Senno v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Senno v QBE Insurance (Australia) Limited [2025] NSWPICMP 291
CLAIMANT:	Ziad Senno
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	29 April 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury and treatment dispute; claimant sustained neck, back and shoulder injury in accident; developed myelopathy and had cervical disc and fusion surgery; insurer refused to pay for surgery and argued causation; pre-accident and post-accident records extensively considered; claimant re-examined; parties agreed shoulder and lower back injuries were threshold injuries; Held – Review Panel satisfied claimant tore ligamentous fibres of C6-7 disc causing disc protrusion and resulting in myelopathy; partial rupture of ligamentous fibres is a non-threshold injury; surgery allowed as reasonable and necessary in the circumstances to prevent myelopathy progressing and causing paraplegia; surgery related to disc injury caused by the accident; MAC revoked; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Rapaport dated 27 May 2024. 2. Certifies that: a. the claimant’s cervical spine injury caused by the accident on 6 May 2021 is a not a threshold injury for the purposes of the Motor Accident Injuries Act 2017. b. the C6/7 discectomy and fusion surgery conducted by Professor Ghahreman on 28 June 2023 is reasonable and necessary in the circumstances and relates to the injury caused by the motor accident for the purposes of section 3.24(1) of the Act. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

The treatment dispute

Siad Senno was involved in a motor accident on 6 May 2021. There were five cars involved in the collision. Of relevance to Mr Senno’s disputes, one vehicle ran into the rear of the claimant's vehicle which then collided with the rear of the vehicle in front.
Mr Senno says he injured his neck, right shoulder and back in the accident. He has made claims under the Motor Accident Injuries Act 2017 (the MAI Act) for both statutory benefits and damages. Both claims were made against QBE Insurance (Australia) Limited (QBE), the third-party insurer of the vehicle that Mr Senno says caused his accident.
Three separate medical disputes arose in the claims:
(a)    a dispute about treatment that is spinal surgery performed on 28 June 2023;
(b)    a dispute about whether Mr Senno’s injuries caused by the accident are, or are not, threshold injuries, and
(c)    a dispute about the degree of Mr Senno’s whole person impairment (WPI).
The three disputes were referred to the Personal Injury Commission (the Commission) for medical assessment in two separate proceedings:
(a) M20063/24-01-1 – the treatment and threshold disputes, and
(b) M20862/24-01-1 – the WPI dispute.
On 10 January 2024, Mr Senno referred the threshold injury and cervical spine surgery disputes to the Commission for assessment and on 27 May 2024, Medical Assessor Rapaport determined Mr Senno’s physical injuries were threshold injuries. The Medical Assessor also determined the cervical spine surgery did not relate to the injury caused by the accident, and was not reasonable and necessary in the circumstances.
The claimant applied for a review of that decision and on 23 July 2024, a delegate of the President of the Commission determined there was reasonable cause to suspect an error in the assessment and on 29 July 2024 this Panel was convened to conduct this Review.

The WPI dispute

Mr Senno referred his WPI dispute with QBE to the Commission on 5 March 2024.
On 12 October 2024, Medical Assessor Kuru determined that Mr Senno had a WPI of 25% primarily on the basis that the cervical spine surgery was related to the injuries caused by the accident and that this surgery resulted in a significant cervical impairment.
The insurer applied for a review of that decision and on 23 January 2025, a delegate of the President of the Commission determined there was reasonable cause to suspect an error in the assessment. On 24 January 2025 this Panel was convened to conduct the WPI Review.
The Panel determined that the two Reviews would be heard together due to the common issue about causation of the cervical spine surgery and its relationship to the accident. The reasons in the current matter should be read in conjunction with the separate reasons in the WPI dispute.

Other assessments

On 24 May 2024, Medical Assessor Sidorov diagnosed the claimant with an adjustment disorder and certified the claimant’s psychological injury was a threshold injury. The claimant applied for a review of that decision and on 30 July 2024 Ms Baba determined that the Review should be allowed however no Panel has yet been convened.
On 9 August 2024, Medical Assessor Mason diagnosed the claimant with an adjustment disorder and because of that he did not assess WPI. An application was lodged in respect of that decision and on 1 October 2024, President’s delegate Ms Payne determined that review should proceed. No Panel has yet been convened.
On 3 July 2024, Medical Assessor Grainge determined Mr Senno’s “sleep disorder injury” was a threshold injury although his reasons suggest he found no actual obstructive sleep apnoea disorder or that it was not caused by the motor accident. The claimant has applied for a review of that decision and on 22 August 2024 Ms Baba determined that the review should proceed.
Medical Assessor Gibson determined on 4 October 2024 that Mr Senno’s sleep disorder was not caused by the accident and she therefore did not assess the degree of impairment. The Panel understands there is no review lodged in respect of that assessment.

LEGISLATIVE FRAMEWORK

General

Mr Senno’s claim and his entitlements to compensation are governed by the provisions of the MAI Act.
This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.

Statutory benefits and threshold injury

While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident[1].
[1] Mr Senno’s accident occurred in May 2021. For accidents occurring on or after 1 April 2023, statutory benefits are payable for 52 weeks. For all accidents, the 1 April 2023 amendments change the terminology of “minor injury” in the original legislation to “threshold injury.”
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue 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(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.

Entitlement to damages including damages for non-economic loss

A claimant cannot recover any damages if their only injuries are threshold injuries[2].
[2] Section 4.4 of the MAI Act

Treatment disputes

Unlike the previous scheme[3], damages for treatment and care cannot be recovered by the claimant against the insurer. The only mechanism for the claimant to recover the cost of treatment and care they say was caused by the accident is through the statutory benefits claim.
[3] Under the Motor Accident Compensation Act 1999.
Section 3.24(1) establishes the entitlement to treatment and care expenses as follows:
“An injured person is entitled to statutory benefits for the following expenses … incurred in connection with providing treatment and care for the injured person -
(a) the reasonable cost of treatment and care”.
Section 3.24(1) also permits recovery of expenses for the reasonable and necessary cost of transport and accommodation to enable the injured person to access treatment.
The entitlement to claim expenses is accompanied by some restrictions and limitations. For example, no statutory benefits are payable:
(a)    for care if the care is provided gratuitously (s 3.25);
(b)    if the expenses are not properly verified (s 3.27) and,
(c)    beyond the first 52 weeks after the accident if the claimant is wholly or mostly at fault or if the claimant only has threshold injuries (s 3.28).
Importantly, s 3.24(2) also provides that:
“No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

Dispute Resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Rappaport’s, further medical assessments and the review of medical assessments by this Panel[4].
[4] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

Medical Assessor Rapaport examined the claimant on 21 May 2024 and issued his certificate of assessment dated 27 May 2024. He confirms at [1] – [3] that he was asked to assess a dispute about threshold injury and a dispute about cervical spine surgery and that the injuries alleged to have been caused by the accident were to the cervical and lumbar spine.
The claimant was 54 years of age at the time with five children. The Medical Assessor has a history that the claimant was not working at the time of the accident other than as his wife’s carer (she has a cardiac condition).
The Medical Assessor has a history of a rhinoplasty (nose surgery) in 1997, inguinal hernia surgery in 2023 and the C6/7 cervical discectomy and fusion surgery in June 2023. Medical Assessor Rapaport also has a history of a 1998 car accident noting that the car the claimant was driving, and his car was hit in the rear and overturned. The claimant said he recovered from his physical injuries with physiotherapy over three months.
Medical Assessor Rapaport however had reviewed the medical records and noted “a long history of ailments relating to his spine with many physiotherapy treatments to his spine over the years.” The records also revealed a 2006 accident requiring transport to hospital.
The history of the current accident was provided and that after the accident, the vehicles were moved and the claimant and his son self-extricated and were driven home by a tow truck operator.
The claimant told Medical Assessor Rapaport that when he arrived home, he had pain in the right side of his neck and shoulder and he took some Panadeine Forte that he had been using before. He was unable to sleep and went to St George Hospital. The claimant said that he was not radiographed however the Medical Assessor noted a CT scan was done and that the examination revealed no neurological impairment.
The claimant reports he saw Dr Awada, had physiotherapy and an MRI was done on

12 November 2021. The claimant then saw Professor Ghahreman who recommended cervical discectomy and C6/7 fusion. Medical Assessor Rapaport says:
“Despite the paucity of definitive lateralising neurological signs, long tract spinal cord signs or specific cervical nerve root dermatomal sensory or motor deficit in the upper extremities, surgery was recommended as a precautionary measure to avoid the possibility of future spinal cord paresis.”
The claimant saw Dr McKechnie for a second opinion who found some mild symptoms of loss of dexterity, weakness and numbness but found intact reflexes, no dysmetria, no sensory or motor loss and no muscle wasting however he agreed that the surgery was warranted.
The claimant reported the surgery was successful although not all of his symptoms had been eliminated. He also said that he had recently had injections into his lumbar spine.
Medical Assessor Rapaport found inconsistency in the history given by the claimant compared to that disclosed in the medical records. The inconsistency was put to the claimant “without satisfactory explanation from him.”
At [20] the Medical Assessor diagnosed a soft tissue injury with aggravation of chronic degenerative disease of the cervical spine and aggravation of longstanding chronic degenerative lumbar spine disease. He noted at [21] contemporaneous complaints and found the soft tissue injury caused by the accident.
At [25] Medical Assessor Rapaport found no causal connection between the accident and the need for the surgery and found the surgery was not reasonable and necessary.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant’s original submissions identify three material errors in the assessment of Medical Assessor Rapaport.
The first is said at [12] – [49] to be his determination that the claimant’s surgery was not caused by the motor accident and adopted an “incorrect path of reasoning”:
(a)    the Assessor had stated that neither of the claimant’s treating neurosurgeons had connected the accident with the surgery. The claimant says this is wrong because Dr Ghahreman in his report of 25 September 2024 says the disc extrusion was caused by the car accident;
(b)    Dr McKechnie in 20 April 2023 had agreed surgery was needed and that the motor accident was connected to the need for surgery;
(c)    Dr Antoun had a conversation with Dr Kuan radiologist who said the disc protrusion had been made worse by the accident;
(d)    the Medical Assessor has not provided reasoning for why he says the surgery is the result of “likely gradually developing occurrence.”
(e)    the claimant mentions the case of AAI Limited t/as AAMI v Philips[5] and says the test is whether the accident caused or at least materially contributed to the need for surgery;
(f)    the claimant says the accident caused an aggravation or acceleration of the pre-existing condition in the cervical spine;
(g)    the claimant said the mechanism of accident was a high-speed collision on a motorway;
(h)    the last entry about neck / cervical pain in the General Practitioner (GP) notes was in May 2016;
(i)    the claimant has made consistent complaints of pain and symptoms since the accident and was referred to Dr Ghahreman 15 months after the accident although could not see him until 21 months after the accident, and
(j)    the accident was at least a material contribution to the need for surgery.
[5] [2018] NSWSC 1710.
The second error identified at [50] – [52] is that if the Medical Assessor had found the surgery was related to the injury caused by the accident the cervical spine injury that led to the surgery “would have been deemed as a non-threshold injury”. The claimant relies on the case of Saleh v NRMA[6].
[6] [2024] SNWPICMP 14.
The third error is said at [53] - [63] to be the Medical Assessor’s finding that there was no radiculopathy. The claimant cited the five signs of radiculopathy found in the Guidelines and then proceeds to document the evidence and cross reference the relevant clause in the Guidelines. There are six documents relied on including the report of Dr McKechnie and reports of Dr Ghahreman.
The claimant lodged additional submissions[7] referring to a 1 July 2024 consultation with Professor Ghahreman; restating the reliance on the Saleh case and referring to the treatment provided noting the claimant was referred to a neurosurgeon for injections in November 2021 however the referral was sent to the case manager at QBE who refused to pay for it. This explains the delay between the accident, symptoms and the actual referral to Dr Ghahreman and the first attendance on Dr Ghahreman.
[7] Page 15 of the claimant’s bundle of documents.

Insurer’s submissions

The insurer says at [10] – [14] that the claimant has misinterpreted Dr McKechnie’s report and that the Medical Assessor did engage with both that report and the report of

Dr Ghahreman.
The insurer also says at [15] – [20] that the claimant has misinterpreted the Medical Assessor’s decision and there is no internal inconsistency. The insurer says the Medical Assessor diagnosed a soft tissue injury and that radiology showed degenerative changes in the spine. The insurer says the Medical Assessor noted the onset of pain was evidence of soft tissue injuries caused by the accident.
The insurer says at [22] – [25] the Medical Assessor has explained at paragraph 25 why he has said the surgery is not related to the injuries caused by the accident. He has said the pathology at C6/7 was not caused by the by traumatic injury and that the two neurosurgeons said the reasons given for the surgery was because of the potential for future spinal cord paresis.
The insurer submits at [29] while the claimant may have radicular complaints, this is not the same thing as radiculopathy and that Medical Assessor Rapaport has explained why he did not find radiculopathy at any time.
The insurer in its original submissions noted the case of Mandoukos v Allianz where the Court indicated surgery is not a further injury and therefore does not “transform” a threshold injury into a non-threshold injury.

Procedural matters

The Panel met on 11 February 2025 and reported to the parties and noted that neither party in either of the Review proceedings had challenged the Medical Assessor’s findings in relation to the shoulder or the lower back and queried whether the Panel could confine the Review to consideration only of the claimant’s neck or cervical spine injury.
The Panel suggested a telehealth re-examination rather than a face-to-face re-examination and issued directions for responses from the parties.

Responses

The insurer agreed the primary issue was the cervical spine injury, its diagnosis, causation and whether the surgery was related to any accident caused neck or cervical spine injury.
The claimant accepted any right shoulder or lumbar spine injury was a non-threshold injury. The claimant referred to the case of Saleh v Insurance Australia Limited t/as NRMA Insurance (with an incorrect citation) and a finding that surgery had caused a non-threshold injury.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The claimant signed the claim form as true and correct on 13 May 2021[8]. The claimant says on page one of the form that he has never made a “CTP claim for injury.” He says on page four of the form he was “not suffering an illness or injury affecting the same or similar parts of [his] body at the time of the accident.”
[8] Page 58 of the claimant’s bundle.
He described the accident as follows: “As I slowed down to stop, I was hit from behind causing me to hit the car in front of me.”
The claimant lists his injuries as neck, shoulder (both), lower back, all in pain, stress, difficulty sleeping, anxiety.
Dr Awada issued the first medical certificate dated 17 May 2021. He says the claimant first attended on 10 May 2021. He diagnoses a whiplash neck injury, back pain and bilateral shoulder pain and says in answer to the request to, “Detail any pre-existing factors which may be relevant to the condition” that there is a “history of … pain.” It is difficult to read the handwriting but there are two possible interpretations as it is not clear whether the reference is to “chronic back pain” or “ch neck back pain.” None of the subsequent certificates of capacity have anything at all in that space.
The subsequent medical certificates[9] which end with on one 16 September 2021 all record a neck injury in addition to back pain and bilateral shoulder strain.
[9] From page 50 of the insurer’s bundle.
The police report[10] records a five-car accident on the M5 where the speed limit was 100 kms. The scene was not visited, and it appears this was a report made at the police station on

12 May 2021. The speed of the claimant’s vehicle before impact was said to be 40 kms per hour.
[10] Page 72 of the claimant’s bundle.

Insurance and factual material

The insurer provided copies of its liability notices. On 6 May 2021 the insurer accepted liability to pay statutory benefits for the first 26 weeks after the accident but on 27 July 2021 the insurer denied liability to pay for any benefits beyond that first 26 weeks[11].
[11] Pages 27 and 29 of the insurer’s bundle.
The insurer has also provided a copy of its email of 22 February 2023 declining to pay for the surgery.[12] Also provided is the internal review in relation to the CPAP therapy requested by Dr Frieburg[13],
[12] Page 42 of the insurer’s bundle.
[13] Page 65 of the insurer’s bundle.
The insurer has provided photographs of the vehicle. Only one of these is photograph quality (page 33) the others look like poor qualify photocopies. The claimant has provided photographs (page 330) of the three vehicles involved. They show some deformation to the front and back of the claimant’s vehicle.
The claimant provided a statement[14] dated 4 December 2023 which refers to the claimant being a mechanic from 1994 although he did not get formally licensed until 2003. He stopped work while his wife was ill in 2011 but returned to full time work in 2012 before stopping again in 2014. His wife’s condition was worsening, and he was granted a carer’s pension to look after her.
[14] Page 309 of the claimant’s bundle.
The claimant said he had a business as a sole trader since 2007 and he wanted to continue working as a mechanic. He says he has maintained his registration with the relevant government department and continued to keep up to date with mechanical matters and was hoping to open his own business before the Covid-19 pandemic.
The claimant reported a serious motor accident in 1998 but said he went back to work the next day.
He says that since being his wife’s carer, he has continued to fix and maintain vehicles on behalf of family and friends. He says however that he has been unable to do this since the accident.
The claimant reported driving at 100 kms per hour before slamming on the brakes to avoid the car in front. He said he gripped the steering wheel, and the impact caused “immediate and severe pain in my neck, right shoulder and hands.” He says the van was not driveable after the accident and a tow truck driver took it to a friend’s house.
The claimant says he went to the hospital and then after being discharged saw Dr Awada on 10 May and then 17 May.

Treating medical records and reports

Pre-accident records

The insurer provided this summary of the clinical records of Dr Awada, GP and the following pre-accident medical history [A21] which was updated on 15 October 2024[15]:
[15] The references in square brackets are the pages of the claimant’s bundle.
(a)    in 1999, the claimant complained of hip pain, right shoulder pain, bilateral knee pain. An x-ray of the left knee found moderate joint effusion [pages 233-234];
(b)    4 August 2001 – “c/o anxiety depression counselling” [page 235];
(c)    throughout 2001 there are complaints of right lower back pain [see page 236];
(d)    in 2003 the claimant complained of mid back pain and right sided neck pain [page 239];
(e)    complained of pain in his upper lumbar spine including tension in April 2004 [page 239] and it appears he was referred for an x-ray of the lumbar spine performed in or around October 2004;
(f)    in January to May 2006, Dr Awada reported exacerbation of lower back pain which radiated into the claimant’s legs. The claimant disclosed he was unable to stand or walk for long periods [page 241];
(g)    on 21 June 2006, the claimant was in a motor vehicle accident following which he complained of back pain, neck pain, bilateral shoulder pain and hip pain. This was ongoing into July 2006, Dr Awada suspect it was discogenic. He was referred for a CT scan and bone scan [page 242]. It appears Mr Senno continued to complain of symptoms of back pain referring into his legs until November 2009;
(h)    in August 2010 it appears Dr Awada was asked to draft a letter to Centrelink noting the claimant was unable to perform his duties as a mechanic due to his physical symptoms [page 246] and there were ongoing complaints for the rest of 2010 [page 249];
(i)    Dr Awada wrote to Centrelink saying the claimant was totally unfit on 17 January 2011 [page 250];
(j)    the claimant reported ongoing left wrist pain with numbness in left fingers on 19 February 2011 [page 251];
(k)
included in the records was a report of Dr Bird, rheumatologist, who on

19 December 2011 reported the claimant had mechanical symptoms involving the hands and in addition had a degree of allodynia involving the upper limbs. He did not think it was an inflammatory joint disorder, but more likely mild generalised osteoarthrosis with perhaps a component of fibromyalgia [page 278];
(l)    throughout 2011 to 2014 the claimant complained of multiple joint pain, bilateral wrist pain, back pain and feeling down as he was unable to complete his work as mechanic. A GP mental health plan was prepared in October 2012. In 2013, the claimant did not want to continue working due to pain and a DSP pension application was prepared. It was also noted he had nocturnal bilateral leg pain radiating from his back in addition to bilateral shoulder pain on multiple occasions [see pages 259 and 260];
(m)     on 29 January 2015, his back pain radiating into legs. Dr Awada noted sluggish right ankle jerks and opined the claimant had discogenic pain. He was referred for a CT [page 260];
(n)    a CT of the lumbar spine performed on 30 January 2015 found focal disc protrusion right of midline at L5-S1 partially effacing the right S1 nerve root sleeve [page 280];
(o)    the insurer says that for the period 2016 to 2021, there were multiple reports of ongoing back pain referring into his legs, bilateral shoulder and wrist pain and additional complaints of neck pain. In particular the insurer notes[16]:
[16] See pages 265 to 271 – Claimant’s Review Bundle
(i)5 May 2016 – neck pain and stiffness;
(ii)16 November 2016 – pain from neck;
(iii)November 2020 – multiple joint pain, Dr Awada queried “CTD” (Connective tissue disease);
(iv)December 2020 – difficult to stand up from a seated position;
(v)January 2021 – unable to exercise due to back pain and hip pain. Complained of left leg pain, and
(vi)March 2021 – back and leg pain, could not sleep.
(p)    Mr Moutasallem, physiotherapist, reviewed the claimant on 21 February 2018 his provisional diagnosis was discogenic pathology with somatic referred pain radiating into both legs following L5/S1 and secondary hypertonicity of all lower limb muscle groups [page 286 – Claimant’s Review Bundle], and
(q)    the claimant has been prescribed Arcoxia (an anti-inflammatory analgesic indicated for inflammatory pain) since the early 2000s.

Post-accident GP records

This summary of the post-accident attendances on Dr Awada was compiled by the insurer. The claimant has not taken issue with this summary:
(a)    17 May 2021 – complains of neck pain, back pain and bilateral shoulder pain – initial certification provided;
(b)    31 May 2021 – continues with neck pain, back pain and bilateral shoulder pain. nocturnal symptoms and cannot sleep – certified fit for 2 hours a day, 2 days a week;
(c)    12 June 2021 – having physio twice a week with good relief – right shoulder pain worse;
(d)    29 June 2021 – patient hasn’t worked since 20 March, however accident has impacted his ADLs and self-care activities, having physiotherapy twice a week;
(e)    13 July 2021 – pain relief Nurofen plus;
(f)    24 July 2021 – doing physio twice a week with good relief and home exercise program discussed;
(g)    on 29 July 2021 the claimant was seen with the right shoulder ultrasound showing intact rotator cuff tendons but some bursitis;
(h)    on 18 August 2021 the claimant attended for right flank and buttock pain;
(i)    1 September 2021 – complains of right shoulder and low back pain into the right buttock. Physiotherapy was giving good relief;
(j)    16 September 2021 for certificate of fitness – not working, not looking for work, needs steroid injection;
(k)    22 September the claimant attended with mood swings and stressors and multiple joint pain;
(l)    29 September 2021 – right loin pain (history of kidney stones);
(m)     30 September 2021 – having physio with good relief right shoulder steroid injection approved. Back pain persists. The claimant also attended on 29 September for right loin pain with a history of right kidney stones;
(n)    6 October 2021 – right flank pain (referred from the lumbar spine). Claimant taking Arcoxia with good relief;
(o)    13 October 2021 – assessment for fitness for work, continues with significant symptoms impacting his shoulder and back fit for 3 hours four days a week;
(p)    21 October 2021 – back pain and right flank feeling “pinched”, low mood and dizziness
(q)    3 November 2021 – shoulder and neck pain with right arm numbness;
(r)    9 November 2021 - neck pain complained of with upper limb paraesthesia (some loss of motion with altered sensation however no weakness in both arms);
(s)    15 November 2021 – the MRI results were discussed and a referral to Dr Kohan, neurosurgeon was given;
(t)    29 November 2021 the claimant complained of urgency urinating and severe anxiety and poor mood;
(u)    15 December 2021 the claimant had fought with his wife and she fainted. An ambulance came and took her to hospital and she reported her husband to police. “Profound marital problems.” The claimant was having palpitations and left arm pain;
(v)    3 February 2022 the claimant reported he had gone to court over his marital issues, he was anxious and had a cough following a Covid-19 infection;
(w)   10 February 2022 – the claimant was still coughing and could not sleep – had been given Rulide by another doctor;
(x)    21 February 2022 the claimant was having palpitations and had an exacerbation of his back pain and sought a 6 month disability parking permit;
(y)    on 14 March 2022 the claimant and his wife were in the car when they were attacked by two men who tried to break the glass. The side mirrors were smashed the windscreen wipers were damaged and the doors were dented. The car was not driveable and both he and his wife were in shock. The police were not helpful. The claimant complained of nerve dysfunction in both wrists;
(z)    29 March 2022 – still anxiety, neck pain radiating to his left arm with paraesthesia;
(aa)    4 April 2022 – left arm pain from the shoulder, shooting to the arm (full range of motion), neurological examination shows normal reflexes but some reduced power compared to the right. Similar complaints on 10 May 2022;
(bb)    24 May 2022 – complaining of noise in his neck when he turns it and neck pain;
(cc)     6 June 2022 – neck pain worse with cold weather and on 14 June 2022, bilateral shoulder pain impacting his driving;
(dd)    6 July 2022 – neck pain and back pain, having difficulty with self care;
(ee)    2 August 2022 – neck pain, back pain, bilateral hip pain, difficulty with activities of daily living and self-care. Down and anxious because his wife is working to bring some income into the household;
(ff)    18 August 2022 – multiple joint pain particularly neck but no significant deficit on neurological examination and a referral to Dr Ghahreman, neurosurgeon was given. The pain is referred to as disabling on 24 August 2022 and the claimant could not get in to see Dr Ghahreman until February 2023 so a referral was given to Dr McKechnie;
(gg)    on 13 October 2022 the claimant reported going overseas to Lebanon with his neck pain continuing. The claimant returned to see Dr Awada on 29 November 2022 saying he had seen a specialist in Lebanon about his cough which was better and now resolved. The claimant continued with neck pain and a referral to Dr Kohan, neurosurgeon was given;
(hh)    12 January 2023 – electric like pain affecting neck, trapezius and shooting down the left arm;
(ii)    31 January 2023 – bilateral hernia surgery had been driving and was advised not to drive at all, Was due to see Dr Ghahreman on 15 February 2023;
(jj)    1 February 2023, standing for most of the day now complaining of lower abdominal pain. On 2 February 2023 the claimant had right elbow pain, neck pain and he was anxious. His wife and son were said to work in a department store – epicondylitis. Same issue (both elbows) on 9 February 2023;
(kk)     16 February 2023 – the claimant had seen Dr Ghahreman, surgery was advised, his wife was looking after him and had reduced her working hours. On 23 February 2023 the claimant had a severe exacerbation of his back pain;
(ll)    On 7 March 2023 the claimant’s neck pain was persisting causing exacerbation of his depression and he was unable to drive for long periods. The claimant was complaining of urinary urgency and had been referred to a urologist “by another doctor. Can’t remember the name of the doctor.”
(mm) 20 March 2023 – the claimant had a history of inguinal pain and “has been lifting heavy loads (tyres etc)”. Neck pain now unbearable – neurological examination showed sluggish elbow and wrist jerks;
(nn)    23 March 2023 chest pain and on 30 March 2023 the claimant had seen his cardiologist but his neck pain was very painful. On 6 April 2023 the neck pain was said to be causing problems sleeping. On 12 April 2023 a date was set for the surgery (17 May 2023) but the claimant was apprehensive and a referral to Dr McKechnie was provided for a second opinion;
(oo)    19 April 2023 the neck pain was worse and after seeing Dr McKechnie (who agreed with the surgery) the claimant told Dr Awada on 3 May 2023 he was apprehensive;
(pp)    the surgery was postponed until July but on 9 May 2023 the claimant was complaining of pain giving him nausea, and
(qq)    the claimant had the surgery.
After the surgery the complaints to Dr Awada mirror those in the reports. There was improvement with “only some nocturnal pain” reported on 17 August 2023 and on

7 September 2023 he said he was avoiding driving as his neck movements were limited. The claimant’s cough reappears at the end of September and October. On 16 October 2023 there is a reference to the claimant having seen another doctor.
The Panel notes that Dr Awada’s typed notes[17] commence on 29 September 2021 and record attendances on that date, 6 October and 21 October where loin pain, flank pain and back pain are complained of. On 9 November 2021 the claimant attended with neck pain and upper limb paraesthesia, reduced range of motion but no weakness in the arms.
[17] Page 141 of the claimant’s bundle.
Dr Awad’s handwritten notes commence on 17 May 2021 and record attendances on that date then 31 May 2021 with complaints of neck, back and shoulder pain. Further attendances on 12 and 29 June, 13, 24 and 29 July, 18 August, 16 and 30 September and 13 October 2021 document complaints of right shoulder pain, right flank and buttock pain, right sided lower back pain and “significant symptoms impacting his shoulder and back.” On 3 November 2021 the claimant attended complaining of right shoulder pain, right arm numbness and neck pain.

Physiotherapy notes

The claimant has had physiotherapy with Mr Zhao of Physio Interactive at Arncliffe. There are three Allied Health Recovery Request (AHRR) forms from Mr Zhao[18] as follows:
(a)    AHRR 3 was dated 16 August 2021 and refers to neck, lower back and right shoulder impingement. In terms of the neck injury the claimant reported sharp pain and stiffness at the base of the neck and along the upper trapezius on both sides and into the periscapular regions on both sides (right worse than left). Pain was rated at 3 – 5 out of 10. There were aggravating factors (sudden change in positions and standing from sitting) and 16 sessions had been conducted to date;
(b)    AHRR 4 was dated 2 September 2021 and refers to neck, lower back and right shoulder impingement. In terms of the neck injury there were similar notes to the previous one. The claimant said he had good and bad days and there were aggravating factors. His pain remained at 3 – 5 out of 10. Twenty-two sessions had been conducted to date;
(c)    AHRR 5 was dated 29 November 2021 and it refers to the neck, lower back and right shoulder and notes the large central disc protrusion at C6-7. The previous pain complaints were the same but the claimant reported “intermittent numbness referring from neck into the right shoulder and into the right hand and fingers”. Pain was rated at 5 – 8 out of 10 and “can fluctuate dramatically depending on the day. Aggravating factors were as previously stated but also with rotating neck, elevating or lifting the right arm. Also noted was:
“In the past few months, Mr Senno had reported increasing prominent numbness in the right hand and fingers and has been finding it difficult to perform simple tasks such as turning a door knob or gripping the steering wheel.”
The claimant had 32 sessions of physiotherapy at that time and had set goals to reduce his pain levels.
[18] From page 107 of the claimant’s bundle.
Mr Youssef physiotherapist wrote to QBE no 4 June 2021[19]. The claimant reported “sharp pain and stiffness at the base of the neck” with pain running along the upper trapezius muscles and into the periscapular regions. Pain was rated at 8 out of 10 and with aggravating factors of standing from sitting and a sudden change in positions. On 14 July 2021 a similar report was written after 8 sessions had been completed. Pain was rated as

8 out of 10 with aggravating actors and poor sleep. Referral to a psychologist was suggested.[20]
[19] Page 131 of the claimant’s bundle.
[20] At page 137 and 139 there are reports from a physiotherapist for another person with the same surname but a different first name and different date of birth. The Panel has not considered these.
Mr Zhao, physiotherapist provided a report to the insurer dated 29 November 2011[21]. He noted the claimant had completed 32 sessions for his neck, shoulder and lower back pain. While the treatments gave temporary relief for a few days, the claimant complained of ongoing symptoms including (over the last three months), increasing pain and numbness from the neck to the right shoulder and into the right hand and fingers. These symptoms were gradually becoming more prominent and more severe.
[21] Page 129 of the claimant’s bundle.

Other post-accident reports and records including specialist reports

The insurer has provided documents and reports from Dr Frieburg relating to a sleep study and the request for CPAP treatment. These are more relevant to the disputes assessed by others (Medical Assessors Grainge and Gibson) but do confirm the claimant has poor sleep quality and quantity.
The discharge summary from St George Hospital[22] confirms the claimant attended hospital on 7 May 2021 complaining of neck pain, right sided chest pain and lower back pain. It was noted that there was minimal lower cervical spine tenderness. Mr Senno was discharged on 8 May 2021.
[22] Page 86 of the claimant’s bundle.
Associate Professor Ghahreman wrote to Dr Awada on 15 February 2023. He records the accident, and the development and worsening of symptoms in the left side of the neck with a feeling of electricity running down his body and numbness and pain. The claimant also reported urinary frequency, loss of dexterity and dropping things.
Associate Professor Ghahreman has a history of the claimant stopping work due to

Covid-19and not resuming as a result of the car accident.
Clinical findings included:
(a)    mild limitation of cervical rotation;
(b)    reduced power distally in hands to 4+/5, and
(c)    generalised hyperreflexia in the arms and the legs, Hoffman side signs on the right and plantar reflexes equivocal.
He reviewed the MRI of November 2022 showed disc extrusion at C6/7 “with significant cord compression and cord oedema.” There was a large disc extrusion at this level with associated bilateral foraminal stenosis.
The claimant had significant myelopathy, and he recommended surgery to address the cervical spine compressive pathology.
Dr McKechnie provided a report to Dr Awada dated 20 April 2023. He has a history of the accident, persistent radiating pain across both shoulders and into the left arm with less severe lower back and intermittent left leg pain. The claimant also gave a history of numbness in the hands, urinary frequency and dropping things.
On examination there was:
(a)    slight loss of dexterity;
(b)    a feeling of weakness;
(c)    diffuse numbness, and
(d)    reflexes are slightly increased.
He reviewed the MRI and agreed with Dr Ghahreman saying “without surgery he is at increased risk of quadriplegia with minor trauma and a risk of progressive permanent neurological deficits …”
Associate Professor Ghahreman wrote another letter to Dr Awada dated 25 September 2023 confirming the surgery and the claimant’s ongoing symptoms and requesting the insurer support the claimant with physiotherapy.
Dr Awada provided a report to the claimant’s lawyers dated 30 September 2023. He says the claimant first attended 11 days after the accident, the claimant having first been to St George Hospital.
Dr Awada records that on examination the claimant had reduced range of motion in the cervical spine with a sharp pain at the base of the neck shooting in the trapezii and

per-scapular regions of both sides.
He noted the CT scan of the cervical spine from 7 May 2021 showed mild to moderate multilevel degenerative changes with mild to moderate canal stenosis and moderate foraminal stenosis on the left. He then noted the MRI done on 12 November 2021 which showed the large disc protrusion.
Dr Awada says the difference in the radiology is that the “pathology … was evolving” and that “disc injuries can take up [to] days or weeks to appear following an accident.”
He believes the claimant’s “condition was the direct result of the motor vehicle accident.”
Dr Awada notes that the claimant had residual neck pain and arm numbness in a C7 distribution. Dr Awada says the claimant has been unable to work and cannot drive and relies on his wife for financial and physical support despite her many medical conditions.
Dr Ghahreman wrote again on 28 November 2023. He had done an MRI of the claimant’s brain which was normal, the claimant’s symptoms were improving but there were still right sided symptoms.
On 1 July 2024, Dr Ghahreman wrote to Dr Awada confirming the claimant’s radiculopathic and myelopathic features had resolved but that the claimant had ongoing lower back and right leg pain, right shoulder pain and right sided facial numbness. He sought a further MRI to explore facial numbness, tongue numbness and reduced hearing loss.

Radiology

The CT scan taken in hospital on 8 May 2021 notes in the history “now has c-spine tenderness and weakness of left grip strength, lumbar spine pain with weak left hip flexion.” It was reported:
(a)    mild to moderate degenerative changes at C3-4, C4-5, C5-6 and C6-7 more so at C6-7;
(b)    posterior disc osteophytes and uncovertebral joint arthropathy, and
(c)    mild to moderate central canal stenosis and bilateral foraminal narrowing.
On 8 July 2021, the claimant had an ultrasound and X-ray of the right shoulder due to pain and decreased range of motion. The report indicated there were intact rotator cuff tendons but some low-grade bursitis and no impingement[23].
[23] Page 65 of the insurer’s bundle.
The MRI of 12 November 2021 reported:
(a)    minimal posterior annular bulging at C3-4 and C4-5 with moderate foraminal narrowing at both level;
(b)    at C5-6 an intact disc but mild spondylitic change, and
(c)    disc desiccation at C6-7 with a moderately large central disc protrusion causing mild cord compression and canal stenosis with cord signal changes suggestive of myelopathy and potentially compression at the C7 nerve roots on both.
The MRI of 22 October 2022 reported:
(a) mild, minimal and small disc bulges at C3-4, C4-5 and C5-6 respectively, and
(b) marked disc space narrowing at C6-7 with a moderate disc protrusion and mild cord compression with probably compromise on the left C7 exiting nerve root.
A further MRI was done on 2 November 2022, and the report says:
(a)    significant degenerative changes with loss of disc height and osteophytes at the C6-7 level;
(b)    small postero-central disc protrusions or bulges without cord compression or nerve root involvement at C3-4, C4-5 and C5-6, and
(c)    posterior broad based disc protrusion and disc osteophytes causing “severe cord compression and spinal canal stenosis.”
A lumbar spine MRI of 2 November 2022 reported normal lumbar discs.
A bone scan was undertaken on 11 July 2024 due to “widespread aches and pains.” The report indicated there was increased uptake at C6-7 suggesting the fusion was not yet complete. There was active facet joint arthritis at C4-5 facet joint on the right side. Low grade arthritis was noted in the acromioclavicular joints on both sides and in both knees.
On 15 July 2024 the claimant had an MRI of the brain which was normal. He also had an MRI of the spine which showed no cord compression. There were degenerative changes in the cervical spine with a small disc protrusion at C3-4, at T7-8 to 9-10 and minor changes at L3-4 to L5-S1 but no evidence of lumbar disc protrusion or neural compression. An MRI of the right shoulder showed no evidence of a tear but mild bursitis and osteoarthritis at a moderate level in the joint.

Medico-legal reports

The claimant relies on a report from Dr Conrad, surgeon dated 3 October 2023. The claimant gave a consistent history of the accident, said he did not go to hospital because of Covid-19 and a friend took him home but after developing symptoms he went to

St George Public Hospital emergency department where he was kept overnight.
Dr Conrad had a history of the claimant being referred to two Neurosurgeons, Professor Ghahreman and Dr McKechnie. He has a history of the claimant working as a mechanic from 1998 to 2017 when he stopped work to look after his wife.
The claimant had his surgery, was taking “strong pain killing tablets”, was having counselling and was yet to have physiotherapy,
Dr Conrad has a history of no previous medical problems or accidents. “He denies any problems with his neck, right shoulder or back prior to the present accident” other than some shoulder stiffness in 2012 which “settled down quickly.”
Dr Conrad refers to a “very serious motor accident” which causes a “severe disc protrusion” at C6/7 causing cord and nerve root compression leading to surgery. He assessed WPI at 25% for the cervical spine (DRE IV), 7% for loss of motion in the right shoulder and 5% for the lumbar spine (DRE II).
There were scars seen from the fusion surgery, spasm but not neurological signs. Left shoulder motion was full and right shoulder motion was severely restricted. There were no neurological signs in the lower limbs.
The insurer relies on a report from Dr Antoun of the Medical Assist Network dated 30 August 2023[24]. He says he was asked to provide a report about the link between the accident and the pathology on the MRI scan of the cervical spine form 12 November 2021. Dr Antoun did not examine the claimant and reviewed the documents. Dr Antoun’s letter head includes his post nominals. He has a Bachelor of Science (honours) from UNSW, and Bachelor of Medicine from the University of Sydney and he is a fellow of the Royal Australia College of General Practitioners.
[24] Page 42 of the insurer’s bundle.
He looked at the 8 May 2021 CT scan report which showed mild to moderate multilevel degenerative changes in the cervical spine worse at C6-7 where there is mild to moderate canal stenosis.
He considered the 12 November 2021 MRI performed by Dr Kuan noting minimal bulging at C3-4 and C4-5 an intact disc at C5-6 and significant disc desiccation at C6-7 with a large protrusion causing mild cord compression and canal stenosis with potential compromise of both C7 roots.
He also reviewed the 1 October 2022 MRI.
Dr Antoun then spoke with Dr Kuan who said there were pre-existing degenerative changes but without any previous imaging, “the opinion is that the disc protrusion has been made worse by the incident and the stenosis aggravated by the impact.” It is not completely clear whether this is a record of Dr Kuan’s opinion or whether this is Dr Antoun’s opinion however as Dr Antoun’s next sentence is “Dr Kuan was thanked for his time and clarification” the Panel’s view is that the opinion is likely to be that of Dr Kuan.
Dr Antoun concludes that the findings are pre-existing but as there is nothing to compare it with, even if the disc pathology has been aggravated there are no clinical signs to support a finding of radiculopathy and that therefore the injury is a soft tissue injury.
The Panel notes that Dr Antoun appears to be conflating the two issues:
(a) whether there a complete or partial rupture of tendons and so on, and
(b) whether the claimant has two or more of the five signs of radiculopathy.
The claimant relies on a report from Dr Ristogi, psychiatrist. He has a history:
(a)    that the claimant’s wife works at Woolworths, and she is the claimant’s part time carer;
(b)    he worked as a mechanic since 1998 full time and since 2016 part time due to his wife’s illness and he stopped working completely at 2017;
(c)    of the accident, consistent with other histories;
(d)    Mr Senno has persistent pain radiating to the right shoulder and right arm affecting his sleep;
(e)    he has mild hearing issues exacerbated by the accident, and
(f)    there is no previous history of anxiety and depression although he had a “very minor motor accident 7 years ago with no injuries”
Dr Ristogi diagnosed a major depressive disorder and sets out the criteria for the diagnosis. He assessed WPI at 17%. A report from Ms Dawidar, psychologist refers to 10 counselling sessions and also diagnoses a major depression.

Other assessments

Medical Assessor Grainge had a history of the claimant’s pre-accident nasal surgery and left inguinal hernia repair. He was also advised the claimant had normal sleep before the accident with no history of snoring and a weight of 72 kgs.
The claimant said that after the accident he had right shoulder and neck pain right sided facial pain and dizziness and that he went on to have surgery. He reported that after the surgery he still had right sided symptoms as well as reduced hearing in his right ear.
The claimant described poor sleep with “recurrent wakening secondary to pain” and that he has trialled a CPAP machine for a month. The weight was said to be 73 kgs.
Medical Assessor Grainge noted the sleep study performed on 29 November 2023. The medical assessor noted no significant weight gain and no facial injury but says there is no evidence of sleep apnoea caused by the accident.
Medical Assessor Sidorov examined the claimant on 14 May 2024. He was asked to assess a posttraumatic stress disorder, major depressive disorder and generalised anxiety disorder.
He has a history of the claimant no longer working and being the primary carer for his wife. The claimant denied any significant mental health or physical conditions before the accident. He denied previous personal injury claims.
The claimant gave a history of going to hospital the next day and that no scans were done due to Covid-19. The Panel notes there was in fact a CT scan done. He reports going to his GP due to pain down the right side of his body. The claimant reported having surgery and have been prescribed Lyrica, Panadeine Forte and Arcoxia.
The claimant said his pain for his physical injuries have caused lower mood and anxiety and that he has had psychological therapy. He denied trauma related symptoms.
The claimant said his sleep was poor which he attributed to his neck surgery.
Medical Assessor Sidorov reviewed the notes and found a history of mental health problems including anxiety and depression as well as physical issues before the accident.
Medical Assessor Sidorov diagnosed an adjustment disorder with mixed anxiety an depressed mood in the context of multiple stressors.
He found this to be a threshold injury within the meaning of the legislation.
Medical Assessor Mason examined the claimant on 8 August 2024 and issued a certificate on 9 August 2024. He was asked to assess the claimant’s WPI arising out of the claimant’s psychological or psychiatric injury.
Medical Assessor Mason has a history of a number of stressors in the claimant’s life, financial pressures, the near drowning of three of his children and a recent incident when the claimant had been told his son had died but it was a case of mistaken identity, and his son was perfectly fine.
Medical Assessor Mason has a history of the claimant working part time before the accident but that he in now in receipt of the carer’s payment because his wife was ill however he also has a history of the claimant’s wife working part time after the accident.
Medical Assessor Mason had no symptoms consistent with a trauma related disorder but did have symptoms of anxiety and depression which arose secondary to his physical injuries. The Medical Assessor found he did not meet the criteria for a post-traumatic stress disorder or a major depressive or persistent depressive disorder. He was of the view the claimant suffered from an adjustment disorder with mixed anxiety and depressed mood. On the basis of that finding, the Medical Assessor declined to assess WPI.
The Panel adopts the summary of Medical Assessor Kuru’s assessment dated 12 October 2024 contained within paragraphs 27 – 37 of the related review proceedings.

RE-EXAMINATION FINDINGS – MEDICAL ASSESSOR DIXON

The claimant attended the re-examination on 26 March 2025. A NAATI accredited interpreter arranged by the Commission was present throughout. Mr Senno is currently 54 years of age.

Pre-accident history

The claimant admitted he some neck problems before the accident but said he had no pain at all in the five years before the subject accident. The claimant also conceded he had significant lower back problems before the accident and occasional shoulder pain. Mr Senno confirmed he had a cortisone injection back in 2006, but since the subject accident, he has had three further cortisone injections.
Mr Senno said that Dr Awada is his only doctor and as his memory is not good, Mr Senno referred me to his records when I asked him about his pre-accident symptoms.

History of the accident

Mr Senno says he was driving a Toyota Hi-Ace van along the M5 Motorway in Bankstown towards Liverpool in wet conditions. His 16-year-old son was in the front seat, and they were travelling at about 100 km/hr when another vehicle made a rapid lane change from the right, in front of the car in front of him. The vehicle in front of their van slowed down and stopped. Mr Senno applied the brakes to avoid colliding with the vehicle in front, however, another vehicle travelling behind him collided with the back of the van, forcing Mr Senno’s vehicle into the car in front.
Mr Senno recalled forcibly gripping the steering wheel at the point of the first impact and shortly after the accident he felt severe pain his neck, right shoulder and both hands.
As the van was a 2002 model, there were no airbags to be deployed. There were headrests in the van, but the claimant does not recall whether they were adjustable or not.
He was able to get out of the vehicle unaided and a tow truck arrived, and his van was taken to a friend's place and subsequently written off.
The claimant told me that there were five cars in total involved in the accident.
The next day he went to St George Hospital complaining of pain. I note that at the hospital that he had central spine tenderness with some weakness of grip strength in the left-hand (grade three out of five) and with some sensory change in that hand. Mr Senno was also reporting tenderness in his lumbar spine with some weakness of hip flexion but no other neurological abnormalities. He was placed in a soft collar and a CT scan was arranged and he was prescribed analgesia before being discharged the following day.
The CT scan showed no fracture but there was multilevel degenerative change most marked at C6/7 where there was mild to moderate canal stenosis and foraminal stenosis on the left side.
The claimant said he rested at home, continuing to care for his wife and then saw Dr Awada on 17 May 2021, nearly two weeks after the accident. The claimant complained of neck, lumbar and shoulder pains, more marked on the right. Dr Awada certified the claimant unfit for work and on 31 May 2021 he noted the claimant had night pain. At that stage there were no symptoms recorded in the upper arms or hands. Mr Senno says he was not working at the time and does not know why a certificate about his capacity to work was necessary.
From May to September 2021 Mr Senno said he was having physiotherapy and took Nurofen Plus for pain relief and was advised to do a home exercise program. He had continued neck, shoulder and back pain during this time. He said that eventually he was referred to Associate Professor Ali Ghahreman who he first visited on 15 February 2023. By that time, he had been cut off from benefits and the insurer refused to pay for his treatment.
Mr Senno said he had cervical discectomy and fusion for spinal cord compression at C6/7 on 28 June 2023 and had some physiotherapy in the convalescent period for neck and upper limb strengthening exercises.
Because of sleeping problems, Mr Senno attended a respiratory physician, Dr. Freiburg, who diagnosed a sleep disorder and recommend a CPAP machine which he initially rented and then purchased. Mr Senno denied having any sleeping problems before the accident.
I asked Mr Senno about his neck complaints. I told him that apart from two entries in May 2021, complaints about neck pain were not recorded in the GP notes until November 2021 (six months after the accident) and then not again until March 2022 (10 months after the accident).
The claimant explained that at the time of the accident, Sydney was in Covid-19 lockdown and because of that his admission to hospital on the date of the accident was only overnight. He reported that he did not visit his GP often in 2021 and 2022 due to the pandemic. Mr Senno recalls having physiotherapy and consuming analgesia at this time.
I asked Mr Senno about his shoulder pains. I told him that the records from his GP show that he complained about pain in both his shoulders in May 2021 but that thereafter there were right shoulder complaints only and in November 2021 right arm numbness. I said there was then a gap until 29 March 2022 when he started complaining about left arm pain from the shoulder to the arm. Mr Senno said that it was only the right shoulder that was injured (by the seatbelt) not the left.

It was noted that on 3 November 2021 he complained to Dr Awada of neck pain and some paraesthesia in the right upper extremity which appeared intermittently to extend to his right hand. Mr Senno confirmed that his right arm symptoms developed slowly after the accident and became worse in the three months leading up to November 2021.
Mr Senno confirmed he travelled to Lebanon for two months from October to November 2022 to see a doctor about respiratory symptoms (cough) and while he was there, he had a CT scan of his neck, and it was recommended he return to Australia to be reviewed by a spinal specialist. On his return from Lebanon, he saw Dr Awada on 29 November 2022, noting that he had continued neck pain with some pain shooting down the left arm at that time. Mr Senno told me he was sure he had right shoulder symptoms, and that Dr Awada may have made a mistake.
Mr Senno thought that in any event, his arm, hand and shoulder problems may have come from his neck injury and said they had substantially resolved after his surgery. He was very clear that he did not injure his left shoulder in the accident.

Subsequent injuries and conditions

There was an incident recorded in the GP notes on 14 March 2022. Mr Senno and his wife were in a car on 3 March 2022 when two men attempted to break the windows of the car and open the doors. They were armed with screwdrivers and smashed the side mirrors and damaged the windscreen wipers and kicked the doors which were dented. Mr Senno confirmed that this was a frightening incident, he developed nightmares and although the car was not able to be driven following the accident, he and his wife sustained no physical injury.
Mr Senno also confirmed he had profound and significant marital problems in December 2021 through to February 2022 and he had heart palpitations and experienced an exacerbation of his back pain as a result.

Work History

Mr Senno said he stopped work as a mechanic in 2016 to look after his wife, who had a serious heart condition and as a result, he received the Carer’s Pension. He said he has not worked since then.
He reports that his wife has now recovered from her serious heart condition, and she is working part time at Woolworths. Because he cannot work and now it is he who needs help, she is receiving the Carer’s Pension to look after him.
He said he was not doing mechanical work and lifting heavy loads such as tyres which would re-aggravate his injury, and he confirmed that he had not done any mechanical work since 2016. He denied ever doing any mechanical work for any members of his family before the accident which is contrary to the statement he made and signed as true and correct.
I noted Mr Senno was assessed for work fitness in May 2021 and October 2021 for three hours, four days a week but he told me today he had never gone back to work as a mechanic and does not know why a certificate was necessary. He did not agree with Dr Awada’s note that he had stopped work in March 2021.

Clinical examination

Cervical spine

On examination on 26 March 2025 there was stiffness of his cervical spine with flexion and extension decreased by one half and lateral rotation decreased by one half on both sides and lateral flexion decreased by one half on both sides. There was mild tenderness on palpation at the right upper trapezius muscle, and none complained of on the left.
Mr Senno’s reflexes were symmetrically present although diminished in both upper extremities. His cervical foraminal compression test was equivocal, and his brachial plexus stretch test was negative. There was no sign of muscle atrophy but a 2cm difference in circumference of the left arm, 10cm above the elbow crease at 30cm and 32cm on the right and 1cm difference in the left forearm, 10cm below the elbow crease, at 24cm on the left and 25cm on the right.
His grip strength, intrinsic power and thenar power was grade 5 out of 5 in both hands. There were no objective sensory losses in the left or right arm.
There was scarring associated with the surgery on the claimant’s neck.

Lumbar spine

In the lower extremities there was no neurological deficit. The reflexes were symmetrical, there was no hyperreflexia and there was no clonus and his sciatic nerve root stretch tests were negative. His plantar responses were negative. His straight leg raise was 60 degrees bilaterally and associated with mild back pain. His normal gait was slow. His heel toe gait was mildly difficult. There was no ataxia and heel toe walking was associated with low back pain as was his squat test.
There was no reduced sensation in either limb on testing
There was no wasting of either thigh measuring 40cm, 10cm above the superior pole of the patella and there was less than 1cm of wasting of the right calf measuring 31cm, compared with nearly 32cm on the left. This is not clinically significant.
There was stiffness of his lumbar segment with flexion and extension reduced by one half. There was mild erector spinae muscle spasm but no guarding. There was tenderness at the lumbosacral facet joint level but no dysmetria and no neurological deficit in his lower limbs.

Shoulders

The claimant’s shoulders were examined and there was no significant muscle wasting in the musculature of either shoulder.
While there was reduced range of motion in both joints, the range of motion achieved on testing was equal in the injured shoulder (the right) when compared with the uninjured shoulder (the left). While Mr Senno’s range of motion was being tested there were no complaints of pain made in either his neck or his shoulders.

Consistency

The claimant explained the early gaps in his presentation to his GP and the delay in diagnosis were due to the Covid-19 lockdown and the fact he was not seeing his GP regularly at that time. He also said he was having regular physiotherapy. The claimant confirmed that radiating pain into the upper limbs and upper limb symptoms emerged in about November 2021, six months after the accident but said that these symptoms developed slowly after the accident.
The claimant’s explanation for the absence of reported neck symptoms after November 2021 until 29 March 2022 was that he was focussed on the significant stress of his marital problems (including police involvement and court attendances) and then the horrific incident when his car was attacked while he had his wife were inside it.
The other inconsistency was regarding his work history. He was quite clear, through the interpreter, that he ceased work in 2016 or 2017 to look after his wife who had a serious heart condition, and he has never done any form of mechanical work since. This is of course inconsistent with the history he gave in his signed statement that he has maintained his qualifications, intended to start a business before Covid-19 and had undertaken repairs for family and friends. This inconsistency could not be resolved.
There is also the suggestion in his GP records that he may have developed a hernia from heavy lifting. The claimant was unable to recall this when I put it to him, but he said that the hernias were asymptomatic and were picked up when he had investigations done for his kidney stones.

CAUSATION AND DIAGNOSIS – THE PANEL

Could the accident have caused the alleged injuries?

The Medical Assessors note the mechanism of the accident includes what appears to be a moderate to high-speed impact from behind and a secondary impact to the front. The claimant told Medical Assessor Dixon he had been travelling at 100 kms per hour before he braked and slowed. Police record the claimant’s speed at 40 kms per hour before the impact from behind. The claimant was driving an old van without any airbags.
The Medical Assessors are satisfied that the claimant could have sustained an injury to his cervical spine and lumbar spine and an injury to his right shoulder (the seat belt passed over his shoulder) in the accident.
The claimant said he did not injure his left shoulder in the accident and the Panel would agree it is unlikely a frank or specific left shoulder injury could have occurred in the circumstances of this accident. The Medical Assessors are of the view that while the claimant’s neck injury (resulting in myelopathy) could cause symptoms in both the right and the left shoulder now resolved following his surgery. The likely source of the claimant’s current complaints are the unrelated degenerative changes including osteoarthritis in both his shoulders seen on the bone scan of June 2024.

Did the accident cause or materially contribute to the alleged injuries?

It had been accepted by the parties that Mr Senno sustained soft tissue threshold injuries to his lower back and right shoulder in the accident. Mr Senno denied injuring his left shoulder in the accident at the re-examination with Medical Assessor Dixon.
The Panel notes the claimant complained of neck symptoms, left hand weakness and had cervical spine radiology at Hospital. Mr Senno alleged a neck injury in his claim form dated 13 May 2021 and Dr Awada diagnosed a whiplash injury to the claimant’s neck in the first certificate of fitness.
The Panel is satisfied on the basis of these contemporaneous documents that the claimant sustained an injury to his cervical spine in the accident.
The real issue in dispute between the parties is whether the accident caused a soft tissue injury only or whether the accident caused the rupture of disc material and the development of myelopathy which led to the surgery and the significant degree of impairment that has resulted.

Pre-accident records

While the claimant gave an incomplete history to both Medical Assessors Rapaport and Kuru and denied to Dr Conrad any pre-accident neck symptoms, the claimant told Medical Assessor Dixon that he did have neck pain before the accident but not for the five years before the accident.
The pre-accident records show a long history of back symptoms but comparatively few complaints of neck pain. The claimant’s last recorded complaints of neck pain were in May and November 2016. The accident occurred four to five years after these last complaints and therefore the claimant’s history to Medical Assessor Dixon is consistent with the GP’s records.
The claimant’s radiology from two days after the accident indicates degenerative changes were present in his cervical spine including posterior disc osteophytes and uncovertebral joint arthropathy which was causing mild to moderate central canal stenosis. All of these changes pre-dated the accident but were, according to the claimant’s history as supported by his GP’s notes, asymptomatic at the time of the accident.

The gaps in the records

The first two attendances on Dr Awada were reported in his notes. Dr Awada records neck pain. Thereafter there are no complaints of neck pain until 3 November 2021 (handwritten notes) and 9 November 2021 (type written notes).
The claimant’s explanation for this was that because of Covid-19 he was not attending his doctor very often. The Panel does not accept this for the following reasons:
(a) in June to October 2021 the claimant attended his GP 14 times, and
(b) in all of those attendances complaints were recorded by Dr Awada about other alleged accident-related issues (shoulder and back pain or flank pain).
It is not, in the Panel’s view medically plausible for the claimant to have mentioned neck pain on those 14 occasions but for Dr Awada to have failed to record it each and every time. The more plausible explanation for why there were no complaints recorded in his doctors’ notes is that there were no complaints made to Dr Awada about neck symptoms during that time.
The Court of Appeal decision in AAI Ltd v McGiffen[1] noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or mis-record histories of accidents” (Davis v Council of the City of Wagga Wagga[2]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[3]).
[1] [2016] NSWCA 229 at [64]-[66].
[2] [2004] NSWCA 34 at [35] (Davis).
[3] [2014] NSWSC 888 (Bugat) at [31]-[32].
The Panel notes that:
(a)    in the various certificates of capacity issued between May and September 2021 by Dr Awada, all refer to a neck injury;
(b)    the physiotherapy records from June to November 2021 all refer to a neck injury and neck complaints, and
(c)    the claimant told Medical Assessor Dixon he had continued neck symptoms after the accident.
The Panel is satisfied that the gap in Dr Awada’s records between the end of May 2021 and the beginning of November 2021 is explained by the claimant’s history of continued complaints which is supported by the physiotherapy records and the certificates of capacity.
The gap in the records thereafter (until March 2022) was explained by the claimant. He had been accused of domestic violence, police became involved, and he was required to go to Court. He was then involved in a frightening incident in his car while with his wife. It is the Panel’s view that Dr Awada’s notes rightly focus on these incidents and may not have recorded any physical complaints made at that time. Alternatively, as the claimant suggested to Dr Dixon, Mr Senno was focussed on these issues to the exclusion of his physical complaints.
The Panel is satisfied that the claimant has adequately explained the second gap in the GP’s records.

The progression to myelopathy

From 29 March 2022 the claimant has consistently complained of neck symptoms including neck pain radiating to his left arm with paraesthesia. This neck pain got worse, the claimant could not get to see a neurosurgeon in Australia, but did see one in Lebanon and in 2023 the symptoms developed further.
The claimant was diagnosed by Dr Ghahreman on 16 February 2023 with cervical myelopathy and Mr Senno was advised to have surgery. In April 2023 the claimant saw

Dr McKechnie for a second opinion, and that doctor agreed with the diagnosis.
The diagnosis of myelopathy was first suspected on 12 November 2021 when the MRI reported a moderately large central disc protrusion causing mild cord compression and spinal cord signal changes. This finding was also made in the report of the MRI from 22 October 2022. In the MRI done on 2 November 2022 “severe cord compression” was noted.
Cervical myelopathy is a spinal condition which occurs when a disc (in this case at the C6-7 level) protrudes backwards and centrally into the spinal canal space compressing the spinal cord. This can result in radicular complaints with pain down the arms, reflex changes plus sensory changes but this is due to compression of the spinal cervical cord itself, rather than compression of an exiting nerve root on the left or right side of the spinal cord.
It is the clinical judgment of the Medical Assessors that cervical myelopathy can occur in the acute phase of injury when there is a significant disc injury causing the immediate protrusion or herniation of disc material. However, myelopathy can develop or evolve gradually with a more subtle disc injury. In such a case, the disc is injured in the accident and weakened and a small amount of disc material protrudes. With normal activity or additional trauma, more disc material protrudes and can eventually herniate.
The Panel notes the following progression of the claimant’s neurological symptoms:
(a)    the day after the accident, in the hospital notes there is a report of neck tenderness and left grip strength weakness;
(b)    on 3 November 2021 the claimant complained of right upper limb paraesthesia (but no weakness) to Dr Awada and on 9 November there was some loss of motion, altered sensation but no weakness noted;
(c)    the claimant reported to his physiotherapist on 29 November 2021 he had ongoing symptoms over the last three months including numbness into the right shoulder, right hand and fingers, and
(d)    on 29 March 2022 there was left arm paraesthesia and pain and on 4 April 2022 there was reduced power in the left arm compared to the right.
It is the clinical judgment of the Medical Assessors that the mix of right and left arm symptoms is not unusual or clinically significant because a disc bulging centrally and compressing the spinal cord is more susceptible to variation of symptoms as the bulging or herniating material shifts and the point of compression changes.
It is the clinical judgment of the Medical Assessors that the claimant sustained an injury to his cervical spine in the accident causing a protrusion of disc material from the nucleus pulposis through the annulus fibrosis at the C6-7 level. While minor compression of the spinal cord occurred at the time of the accident, the protrusion developed, and the compression worsened leading to the upper motor neurone signs and progressive neurological deficit.

CONSIDERATION OF THE ISSUES

Is the cervical spine injury a threshold injury?

The Panel is satisfied that the injury caused by the accident was not a threshold injury because the injury to the nucleus pulposis involved the tearing of the ligamentous fibres through which the disc material could protrude and herniate.
The tearing of the ligamentous fibres is the “complete or partial rupture of tendons, ligaments, menisci or cartilage” which is one of the exclusion s from the definition of soft tissue injury found in s 1.6 f the MAI Act.
Whether the disc injury caused impingement on the left or right (or both) exiting nerve roots and whether any such injury caused radiculopathy or not, does not need to be addressed in the current dispute. Myelopathy is different to radiculopathy. The former is caused by compression of the spinal cord, the latter is caused by compression of the nerves and nerve roots exiting the spinal cord.
Whether the surgery performed on the claimant’s spine on 28 June 2023 “changes” or “converts” a threshold injury into a non-threshold injury also does not need to be addressed. However, it is worthwhile pointing out to the claimant’s solicitors that the decision of Saleh relied on by Mr Senno was issued before the Court’s decision in Mandoukos v Allianz Australia Insurance Limited[25]. Justice Chen at [111] said in Mandoukos:
“The first argument for the plaintiff appears to be that the surgery necessarily involved a further, and non-minor, injury: the argument, so far as I understood it, appeared to be that surgery meant that the injury was transformed into a “non-minor-injury” or capable to being held to be so. I do not accept this submission, and how that argument fits within s 1.6(2) was not developed. Whether, in a given case, that could be so would, at least initially, be a question of fact. There is not, as seems to be suggested, a presumption of sorts that a minor injury becomes a non-minor injury merely because there is some form of surgery.”
[25] [2023] NSWSC 1023 (Mandoukos).
The Court of Appeal did not decide whether a minor or threshold injury becomes a non-minor or non-threshold injury as a result of surgery but concerned itself with the primary issue which was the scope of the medical assessment which is not in issue in Mr Senno’s case. But the decision raises sufficient doubt as to the correctness of the reasoning in cases such as Saleh that the same reasoning should not be adopted in Mr Senno’s case.

Is the surgery reasonable and necessary and related to the accident?

There is no issue that spinal surgery is a form of treatment and care and that statutory benefits are, payable in respect of that surgery subject to s 3.24(2) which provides:
“No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
The disc injury caused by the accident led to compression of the claimant’s spinal cord manifesting in neurological symptoms, that is myelopathy. Left untreated, C6-7 myelopathy can progress and leads to further neurological symptomatology, further damage to the spinal cord and ultimately paraplegia.

It is the clinical judgment of the Medical Assessors that the C6-7 discectomy (removal of the protruding and herniated disc) was therefore reasonable and necessary treatment in order to prevent the development of increased symptoms and paraplegia. The C6-7 fusion was reasonable and necessary to perform in order to stabilise the claimant’s neck following the removal of the disc to prevent further disc protrusions from occurring at that level.
As the Panel has determined that the claimant injured his C6/7 intervertebral disc in the car accident, leading to the development of myelopathy it follows that the surgical treatment in dispute is treatment related to the injuries caused by the accident.

CONCLUSION

The Panel has found that the claimant’s cervical spine injury is not a threshold injury and that the surgery performed on 28 June 2023 was related to the injuries caused by the accident and was reasonable and necessary in the circumstances.
As the Panel has come to a different conclusion to Medical Assessor Rapaport in respect of both disputes it follows that his certificates must be revoked.

[2025] NSWPICMP 291

29 April 2025