided the following report.
“Mr Sam attended punctually for the medical assessment. An Arabic interpreter Mr Elias Zakharia assisted for the duration of the history and physical examination.
Mr Sam is aged 54 and right-handed. He was born in Lebanon although he only lived there for six years due to war, moving with family to Europe and living in Germany and Spain. He moved to Australia in 1992 and lives with his wife and some of his five children in Peakhurst. His eldest is now 31 and youngest 15.
He initially worked in Australia as a car detailer.
He is a current smoker with history of diabetes since 2011 and ischaemic heart disease. He told me his first coronary stent was inserted at age 30 and he now has nine stents on dual antiplatelet therapy.
Mr Sam confirmed his involvement in the 2009 motor accident in which he injured the neck and lower back. He said there was severe pain for several years and he ended up on many painkillers. He recalled seeing Dr Gorman, a pain physician whom he said, prescribed him Endone, Morphine and Oxycontin for neck and low back pain (multiple GP entries between 2009-2014 refer to persistent spinal pain). There was physiotherapy input. There was pain clinic input. He could not recall the details given the length of time elapsed. However, he said he eventually decided that he could not keep living on painkillers. He had family responsibilities so with a lot of ‘self-talk’ he explained that he managed to cease the painkiller and steer his life back on track. He started regular walking, and he made himself ‘adjust’ so he could increase his daily activity levels.
By 2014, he felt confident enough to commence a cleaning role. From 2014-2018 he worked as a cleaner of facilities such as TAFE, police stations, RTA offices and court buildings. He worked a minimum of 20 hours per week, with additional hours sometimes up to 35 per week. The work was physically demanding inclusive of floor, wall and ceiling cleaning/vacuuming. He last worked in 2018 not long after his involvement in the 2018 motor accident when he attempted to resume work as a trial despite resurgence of neck and low back pain.
In September 2018, his vehicle was rear-ended with resultant symptoms in the neck, lower back, left shoulder>right shoulder, and chest. He said that his injuries were ‘soft tissue’. Subsequent treatment included physiotherapy as well as various injections to the neck, lower back and shoulders. The records also indicate pain management clinic involvement between the motor accidents of 2018 and 2019.
I asked him to describe the prevailing neck symptoms between the 2018 and (December) 2019 motor accidents. He referred to neck pain with stiffness associated with considerable stress and poor sleep. Neck pain spread distally over the trapezial regions/shoulders as far as the elbows L>R. There were also paraesthesia involving mainly the left upper limb (all fingers) and the forearm (he pointed to the lateral forearm). He said too that he was dropping items from mainly the left hand.
He said he saw many doctors after the 2018 motor accident. He did remember seeing Dr Gorman just once who (according to the records) gave him some NSAIDS in November 2018 for pain relief. He said he was prescribed a ‘short course’ of opioids at the Pain Clinic after the 2018 motor accident.
He did not remember seeing Dr Cox, pain physician during 2019 (post 2018 motor accident) although the records indicate several consultations 8/2/19 for neck/left shoulder/low back pain. It was reported then that he had been taking Endone and MS Contin for 15 years (differing from his account of having ceased pain medications prior to 2014). Dr Cox recorded he was taking up to six Endone daily if there were flare ups whilst receiving massage for pain in the neck, shoulders, thoracic and lumbar spine. Need for exercise and psychological assessment was noted.
In March 2019, records indicate that he had been attending the Pain Unit with management focusing on pain psychoeducation, pacing and acquisition of relaxation skills.
In September 2019, he underwent a left ankle ultrasound showing ‘no cause for symptoms’.
On 15/10/19, a left shoulder ultrasound showed bursitis without a rotator cuff tear.
On 30/10/19, the claimant saw Dr Al Khawaja a neurosurgeon. He initially did not recall this although he subsequently agreed this had been the case when reminded. At the time, he complained of neck pain with left upper limb pain and tingling in both arms as well as low back pain. It was noted that Mr Sam had returned to work after the 2018 motor accident although neck and back pain developed. The back pain reportedly improved whereas there was ongoing neck pain into the left upper limb as well as interscapular pain. There was a normal examination of upper limb power and reflexes. He was referred for MRI scans of the cervical spine and lumbar spine although he cannot recall if these were undertaken before the December 2019 motor accident. He said he did not think that he followed up with Dr Al Khawaja whose rooms were located a considerable distance from Mr Sam’s home.
Mr Sam recalled a discussion with Dr Awada, his GP regarding potential neck surgery during 2019 although the doctor advised against this, reportedly noting such surgery could be dangerous, cause loss of voice/vocal cord damage etc.
On 5/11/19, there was a further consultation with Dr Cox, pain physician who referred to need for multidisciplinary pain management programme, an invitation to ‘strength classes’ and a left shoulder ultrasound which was ‘not very abnormal’, ‘just bursitis’. The claimant was taking Endone and Cipramil. He was having a neurosurgical review and had also been referred to a shoulder surgeon. Dr Cox did express concern about Mr Sam’s use of opioid medications for pain. He suggested left shoulder bursal injection and exercise depending on the results of imaging.
Mr Sam did not remember seeing Dr Jones, orthopaedic surgeon on 14 November 2019 (pre 2019 motor accident) regarding left-sided neck, shoulder and upper limb pain. The records indicate that a left shoulder ultrasound showed bursitis, and there were positive impingement signs. A steroid injection to the left subacromial bursa was recommended. Dr Jones also referred to the neck and left arm pain with paraesthesia involving the hand and forearm.
I asked him about the location of the left shoulder pain after the 2018 motor accident. He pointed to the trapezius as the worst site though mentioned that symptoms ‘trickled’ toward the shoulder joint convexity.
He did receive a left shoulder injection which he thought provided transient relief.
He said that after the 2018 motor accident, there were less severe symptoms in the right shoulder compared with the left, again mostly in the trapezial region with spread to the right elbow and neurological symptoms affecting all fingers.
Concerning the neck, the abovementioned symptoms of neck pain with radiation to the shoulders/arms/elbows with tingling in the forearms and paraesthesia of all fingers L>R persisted until the time of the December 2019 motor accident.
In mid (July) 2019, he fell at home whilst negotiating steps to the back yard. He said he fell due to the legs ‘locking’ secondary to the lower back injury. He fell directly onto his chest. He did consult his GP for analgesia. Symptoms gradually improved.
Regarding the effects of the 2018 motor accident on the lower back, Mr Sam said the following. There was increased low back pain associated with intermittent locking up sensations in his legs causing several falls. The falls served to worsen the low back pain. Low back pain and stiffness continued to worsen. Some days the lower back pain and stiffness were so severe that he was unable to get out of bed. He said too that he developed bilateral shooting pain in the legs spreading from the buttocks down the posterior thighs, reaching just below the knees, with ‘burning, knife’ sensations as well as tingling feet L>R. The back pain was constant, whereas the leg pain was intermittent. However, when present, it could stop him from walking. The abovementioned symptoms in the lower back also persisted at the time of the December 2019 motor accident.
He said he did receive some lower back injections after the 2018 motor accident (reportedly done in hospital) although these were not helpful.
At the time of the 2019 motor accident, it appears that he was still awaiting the MRI scans of the cervical spine and lumbar spine recommended by Dr Al Khawaja, neurosurgeon. He said he was already very incapacitated due to the effects of the 2018 motor accident and unable to assist at home with any chores/yard work. He said all he could do was to drive his children to school on days when he was feeling well enough. He would take Endone prn for severe pain in the period leading up to the 2019 motor accident. GP records on 30/11/19 not long before the 2019 motor accident confirm requests for Endone scripts.
He saw Dr Jones again on 10/12/19 with MRI of the left shoulder showing only minor cuff tendinosis. Dr Jones suggested that the left shoulder pain was referred from the neck. He referred to the subject motor accident, ‘a few days ago’ following which the claimant developed pain over the anterior right shoulder associated with restricted upper limb elevation. An x-ray of the right shoulder was unremarkable in the ED, so MRI of the right shoulder and cervical spine were recommended.
The subject accident occurred 9/12/19. Mr Sam was the restrained driver of a 2016 BMW and had just collected his children from school. He had been proceeding normally in his lane when suddenly there was an oncoming car, on the wrong side of the road, allegedly in the process of overtaking another vehicle. Mr Sam said he was driving at 50 kph whereas the other vehicle was speeding. He attempted to avert the collision by swerving, the resultant impact he said involving the driver’s side of his vehicle which was reportedly later written off.
He does not recall if any body parts struck the interior of the cabin. He remembers that all the airbags deployed. Fortunately, the children sustained only minor injuries. He said he felt very shocked immediately afterwards. He said he was two hours in the car before emergency services extracted him. He said that there was an immediate sensation in the right shoulder as though it had been ‘dislocated’. Further, he said there was pain in the lower legs especially at the heels as though ‘breaks’ were present. There was neck pain as well as lower back pain.
The ambulance officers applied a collar and he was loaded onto a stretcher and then taken to SGH where he remained for several hours 9/12/19. He could not clearly remember events at hospital given the time elapsed. He thought there had been pain all over his body.
According to the records, there was musculoskeletal pain at the right shoulder associated with visible bruising from the seatbelt, left hip pain from the left-sided paraspinal muscles, and pain in the pelvis, elbows and ankle. He underwent CT scans of the brain and neck, and plain films of the chest and right ankle. No fractures or serious injuries were detected. The diagnoses made were of MSK injuries and neck whiplash. He was given Panadol and Brufen.
He saw Dr Awada within a couple of the days of the 2019 motor accident. He gave painkillers and also recommended physiotherapy. He said the neck, lower back and legs were treated. He attended physiotherapy for at least a few months whilst the Insurer paid. He said the GP also arranged additional physiotherapy via Medicare.
After the 2019 motor accident, the pre-existing neck symptoms were made worse although he could not quantify this, aside from saying the neck is now his biggest problem. The main effect of the 2019 motor accident was to cause the right shoulder symptoms to become as severe as those on the left. There were ongoing neurological symptoms (numbness) in both hands, affecting all fingertips with weakness causing propensity for dropping items from both hands. Symptoms have progressively worsened since the 2019 motor accident.
Regarding the lower back, he said the 2019 motor accident made this worse as well. In particular, there was increased frequency of episodic leg locking associated with falls. The frequency of the bilateral shooting pains also increased, and in particular there were neurological symptoms i.e. numbness at the heels. As noted, the lower limb pains and the locking up episodes, predated the 2019 motor accident (commencing from the 2018 accident). Symptoms steadily worsened at the lower back and legs He said he ended up in hospital during 2021 due to lower limb symptoms rendering him unable to walk. It was an ‘emergency’ for which the doctor (Ghahreman) consulted with him in hospital and recommended lumbar spine surgery i.e. the right L3/4 discectomy. Mr Sam underwent the procedure through the private health fund at St George Private.
I asked Mr Sam when right sciatica had developed for which he had undergone the right lumbar decompression surgery at L3/4 during March 2021. However, he could not recall a period during which there was severe right-sided sciatica. He said that the symptoms causing the locking up were in both legs as were the shooting pains.
Given the difficulties Mr Sam had (due to poor memory, lapse of time) in providing a description of symptom evolution, I have summarised the GP records as follows post 2019 motor accident:
After the 2019 motor accident, the GP records indicate chest wall pain (with CT chest requested) 21/12/19 although of interest the records make no reference to the 2019 motor accident. On 18/1/20, neck pain is noted, on 3/3/20 mild spondylotic changes are noted on neck MRI and 21/4/20 there is severe back pain. Records 15/12/20 refer to chest pain, those 20/1/21 pain in the right shoulder, elbow and arm, 2/2/21 right shoulder with ultrasound showing bursitis, and entry 16/2/21 referring to back and neck pain. On 3/3/21 there was multi joint pain and back pain. On 11/3/21, there was low back pain spreading to the right leg and then by 25/3/21 it is noted that he had undergone a right L34 foraminotomy/discectomy. On 22/4/21 there was some residual low back pain.
The first physiotherapy AHRR post 2019 motor accident referred to symptoms at the neck, right shoulder, right forearm/elbow, middle back, right rib 6, lower back and bilateral ankles. There was constant neck pain with numb hands and right shoulder pain with difficulty completing overhead tasks. There was pain in the wrist and elbow. He could not lie on the. Right side. Treatment would include exercise, HEP, self-management education, core exercises and postural education.
Mr Sam thought he had only started seeing Dr Cox, the pain physician ‘last year’. However, in addition to the abovementioned consultations, there were multiple consultations after the 2019 motor accident, throughout 2020.
On 4/2/20, Dr Cox refers to aggravation of the neck, chest and left shoulder with weakness of the right wrist. He said there was ‘no serious physical damage’ although the patient thought otherwise. The patient was taking Panadol and NSAID for pain. Dr Cox recommended Allegron as well and advised again against ongoing use of strong opioids.
An MRI of the cervical spine on 27/2/20 showed mild spondylotic change.
On 20/5/20, Dr Cox noted that treatment comprised physiotherapy, exercise, massage and static cycling. Mr Sam complained of back freezing and leg weakness. An MRI of the neck recently had not shown any major damage. Endone had been stopped. Mr Sam was then taking Endep 10 mg daily, and Panadol for headaches.
An MRI of the lumbar spine on 4/9/20 showed mild spondylotic changes associated with right L34 disc protrusion traversing the right L3 nerve root.
On 28/10/20, there was an entry from the pain management service (Dr Cox) referring to central sensitisation associated complaints of back, shoulder, leg and right-sided chest pain. There had been two motor accidents associated with legal proceedings.
A right shoulder ultrasound on 25/1/21 showed bursitis.
As noted above, he came to right sided L3/4 decompression in March 2021 for right sciatic symptoms which he could not specifically recall, noting the history he provided mentions only bilateral shooting pains and bilateral lower limb ‘locking up’ episodes. Mr Sam told me that he spent 12 days in the hospital.
On 30/4/21, there is reference to severe right thigh/leg pain which had greatly responded to L3/4 discectomy. Back pain had also lessened since surgery. However, there was some neck pain for which Dr Ghahreman ordered an MRI scan.
An MRI scan of the cervical spine 8/6/21 showed mild cervical spondylosis without neurological compromise.
On 19/6/21, the GP refers to increased neck pain.
On 21/6/21, Mr Sam consulted Dr Ghahreman who noted that he was recovering well from the lumbar spine surgery although there was ongoing neck pain with referral to the trapezial regions. MRI had shown C5/6 and C6/7 bulges. He would consider facet joint injections. The patient was taking Endone. If there were no improvement with the facet joint injections, he said there should be further pain specialist review. Records indicate that Mr Sam received bilateral C5/6 and C6/7 facet injections with steroid and local anaesthetic. He said these helped temporarily.
Correspondence from Dr Ghahreman 23/12/23 referred to the lumbar laminotomy of 2021 and the 2018 motor accident followed by significant pain in the neck, trapezial region/shoulders and lower back. An MRI of the neck during 2020 showed C56 and C67 disc injury with the earlier injury evolving to severe discovertebral disease with uncovertebral hypertrophy. There was now severe neck pain with stiffness also involving the shoulders. Reflexes were reduced and there was numbness of fingers 1-4 consistent with compression of C567. Neck injections he noted gave temporary relief whereas physiotherapy had not helped. The patient wanted an ACDF C5-7 which in the surgeon’s opinion had an 80% probability of relieving pain. He outlined the surgical risks. Dr Ghahreman said that the cervical disc injury from the 2018 motor accident had progressed over time.
Mr Sam said that the doctor explained to him that he would insert a plate to the neck to ‘fix’ it.
Further, Dr Ghahreman noted there had been low back pain since the 2018 motor accident which significantly deteriorated in 2021 with radicular pain culminating in lumbar microdiscectomy which had relieved the leg pain. There was some persistent lower back pain with stiffness although an MRI (2023 demonstrating L34 L45 disc desiccation) had not shown recurrent disc herniation. For the lower back, he recommended bilateral radiofrequency procedures at L34, L45 and L5S1.
Dr Ghahreman (according to Mr Sam) has requested the Insurer (he is not sure whether the surgeon had approached the insurer for 2018 or else 2019 accident) to approve the neck surgery and lumbar spine RF blocks. According to Mr Sam, legal proceedings relating to the 2018 accident are ongoing in addition to those for the 2019 accident. He will consider having the neck surgery and lumbar blocks using his private health insurance if this is necessary. He does not know to which accident; the surgeon is linking the need for the proposed neck surgery.
Mr Sam told me that the lumbar spine surgery resolved the lower limb shooting pains and lower limb locking up episodes. He is only aware now of anterolateral thigh numbness bilaterally R=L. The only lower limb pain is that involving the heels also R=L. the lower back remains moderately sore and stiff, average 7/10. Prolonged walking can aggravate low back pain as can bending and lifting. He said that sitting was generally not too bad.
As noted above, the neck symptoms are the biggest problem. There is pain spreading from the mid neck and neck base to both trapezial regions R=L, reaching the elbows associated with tingling sensations in the forearms and numbness affecting all fingers bilaterally. He said the little fingers in particular can sometimes burn like a fire. He also indicated that neck pain spreads to the interscapular region. He reported multiple functional limitations and insomnia due to intense neck pain. He still dropping items from his hands.
Mr Sam takes a lengthy list of medications inclusive of Palexia IR 50 mg tds, Baclofen 10 mg bd, Escitalopram, Metformin, Rosuvastatin, Lipidil, Clopidogrel, Telmisartan, Amlodipine, Aspirin and Gabapentin.
Physical Examination
Mr Sam was cooperative and pleasant although he was extremely pain focused. Answers through the interpreter were extremely detailed.
I observed that he is a tall man with substantial central adiposity. Height is 173 cm and weight 97.4 kg.
He walked slowly around the room.
There was marked poke neck (protracted) posture with tenderness from C5 down to C7. There was some guarding of the right trapezius.
Neck flexion was ¾ normal range, extension to neutral only, lateral flexion to either side ½ normal range to either side and rotation to 1/3 normal range to either side.
There were no upper limb non verifiable radicular complaints because neurological symptoms affecting all fingers are not within the distribution of a single dermatome. There was no measurable wasting of the arms or else the forearms at corresponding points 10 cm above the elbow crease 29 cm nor 5 cm below it 27 cm. Upper limb reflexes were easily elicited, present and symmetrical. Hoffman’s tests were negative bilaterally. There was patchy non-anatomical sensory loss affecting the upper limbs bilaterally over the shoulder convexities, lateral arms, thumbs, middle fingers and little fingers. Other areas demonstrated normal sensation. Upper limb power testing was compounded by presence of proximal pain at the neck and shoulder girdles. However, there was reasonable strength grade 4/5 present associated with some ‘giving way’ due to more proximal pain. Spurling’s test was positive bilaterally although there was considerable pain behaviour with frequent verbal complaints and rubbing/protective postures of painful areas.
At the shoulders, the maximal tenderness was present at the trapezial regions R=L. There was lesser bilateral tenderness at the shoulder convexities.
Active range of shoulder motion is shown in the following table:
He was initially asked to elevate both arms simultaneously which he did slowly whilst wincing to 120 degrees bilaterally. He indicated the trapezial regions and neck as sites of pain during this manoeuvre.
On being asked to demonstrate the active movements referred to below, there were again numerous verbal pain complaints, wincing, grimacing and rubbing of painful areas. The main loss of active range involved flexion and abduction whereas internal and external rotation were preserved.
Right Left

Abduction

110, 100, 100

100, 90, 80

Adduction

30, 30,30

50

Flexion

80, 90, 80

80, 90,80

Extension

50

50

Internal rotation

80

80

External rotation

80

80

There was thoracic kyphosis.
Gait was unremarkable, and he could heel walk/tiptoe around the room short distances whilst complaining of back pain.
There was tenderness from L4/5 down without muscle guarding or spasm.
Lumbar flexion was ½ normal range and extension 2/3 normal range. Lateral flexion was 2/3 normal range to either side and rotation ½ normal range to either side, all movements slowly and cautiously performed and associated with verbal pain complaints, wincing and grimacing.
He could sit with each leg fully extended, without ado.
Lower limb power was normal on the left whereas at the right leg, there was generalised giving way weakness associated with complaints of low back pain.
The thighs measured symmetrically 10 cm above the superior patella 43 cm as did the calves at maximal mid girth 35 cm.
There was normal sensation over the left lower limb. At the right leg, there was non-anatomical subjective sensory loss affecting the right upper thigh, mid-thigh and sole of the foot. (Other areas of the right leg demonstrated normal sensation.)
He was poorly relaxed, so reflex testing was challenging.
Left lower limb knee and ankle reflexes were present as was the right knee jerk. The right ankle jerk in various positions and with facilitatory manoeuvres was absent.
Elbows, wrists, hands, hips, knees and ankles examined unremarkably.
At the conclusion of the examination, Mr Sam said that his body felt ‘wrecked’ due to the two motor accidents of 2018 and 2019. He likened the Insurer to ‘mafia’ who refused to pay for any treatment. He also requested that this Panel be ‘fair’ in consideration of the dispute outcome, taking into account his pain and suffering as well as the need for lumbar spine surgery and (now) recommendation for neck fusion and further lumbar blocks.
I did explain to Mr Sam through the interpreter that the Panel is specifically considering the effects of the 2019 motor accident and also must adhere to the definitions of threshold/non threshold injury set out in the Act.
Investigations
Mr Sam brought the following investigations which I viewed:
A right shoulder plain x-ray 25/1/21 was unremarkable.
A right elbow x-ray 25/1/21 was also unremarkable.
On 1/3/21, he received an ultrasound guided steroid injection of the right shoulder.
An MRI of the lumbar spine 4/9/20 showed spondylotic changes with L34 disc protrusion versus right L3 root.
A bone scan 11/12/23 was noted showing only mild C56 and C67 degenerative change without evidence of cervical facet joint arthritis. There was normal uptake at the lumbar spine. There was mild left trochanteric bursitis.
Conclusions
The dispute at hand is a threshold dispute.
Medical records indicate that Mr Sam has a long history of chronic pain. There was a prolonged recovery from neck and lower back pain after a motor accident in 2009. He required pain management, physiotherapy and analgesia. He eventually returned to work in 2014 as a cleaner persisting with this until after the 2018 motor accident when a work trial was unsuccessful due to need for carriage of a heavy vacuum cleaner associated with episodes of legs giving out and recurrent falls.
Pain management records over the years refer to neural sensitisation, a phenomenon whereby neurones involved in pain transmission become sensitised so that they react abnormally to normal daily stimuli/activities such as activities/sensory inputs that are not generally painful are perceived as being so. Sunburn is a very good example of temporary neural sensitisation whereby the damaged area remains extremely tender/sensitive until the injury heals due to sensitisation of injured cutaneous nerves. As the acute injury resolves, the pain/sensitivity resolves. However, the difference in chronic pain states is that the neural sensitisation persists beyond the usual time for healing (6-12 weeks) such that pain perception continues, creating a chronic pain condition.
In my opinion, Mr Sam suffers from a chronic pain state perpetuated by neural sensitisation, also referred to as ‘nervous system wind up’. The effect of this is such that the person becomes effectively ‘wired to experience pain’.
Anxiety, low mood, unhelpful beliefs about nature/causation of pain, thinking the worst i.e. catastrophising, physical deconditioning, weight gain and sleep disturbance, all of which are relevant in Mr Sam, also serve to perpetuate/heighten the symptoms experienced.
I have not found evidence of cervical radiculopathy according to the definition in the MAG paragraph 6.138, page 108.
Unfortunately, no cervical spine imaging was available to assess/compare the degree of disc protrusion either before or else after the 2019 motor accident.
The available information is that the MRI scans neck 27/2/20 and 8/6/21 (both post 2029 motor accident) show only mild cervical spondylosis without nerve root/spinal cord/neurological compromise. A cervical spine MRI on 15/3/13 (6 years preceding the 2029 motor accident) showed only mild spondylotic change at right C56 with some foraminal narrowing.
Disc bulges are a normal finding in persons of most ages. Discs contain fluid in order to act effectively as shock absorbers for the spine. Therefore, discs are supposed to bulge. Bulging is not a rupture and it is neither a disease nor an injury. The available information regarding the post 2019 motor accident cervical spine MRI scans is that there is no evidence of either disc rupture or tear.
I have also not found clinical signs of lumbar radiculopathy. There was absence of the right ankle jerk although there was not the second sign necessary per MAG to conclude that radiculopathy is present.
The MRI lumbar spine was available 4/9/20 was reported to demonstrate only mild lumbar spondylosis with right L34 disc protrusion versus the right L3 nerve root. There were no lumbar MRI scans preceding the 2019 motor accident with which I could compare the findings made on the lumbar scan done 4/9/20.
Given the length of time between the December 2019 subject motor accident and the lumbar decompression surgery (March 2021), there is not in my view a causal nexus. The GP records in the immediate aftermath of the 2019 motor accident refer only to either neck or low back pain without any reference to symptom referral to upper/lower limbs. The first mention to right sciatica is not until 11/3/21 approximately 15 months after the motor accident. If the L34 disc bulge were traumatic, there would have been onset of right sciatica within a few days/weeks of the subject motor accident.
There is no evidence that any of the other referred injuries i.e. elbows, right wrist, pelvis, ankle and right foot are anything more than soft tissue i.e. threshold injuries. No evidence has been provided to support rupture/tear in these locations, nor is there any evidence of nerve injury in the immediately abovementioned locations.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or not threshold injuries as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[84] and Insurance Australia Ltd v Marsh.[85]
[84] [2021] NSWCA 287 at [40], [41] and [45].
[85] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[86] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[86] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[87] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[88]
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[87] [2022] NSWPICMP 6 at [44]-[62].
[88] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel adopts the extensive examination and other findings of Medical Assessor Lahz supplemented by the following reasons.

Cervical spine injury

We accept that the motor accident caused an increase in the symptomatic cervical spine condition. This is evidenced by the contemporaneous complaints of increased symptoms and the nature of the motor accident.
The claimant suffered longstanding pre-accident pain in the cervical spine with complaints of numbness and tingling down both arms. These are summarised earlier in our reasons.[89]
[89] See for example at para 44 – 71.
The nature of the motor accident was likely to have caused a whiplash injury to the cervical spine which explained the contemporaneous complaints of neck pain. However, there are no post-accident recorded complaints of radiculopathy as defined[90] and the various examination findings, including those of Medical Assessor Cameron and Medical Assessor Lahz, did not find any objective signs of radiculopathy as defined in the Guidelines.
[90] See [29] herein.
The MRI scan of the cervical spine dated 27 February 2020 showed mild spondylitic changes at various levels with no evidence of disc protrusion or neural compression. For the detailed reasons provided by Medical Assessor Lahz, we are not satisfied that the motor accident caused or aggravated any cervical spine disc pathology which could constitute anything other than a soft tissue injury.

Low back injury

The claimant had longstanding complaints of low back pain. In late October 2019
Dr Al Khawaja recommended an MRI scan of the lumbar spine.
The ambulance and hospital records do not refer to low back pain although the back is mentioned in the claim form and early certificates. There is generalised low back complaints which, in the context of the serious pre-existing complaints, does not suggest that the motor accident caused any relevant pathology to the low back. The post-accident records do not record complaints of lower limb radiculopathy although thigh pain (L3 distribution) developed in early 2021.
Notably, in early 2020, the pain specialist, Dr Cox, did not record a history that the motor accident caused a worsening of low back pain.
The MRI scan in September 2020 showed some discal pathology at L3 traversing the right L3 nerve root and right thigh pain in the L3 distribution developed in March 2021.
The motor accident may have caused some increased low back symptoms noting that there is protection from any serious injury to that body part due to the seat. However, given the serious pre-existing complaints and absence of low back radicular complaints following the motor accident, we are not satisfied that there is any causal link including any aggravation between the motor accident and the discal pathology at L3. For the reasons discussed by the Medical Assessor, it is unlikely that the development of radicular symptoms in the L3 distribution in March 2021, is causatively related to the motor accident. For these further reasons we are not satisfied that the lumbar spine surgical procedure undertaken in early 2021 is causative related to the motor accident.
We otherwise note that the examination showed an absent ankle jerk which is referable to the S1 distribution. Medical Assessor Cameron made a similar finding. Clearly these findings have nothing to do with the L3 distribution.

Skin injury

The hospital records refer to the deployment of airbags and a “superficial abrasion right forearm”.[91] The ambulance report also mentions right forearm pain.
[91] Insurer’s bundle, p 310.
The nature of the abrasion is consistent with the deployment of airbags. Injury to the right arm was particularised by the claimant as an injury caused by the motor accident. The insurer is on notice that this injury is to be determined as part of the medical dispute.
The nature of the skin injury was short term, and the superficial nature of the injury would not have involved any injury to nerves with resolution of the abrasion within two weeks.
However, in Allianz Australia Insurance Ltd v the Estate of the Late Summer Abawi[92]the Court concluded that an injury to skin is not a soft tissue injury for the purposes of s 1.6 of the MAI Act and that the decision of Dhupar v AAI Ltd[93] was erroneous.[94]
[92] [2024] NSWSC 1245 (Abawi).
[93] [2023] NSWPICMP 99 (Dhupar).
[94] Abawi at [66].
The issue of binding precedent was considered by the President of he Commission in Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos.[95] The President referred to the judgment of Barwick CJ in Favelle Mort Ltd v Murray[96] where the Chief Judge was discussing the position following the abolition of appeals from the High Court to the Privy Council. Barwick CJ stated:
“... within this body ofprecedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgement, has laid down that principle as part of the relevant law. Outside the area of bindingprecedent, there is an area where comity or respect for the high standing of a court outside that juristic unit dictates that the views of such a court in general be accepted unless the court is clearly convinced as to the erroneous nature of the decision or reasoning of that other court, and there are sufficient reasons for departing from that decision or that reasoning. Thus, respect is accorded to the decisions of the House of Lords and, perhaps to a lesser degree, those of the English Court of Appeal. In line with this approach to decisions which do not bind as precedents, no doubt this Court will at least accord a like respect to decisions of the Privy Council to that which it is accustomed to accord to the House of Lords.”
[95] [2024] NSWPICPD 7.
[96] [1976] HCA 13; 133 CLR 580 (Favelle Mort).
The decision in Abawi is binding on the Panel as it is a decision of the Supreme Court in the same hierarchy directly on this issue. If the decision is not binding, it must otherwise be followed as a considered decision of a higher court.
Had we applied the decision of Dhupar then the claimant would have been unsuccessful in establishing that this skin injury was not a threshold injury. This is because the nature of the skin abrasion as described in the clinical records and subsequent absence of reference of that injury in later records would not have involved any injury to nerves, tendons, ligaments of cartilage. There are no ongoing symptoms in the right forearm due to the skin injury, which, we noted, would have resolved within a short period.
The Panel concludes that the skin abrasion to the right forearm is not a soft tissue injury and not a threshold injury as defined in the MAI Act.

Other injuries

The claimant particularised several injuries to various parts of the body. The right shoulder and right ankle are referenced in early records and several body parts are referenced in the claim form. However, there is no evidence that injury to any of these other body parts was other than a soft tissue injury. This is because there is an absence of any evidence by way of scan or examination to suggest that these injuries were anything other than soft tissue and the claimant provided no submission supporting a basis to conclude otherwise.
The scan evidence of the right shoulder undertaken on 25 January 2021 was normal and showed bursitis. This is inflammation in the shoulder joint and is a soft tissue injury as defined.
We otherwise note that the suggestion that the motor accident caused a rib fracture is baseless. The CT angiogram, undertaken the day following the motor accident for other purposes, showed “an old anterior sixth rib fracture”. Clearly this “old” rib fracture was not caused by the motor accident.

CONCLUSION

For these reasons the Panel revokes the medical assessment based on the skin abrasion to the right forearm. A new medical assessment certificate is attached at the commencement of these Reasons.

Abduction	110, 100, 100	100, 90, 80
Adduction	30, 30,30	50
Flexion	80, 90, 80	80, 90,80
Extension	50	50
Internal rotation	80	80
External rotation	80	80

[2025] NSWPICMP 1

6 January 2025