Sardi v Insurance Australia Limited t/as NRMA Insurance

[2024] NSWPICMP 33

DETERMINATION OF REVIEW PANEL

CITATION:

Sardi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 33

CLAIMANT:

Jay Sardi

INSURER:

Insurance Australia Ltd t/as NRMA

REVIEW PANEL

PRICNCIPAL MEMBER:

John Harris

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Adeline Hodgkinson

DATE OF DECISION:

24 January 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 18 July 2019 in rear end collision; various injuries sustained including exacerbation of lumbar spine condition; Panel not satisfied that claimant had pre-existing radiculopathy from the lumbar spine; claimant had two objective signs of radiculopathy when examined by Dr Darwish in February 2020 in the L5 dermatome; David v Allianz Australia Ltd adopted 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; claimant subsequently underwent surgery; no utility in a medical examination; other injuries threshold or not established; Held – medical assessment revoked; claimant suffered non-threshold injury to the cervical spine.

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

The Review Panel revokes the certificate dated 23 May 2023 and certifies that the motor accident caused a non-threshold injury.

REASONS

BACKGROUND

1. Mr Jay Sardi (the claimant) suffered injury in a motor accident on 18 July 2019 whilst in a stationary vehicle that was rear ended by the insured vehicle (the motor accident).[1]

   [1] Insurer’s bundle, p 15.

2. The insurer is liable to pay to Mr Sardi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.

3. 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”.

4. The following injuries were referred in the medical dispute:

   -      cervical spine;

   -      lumbar spine;

   -      left shoulder;

   -      brain;

   -      left knee;

   -      right shoulder;

   -      right knee, and

   -      hand.

5. 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.

6. 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

1. 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”.

2. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.

3. 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.

4. 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

1. The medical dispute was referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 23 May 2023 (the medical assessment certificate).

2. Medical Assessor Cameron concluded that Mr Sardi sustained soft tissue injuries to the cervical spine, lumbar spine, right hand, knee and shoulder which are a threshold injury for the purposes of the MAI Act. The Medical Assessor stated:

   “Mr Sardi has a history of chronic pain. He had severe injuries in a motorcycle crash in 2013. The key issue is whether the motor vehicle crash caused injuries to the lumbar spine that required spinal fusion. Based on the available information, this is not established. However, it is established that he sustained soft tissue injuries to the lumbar spine and cervical spine. There is no evidence that he injured either shoulder or the left knee. There is no evidence of a brain injury.”

3. The Medical Assessor otherwise noted that there was no evidence of radiculopathy at any time, no evidence of a fractured right hand or right knee injury.

THE REVIEW

1. The application for referral of the medical assessment to a review panel was made by Mr Sardi within 28 days after the parties were issued with the medical assessment certificate.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

7. 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.

8. The Panel issued the following directions:

   “1.     The claimant is to file and serve the clinical records all general practitioners for the three years prior to the motor accident, by close of business, 10 November 2023.

   2.    The Panel observes that:

   (a)In a report dated 13 February 2020 (Claimant’s bundle, p 74) Dr Darwish appears to refer to two objective signs of radiculopathy in the L5 dermatome;

   (b)We could not find any pre-accident objective signs of radiculopathy; and

   (c)We could not see any basis to find a non-threshold injury caused by the motor accident to the body parts other than the lumbar spine.

   3.    The claimant is to file and serve any further submissions by close of business, 10 November 2023, commenting on the further records (paragraph 1), the Panel’s observations (paragraph 2), whether there is any evidence of a non-threshold injury to the body parts other than the lumbar spine (paragraph 2(c)) and the need for a medical examination (paragraph 5).

   4.    The insurer is to file and serve any submissions in reply by close of business, 25 November 2023.

   5.    The Panel is reconvening on 7 December 2023. As presently advised, we do not see any need for a medical examination although it may be necessary to ask the claimant some questions.”

9. In response to this direction the claimant responded with the records of the general practitioner for the period from 8 July 2016 to 13 November 2020 and further submissions.

10. The insurer filed further materials and to sets of supplementary submissions.

STATUTORY PROVISIONS

1. A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric injury”. Section 1.6(2) of the 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.”

2. 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.

3. 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 Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a 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.”

4. Clause 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.

5. 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.”

6. 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.”

7. 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.

8. Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[10]

SUBMISSIONS

[10] See s 3B(2) of the Civil Liability Act 2002.

Claimant’s submissions dated 6 June 2023

1. These submissions were filed seeking leave to review the medical assessment.

2. The claimant noted that he underwent surgical procedures to the lumbar spine on 11 October 2022 and 15 November 2022. It was submitted that the dispute did not include whether the need for the surgery was caused by the motor accident.

3. The claimant alternatively submitted that if issue of the need for lumbar spine surgery was before the Panel then there were errors in reasoning which included:

   -      no subsequent injury after 18 July 2019;

   -      absence of evidence of lumbar spine symptoms preceding the motor accident, and

   -      various opinions supporting the causal relationship including Dr Darwish (13 February 2020), Dr Giblin (17 February 2020), Dr Laherty (4 April 2020) and Dr Cochrane (2 May 2022).

4. The claimant submitted that had the Medical Assessor correctly assessed that the injury caused the need for spinal surgery then “this would result in the lumbar spine being assessed as not a threshold injury”.

5. The claimant submitted that the Medical Assessor erred in failing to find a left shoulder injury based on an absence of contemporaneous complaint when the evidence established the contrary, specifically:

   -      General practitioner (GP) entry on 22 July 2019 referring to radiating pain to both shoulders, and

   -      OT initial needs assessment report dated 30 August 2019 referring to pain in shoulders.

6. The claimant submitted that the Medical Assessor erred in failing to find a left knee injury based on an absence of contemporaneous complaint when the evidence established the contrary, specifically:

   -      GP note on 19 July 2019 that the “knees tender”;

   -      GP note on 20 September 2019 of left knee pain;

   -      OT initial needs assessment report dated 30 August 2019 noted problems with both knees;

   -      referral to physiotherapist dated 20 September 2019 noted “bilateral knee” trauma and request dated 15 October 2019, and

   -      referral to Dr Bhimani dated 4 October 2019 referred to bilateral knee pain.

Claimant’s submissions dated 6 November 2023

1. These submissions were filed commenting on the pre-accident clinical records of Minto Family Medical Centre. The claimant submitted that the records showed only one attendance referencing “back pain” which was on 27 March 2018. He submitted:

   “The scripts for pain relief medication that were provided by the GP have remained constant throughout with no change in the dosage of Targin which has remained at 15mg from when it was first prescribed along with the dosage of Endone remaining at 5mg. This stability in dosage for medication along with the fact there were hardly any GP visits specifically for back pain would support the proposition that the claimant’s back problem was under control and manageable and that there was no radiculopathy that would normally warrant further investigations and treatment.”

Insurer’s submissions dated 12 July 2022[11]

[11] Insurer’s bundle, p 6.

1. The insurer noted the prior motor accident in August 2013 which included a pelvic fracture and ruptured bladder.

2. The insurer referred to the discharge from hospital dated 18 July 2019 which noted complaints of pain in the neck, lower back and left lower chest pain. The CT scan did not show any spinal fractures and X-rays of the knee, hip and pelvis did not show any acute fractures. It was noted that Dr Balsam Darwish, in a report dated 19 August 2019, reported that the claimant had low back pain with right sciatica and neck pain with stiffness.

3. The MRI scan of the cervical spine dated 10 September 2019 showed degenerative changes at multiple levels. The lumbar spine scan showed stable minor multilevel degenerative spondylotic changes.

4. The insurer referred to subsequent treatment particularly by Dr Darwish who ultimately recommended a surgical procedure in November 2019.

5. The insurer otherwise provided a detailed summary of the medical evidence and submitted that there was no evidence that the claimant sustained an injury to any nurse already complete or partial rupture of tendons, ligaments, menisci or cartilage. It further submitted that the medical evidence did not show that there were two or more clinical signs of radiculopathy as defined in clause 5.8 of the Guidelines.

Insurer’s submissions dated 15 June 2023[12]

[12] Insurer’s bundle, p 2.

1. These submissions were filed opposing the review. The insurer noted that the surgery was paid by the workers compensation insurer, and it had not been requested to approve the surgery and submitted that lumbar fusion surgery was not causally related to the injury.

2. With respect to the allegation of left shoulder injury, the insurer submitted that the contemporaneous clinical records showed radiating pain form the neck and did not “specify injury to the shoulders”. It otherwise noted that the claimant had failed to identify a non-threshold injury to the left shoulder.

3. With respect to the left knee injury the insurer submitted that the Medical Assessor correctly determined that there was no injury and otherwise submitted that the claimant has failed to show that any left knee injury as not a threshold injury.

Insurer’s submissions dated 14 November 2023

1. These submissions were filed following the provision of the pre-accident clinical records.

2. The insurer noted the entries on 31 December 2016, 11 October 2017, 12 October 2017 and 10 April 2018 and submitted:

   “The Insurer also submits the documentation of prior discogenic lumbar back pain with sciatica would indicate the Claimant has experienced radiculopathy in the past.”

Insurer’s further submissions (undated)

1. The insurer referred to the medical records of “Specialist Medical & Therapy Solutions” which included the nerve conduction studies dated 21 October 2016 and the reports of Dr Choong dated 12 August 2016 and 21 October 2016. It also noted the GP records referencing sciatica in October 2017 and leg pain in April 2018.

2. The insurer submitted:

   “Dr Choong, in his report dated 12 August 2016, noted that the Claimant had lumbosacral region pain with radiation of pain down his legs, especially on the right side. He walked with an antalgic gait. The doctor agreed with his treating neurosurgeon that the Claimant possibly had radicular pain from a right L5 nerve root irritation.

   In October 2016, a nerve conduction study showed chronic neurogenic changes in the right L5, S1 and to a lesser extent L4 innervated muscles. These findings were in keeping with his clinical history of radiculopathic pain down his right leg and this was most likely secondary to right L5 and S1 nerve root irritation.

   …

   The Insurer submits that the Claimant’s chronic neurogenic changes at L5, S1 and to a lesser extent L4 innervated muscles, as well as the discogenic and radiculopathic pain (with sciatica) satisfy the definition of radiculopathy.”

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

1. In August 2013 a motor accident caused a fractured pelvis, ruptured bladder, various abrasions and whiplash to the neck and back.[13] A CT scan dated 20 November 2013 showed a central disc bulge abutting the thecal sac and the traversing S1 nerve roots at L5/S1. There was a break in pars interarticularis with associated stress reaction and consequent hypertrophy of the posterior element at the L5 level.[14]

   [13] Insurer’s bundle, p 47.

   [14] Insurer’s bundle, p 100.

1. In November 2013 Dr Anthony Keely noted complaints of severe lower back pain with pain radiating down both lower limbs posteriorly.[15] Neurological examination was normal.

   [15] Insurer’s bundle, p 124.

2. An MRI scan of spine dated 2 December 2013 showed degenerative pathology from C4/5 to C6/7 with compression on this thecal sac at the higher two levels.[16] The scan of the thoracic spine was normal. The scan of the lumbar spine showed a large posterior Schmorl’s at L2 with minor bilateral facet joint arthropathy at L5/S1.

   [16] Insurer’s bundle, p 198.

3. The MRI scan of the lumbosacral spine dated 18 May 2015 noted internal fixation through the S1 vertebra into the right side of the pelvis, probable pars defect at L5 with slight posterior disc bulging and prominent Schmorl’s node at L1/2.[17] The fixation is confirmed in subsequent X-rays described as “fixation of symphysis pubis and right sacral fractures”.[18]

   [17] Claimant’s bundle, p 17.

   [18] Insurer’s bundle, p 259.

4. On 12 August 2016, Dr Ho Choong, neurologist noted headaches had improved following medication and EMG studies of the upper limbs did not suggest nerve root impingement. The doctor noted the claimant complained of lumbosacral pain with radiation down both legs and walked with an antalgic gait. Dr Choong stated:

   “I agree with Dr Davies that he possibly had radicular pain from a right L5 nerve root irritation.”

5. On 23 September 2016 Dr Choong noted lumbosacral pain with radiation of pain down both legs.

6. Nerve conduction studies of the lower limb dated 21 October 2016 were within “normal limits” and the EMG study showed “chronic neurogenic changes in the right L5, S1, and, to a lesser extent, L4 innervated muscles” with no evidence of active denervation.

7. In April, May and June 2019 the claimant was prescribed Endone and Targin by his GP.[19]

   [19] Claimant’s bundle, pp 158-159.

Post-accident medical records

1. The hospital discharge report was as follows:[20]

   “Mr Sardi was reviewed by Campbelltown ED following a motor vehicle accident. A summary of his assessment and care is given below. CT scan did not show any signs of C spine or lumbar spine fractures. X-ray of the knee and hip/pelvis did not show any acute fractures or dislocation. He was advised to follow up with his GP to chase formal reports of the x-rays. If any worsening pain, weakness, he has been advised to represent to ED.”

   [20] Insurer’s bundle, p 249.

2. The CT scan of the cervical spine undertaken at hospital showed degenerative changes with loss of intervertebral disc height at C5/6 and C6/7 levels. The scan of the lumbar spine showed a bilateral L5 spondylolysis with grade 1 L5-S1 spondylolisthesis.[21] The X-rays of the left hip, right knee and right hip were essentially normal.[22]

   [21] Insurer’s bundle, p 250.

   [22] Insurer’s bundle, p 257.

3. The clinical note of the Umer Mohamed (GP) dated 19 July 2019 referred to the motor accident and the aggravation of ongoing knee and low back pain and the development of the thoracic spine. The knees were described as tender, and the claimant was prescribed Endone and Targin.[23]

   [23] Claimant’s bundle, p 160.

4. The certificates of capacity dated 22 July 2019 and 2 August 2019 referred to injuries described as “whiplash, right knee pain, exacerbation of low back pain”.[24] Subsequent certificates repeat the description of injuries although a certificate dated 21 February 2020 included a reference to “right knuckle pain – tenosynovitis”.[25]

   [24] Insurer’s bundle, p 200, p 203.

   [25] Claimant’s bundle, p 72.

5. Dr Mohamed provided a referral to Dr Darwish dated 22 July 2019. The GP noted past history of motorbike accident in August 2013 with chronic sciatica with the comment that “now the pain has flared up”.[26] The GP noted neck pain with radiating pain to both shoulders, right knee pain and lower back pain radiating to both lower limbs.

   [26] Claimant’s bundle, p 24.

6. A claim form dated 20 July 2019 referred to the accident when the claimant suffered injuries to the neck, headache, back and right leg pain.[27]

   [27] Insurer’s bundle, p 15.

7. Dr Balsam Darwish, neurosurgeon, provided a report dated 19 August 2019.[28] The doctor noted complaints of lower back pain and right sciatica with paraesthesia over the lateral aspect of the right leg. Examination recorded a straight leg raising test of 45 degrees on the right side with positive nerve stretch test and decrease sensation over the lateral aspect of the right leg. Muscular power was normal in both lower limbs. Dr Darwish then organised an MRI scan of the spine.

   [28] Insurer’s bundle, p 272.

8. Dr Darwish reviewed the claimant on 16 September 2019[29] when he noted neck pain with occipital headaches and lower back pain radiating to both lower limbs more on the right side. Physiotherapy was recommended in respect of the neck pain noting an absence of nerve root or spinal cord compression. The doctor recommended an L5/S1 epidural cortisone injection with physiotherapy and gym program with the aim of building up the claimant’s core muscles.

   [29] Insurer’s bundle, p 273.

9. An MRI scan of the cervical spine dated 10 September 2019 noted mild degenerative changes at multiple levels.[30] The MRI scan of the lumbar spine noted prior surgery at S1 and grade 1 anterolisthesis of L5 over S1 vertebra.

   [30] Insurer’s bundle, p 277.

10. An Allied health recovery request dated 25 September 2019 diagnosed cervical disc bulge, lumbar radicular pain, and bilateral knee trauma.[31] The physiotherapist report dated 26 September 2019 described the same injuries.[32]

    [31] Insurer’s bundle, p 232.

    [32] Insurer’s bundle, p 238.

11. A referral from the GP to Dr Bhimani dated 4 October 2019 noted lumbar and cervical spine pain, knee pains and locking of the left knee.[33]

    [33] Claimant’s bundle, p 44.

12. The initial needs assessment report dated 8 October 2019 with a history of pain over the neck, head, shoulders, lower back, legs and knees.[34] The presenting symptoms on 30 August 2019 were pain in the neck with pain across both shoulders from the base of the neck, right knee pain, and lower back pain radiating to both legs.

    [34] Claimant’s bundle, p 29.

13. On 18 November 2019 Dr Darwish recommended an L5/S1 laminectomy, discectomy and fusion due to back and leg symptoms.[35]

    [35] Insurer’s bundle, p 274.

14. An X-ray of the right hand dated 18 November 2019 showed no fracture or dislocation.[36]

    [36] Claimant’s bundle, p 53.

15. On 22 November 2019 the claimant underwent a CT guided L5/S1 epidural injection with no immediate complications.[37]

    [37] Insurer’s bundle, p 276.

16. An ultrasound of the right hand dated 30 December 2019 showed tenosynovitis affecting the extensor tendon at the level of the metacarpophalangeal joints.[38]

    [38] Claimant’s bundle, p 66.

17. The MRI scan of the cervical spine dated 11 December 2019 noted degenerative changes throughout this cervical spine most marked at C5/6 and C6/7 with no evidence of neural impingement.[39]

    [39] Insurer’s bundle, p 279.

18. The bone scan dated 20 December 2019 showed active discovertebral arthritis and facet joint arthritis in the cervical spine, old trauma at C5 and mildly active discovertebral arthritis at L5/S1.[40]

    [40] Claimant’s bundle, p 65.

19. In a report dated 8 February 2020 the GP noted that the motor accident caused ongoing knee pain, aggravation of low back and neck pain and thoracic pain.[41] Pain was reported as radiating from the buttocks to the soles of the feet, right greater than left. Right hand pain was also noted.

    [41] Claimant’s bundle, p 67.

20. In a report dated 13 February 2020 Dr Darwish noted on examination that the claimant had a straight leg raising test at 45 degrees on the right side with positive nerve stretch test and decrease sensation over the lateral aspect of the right leg in the distribution of the right L5 distribution. In a report dated 28 June 2021, Dr Richard Laherty recommended further MRI scans were recommended.[42] The doctor noted there was no evidence of cervical radiculopathy.

    [42] Claimant’s bundle, p 74.

21. Dr Darwish opined that the bilateral L5 pars defect pre-existed the motor accident, but the claimant was asymptomatic. He opined that the car accident was the cause of the right radiculopathy and hence the need for surgery.

22. In a report dated 12 April 2021 Dr Darwish confirmed that the claimant developed radiating pain to both lower limbs worse of the right side associated with paraesthesia in the distribution of the right L5 dermatome.[43]

    [43] Claimant’s bundle, p 97.

23. In a report dated 28 June 2021, Dr Richard Laherty, neurosurgeon, noted that the lower limb symptoms appeared to be in the distribution of the L5 nerve root. Further MRI scans were recommended.[44]

    [44] Claimant’s bundle, p 110.

24. The MRI scan of the cervical spine dated 9 August 2021 showed moderate generalised cervical spondylosis involving discontent plates and C5/6 and C6/7 the broad-based protrusion at C3/4 with no clear compression.[45] The MRI scan of the lumbar spine showed a bilateral L5 pars defect with grade 1 anterolisthesis and moderate generalised lumbar spondylosis with no evidence of neural compression.

    [45] Claimant’s bundle, p 112.

25. In a subsequent report dated 9 September 2021, Dr Laherty noted the recent scans and commented that the MRI scan of the cervical is spine did not explain the upper limb symptoms. The doctor noted the MRI scan of the lumbar region again revealed the metal lag screws which closed the open book fracture from 2014. That screw gave obscurity particularly to the right side at L5/S1 making “full interpretation difficult”. The doctor opined that was a degree or foraminal stenosis although it was not clear whether there was neural compromise and recommended a CT scan to further evaluate the lumbar spine.[46]

    [46] Claimant’s bundle, p 115.

26. A CT scan of the lumbar spine dated 10 September 2021 showed the L5/S1 spondylosis and spondylolisthesis with no neural compromise.[47]

    [47] Claimant’s bundle, p 117.

27. In a further report dated 21 October 2021, Dr Laherty opined that the recent CT scan did not show significant mass effect on the exiting nerve though he believed there was some foraminal stenosis having an impact. The doctor opined that in its extra foraminal course the right L5 nerve is draped across an aspect of the broad disc bulge in addition to the foraminal stenosis.[48]

    [48] Claimant’s bundle, p 121.

28. Dr Laherty noted the claimant received previous short-term benefit from nerve block injections and recommended further blocks.

29. A further report dated 4 April 2022 Dr Laherty opined that the acute onset of symptoms was related to the motor accident in the context of a pre-existing condition. The doctor opined that the necessity for the surgery was due to the acute onset of symptoms and that the decompression and fusion surgery was reasonable as it would stabilise the segment. The associated decompression of the L5 nerve would see improvement in lower limb symptoms.[49]

    [49] Claimant’s bundle, p 138.

30. In October and November 2022 Dr Laherty performed a two-stage instrumented fusion at L5/S1.[50]

    [50] Claimant’s bundle, p 168.

Qualified opinions

1. Dr Matthew Giblin, orthopaedic surgeon, was qualified by the claimant and provided a report dated 17 February 2020. The doctor noted that the claimant had pre-existing buttock and leg pain but after the accident developed low back pain with increased buttock and leg pain. Dr Giblin opined that the surgery proposed by Dr Darwish was not unreasonable.

2. Dr Neil Cochrane, neurosurgeon, was qualified by the claimant and provided a report dated 2 May 2022.[51] Dr Cochrane found neurological examination was normal although there was a degree of radicular pain most prominent in the right L5 myotome. The doctor opined that the motor accident caused a whiplash associated disorder to the cervical and lumbar spines associated with an aggravation of both cervical and lumbar region spondylosis, and an aggravation of a pre-existing bilateral L5 pars defect.

   [51] Claimant’s bundle, p 141.

3. Dr Cochrane opined that the motor accident aggravated the lumbar spine condition which required the surgery proposed by Dr Darwish.

RE-EXAMINATION

1. Mr Sardi was questioned by Medical Assessor Gibson and Principal Member Harris on 16 January 2024 by audio visual link for approximately 40 minutes.

2. Mr Sardi did not agree that he continually suffered from low back pain prior to the motor accident. He accepted that he suffered some low back pain for a short period after the 2013 motor accident. Mr Sardi stated that the 2013 motor accident caused a serious pelvic injury which required internal fixation. He stated that the pelvis and subsequent surgery was the source of ongoing pain since the previous motor accident in 2013 and it continued to the present. This injury was associated with groin pain. Mr Sardi repeated this history on various occasions throughout the questioning.

3. The reports of Dr Choong and the references in the clinical notes of the GP which refer to low back pain were discussed with Mr Sardi. Mr Sardi understood what was meant by “sciatica” in the sense that this meant pain coming from the back down the legs. He agreed that at one stage between the 2013 motor accident and the subject motor accident, he was unsure when, he suffered sciatica for “one or two months at tops” but that pain went away. Otherwise, he said that he had constant pelvic pain into the groins and the doctors may have been confused between that injury and pain from his low back.

4. Mr Sardi was referred to the various clinical records which mentioned prescription of Targin and Endone. He stated that this medication was for pain associated with his pelvic injury and not due to any low back pain. He agreed that he continued to be prescribed and take that medication up until the subject motor accident.

5. Mr Sardi was asked to identify the area of his pelvic pain as opposed to his low back pain. He described the pelvis pain as slightly below the belt line extending across the middle and indicated where he underwent surgery by way of internal fixation. Mr Sardi otherwise indicated the low back pain was slightly above the belt line and extending upwards. He identified the surgical scar for the lumbar spine surgery consistent with his description of the low back pain.

6. Mr Sardi stated that Dr Keely was his treating specialist for his pelvis. He had not seen that doctor for some time and not since the subject motor accident.

7. Mr Sardi described the motor accident when he was stationary in a line of traffic and the insured vehicle collided from the rear pushing his vehicle into the vehicle in front. He described striking his right hand and his head as well as suffering pain in this spine. Mr Sardi stated that there as damage to his driver’s door which meant it could not open and he had to exit on the passenger side. Mr Sardi said that his vehicle was towed away.

8. Mr Sardi was taken to hospital by ambulance where he stayed overnight and was discharged. It was recommended that he consult his general practitioner. He described a number of physical symptoms including back pain and legs that felt like “jelly”. After the motor accident Mr Sardi stated that he had leg pain which was different than before. This pain was constant, intense and went as far as the arch of his foot. The pain went down both legs and he consulted Dr Darwish for treatment. Subsequently he consulted other doctors and eventually underwent low back surgery.

9. Mr Sardi agreed that the back surgery had significantly improved his condition. He described the leg pain as less intense, less frequent and the pain did not travel as far down his legs. He said that the pain is “getting better over time” and he found living in the warmer weather in Queensland beneficial for his health.

10. Mr Sardi remains on Targin and undertakes aqua therapy and physiotherapy. He said that he has been taught stretching exercises to help ease his symptoms.

FINDINGS

1. 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.

2. For the reasons provided we are satisfied that the claimant has established that he suffered from radiculopathy caused by the motor accident. In those circumstances it was unnecessary to conduct a further medical examination, particularly given that the surgery has probably cured the signs of radiculopathy.

3. 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[52] and Insurance Australia Ltd v Marsh.[53]

   [52] [2021] NSWCA 287 at [40], [41] and [45].

   [53] [2022] NSWCA 31 at [11], [21] and [64].

4. The Panel adopts the reasoning in David v Allianz Australia Ltd[54] 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.

   [54] [2021] NSWPICMP 227 at [84]-[104].

5. We adopt the reasoning in Lynch v AAI Ltd[55] 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):[56]

   “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.”

   [55] [2022] NSWPICMP 6 at [44]-[62].

   [56] [2022] NSWSC 372 (Briggs (No 2)) at [73].

6. The Panel adopts the examination report of Medical Assessor Gibson and Principal Member Harris and adds the following reasons.

Low back injury

1. We accept that the claimant suffered serious pelvic and sacroiliac fractures caused by the 2013 motor accident which resulted in ongoing pain and the need for narcotic medication. It is plausible that this pain is described in some of the clinical records as low back pain given the proximity between the pelvic/sacroiliac region and the low back. However, we accept the precision of Dr Choong’s records, particular in light of his specialist expertise, that the claimant was at least suffering low back pain at the L5 level at that time.

2. The claimant complained of low back and radicular symptoms immediately following the motor accident. There is a consistent history of an exacerbation of lumbar pain and radicular pain following the accident.

3. The nature of the motor accident could exacerbate the pre-existing pathology particularly noting the extensive nature of this pathology which rendered the claimant’s spine more susceptible to injury. The susceptibility to further exacerbation is evident in light of the pre-existing interarticularis pars defect at L5.

4. We are satisfied that, based on the nature of the contemporaneous complaints, the nature of the motor accident and the pre-existing pathology, that the motor accident probably caused an aggravation of Mr Sardi’s lumbar spine.

5. The clinical records otherwise show a consistent complaint of low back symptoms, particularly in the L5 distribution, following the motor accident.

6. In November 2019 Dr Darwish recommended lumbar surgery. The report refers to radiating pain to both lower limbs however does not set out the symptoms of radiculopathy with any precision.[57]

   [57] Insurer’s bundle, p 274.

7. On 13 February 2020 Dr Darwish noted on examination that the claimant had a straight leg raising test at 45 degrees on the right side with positive nerve stretch test and decreased sensation over the lateral aspect of the right leg in the distribution of the right L5 distribution.

8. We are satisfied that Dr Darwish found two objective signs of radiculopathy as defined in cl 5.8 of the Guidelines, specifically a positive sciatic nerve root tension sign and “reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

9. Consistent with Dr Darwish’s findings, in June 2021, Dr Laherty, neurosurgeon, noted that the lower limb symptoms appeared to be in the distribution of the L5 nerve root. The claimant subsequently underwent instrumented fusion at L5/S1.[58] He provided an account of a substantial improvement in back and leg symptoms following the surgery.

   [58] Claimant’s bundle, p 168.

1. The pre-existing material does not show two objective signs of lumbar radiculopathy. Whilst we note the findings of Dr Choong, in his report dated 12 August 2016, where he commented that the claimant “possibly had radicular pain from a right L5 nerve root irritation.” These studies in isolation are not sufficient grounds to diagnose radiculopathy as per the cl 5.8 of Guidelines. This conclusion is consistent with an absence of suggestion at that time that the claimant should undergo surgery. However, in late 2019/early 2020 the claimant was recorded as showing objective signs of radiculopathy (in accordance with cl 5.8) and the treating neurosurgeon at that time recommended spinal surgery.

2. Based on the clinical histories and the medical expertise interpreting the materials, we are satisfied that the claimant probably did not have at least two objective signs of radiculopathy prior to the motor accident. The motor accident exacerbated the pre-existing degenerate pathology which resulted in clear recorded complaints of radiculopathy by Dr Darwish in late 2019/early 2020. The specific contemporaneous complaints persuade us that the motor accident aggravated the lumbar spine leading to the development of the radiculopathy.

3. The claimant otherwise submitted that, by reason of the spinal surgery to the lumbar spine, the injury is non-threshold. Whilst it is self-evident that that surgery would have involved the cutting of tissue, it is unnecessary to determine hether the surgery meant that the injury is classified as a non-threshold injury: see the discussion in Mandoukas v Allianz Australia Insurance Ltd.[59]

   [59] [2023] NSWSC 1023 at [93]. An appeal has been filed against that decision.

Cervical spine injury

1. We accept that the claimant sustained a soft tissue injury to the cervical spine evidenced by the contemporaneous complaints, the nature of the motor accident and the claimant’s history. The nature of the motor accident was likely to have caused a whiplash injury to the cervical spine which explained the immediate complaints of neck pain.

2. The recorded histories show previous cervical spine problems.

3. However, the various scans, clinical findings and various medical opinion does not support a finding that the motor accident caused a traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. It is medically plausible and likely given the nature of the symptoms that the motor accident aggravated the pre-existing degenerative changes in the cervical spine. That is a threshold injury as defined.

4. There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines.

5. For these reasons we conclude that Mr Sardi has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines in respect of any injury to the cervical spine.

Other injuries

1. There is a reference to right knee pain at hospital.[60] The right knee X-ray showed no fracture and some suprapatellar effusion.[61]

   [60] Insurer’s bundle, p 254.

   [61] Insurer’s bundle, p 259.

2. The claimant probably struck his right knee during the motor accident which caused some mild swelling. This minor swelling shown on the scans falls within the definition of a threshold injury. There was no relevant submission, and we could find no evidence that the right knee injury was not a threshold injury.

3. The claimant otherwise referred to various records which show bilateral knee pain following the motor accident.[62] Accepting that the left knee may have been overlooked or not mentioned by the claimant at hospital, there is no evidence that there is any left knee pathology which is other than a soft tissue injury. Further, there was no relevant submission, and we could find no evidence that the left knee injury was not a threshold injury.

   [62] See [37] herein.

4. The claimant asserted that he injured his shoulders in the motor accident. The reference to shoulder symptoms in the clinical notes is in the context of referred pain from the neck. The references identified by the claimant in his submissions support this conclusion.[63] Subsequent clinical notes of the GP do not refer to specific shoulder injury as opposed to referred pain.

   [63] See [36] herein.

5. The claimant provided no statement to the Panel that he struck his shoulders. The claim form completed by the claimant and dated 20 July 2019 did not allege any shoulder injury. Our conclusion that the claimant’s shoulder symptoms were due to neck pain is consistent with the clinical records and the nature of the motor accident when the claimant did not sustain specific to the shoulders. We are not satisfied that the motor accident caused any shoulder injury.

6. There is no contemporaneous reference in the medical records to any hand injury. The claimant did not refer to it in the claim form completed shortly after the motor accident. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[64] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.

   [64] [2014] NSWSC 888 at [31]-[32].

7. In any event, there is no evidence that any hand pathology said to be caused by the motor accident falls outside the definition of a soft tissue injury.

Head injury

1. The only mention by a medical specialist of a head injury is in a report by an ENT surgeon in January 2022. The ENT surgeon had investigated a complaint of hearing loss, tinnitus and vertigo. He arranged for audiometry, balance assessments, a CT of the petrous temporal bones and an MRI scan.

2. Audiometry testing showed mild sensorineural loss above 3 khz and speech recognition was excellent. A tinnitus questionnaire was at that time indicating severe tinnitus. Gaze assessments were normal, a Hallpike maneuver could not be performed due to neck pain.

3. A CT scan of the petrous temporal bone was normal.

4. An MRI brain scan showed a punctate lesion in the left parietal white matter representing calcification or microhemorrhage.

5. The ENT surgeon concluded that the vertigo was due to a “head injury” by exclusion.

6. Clinical evidence of a head injury having been sustained in the 2019 accident is absent. While the ENT surgeon in December 2021 elicited a history of head strike there was no history obtained prior to that time.

7. The clinical notes of the emergency dept at Campbelltown hospital recorded a history of whiplash. There was no bruising of the head noted, no period of amnesia or loss of consciousness and no investigations relating to a head injury were performed.[65] The hospital records on 18 July 2019, three hours post-accident note a stationary vehicle hit from behind airbag deployed and wearing seatbelt, the claimant did not lose consciousness; whiplash injury to neck and back.[66]

   [65] Insurer’s bundle, p 250.

   [66] Insurer’s bundle, p 256.

8. The claimant’s first presentation to his GP reported only neck pain, back pain, and right knee pain. A detailed history of events prior and subsequent to the accident was given by the claimant.

9. A GP presentation on the 20 September 2019 reported tinnitus and vertigo. This was an isolated report and not repeated until December 2021.

10. There are no clinical indicators of a head injury following the motor accident and we conclude that the small punctate lesion is of no diagnostic significance.

11. There are no symptoms in the first years that can be attributed to a head injury. There is no history or clinical signs attributable to a significant blow to the head in the accident. The small “punctate” white matter abnormality is not diagnostic of a traumatic brain injury and can have many possible origins and is of doubtful clinical significance.

12. There is no contemporaneous complaint of injury to the head. An absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd;[67] AAI Ltd v McGiffen.[68]

    [67] [2021] NSWSC 548 (Norrington).

    [68] [2016] NSWCA 229 at [64]-[66].

13. The claimant’s history to the Panel of head striking is not only inconsistent with the absence of record, but inconsistent with clear records that there was no head injury.

CONCLUSION

1. For these reasons the Panel concludes that the certificate issued by Medical Assessor Cameron is revoked. We conclude that the motor accident caused two signs of radiculopathy from the L5/S1 nerve root.