Shiba v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Shiba v Allianz Australia Insurance Limited [2025] NSWPICMP 42
CLAIMANT:	Alan Shiba
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Couch
MEDICAL ASSESSOR:	Assem
DATE OF DECISION:	21 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Claimant involved in a low-speed rear-end collision while stationary at traffic lights; reported cervical spine pain radiating to the right arm with radiculopathy (C6 nerve root), lumbar spine pain radiating to the left leg with radiculopathy (L5 nerve root), and right shoulder pain; radiological evidence revealed pre-existing degenerative changes in the cervical and lumbar spine, including disc protrusions and annular tears, with symptoms becoming symptomatic post-accident; biomechanical analysis suggested collision forces were insufficient to cause significant injury, but Panel found the motor accident materially aggravated pre-existing conditions, leading to persistent radicular symptoms and functional limitations; Held – cervical and lumbar spine injuries caused by the motor accident are non-threshold; right shoulder injury remains a threshold injury; motor accident caused permanent impairment exceeding 10% whole person impairment.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 WHETHER THE INJURY CAUSED BY THE MOTOR ACCIDENT IS A THRESHOLD INJURY FOR THE PURPOSES OF THE MOTOR ACCIDENT INJURIES ACT 2017 WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% 1. The Review Panel revokes the Certificate of Medical Assessor Adam Rapaport dated 23 May 2023. 2. The Review Panel issues a new certificate determining that: (a) the following injuries caused by the motor accident are not threshold injuries: (i) cervical spine injury (right C6 radiculopathy),; and (ii) lumbar spine injury (left L5 radiculopathy). (b) The following injury caused by the motor accident is a threshold injury: (i) right shoulder injury (soft tissue injury). (c) The degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident is greater than 10% (30%).

STATEMENT OF REASONS

INTRODUCTION

Alan Shiba (the claimant) was involved in a motor accident on 18 February 2020 at approximately 3.00pm at the intersection of Polding Street and The Boulevarde in Fairfield Heights (the motor accident). The claimant was driving a silver 2011 Toyota Corolla and was stationary at the red traffic light in the kerbside lane behind two to three vehicles. The insured vehicle, a grey 2018 Toyota Prado, collided with the rear of the claimant’s vehicle.
The claimant stated that he had stopped his vehicle at a red light at the intersection of Polding Street and The Boulevard, behind stationary traffic. While stationary, he observed through his rear-view mirror that no vehicles were behind him. When the traffic light turned green, the vehicle in front did not move forward, and he released his foot from the brake momentarily before reapplying it as his vehicle had not advanced. At this point, the claimant’s vehicle was struck from the rear with significant force, accompanied by a loud bang. He did not hear any warning sounds, such as screeching or skidding, prior to the collision. Upon impact, he was thrown forwards and then backwards in his seat, but his seatbelt prevented further forward movement. He described feeling shocked, particularly because he had previously observed no vehicles behind him before the lights turned green. As a result of the collision, he experienced immediate pain in the back of his head, his neck, and his left leg.
The insured driver stated that prior to the accident, he was focused on the road while waiting in a line of traffic at a red light. As the light turned green, the vehicles ahead began to move, and the insured driver accelerated from a stationary position. Suddenly, the claimant’s car directly in front of him braked unexpectedly, resulting in a collision where the front of the insured driver’s car impacted the rear of the claimant’s vehicle. The insured driver estimated his speed at the time of impact to be less than 20kmph, as they had only travelled about two car lengths from a standing start. He described the collision as not severe, stating that the impact did not push the claimant’s vehicle significantly forward or into another lane. The insured driver’s vehicle only suffered minor damage.
After the accident, the insured driver pulled his car to the left side of the road and approached the claimant. He observed that the claimant to raise one of his hands above his head and place his hand up near his shoulder blade and neck area. He stated that the claimant said that his neck hurt. This was the only injury that the claimant complained about at the scene of the accident. The insured driver assisted the claimant and walked him to a grassy area on the side of the road.
The insured driver exited his vehicle and apologised for the collision, stating that he was in a rush to pick up his wife. Both drivers exchanged details, and the claimant, despite feeling uncertain and in shock, drove to a nearby medical centre for treatment.
Neither police nor ambulance services attended the scene at the time of the incident. There were no significant damages reported to either vehicle requiring property damage claims, although minor indentations and scratches were noted on the claimant’s vehicle.
The claimant reported sustaining multiple injuries as a result of the motor accident. He experienced immediate neck pain radiating to the occipital region of his head. Over time, he also reported radicular symptoms, including pain radiating down his right shoulder and arm, accompanied by numbness and tingling in the thumb, index, and little fingers. Imaging revealed a disc protrusion at the C5/6 level, with mild cord compression and potential nerve root involvement.
In addition to his cervical spine injuries, the claimant described persistent lower back pain radiating into his left leg and foot. Radiological evidence identified degenerative changes, including disc bulges at the L4/5 and L5/S1 levels, with a left L4/5 annular tear and possible nerve root contact at L5/S1. This pain and associated symptoms were a significant focus of his complaints post-accident.
The claimant also reported pain in his right shoulder, which was initially attributed to referred pain from the cervical spine. An ultrasound later confirmed supraspinatus tendinosis and subacromial bursitis, though no tears or ruptures were identified in the rotator cuff.
In addition to localised pain, the claimant experienced general symptoms, including headaches radiating to the occipital and frontal regions. He also reported numbness in his left arm and forearm, as well as intermittent pain in his left shin. These symptoms persisted despite various treatment efforts.

MEDICAL ASSESSMENT MATTER DISPUTE

The dispute concerns whether the injuries sustained by the claimant in the motor accident, qualify as “threshold injuries” under the Motor Accident Injuries Act 2017 (NSW) (the Act) and whether they result in permanent impairment exceeding the statutory threshold of 10% whole person impairment (WPI). The resolution of these issues determines the claimant’s entitlement to statutory benefits and potential common law damages.
The claimant argues that his injuries:
(a)    cervical spine injury;
(b)    right shoulder injury, and
(c)    lumbar spine injury,
are severe and result in a permanent impairment exceeding 10% WPI. He cites ongoing functional limitations, surgical intervention (L5/S1 microdiscectomy), and the recommendation for cervical fusion as evidence of the injuries’ non-threshold status and lasting impact.
The insurer disputes these claims, asserting that the injuries are threshold under the Act and do not meet the threshold for permanent impairment. They argue the claimant’s symptoms primarily result from pre-existing degenerative conditions rather than acute trauma from the accident. Radiological findings and biomechanical analyses suggest the collision, a low-speed rear-end impact, was insufficient to cause the reported injuries.
The matter was referred to the Medical Assessor under the Act to resolve disputes concerning the classification of the claimant’s injuries and the degree of any associated permanent impairment. The referral was made in accordance with Schedule 2, clls 2(a) and (e) of the Act, which empowers the Personal Injury Commission (the Commission) to determine whether an injury caused by the motor accident qualifies as a “threshold injury” and whether it results in a permanent impairment exceeding 10% WPI.

THRESHOLD INJURIES

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

MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW

Medical Assessor Adam Rapaport, by a certificate dated 23 May 2023 (the MAC), determined that the injuries sustained by the claimant in the motor accident constituted “threshold injuries” under the Act. These injuries were identified as soft tissue damage to the cervical and lumbar spine. The determination, issued under s 7.23(1) of the Act, concluded that the injuries did not meet the criteria for non-threshold injuries and therefore did not necessitate an assessment of permanent impairment.
The claimant alleged that the injuries exceeded the 10% WPI threshold, asserting that the accident caused significant and lasting harm. The insurer contested this, maintaining that the injuries were minor and insufficient to surpass the threshold. The Medical Assessor reviewed a voluminous body of evidence, including clinical assessments, radiological imaging, medical reports, and submissions from both parties, to resolve the dispute.
Following the motor accident, the claimant reported neck pain radiating to the occipital region, lower back pain, and, subsequently, left leg pain. These symptoms were consistent with soft tissue injuries, as reflected in the initial clinical evaluations. Imaging conducted shortly after the accident revealed degenerative changes in the cervical spine, including disc protrusions at the C5/6 level, and in the lumbar spine, notably at L4/5 and L5/S1.
The clinical examination by the Medical Assessor corroborated these findings. The cervical spine exhibited normal lordosis with no evidence of paravertebral muscle spasm or bony tenderness. Range of motion was near-normal, and there were no neurological deficits, signs of radiculopathy, or muscle wasting. Similarly, the lumbar spine demonstrated normal lordosis, with no spasm, guarding, or structural abnormalities. Reflexes were symmetrical, and sensory testing yielded normal results. Examination of the right shoulder revealed diminished active motion, but this was not linked to the motor vehicle accident.
The Medical Assessor also considered extensive medical reports from treating practitioners and independent experts. These reports consistently identified longstanding degenerative changes in the claimant’s cervical and lumbar spine. Several experts acknowledged that these conditions likely predated the accident and may have contributed to the claimant’s reported symptoms. While some practitioners suggested a potential aggravation of these pre-existing conditions, there was insufficient evidence to establish a direct causal link between the accident and the claimant’s ongoing symptoms.
Radiological evidence further substantiated this conclusion. CT and MRI scans conducted on multiple dates consistently demonstrated degenerative changes, including disc protrusions and annular tears at C5/6, L4/5, and L5/S1. For instance, imaging immediately following the collision revealed normal alignment in the cervical spine and no fractures or other traumatic changes. Later imaging similarly failed to identify acute changes consistent with the claimant’s reported symptoms.
Expert biomechanical analysis provided additional support for the determination. The collision was described as a low-speed impact, unlikely to generate the forces necessary to cause significant injury. The biomechanical expert concluded that the claimant’s degenerative changes were unrelated to the collision and that any symptoms following the accident were more likely attributable to pre-existing conditions rather than trauma sustained during the event.
The Medical Assessor concluded that the injuries to the cervical and lumbar spine were soft tissue injuries as defined under s 1.6(2) of the Act. These injuries involved musculo-ligamentous structures without evidence of tears, breaches, or radiculopathy. The natural history of such injuries typically results in complete resolution within six months, and more than three years had elapsed since the accident at the time of assessment. Consequently, any ongoing symptoms were deemed unrelated to the motor vehicle accident.
Based on these findings, the Medical Assessor determined that the claimant’s injuries did not result in permanent impairment. The WPI was assessed at 0%, as there was no evidence of residual functional limitations or permanent damage attributable to the accident.

APPLICATION FOR REVIEW

The claimant applied under s 7.26 of the Act for the referral of the MAC to a Review Panel, asserting that the assessment was materially incorrect. This application was opposed by the insurer, which argued that the referral application should not be granted.
The claimant’s application relied on the opinions of Dr James Bodel and Professor Peter Papantoniou. Dr Bodel had assessed the claimant on 15 November 2022, diagnosing persisting radiculopathy of the cervical and lumbar spine and attributing 25% WPI to the injuries. Professor Papantoniou provided further support, diagnosing symptomatic L5 radiculopathy. These opinions indicated that the claimant’s spinal pathologies were either primarily caused or exacerbated by the motor accident, contrary to the conclusions in the MAC. The claimant argued that the Medical Assessor had failed to adequately consider these expert medical opinions, which, if accepted, could have significantly altered the determination of whether the injuries met the threshold requirements under the Act.

In reviewing the application, President’s Delegate agreed with the claimant’s submissions, concluding that the medical opinions had not been sufficiently addressed in the Medical Assessor’s reasoning. In particular, the MAC lacked any engagement with Dr Bodel’s findings of persisting radiculopathy, which was a key factor that could materially affect the outcome of the injury threshold dispute.
As a result, the President’s Delegate was satisfied there was reasonable cause to suspect that the original medical assessment was materially incorrect. The application for review was accepted, and the matter was referred to the Review Panel presently constituted (the Panel) for further consideration.

REVIEW PROCEDURE

Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Section 7.26(5A) of the Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess.
Section 41(2) of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 of the PIC Rules provides that a review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
By directions issued on 4 August 2023, the parties were directed to provide the Panel a joint bundle of material on which they relied upon the Review. That direction was complied with parties providing a voluminous bundle of material which was not easy to navigate. The following is a summary of the relevant material in the joint bundle together with various additional material with which the Panel was provided.

MATERIAL ON THE REVIEW

The material provided to the Panel on review was comprehensive. The Panel reviewed the material in detail but determined that setting out every aspect within these reasons would not facilitate clear legal reasoning. Instead, the Panel has included an overview of the relevant material provided throughout these reasons.
The claimant had a documented medical history that included pre-existing degenerative conditions in the cervical and lumbar spine, as well as involvement in prior motor vehicle accidents.
On 16 November 2011, the claimant was involved in a motor vehicle accident in which cervical spine injuries were reported. These injuries were noted to have resolved without requiring ongoing treatment or resulting in documented complaints.
A handwritten note from 30 November 2017 by Dr Swid notes muscle ache, headache and right leg pain after gardening. Subsequent entries on 1, 4 and 5 December 2017 report the same symptoms. It was suggested the claimant was referred to a specialist.
A handwritten note from 3 December 2019 report records the claimant reporting bilateral leg pain nocturnally and that his back was okay.
On 13 February 2019, the claimant was involved in another minor motor vehicle accident involving a low-speed rear-end collision while reversing his 2011 Toyota Corolla. The claimant did not report any injuries from this incident, sought no medical treatment, and had no documented complaints following the event. The same vehicle was later involved in the motor accident on 18 February 2020.
Imaging conducted post-accident revealed significant pre-existing degenerative changes that predated the motor accident. In the cervical spine, uncovertebral degeneration, spondylosis, and disc desiccation were identified at the C5/6 level, accompanied by annular tearing and narrowing of the spinal canal. Similarly, in the lumbar spine, imaging showed disc desiccation and bulging at the L4/5 and L5/S1 levels, with low-grade facet arthrosis. These degenerative conditions were asymptomatic prior to the subject accident and had not been the focus of any medical complaints or treatment.
Following the motor accident, the claimant attended Fairfield District Medical Centre, where he reported left-sided neck pain. Examination revealed mild tenderness in the neck, but no neurological deficits were identified. There were no complaints of pain in the shoulders, mid-back, or lower limbs at this stage. A CT scan of the cervical spine performed the next day revealed uncovertebral degenerative changes and a disc protrusion at C5/6, resulting in possible encroachment on the exiting right C6 nerve root, for which clinical correlation was suggested.
By 21 February 2020, the claimant returned to Fairfield District Medical Centre, reporting additional symptoms, including pain in the shoulders, mid-back, and left arm. These complaints were new and had not been documented at the initial visit.
Associate Professor Mark Sheridan’s report dated 30 June 2022 provided an evaluation of the claimant’s cervical and lumbar spine conditions. He noted persistent neck pain with associated cervical radiculopathy affecting the C6 nerve root and chronic lower back pain with left-sided lumbar radiculopathy, consistent with an L5 nerve root involvement. Imaging studies confirmed a significant disc protrusion at the C5/6 level, causing nerve root compression, and changes at the L5/S1 level. He recommended anterior cervical discectomy and fusion surgery to address the claimant’s unresolved cervical radiculopathy, stating that imaging findings supported the necessity of surgical intervention. For the lumbar spine, he documented post-surgical improvements following the claimant’s lumbar microdiscectomy at L5/S1 but noted persistent lower back discomfort that impacted the claimant’s daily activities. He concluded that the claimant’s symptoms were consistent with injuries sustained in the accident and were unlikely to be attributed solely to degenerative changes.
In his first report dated 17 April 2020, Dr Ian Farey examined the claimant’s cervical and lumbar spine conditions shortly after the motor accident. He documented complaints of neck pain radiating to the right shoulder and lower back pain radiating into the left leg, consistent with cervical and lumbar radiculopathy. Imaging revealed a disc protrusion at the C5/6 level without significant cord compression and mild degenerative changes in the lumbar spine. He attributed the cervical and lumbar symptoms to trauma sustained during the motor accident and recommended conservative management, including physiotherapy and analgesics. He also highlighted the potential need for further imaging and monitoring, given the persistent radiculopathy.
In his report dated 20 July 2020, Dr Farey reviewed the claimant’s progress and noted ongoing symptoms, including reduced cervical range of motion and persistent lower back pain with radiculopathy into the left leg. He observed that conservative treatment had led to limited improvement and recommended additional imaging to further evaluate the cervical and lumbar spine. While he identified degenerative findings in the claimant’s imaging, he maintained that the symptoms were primarily trauma-related.
In a report dated 19 October 2020, Dr Farey provided further analysis of the claimant’s condition, which showed persistent radiculopathy in the cervical and lumbar regions. He acknowledged some improvement in symptoms with conservative treatment but highlighted ongoing nerve root compression at the C5/6 level. Imaging showed a slight reduction in the size of the cervical disc protrusion, though radicular symptoms persisted. He raised the possibility of surgical intervention, particularly if symptoms continued to affect the claimant’s functionality.
In a report dated 1 February 2021, he evaluated the claimant’s condition after several months of treatment. He documented a plateau in progress, with persistent cervical radiculopathy and unresolved lumbar symptoms. He supported the claimant’s decision to undergo lumbar spine surgery, given the lack of improvement in radicular symptoms affecting the left leg. He also noted that anterior cervical discectomy and fusion at C5/6 might be required to address the claimant’s ongoing cervical symptoms, which remained unresponsive to conservative measures.
In his report dated 28 September 2021, Dr Farey noted that the claimant had experienced improvement in lower limb radiculopathy following lumbar microdiscectomy. However, significant cervical radiculopathy persisted, with ongoing symptoms impacting daily activities. He discussed the need for cervical spine surgery and emphasised that the claimant must cease smoking as a precondition for the procedure. He outlined the risks of delaying surgical intervention, given the sustained nerve root compression evident in imaging.
In his final report dated 13 October 2021, Dr Farey reaffirmed the necessity of surgical intervention for the claimant’s cervical spine condition. He noted ongoing radicular symptoms affecting the right arm, with imaging showing persistent nerve root compression at the C5/6 level. He recommended proceeding with anterior cervical discectomy and fusion, citing the claimant’s limited response to conservative management and the impact of radiculopathy on quality of life and functional ability.
Dr Papantoniou’s report dated 27 May 2020 documented complaints of neck, right shoulder, and lower back pain, with left-sided radiculopathy affecting the lower limb. Imaging studies revealed disc bulges at L4/5 and L5/S1, as well as a left annular tear at L4/5. He attributed these findings to the motor vehicle accident and recommended conservative management, including physiotherapy and pain management, while monitoring the claimant’s progress.
In a report dated 15 July 2020, Dr Papantoniou reported ongoing symptoms and confirmed the presence of a left annular tear at L4/5. He noted that the claimant’s pain was consistent with the disc bulges and annular tears observed on imaging and attributed these directly to the accident. He recommended continued conservative management but raised concerns about the potential need for surgical intervention if symptoms persisted.
In a report dated 20 July 2020, Dr Papantoniou described the claimant’s ongoing struggles with neck and lower back pain, as well as radiculopathy in the left leg. Imaging findings were consistent with those in earlier reports, with persistent bulging discs and annular tears. He reiterated his recommendation for conservative treatment, emphasising the importance of physiotherapy and close monitoring.
In his report dated 23 September 2020, Dr Papantoniou noted that lower back pain had improved slightly with treatment, though left leg radiculopathy persisted. He considered surgical intervention as a potential next step if symptoms failed to improve further. Imaging continued to show disc bulges at L4/5 and L5/S1 with associated annular tears.
In a report dated 27 January 2021, this pre-operative evaluation focused on the claimant’s lumbar spine condition, with persistent radicular symptoms leading to the decision to proceed with lumbar surgery. Dr Papantoniou supported the microdiscectomy as a necessary intervention for relieving nerve root compression and improving functionality.
In his report dated 5 February 2021, Dr Papantoniou provided a post-surgical evaluation, noting improvement in radiculopathy but ongoing lower back pain. He stated that the surgery had successfully addressed the most pressing symptoms and recommended continued rehabilitation to aid recovery.
In a report dated 10 February 2021, Dr Papantoniou reviewed further post-surgical recovery, documenting improvements in lower limb symptoms but persistent discomfort in the lower back. He also noted ongoing cervical spine issues and recommended further evaluation to determine the need for surgical intervention.
In a report dated 18 March 2021, this follow-up assessment highlighted residual symptoms, including mild left heel discomfort and ongoing lower back pain. Dr Papantoniou noted improvements in radiculopathy but acknowledged the slow recovery process.
In a report dated 28 April 2021, Dr Papantoniou reported that the claimant’s lower back pain had plateaued, with residual symptoms affecting daily activities. Cervical spine radiculopathy remained significant, and surgical options were being considered.
In a report dated 16 June 2021, further evaluation noted consistent symptoms of cervical and lumbar radiculopathy. Dr Papantoniou continued to recommend conservative management for the cervical spine, pending further monitoring.
In his report dated 1 September 2021, Dr Papantoniou documented persistent cervical radiculopathy and residual lower back pain. He supported the claimant’s decision to consider cervical spine surgery as the next step in addressing unresolved symptoms.
In a report dated 28 September 2021, Dr Papantoniou noted little change in the claimant’s condition, with significant cervical radiculopathy requiring surgical intervention. He stated that imaging findings supported this recommendation.
In a report dated 29 September 2021, Dr Papantoniou highlighted ongoing left heel pain and documented improvements in lower limb radiculopathy following lumbar surgery. Cervical spine symptoms remained significant and continued to impact daily life.
In his final report dated 18 November 2021, Dr Papantoniou summarised the claimant’s ongoing struggles with cervical radiculopathy and residual lower back pain. He reiterated the necessity of cervical spine surgery to address unresolved symptoms.
The report by Associate Professor Mark Sheridan, dated 30 June 2022, provided an evaluation of the claimant’s cervical and lumbar spine conditions following the motor accident. The report focused on the claimant’s persistent symptoms, imaging findings, and recommendations for further surgical intervention.
Associate Professor Sheridan noted that the claimant experienced ongoing neck pain with associated cervical radiculopathy, specifically affecting the C6 nerve root, as well as chronic lower back pain with left-sided lumbar radiculopathy consistent with L5 nerve root involvement. Imaging studies confirmed a significant disc protrusion at the C5/6 level causing nerve root compression, as well as structural changes at the L5/S1 level.
The report recommended an anterior cervical discectomy and fusion (ACDF) to address the unresolved cervical radiculopathy, citing the failure of conservative treatments to provide relief. This recommendation was supported by imaging evidence that highlighted the necessity of surgical intervention to alleviate the claimant’s symptoms and prevent further deterioration.
Regarding the lumbar spine, Associate Professor Sheridan documented post-surgical improvements following the L5/S1 microdiscectomy performed in February 2021. While the surgery successfully alleviated some radicular symptoms, the claimant continued to experience residual lower back discomfort that impacted daily activities. The report attributed the claimant’s lumbar and cervical symptoms to injuries sustained in the motor vehicle accident, suggesting these were unlikely to be solely attributable to pre-existing degenerative changes.
The report concluded that the claimant’s injuries were significant and causally linked to the motor vehicle accident. Associate Professor Sheridan emphasised the need for surgical intervention to manage the ongoing radiculopathy and improve the claimant’s functional capacity.
Dr Bodel’s report dated 15 November 2022 provided a detailed assessment of the claimant’s condition and attributed a WPI of 35% to the injuries sustained in the motor accident. Dr Bodel identified persistent radiculopathy associated with the claimant’s cervical spine injury as a key factor in the elevated impairment rating. He highlighted that this condition demonstrated ongoing symptoms directly linked to the accident. Dr Bodel specifically criticised the insurer’s reliance on the presumed “force of impact” to dispute the causal relationship between the injuries and the accident. He argued that this approach was insufficient and that clinical symptoms and the necessity for treatment should form the primary basis for assessing causation. Furthermore, he outlined the medical evidence supporting the injuries as non-threshold, asserting the presence of significant neurological involvement rather than soft tissue injury alone.
In the supplementary report dated 9 March 2023, Dr Bodel addressed additional critiques, particularly those stemming from biomechanical analyses of the collision. While he acknowledged the low-speed nature of the impact, he strongly maintained that the injuries were causally related to the accident. He defended the microdiscectomy surgery performed at the L5/S1 level on 5 February 2021, asserting that it was medically necessary and directly addressed symptoms caused by the accident. Dr Bodel noted that the surgery involved treating a “partial rupture” of spinal ligaments, which he attributed to trauma sustained in the collision.
Dr Bodel also specifically rebutted biomechanical opinions, such as those provided by Professor Rob Anderson, which posited that the low-speed nature of the collision was unlikely to cause significant injury. He argued that such conclusions failed to account for the claimant’s medical history, radiological findings, and the documented progression of symptoms following the accident. He emphasised the persistence of radiculopathy and neurological involvement as indicative of substantial injury, inconsistent with minor impact claims. Dr Bodel concluded by reaffirming his opinion that the claimant’s injuries were directly caused by the motor vehicle accident and were of a severity necessitating ongoing treatment and intervention.
In response to questions regarding causation, Dr Bodel confirmed that the accident materially contributed to the claimant’s condition. He emphasised that the cervical and lumbar spine findings were consistent with both trauma-induced and degenerative changes, with the trauma acting as a significant exacerbating factor.
The report by Dr Gregor Bruce, dated 20 November 2020, focused on the claimant’s condition nine months after the motor accident. At the time of the examination, the claimant exhibited near-total symmetrical range of motion in the cervical spine, with no evidence of muscle spasm or wasting. Neurological examination revealed no significant abnormalities, and all reflexes were present and symmetrical. Dr Bruce noted the presence of uncovertebral degenerative changes and a C5/6 disc protrusion on imaging performed shortly after the accident. However, he concluded that there was no acute traumatic injury to the cervical spine. The findings for the lumbar spine indicated degenerative changes at L4/5 and L5/S1, though there was no evidence of significant nerve root involvement or acute trauma. Dr Bruce attributed the claimant’s symptoms to an aggravation of pre-existing asymptomatic cervical and lumbar spondylosis. Despite these findings, he opined that the claimant had not demonstrated substantial neurological impairment.
In the report dated 10 March 2023, Dr Bruce reviewed the claimant’s progress since the initial evaluation and subsequent medical interventions. Following the 2020 assessment, the claimant underwent physiotherapy and received multiple lumbar spine injections, which provided no relief. Surgery performed in February 2021 by Dr Papantoniou involved excision of the L5/S1 disc, but the claimant reported only short-lived symptom relief, with pain returning to pre-surgery levels. Persistent lower back pain radiating to the lower limbs, coupled with weakness and sensory deficits, was noted. The claimant also continued to experience severe neck pain radiating to the right shoulder and arm, with associated sensory changes and muscle weakness. Dr Farey had recommended a C5/6 spinal fusion, but the claimant declined due to concerns regarding surgical risks. Examination findings in 2023 included muscle wasting, reduced range of motion, and evidence of disc pathology at L4/5 and C5/6 on imaging. Despite these findings, no new acute injuries were identified, and the claimant’s symptoms were attributed to chronic degenerative changes exacerbated by the motor accident.

Both reports collectively suggest that the claimant’s ongoing symptoms are attributable to the motor vehicle accident’s exacerbation of pre-existing degenerative conditions rather than acute traumatic injury. While surgical and conservative interventions were undertaken, they failed to produce sustained improvements, underscoring the claimant’s chronic disability.
Associate Professor Michael Shatwell’s report dated 3 February 2023 evaluated the claimant’s cervical and lumbar spine conditions, focusing on whether the abnormalities observed were caused by the motor accident. He concluded that the cervical spine findings, including the C5/6 disc extrusion, were primarily degenerative and longstanding rather than acute injuries caused by the accident. He stated that these degenerative changes typically evolve over years and could not plausibly result from a low-speed collision. He attributed the claimant’s symptoms to a sprain or strain of the cervical spine, which would align with the biomechanics of the accident. Such symptoms, he argued, would typically resolve within a few weeks or months. Regarding the lumbar spine, he noted no evidence of acute traumatic injury or significant disc abnormalities. He described the lumbar findings, such as mild degenerative changes, as unrelated to the accident and consistent with normal age-related wear. He also addressed the forces involved in the accident, concluding that the collision lacked sufficient impact to cause the type of spinal injuries claimed. He dismissed the likelihood of radiculopathy resulting from the accident, asserting that the claimant’s neurological symptoms were inconsistent with acute trauma and instead aligned with pre-existing degenerative conditions.
In a supplementary report dated 26 April 2023, the Associate Professor revisited his earlier findings, reaffirming that the claimant’s cervical spine abnormalities, including the C5/6 disc extrusion, were degenerative and predated the motor vehicle accident. He reiterated that the mild degenerative changes in the lumbar spine, including minor disc bulges at L4/5 and L5/S1, were longstanding and unrelated to the collision. He noted no evidence of foraminal compromise or neural impingement in the lumbar spine that could be linked to the accident. He argued that the lumbar findings, including any annular tears, were consistent with natural degenerative processes and not indicative of trauma. The report highlighted the absence of clinical signs of acute radiculopathy or neurological impairment directly attributable to the accident. He also engaged with contrary opinions, particularly those suggesting a causal link between the accident and the claimant’s injuries. He emphasised the improbability of an acute disc extrusion or annular tear occurring in a low-speed collision and maintained that the claimant’s symptoms were more likely associated with pre-existing degenerative conditions rather than acute trauma from the accident.
The report by Associate Professor Shatwell, dated 1 November 2023, was a supplementary file review regarding the claimant’s injuries following a motor vehicle accident on 18 February 2020. It built upon prior reports by the Associate Professor and incorporated additional reviews of medical records and expert opinions. The findings largely reaffirmed the conclusions in his earlier reports and provided detailed analysis on causation, prognosis, WPI, and occupational capacity.
Associate Professor Shatwell confirmed that the additional documents did not alter his opinions. He concluded that the cervical spine injury was a minor soft tissue strain or sprain, which would typically resolve within three to six months. The large C5/6 disc extrusion identified on imaging was deemed unrelated to the accident, as contemporaneous medical records from shortly after the collision showed only mild neck pain and tenderness, without neurological abnormalities. A CT scan performed the day after the accident revealed no acute traumatic injury, abnormal soft tissue swelling, or misalignment of the cervical spine.
The findings related to the lumbar spine were similarly attributed to pre-existing degenerative changes, including disc bulges at L4/5 and L5/S1. These changes were considered typical for a man of the claimant’s age and build and were unrelated to the motor vehicle accident. Notably, the absence of immediate lumbar spine complaints following the collision supported this conclusion. The Associate Professor also determined that the L5/S1 microdiscectomy performed in February 2021 was necessitated by degenerative conditions rather than trauma from the accident. He noted that any ongoing symptoms following the surgery were not related to the collision.
Regarding the right shoulder, the ultrasound conducted in March 2020 identified degenerative changes, including tendinosis in the supraspinatus tendon and subacromial bursitis. There was no evidence of a rotator cuff tear or labral injury. The Associate Professor attributed restrictions in shoulder movement to illness behaviour rather than trauma and rejected claims of significant or permanent injury caused by the accident. He also disagreed with Dr Gregor Bruce’s assignment of a 4% WPI for the shoulder, as there was no structural evidence to support it.
The report found no evidence of radiculopathy in the upper or lower limbs. Symptoms described as radicular were likely due to underlying degenerative conditions rather than trauma from the motor vehicle accident. The Associate Professor emphasised that multiple examinations, including his own and those conducted by other assessors, found no clinical or radiological signs of radiculopathy attributable to the accident.
Associate Professor Shatwell critiqued the conclusions of other experts, including Dr Bodel and Dr Bruce. He rejected Dr Bodel’s claim that the accident caused significant disruption to the C5/6 disc, emphasising the lack of acute trauma evidence in the contemporaneous medical notes and imaging. He also disagreed with Dr Bodel’s assertion that the lumbar spine surgery (microdiscectomy) provided evidence of a non-threshold injury, maintaining that the surgery addressed pre-existing conditions rather than accident-related trauma. The Associate Professor further critiqued Dr Bruce’s use of the “Nguyen decision” (Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351; 58 MVR 296) to justify referred pain from the cervical spine to the right shoulder, deeming it inappropriate as the cervical soft tissue injury would have resolved within six months.
Finally, the report supported Medical Assessor’s conclusion that the motor accident caused only minor injuries and did not aggravate pre-existing degenerative conditions. It dismissed criticisms suggesting that Medical Assessor failed to consider all relevant evidence, noting that the Medical Assessor had reviewed the necessary reports and provided a thorough analysis.
In conclusion, Associate Professor Shatwell reaffirmed that the motor accident caused only minor soft tissue injuries to the cervical spine and no significant injuries to the lumbar spine or right shoulder. All structural and degenerative findings were attributed to pre-existing conditions unrelated to the collision. None of the injuries met the criteria for non-threshold classification under the Act, and the symptoms persisting after the accident were primarily due to degenerative changes rather than trauma.

Medical imaging

The pre-accident imaging history of the claimant includes limited documented studies. The medical imaging report dated 4 December 2017 detailed the findings from X-rays conducted on the lumbar spine, right hip, and right lower limb. The examination was prompted by complaints of severe pain in the right lower back and right leg, reportedly following “pulling a tree”.
The X-ray of the lumbar spine revealed normal alignment of the lumbar vertebral bodies, with vertebral body height and intervertebral disc heights preserved throughout. No osteophytes or focal bony lesions were identified, and the facet joints appeared normal. The report explicitly concluded that no bony abnormality was identified in the lumbar spine.
The X-ray of the right hip showed no evidence of recent fractures or dislocations. However, there was moderate loss of joint space bilaterally. Acetabular coverage was determined to be within normal limits, and minor broadening of the femoral necks was noted bilaterally. The findings were consistent with moderate degenerative changes in both hips.
The X-ray of the right lower limb indicated no fractures or dislocations. The right femoral shaft, tibia, and fibula were intact, with no evidence of patellar injury. Furthermore, there were no focal bony lesions or degenerative changes detected in the right knee. The report concluded that no bony cause for the pain in the right lower limb was identified.
In summary, the findings confirmed the absence of any bony abnormalities or causes for the reported pain in the right lower limb.
Following the motor vehicle accident, the claimant underwent several imaging studies.
The CT cervical spine performed on 19 February 2020 was a non-contrast low-dose imaging study aimed at evaluating the cervical spine for acute trauma. The scan showed normal cervical vertebral alignment and preserved vertebral body height. However, it revealed a right paracentral protrusion at the C5/6 level coupled with uncovertebral joint changes. These findings resulted in possible encroachment on the right C6 nerve root, correlating with the claimant’s symptoms of radiculopathy. No abnormalities were noted in the facet joints, spinous processes, or prevertebral soft tissues. The scan recommended clinical correlation and further imaging with MRI to better assess neural involvement.
The MRI of the cervical spine performed on 25 February 2020 demonstrated moderate disc protrusion with a small extruded component at C5/6, moderately distorting the anterior aspect of the spinal cord and effacing cerebrospinal fluid (CSF) anteriorly and posteriorly. Motion artifacts degraded the study, particularly in the axial views, limiting assessment of cord signal abnormalities. Mild right foraminal narrowing was observed, but no significant findings were noted at other cervical levels. The scan highlighted multilevel spondylotic changes and disc desiccation across the cervical spine.
The ultrasound of the right shoulder conducted on 12 March 2020 identified features of supraspinatus tendinosis with no evidence of tendon tears. Subacromial bursitis was noted, causing pain and bunching during movement. The scan found no abnormalities in the infraspinatus, subscapularis, or biceps tendons, and the glenohumeral joint appeared normal. It was concluded that the shoulder condition was amenable to ultrasound-guided steroid injection for symptom relief.
The MRI of the lumbar spine performed on 9 April 2020 revealed a moderate-sized broad-based right posterolateral disc extrusion at the L4/5 level with superior subligamentous migration. This caused mild indentation of the right hemicord but no cord edema or myelomalacia. A minimal disc bulge was noted at L5/S1, and no significant findings were observed at other levels. These findings correlated with the claimant’s ongoing complaints of radiculopathy.
The right subacromial bursa injection administered on 21 May 2020 involved the injection of 3ml of Marcaine and 2ml of Celestone under ultrasound guidance. The procedure aimed to alleviate shoulder pain and inflammation associated with subacromial bursitis. The injection was performed without complications, and it was recommended for symptomatic relief.
The MRI of the lumbar spine conducted on 15 June 2020 identified mild degenerative changes, including disc desiccation and bulges at the L4/5 and L5/S1 levels. There was no evidence of neuroforaminal narrowing or nerve root compression, and no acute traumatic findings, such as fractures or disc herniations, were observed. These results suggested that the claimant’s lumbar symptoms were primarily related to chronic degenerative processes.
The MRI of the lumbar spine performed on 16 June 2020 served as a follow-up to the earlier scan, reaffirming findings of mild degenerative changes and confirming the absence of significant neuroforaminal compromise or acute abnormalities. This scan provided further evidence supporting chronic degenerative processes as the primary cause of the claimant’s symptoms.
The CT-guided selective epidural performed on 2 September 2020 was a targeted intervention delivering corticosteroids and an anaesthetic agent into the epidural space at the L4/5 level. The goal was to manage lower back pain and left-sided radiculopathy while confirming the correlation between nerve root irritation and clinical symptoms. The procedure achieved excellent dispersion of the injectate without complications.
The MRI of the cervical spine conducted on 1 October 2020 highlighted a right central annular fissure and a 3mm disc extrusion at C5/6, which extended 13mm craniocaudally. This resulted in mild spinal canal narrowing and mild mass effect on the ventral root of the exiting right C6 nerve. The scan also identified straightening of the cervical lordosis, consistent with the claimant’s radiculopathy complaints.
The CT foraminal block performed at the right C5/6 level on 25 March 2021 involved injecting a corticosteroid and anaesthetic mixture into the foraminal space under CT guidance. This procedure targeted the exiting right C6 nerve root and was performed to alleviate radicular pain while confirming the source of symptoms. The procedure was conducted without complications and provided diagnostic and therapeutic benefits.
The MRI of the cervical and lumbar spine performed on 1 June 2022 revealed a moderate-sized posterior central-right paracentral disc-osteophyte complex at C5/6, associated with an annular tear and degeneration, causing mild-to-moderate flattening of the spinal cord. The lumbar spine showed mild disc bulges at L4/5 and L5/S1, with a small left foraminal protrusion at L4/5 contacting the exiting left L4 nerve root, causing mild foraminal stenosis. Post-surgical changes at L5/S1 included scarring in the left lateral epidural space, partially surrounding the descending left S1 nerve root.
The whole-body bone scan with SPECT/CT conducted on 3 June 2022 revealed mild spondylosis at the C5/6 level without facet joint involvement. No abnormalities were identified in the lumbar spine, and no active inflammation or metabolic activity indicative of acute trauma was observed. The findings were consistent with chronic degenerative changes rather than acute post-traumatic abnormalities.

Biomechanical engineering / collision analysis reports

The report authored by Patrick McDonald, a forensic accident investigator dated 18 February 2023 examined the motor accident involving a Toyota Prado and a Toyota Corolla, providing detailed analysis of the crash dynamics and its consistency with the described incident.
The report focuses on evaluating the change in speed (delta-V) of each vehicle at the moment of impact and determining the consistency of crash data with the reported circumstances of the accident. The analysis confirmed that the crash data retrieved from both vehicles was consistent with a low-speed impact, and no evidence suggested discrepancies between the crash data and the described collision event.
In terms of speed analysis, the change in speed (delta-V) for the Toyota Prado was calculated at 4.4kmph, with an upper range of less than 8kmph ± 10%. The Toyota Corolla’s delta-V was assessed to be between 7.9 and 14kmph ± 10%. The impact speed of the Toyota Prado was further estimated to be less than 15kmph ± 10%. These calculations confirmed that the forces involved in the collision were consistent with a minor rear-end accident.
The report highlighted the collision dynamics, noting that the insured vehicle (Toyota Prado) failed to stop and collided with the stationary Toyota Corolla at a red traffic signal. The crash was classified as a low-speed rear-end impact. Despite the low speeds involved, the report acknowledged that injury outcomes could vary depending on factors such as pre-existing conditions and the posture of the individuals at the time of the impact.
Professor Robert Anderson provided a biomechanical analysis dated 28 June 2022, which focused on the forces involved in the motor accident and their potential to cause the injuries alleged by the claimant. Based on his expertise and a review of the crash data, he concluded that the collision was a low-speed, rear-end impact with insufficient force to cause the significant spinal injuries claimed by the claimant.
Professor Anderson analysed the damage to the vehicles and determined that the energy transfer during the collision was consistent with a low-impact event. The structural deformation of the claimant’s vehicle was minimal, and there was no evidence of significant acceleration forces acting on the occupant. His analysis was consistent with crash data retrieved from the vehicles’ Event Data Recorders (EDR), which indicated a minor change in velocity (Delta-V) at the time of the accident.
He also reviewed the claimant’s reported injuries alongside radiological findings. He noted that the degenerative changes in the cervical and lumbar spine, including uncovertebral degeneration at C5/6 and disc bulges at L4/5 and L5/S1, predated the accident. He concluded that these pre-existing conditions were not causally related to the collision. Furthermore, the imaging did not reveal any acute traumatic findings, such as fractures or annular tears, that could be directly attributed to the accident.
In terms of biomechanics, Professor Anderson opined that the forces generated in the collision were insufficient to cause disc extrusions or other significant spinal injuries. He supported the view that the claimant’s ongoing symptoms were consistent with degenerative progression rather than trauma. He further emphasised that biomechanical studies demonstrated that low-speed impacts, such as the subject collision, rarely result in serious injury.
Grant Johnston’s engineering analysis offered a detailed assessment of the collision involving the claimant on 18 February 2020. His report focused on the dynamics of the accident, the forces involved, and their capacity to cause the injuries alleged by the claimant. Johnston concluded that the collision was a low-speed rear-end impact with an estimated impact speed of between 9 and 20kmph, leading to a calculated change in velocity (Delta-V) of approximately 7 to 15kmph. This assessment, based on vehicle damage, crash data, and scene evidence, highlighted the low-energy nature of the collision.
Mr Johnston noted that the damage to the claimant’s Toyota Corolla was minimal, with no significant structural deformation observed. He explained that the degree of energy transfer during the collision was consistent with minor impacts and well below thresholds typically associated with serious biomechanical forces. He classified the incident as a “Minimal Property Damage Collision (MPDC),” a type of accident generally associated with low-risk biomechanical injury potential. To contextualise the forces involved, Mr Johnston compared them to those experienced in routine daily activities, such as sitting down abruptly or stepping off a low curb, underscoring the relatively minor nature of the impact.
A key part of Mr Johnston’s analysis addressed the role of the vehicle’s restraint systems. He concluded that the seatbelt effectively restrained the claimant’s torso during the collision, minimising forward motion and reducing biomechanical stress on the cervical and lumbar spine. The headrest similarly limited excessive neck motion, significantly decreasing the likelihood of whiplash or other cervical injuries. Mr Johnston’s findings demonstrated that the combination of seatbelt and headrest functionality mitigated the forces experienced by the claimant, ensuring that any biomechanical loading on the spine remained within tolerable thresholds.

Mr Johnston devoted considerable attention to the claimant’s radiological findings, which documented disc protrusions and annular tears at C5/6 and L4/5, among other degenerative changes. He concluded that these were longstanding, pre-existing conditions, typical of degenerative changes that develop over time. He noted that such conditions were unrelated to the accident, as no imaging findings indicated acute trauma. The absence of fractures, nerve impingement, or other markers of acute injury supported his conclusion that the injuries were not attributable to the collision. He further explained that disc protrusions and annular tears often result from age-related degeneration rather than low-speed impacts, making a causal link to the collision unlikely.
Mr Johnston addressed the chronic symptoms reported by the claimant, including persistent neck and back pain and functional limitations. While acknowledging the theoretical possibility of pre-existing asymptomatic conditions becoming symptomatic following an impact, Mr Johnston emphasised that this typically occurs in more severe collisions. He noted that symptoms resulting from low-speed impacts, if they arise, are usually transient and resolve within weeks. The claimant’s reported long-term symptoms were inconsistent with the low-energy dynamics of the collision, reinforcing the conclusion that his ongoing complaints were unrelated to the accident.
In responding to other experts, Mr Johnston provided a critical assessment of their conclusions while aligning with key findings from Professor Anderson’s biomechanical analysis. He concurred with Professor Anderson’s conclusion that the forces generated by the collision were insufficient to cause significant spinal trauma or aggravate degenerative changes to a substantial degree. Mr Johnston supported Professor Anderson’s calculations regarding the Delta-V and energy transfer, which demonstrated the minor nature of the impact. He also reviewed the medical opinions provided and identified a consistent reliance on pre-existing degenerative changes to explain the claimant’s symptoms, a view he found to be well-supported by the radiological evidence.
Mr Johnston also addressed diverging interpretations, particularly regarding the possibility of Whiplash Associated Disorders (WAD). While he acknowledged that WAD could occur in low-speed impacts, he noted that such symptoms are typically minor and short-lived. He expressed scepticism about the claimant’s reported chronic symptoms, given the low-energy dynamics of the collision. Mr Johnston reiterated that the biomechanical forces involved were insufficient to account for the long-term and significant symptoms described, further supporting the view that the claimant’s complaints stemmed from degenerative conditions rather than trauma.
In conclusion, Mr Johnston firmly stated that the collision did not cause or exacerbate the claimant’s spinal conditions. He emphasised that the Delta-V and forces generated were consistent with minor impacts unlikely to cause significant injury. The claimant’s radiological findings, including disc protrusions and annular tears, were attributed to longstanding degenerative changes rather than acute trauma.

SUBMISSIONS

The claimant submitted that the injuries he suffered were not threshold as they involved structural and neurological damage beyond the scope of soft tissue injuries. He submitted evidence of significant cervical and lumbar spine injuries, including a disc protrusion at the C5/6 level causing radiculopathy. This radiculopathy resulted in pain radiating into the right shoulder and arm, accompanied by numbness in the fingers and loss of grip strength. In addition, the claimant reported lumbar spine injuries, including disc bulges at L4/5 and L5/S1, with a left L4/5 annular tear and nerve root contact. These injuries caused radiating pain, numbness in the left foot, and functional limitations. The claimant further experienced pain in his right shoulder, with an ultrasound confirming supraspinatus tendinosis and subacromial bursitis, which contributed to his restricted mobility.
The claimant submitted evidence of radiculopathy, which he argued excluded the injuries from being classified as threshold under the Act. Radiological reports showed nerve root involvement at the C5/6 and L5/S1 levels. Expert medical opinions, including those from Dr Gregor Bruce, corroborated this by documenting radicular symptoms such as sensory loss, weakness, and pain consistent with nerve compression. The claimant argued that the Medical Assessor had failed to properly consider this evidence or to apply the correct criteria under the Guidelines, which require two or more clinical signs of radiculopathy, such as loss of reflexes or muscle atrophy, to be present.
The claimant contended that the motor accident was the primary cause of his injuries and resulting symptoms. He stated that any pre-existing degenerative conditions in his cervical and lumbar spine had been asymptomatic prior to the accident and had not interfered with his ability to work or perform daily activities. He argued that the motor accident either caused new injuries or significantly aggravated pre-existing conditions, rendering them symptomatic. Expert opinions, including those from Dr Bruce and Associate Professor Mark Sheridan, supported the conclusion that the accident materially contributed to the claimant’s current condition.
The claimant submitted that his injuries resulted in permanent impairment exceeding the 10% WPI threshold. He argued that the need for surgical interventions, including the L5/S1 microdiscectomy he underwent in February 2021 and the recommendation for a C5/6 discectomy and fusion, underscored the severity and lasting impact of his injuries. He further submitted that his persistent symptoms of pain, weakness, and limited mobility had not resolved with treatment and were unlikely to improve further. Medical opinions provided in support of the claimant’s case stated that his impairments were stable and met the criteria for permanency as defined by the statutory guidelines.
The claimant argued that the Medical Assessor had placed undue reliance on biomechanical evidence submitted by the insurer, which minimised the forces involved in the collision and their potential to cause significant injury. The claimant further argued that the Medical Assessor had failed to adequately evaluate the medical and radiological evidence, particularly the imaging and clinical findings that demonstrated radiculopathy and structural damage. He submitted that the Medical Assessor had improperly dismissed evidence of nerve root involvement and the functional impact of his injuries.
The claimant provided supplementary radiological evidence, including updated MRI and CT scans, to support his arguments. These scans showed a significant disc protrusion at C5/6 with nerve compression and mild spinal cord indentation, as well as left-sided foraminal stenosis at L4/5 with nerve root contact. Additionally, they confirmed annular tears and other structural damage that, he argued, had been aggravated by the accident. These findings were corroborated by expert reports from Dr Bruce and Associate Professor Sheridan, which stated that the injuries were severe, causally linked to the accident, and did not meet the definition of threshold injuries under the Act.
The insurer submitted that the injuries sustained by the claimant in the motor accident were correctly classified as “threshold injuries” under the Act. Significant emphasis was placed on the issue of causation.
The insurer contended that the injuries alleged by the claimant were not causally related to the motor accident but were instead attributable to pre-existing degenerative conditions. It was argued that the collision, described as a low-speed rear-end impact, lacked the necessary force to cause the injuries claimed. Biomechanical evidence was relied upon to support this position, with expert reports concluding that the claimant’s symptoms and radiological findings, particularly at the cervical and lumbar spine levels, aligned with longstanding degenerative changes rather than acute trauma.
The insurer highlighted radiological findings from CT and MRI scans, which identified degenerative changes such as disc protrusions and annular tears at the C5/6 and L4/5 levels. These findings were submitted as evidence of pre-existing conditions rather than injuries caused by the motor accident. It was further asserted that any symptomatic presentation of these conditions following the motor accident was part of their natural progression and unrelated to the incident.
The insurer contested the claimant’s reliance on surgical interventions, such as the L5/S1 microdiscectomy, as evidence of the severity of the injuries. It was argued that these procedures were unrelated to the motor accident and addressed pre-existing lumbar spine pathology. The conclusion of the Medical Assessor, that the surgery did not address injuries caused by the motor accident, was highlighted as evidence supporting the threshold injury classification.

RECONSIDERATION BY THE PANEL

The Panel determined that a re-examination of the claimant was required.

Re-examination

The re-examination was undertaken by Medical Assessor Couch and attended by Member Nolan by MS Teams for the history taking part of the assessment.
The claimant attended with his wife, who was quiet and supportive. She did not interfere in any way. The Medical Assessor clarified that the claimant understood the purpose of this re-examination and the Review Panel process.

Past medical history and relevant social history

As noted in the MAC, the claimant had emigrated from Iraq as a child via Jordan and Syria, arriving in Australia at the age of 17. He said that he and his wife both come from the Assyrian Christian minority group, speaking Aramaic as their native language in addition to Arabic. They have two young children The claimant had been working full time for a Centrelink provider since 2007 in the role of Employer Liaison Consultant.
He said that he was not currently working and had not been able to work since the motor accident, because of injuries he says he sustained. His wife does casual primary school teaching. The claimant said that prior to the motor accident he was very fit and able to cope with a second job at weekends, working as a VIP Host/Customer Liaison Officer at the Canley Heights RSL. He described two previous motor vehicle accidents:
(a) in 2011 he was driving in the course of his work with passengers in the vehicle. Another vehicle hit the rear of his. He recalled that his employer had advised him to obtain a medical certificate and arrange repair of the vehicle. He thought he had perhaps had one and a half days off work and indicated that he had not made a Compulsory Third Party (CTP) claim or received any payment for such, and
(b) in 2019, the claimant reversed his vehicle into another car at low speed. He said that there was only superficial damage and there was only an insurance claim for vehicle damage. He was not injured.
On questioning, the claimant denied ever having attended a general practitioner (GP) or specialist for relevant musculoskeletal injuries in the past. He said that he could not recall any previous injuries.

History of subject accident, injuries and subsequent treatment

The claimant said that about 3.00pm on 18 February 2020 he was driving a Toyota Corolla back to his office in Merrylands. He was stopped at traffic lights with a few stationary vehicles ahead and none behind him. The lights turned green and the car ahead of him had not yet moved when “all of a sudden I heard a bang at the back - blacked out - I didn’t know what had happened - pain in the back of my head like it had exploded.” When asked about his understanding of the speed of the car which had hit him, he replied “not that slow”.
He said that his car was not pushed forward, he recalled having his foot on the brake. He was wearing a seatbelt, but no airbags activated. The other driver helped him get out of his car. The claimant said that both he and the driver of the other vehicle took photographs of the damaged vehicles. He said that the driver of the other vehicle was very apologetic. He recalled that initially he thought that he would be alright and able to drive.
The claimant drove his car into a side street and went to a shop to buy some water. When he returned to his car, he noted severe neck and lower back pain and “I felt my head was going to explode.” He felt unable to drive further. (The claimant seemed to be distressed when recalling this).
He was asked more about the damage to the 2011 Toyota Corolla, which was his own car. He said that initially it was thought to be a write-off, but it was subsequently repaired “with cheap spares”. The rear bumper was replaced and the damaged boot lid repaired/replaced. His driver’s seat was not damaged.
He was asked further about the onset of low back pain, both by Member Assessor Couch and Member Nolan. He said that he could not really explain the mechanism of injury to his low back, but he had felt pain there straight away. Member Nolan asked the claimant why he did not call an ambulance if he was in severe pain – he replied that he thought that he would still be alright, again stating “pain in the back of my neck - I felt like my head was going to explode!”
The claimant was asked what his GP had told him – he replied that he had been told after some scans that there was some damage. He said the GP had only prescribed Paracetamol. He recalled “waking screaming with neck pain every night - I took Endone.” On questioning he said that he had obtained some Endone from his brother. Member Nolan asked him more about neck pain in the days after the accident and the claimant further confirmed that he had experienced this, and it had been severe. The claimant was asked if he thought he had become depressed after the accident and he replied “yes - my life has been turned upside down.”
In relation to his low back and left lower limb symptoms, the claimant was asked if he had been experiencing right lower limb pain when he first attended Dr Werdi, GP. He replied that he thought he did have lower limb pain at that time but was in fact more worried about his neck. When asked when the left lower limb pain becoming severe enough to seek treatment, he replied “probably two days later.” When asked if he had ever experienced symptoms before, he said he had not.
He recalled having one injection for the lumbar spine under Dr Papantoniou (spinal surgeon) which gave temporary relief of his leg pain for two or three weeks, but with persisting low back pain. Later, Dr Papantoniou performed L5/S1 microdiscectomy. He also recalled having one injection to his cervical spine and one to his right shoulder. He said that the left lower limb symptoms had improved following the microdiscectomy. He still had some intermittent symptoms but better than prior to surgery.
The claimant also described attending Dr Ian Farey, spinal surgeon, in relation to his cervical spine. Dr Farey had recommended C5/6 ACDF (anterior cervical decompression and fusion) but he was apprehensive about this. He said that the injection to his cervical spine had not been helpful.
After 45 minutes of the interview, Member Nolan left the call and Medical Assessor Couch took a break. When he returned to the examination room, the claimant was noted to be walking around and looking stiff and sore.

Current status

The claimant said that neck pain was his worst problem followed by right shoulder and arm pain and low back pain. He said that Dr Farey had told him that the proposed cervical spine surgery would help relieve his right upper limb symptoms. He went on to describe symptoms in more detail as follows.

Neck

The claimant described pain, pointing to the back of the neck low down, with radiation to both trapezius muscles. He described this as always present but aggravated by some postures, especially static positions and some activities such as driving. Pain radiates to the right upper limb, mainly to the upper arm, but extending into the extensor aspect of the forearm, the right index finger and middle finger, and to a lesser extent the right thumb. There is no pain in the ring and little fingers. (This description is consistent with C7 and C6 dermatomes). He also described tingling and numbness in the affected fingers and he recalled dropping a cup from his right hand. Although he is right-handed, he now tends to use his left hand more. On questioning, the claimant described immediate neck pain if he coughs or sneezes.

Right shoulder

The claimant described temporary benefit from the one injection he had received to the right shoulder. He pointed quite precisely to the glenohumeral joint. He described pain on elevating the arm. The shoulder is painful at night, and he cannot sleep on his right side – he said that he tries to sleep on his back. Despite buying a special pillow, he still finds getting comfortable in bed difficult. He described marked sleep disturbance (on questioning, his wife confirmed this).

Low back pain

The claimant described pain, pointing to the central lumbosacral area, with radiation to both buttocks. Low back pain is intermittent but does occur every day. It is not as severe as the neck pain. Pain is aggravated by prolonged sitting and standing. Low back pain radiates to the posterolateral left thigh and to the front of the shin – he again demonstrated the distribution of pain quite precisely. Low back pain is aggravated by prolonged sitting or standing and is relieved to some extent by moving around, and by lying down.

Psychological symptoms

The claimant said that he had been depressed since the motor accident. He described marked sleep disturbance – he cannot get off to sleep until about midnight and typically wakes with pain at 2.30-3.00 am. He may get to sleep again about 5.00am but is unable to sleep after about 6.00am. He always feels tired during the day and sometimes has a nap during the day.

Activities since the accident

The claimant said he had not been able to return to work at all since the motor accident. He said that he is still receiving 80% of his previous wages from the worker’s compensation insurer. This insurer is also paying for his medication. His wife works two to three days a week as a casual primary teacher – hours vary according to demand.
On questioning he said that he does not do very much. He will sometimes watch television but cannot concentrate. He also uses his phone. He does not leave the house every day, but he does sometimes see his brother. He is not currently seeing friends. The claimant said that prior to the motor accident he used to help out around the home and do work in the yard and play with his young children, but is no longer able to do these things. He described his back yard as a mess. He said that initially the insurer paid for some help with the yard, but no longer does so. They occasionally pay for a bit of help. The claimant said that he still drives a bit; he says his neck and low back are painful when doing this.

Present treatment

The claimant said that he was now attending a GP closer to home (Dr Bishoy Marcus at the Edensor Square Medical Centre). He goes every two to four weeks. He had recently started seeing a female psychologist – he had attended twice to date. Current medications include Lyrica (Pregabalin – an antineuropathic pain drug) 150mg twice daily, Sertraline (an SSRI antidepressant) 100mg daily, Amitriptyline 25mg at night, and Panadeine Forte. He always takes one of these at night and said that a packet of 20 tablets lasts him from 7 to 10 days, with him taking additional tablets as needed during the day.

Document review

The review of the claimant’s medical records was complicated by the receipt of documentation from six different general practices, often covering overlapping timeframes. Additionally, there were multiple reports from the claimant’s two treating spinal surgeons. To maintain clarity, the relevant records have been reviewed in chronological order based on the date of initial attendance at each practice.

At Fairfield District Medical Centre, the claimant was a patient from 24 December 2006 to 23 April 2021. Between December 2006 and April 2014, he attended eight times for minor, unrelated complaints. On 18 February 2020, following the motor accident, Dr Faris Werdi recorded that the claimant’s car had been struck from behind at approximately 3.00pm, resulting in pain in the back of the neck. The claimant was able to exit the car unassisted. Upon examination, he appeared well, with mild tenderness on the left side of the neck, and a neurological examination was intact. Diagnostic imaging, including a CT scan of the cervical spine, was requested, and pain relief with Panadol or Nurofen was advised.
The following day, 19 February 2020, the claimant reported continued neck pain and sought a medical certificate from Dr Cherie Fernandopulle. By 20 February 2020, a CT scan performed the previous day had been reviewed. Dr Vincent Caristo reported a right paracentral protrusion at the C5/6 level, coupled with uncovertebral joint changes, with potential encroachment on the exiting right C6 nerve root. Clinical correlation was recommended, as was further assessment with an MRI. Dr Sheree Fernandopulle referred the claimant to Dr Antoine Sanki for specialist consultation. On 21 February 2020, Dr Theresa Wong documented that the claimant continued to experience pain in the neck, shoulders, mid-back, left arm, and right shoulder. She prescribed Voltaren and paracetamol and noted an upcoming appointment with Dr Sanki on 3 March 2020.
After this initial period, there was a gap in treatment at this practice for one year. On 23 March 2021, the claimant returned for an unrelated upper respiratory infection. On 20 April 2021, he reported persistent back and neck pain. Dr Fernandopulle referred him again to Dr Antoine Sanki, who noted a history of significant symptoms following the motor vehicle accident, including reduced range of motion in the cervical spine, sluggish reflexes in both upper limbs, absent knee reflexes, and numbness in the left leg as well as the right thumb and index finger. Dr Sanki also recorded the claimant’s ongoing physiotherapy and pain management, which had provided limited improvement.
At Quality Medical Practice in Merrylands, the claimant was treated between 24 February 2020 and 25 November 2021. On 24 February 2020, six days after the accident, Dr Ashraf Aboud documented that the claimant’s vehicle had been rear-ended while stationary at a traffic light. He reported neck pain, mid and lower back pain, right shoulder pain, and left arm and forearm numbness that developed two days after the accident. An MRI of the cervical spine, conducted shortly thereafter, revealed a moderate disc protrusion at the C5/6 level, causing distortion of the anterior cord surface. However, the MRI study was degraded by motion artefacts, prompting a recommendation for further CT imaging.
During subsequent consultations, Dr Aboud noted persistent neck pain, right shoulder discomfort, and recurring mid and lower back pain. Treatment included Voltaren, Panadeine Forte, and corticosteroid injections, which provided limited and temporary relief. By March 2020, Dr Aboud referred the claimant to Dr Ian Farey, a spinal surgeon, for further evaluation.
Dr Farey’s initial consultation, on 17 April 2020, provided a detailed history of the claimant’s injuries. He documented constant neck pain, occipital headaches, right shoulder pain with restricted movement, and low back pain radiating to the left leg. Imaging studies confirmed a C5/6 disc protrusion causing mild lateral cord compression. Dr Farey attributed this injury to the motor vehicle accident and recommended conservative treatment. At a follow-up appointment on 20 July 2020, Dr Farey noted that the claimant’s symptoms persisted, including intermittent numbness in the fingers of both hands. Despite these ongoing issues, conservative management remained the primary recommendation. However, by October 2020, Dr Farey observed no significant improvement and recommended anterior cervical discectomy and fusion (ACDF) at C5/6 as the next course of action.
Parallel to this, the claimant consulted Associate Professor Papantoniou, an orthopaedic surgeon, beginning on 27 May 2020. At the initial consultation, Associate Professor Papantoniou identified central and left-sided low back pain radiating to the left leg, consistent with L5 radiculopathy. Imaging revealed lumbar disc bulges at L4/5 and L5/S1, as well as an annular tear at L4/5. Associate Professor Papantoniou attributed these findings to the motor vehicle accident, stating that they were either caused or exacerbated by the incident. Conservative treatments, including epidural steroid injections, provided only temporary relief. Subsequently, in February 2021, Professor Papantoniou performed an L5/S1 microdiscectomy and neurolysis. While the claimant experienced some improvement post-surgery, symptoms, including left-sided S1 radiculopathy, recurred later in 2021.

Physical examination

The claimant attended promptly. He was examined in the presence of his wife. He appeared as a big-framed man with short greying hair and a grey beard. Height was 173cm and weight 114kg, giving a body mass index (BMI) of 38 (in the obese range). He thought that he had weighed about 90kg when more physically active prior to the accident. Although he was currently carrying extra central fat, he looked as though he had been physically strong in the past.
He spoke excellent English with only a slight accent and gave a clear history. He did appear to be somewhat pain-focused, but the Panel considers this to be consistent with the history he gave of his injuries, persistent symptoms and the reported effect on his life. He did look somewhat tired and low in mood, but he established good rapport with the Medical Assessor and could smile and laugh at times appropriately. He showed generally good effort during the physical examination and was cooperative throughout. No evidence of inconsistency or self-limitation was seen. He did appear to be in pain, particularly in the neck region-pain appeared to increase as the examination proceeded.
He walked into the examination room with a slow and symmetrical gait. He was wearing a shirt, tracksuit, short socks and sneakers and undressed to his underpants for full examination. He was able to sit on a standard office chair during the first 45 minutes of the interview, but after this was noted to be walking around and looking stiff and sore before he sat down again.

Cervical spine

There was a slight tendency to forward protrusion of the head and neck (“poke neck”). He reported moderate tenderness to palpation at the C5/6 level, mostly in the midline and to the right of the midline. Cervical spine flexion was full, with slight pain reported, whereas extension was minimal with marked pain described. Rotation was about three-quarters of normal bilaterally and appeared to be reasonably free. Lateral flexion was almost full to the left and not apparently painful, but half of normal to the right with marked pain described.
Both trapezius muscles were tense to palpation – the right more so than the left. The right trapezius muscle was markedly tender to palpation while the left was only slightly tender. Thus, there was muscle guarding and dysmetria in the cervical spine. As can be seen below, under “Upper Extremities”, there were objective signs of right C6 radiculopathy.

Lumbar spine

Over the lumbosacral spine there was a well-healed scar from previous surgery and some reported tenderness. Active range of movement (AROM) of the lumbar spine was measured with the claimant standing with knees straight. Flexion was approximately two-thirds of normal, while no active extension appeared possible because of pain. Lateral flexion was full to the right and two-thirds of normal to the left, thus there was dysmetria.

Upper extremities

Although the claimant reported being right-handed, the right upper arm measured 40.5cm circumference, compared with 42 on the left. This asymmetry was rechecked with repeated measurements and indicated relative loss of muscle bulk in the right upper arm. Both forearms measured equally in girth at 33cm. Triceps and brachioradialis reflexes were normal and symmetrical. However, the right biceps jerk was definitely depressed compared with the markedly brisker left biceps jerk. This asymmetry was confirmed with repeated testing with the upper limbs well relaxed.
Effort when testing power in the right upper limb appeared to be slightly inhibited by accompanying neck pain. However, there also appeared to be slight weakness of right elbow flexion and right wrist extension compared with the left – consistent with right C6 motor radiculopathy. In contrast, power was strong and normal in all groups in the left upper limb. Light touch sensation was subjectively diminished, and pin prick reported as blunt over the right index and middle finger, thus there were convincing signs of right C6 radiculopathy, with muscle wasting, depressed right biceps jerk, sensory loss and probable C6 motor weakness.
The left shoulder was not tender to palpation. In the right shoulder there was definite tenderness over the glenohumeral joint, more anteriorly than laterally. AROM of both shoulders was measured with a goniometer with repetition, as tabulated.

Right

Left

Flexion

100°

140°

Extension

30°

40°

Abduction

80°

90°

Adduction

20°

30°

External rotation

60°

80°

Internal rotation

50°

60°

With the left shoulder, the claimant described some pain, mostly in the neck region rather than localised to the shoulder joint. With right shoulder movements there was definitely more pain – this was reported in the neck region (as with the left shoulder), but also more specifically in the right glenohumeral joint.
The clinical impression was of bilateral restriction of AROM of the shoulders associated with his cervical spine injury, with probable additional pathology in the right shoulder joint/rotator cuff.

Lower extremities

Measured 10cm proximal to the patella, the right (dominant side) thigh measured 60cm in circumference, the left 59. Both calves measured equally at 43cm. Knee jerks were normal and symmetrical. Both ankle jerks were present, but the left was depressed compared with the right.
Power of extensor hallucis longus (L5 nerve roots) was full (Grade 5/5) on the right but moderately reduced (Grade 4/5) on the left. In contrast, power of ankle eversion (S1 nerve roots) was normal and symmetrical. Light touch and pin prick sensation were diminished over the dorsum of the left foot (in the L5 distribution), but normal on the right.
Straight-leg-raising was reduced at 30 degrees on the right with reproduction of low back pain only. On the left it was further reduced at 20 degrees, with reproduction of lower limb pain suggestive of radicular pain with sciatic stretching (by passive ankle dorsiflexion).
A few functional activities were observed:
(a)    the claimant was just able to take a few steps with weight on the balls of his feet and heels off the floor and then with weight on his heels and forefeet off the floor;
(b)    he was asked to try to perform a squat without using hand support – he only managed to go one-third of the way down to the floor before stopping and recovering, and
(c)    at the end of this detailed examination, he appeared to be in considerable pain and took two Paracetamol tablets for relief.

PANEL’S FINDINGS

Causation

The claimant was involved in a low-speed rear-end motor vehicle collision on 18 February 2020. Immediately following the motor accident, he reported neck pain, headaches, and left-sided symptoms, with progressive radicular complaints in the days and weeks afterward. These complaints became the subject of extensive clinical, radiological, and medico-legal analysis to determine whether the motor accident caused or aggravated pre-existing degenerative changes, and whether these changes necessitated the surgical interventions performed, specifically the causation of the L5/S1 microdiscectomy.
Radiological investigations undertaken after the motor accident revealed significant pre-existing degenerative changes in the claimant’s cervical and lumbar spine. The CT cervical spine performed on 19 February 2020, just one day post-accident, identified a right paracentral disc protrusion at C5/6, uncovertebral joint degeneration, and mild spinal canal narrowing, with potential encroachment on the right C6 nerve root. These findings were further confirmed by the MRI cervical spine conducted on 25 February 2020, which demonstrated moderate disc protrusion at C5/6 with anterior spinal cord distortion and CSF effacement. In the lumbar spine, the MRI of 9 April 2020 revealed a broad-based disc extrusion at L4/5 and an annular tear, with mild indentation of the hemicord and left-sided radicular involvement. Although these findings predated the accident, the imaging was only conducted following the collision, highlighting that these degenerative changes were asymptomatic or only mildly symptomatic before the incident.
Dr Bruce, in his report of 20 November 2020, noted that the claimant exhibited a near-total symmetrical range of motion in the cervical spine, with no evidence of muscle spasm or wasting. Neurological examination revealed no significant abnormalities, and all reflexes were symmetrical. Imaging reviewed by Dr Bruce confirmed uncovertebral degenerative changes and a C5/6 disc protrusion. He opined that there was no acute traumatic injury to the cervical spine but concluded that the accident permanently aggravated pre-existing asymptomatic cervical and lumbar spondylosis. Dr Bruce attributed the claimant’s ongoing symptoms to this aggravation, though he did not identify substantial neurological impairment at the time of his assessment.
The immediate onset of neck pain and the subsequent development of lumbar symptoms provide a strong temporal link to the accident. The claimant’s complaints of cervical pain, headaches, and left leg pain were documented within hours and days of the collision, as corroborated by clinical records from Fairfield District Medical Centre and subsequent treating practitioners. While lower back pain and radicular symptoms were not immediately reported, this delayed onset aligns with the natural history of trauma-induced radiculopathy, as inflammation and nerve irritation may develop progressively. The consistency of the claimant’s reports to multiple practitioners, including Dr Farey and Dr Papantoniou, further supports the temporal connection between the motor accident and the onset of symptoms.
Dr Bruce’s report of 10 March 2023 further highlighted the claimant’s medical progression and the ineffectiveness of conservative treatments. The claimant underwent physiotherapy and multiple lumbar spine injections, which failed to alleviate his symptoms. Surgery performed in February 2021 by Dr Papantoniou involved excision of the L5/S1 disc, providing only short-lived symptom relief before pain returned to pre-surgery levels. Dr Bruce noted persistent lower back pain radiating to the lower limbs, accompanied by weakness and sensory deficits. In the cervical spine, severe neck pain radiating to the right shoulder and arm was associated with sensory changes and muscle weakness. Although Dr Farey recommended a C5/6 spinal fusion, the claimant declined the procedure due to surgical risks. Dr Bruce concluded that the claimant’s symptoms were attributable to chronic degenerative changes exacerbated by the motor accident.
Despite the degenerative changes noted in 2017 and the claimant’s history of pre-existing symptomatology in the right leg and lower back, there is no evidence that these issues were debilitating or significantly impaired the claimant’s functional capacity prior to the motor accident. The claimant continued to engage in daily activities and maintain employment without any documented restrictions or ongoing treatment, indicating that the condition was either asymptomatic or only mildly symptomatic in the years following the 2017 imaging.
The motor accident, however, appears to have acted as a significant aggravating event. The sudden onset and escalation of symptoms in the right leg and back after the collision, particularly in the absence of new imaging abnormalities attributable to acute trauma, supports the conclusion that the motor accident rendered previously manageable or resolved degenerative changes symptomatic. The mechanism of injury in the motor accident likely exacerbated these pre-existing conditions, leading to a material and substantial change in the claimant’s clinical presentation.
The 2017 imaging provides a valuable baseline, demonstrating the presence of pre-existing degenerative changes but also highlighting that these changes did not result in debilitating symptoms or require ongoing medical attention. The significant increase in pain and functional limitation following the motor accident reflects a transformation in the claimant’s condition. This evidence supports the conclusion that while the degenerative changes pre-dated the motor accident, they were materially and significantly aggravated by the motor accident, transforming a condition that was previously non-debilitating into one that caused significant disability and required further medical attention.
Medical experts strongly support the conclusion that the motor accident materially aggravated the claimant’s pre-existing conditions. Dr Bruce, in both his reports, concluded that the motor accident permanently aggravated pre-existing degenerative changes in the cervical and lumbar spine. He identified these aggravations as the source of the claimant’s chronic symptoms, including pain and radiculopathy, despite the absence of acute traumatic findings. Dr Bodel, in his reports, attributed a 35% WPI to the claimant’s injuries, identifying persistent radiculopathy in the cervical and lumbar spine as directly linked to the accident. He emphasised that the trauma acted as a significant aggravating factor, necessitating both the L5/S1 microdiscectomy and the proposed C5/6 discectomy and fusion. Dr Farey similarly recommended cervical fusion surgery based on persistent radicular symptoms and nerve root compression at C5/6, attributing these symptoms to the accident. Dr Papantoniou, who performed the L5/S1 microdiscectomy, linked the lumbar symptoms and imaging findings, including the annular tear, to the motor accident, stating that the trauma exacerbated pre-existing conditions to the extent that surgical intervention became unavoidable.
However, counterarguments challenge this causal link. Pre-existing degenerative changes were well-documented in the claimant’s imaging, including uncovertebral degeneration, spondylosis, and disc desiccation at C5/6, as well as disc bulges and annular tears at L4/5 and L5/S1. These findings were consistent with age-related degenerative progression and were described by experts such as Associate Professor Shatwell as longstanding and unrelated to the accident. Furthermore, biomechanical analyses by Associate Professor Anderson and Mr Johnston concluded that the low-speed nature of the motor accident lacked sufficient force to cause or exacerbate significant spinal injuries. Both experts argued that the claimant’s symptoms were more consistent with the natural progression of degenerative conditions than with trauma-induced injuries.
While these arguments provide a credible challenge, they do not fully address the temporal alignment between the motor accident and the emergence of the claimant’s symptoms. The absence of substantive prior complaint, combined with the claimant’s reported functional capacity before the motor accident, strongly suggests that the degenerative changes were asymptomatic until the motor accident occurred. Additionally, the immediate onset of neck pain, coupled with the gradual development of lumbar symptoms and radiculopathy, aligns with the natural progression of trauma-related aggravation, which Mr Johnston accepted the motor accident had the potential to cause despite its low speed.

The necessity of surgical interventions also supports the link between the motor accident and the claimant’s injuries. The L5/S1 microdiscectomy was performed to relieve radicular symptoms caused by nerve root compression, with temporary relief reported post-surgery. While degenerative changes were present, the motor accident most probably acted as a triggering event, aggravating these conditions to the point where surgery was required. Similarly, the proposed C5/6 discectomy and fusion is supported by persistent cervical radiculopathy, imaging evidence of nerve root compression, and the claimant’s failure to respond to conservative management. These surgeries were not elective but were necessary to address ongoing neurological symptoms and restore functional capacity.
In conclusion, the evidence demonstrates that the motor accident materially aggravated pre-existing degenerative changes in the claimant’s cervical and lumbar spine, rendering them symptomatic and necessitating surgical intervention. The imaging performed after the motor accident, which revealed significant degenerative findings, underscores the asymptomatic nature of these conditions before the motor accident. While biomechanical analyses and pre-existing degeneration provide credible counterarguments, the temporal onset of symptoms, the claimant’s clinical presentation, and the consistent medical opinions of treating and assessing medico-legal experts collectively establish the motor accident as the significant contributing factor to the emergence of the claimant’s symptomology. Both the L5/S1 microdiscectomy and the proposed C5/6 discectomy and fusion were and are medically necessary to address the claimant’s symptoms and impairments, which were directly linked to the trauma sustained in the motor accident.

Threshold injury

Under the Act, a threshold injury includes soft tissue injuries but excludes injuries involving nerves, radiculopathy, or structural changes such as ruptures or fractures. Where a motor accident does not cause the structural changes themselves but instead aggravates pre-existing degenerative conditions, rendering them symptomatic, the critical inquiry is whether the resulting symptoms align with the exclusions, such as radiculopathy, in the Act’s definition of a threshold injury.
The focus must remain on the injury or physiological change directly caused by the motor accident, not on the underlying degenerative pathology. For symptoms resulting from aggravated degenerative conditions to be classified as non-threshold injuries, they must meet the Act’s specific exclusions, such as radiculopathy. Under the Guidelines, radiculopathy requires the presence of at least two objective clinical signs, such as reflex asymmetry, sensory loss, or muscle atrophy. If these criteria are not met, the injury remains classified as a threshold injury.
Merely making asymptomatic degenerative conditions symptomatic does not automatically elevate an injury to non-threshold status. Instead, the resulting symptoms must involve conditions explicitly excluded from the threshold injury definition, such as radiculopathy or structural damage. If the aggravation of a pre-existing condition does not meet the clinical or diagnostic criteria outlined in the Act, the injury remains classified as a threshold injury.
That is, if an accident caused only the symptomatology (e.g., pain or radiculopathy) without directly causing the underlying degenerative changes (e.g., disc protrusions or joint degeneration), the classification as a threshold or non-threshold injury depends on the nature of the resulting symptoms. Injuries involving radiculopathy or nerve damage may qualify as non-threshold injuries, while symptoms limited to pain, inflammation, or other manifestations that do not meet the criteria for radiculopathy or structural exclusions will likely remain classified as threshold injuries. The critical determinant is not merely the aggravation of pre-existing conditions but whether the resulting symptoms meet the statutory exclusions for threshold injuries.
Upon examination by the Panel, there were definite signs of Whiplash Associated Disorder Grade 3 of the cervical spine, with muscle guarding, dysmetria, and objective signs of right C6 radiculopathy. This condition involves nerve root dysfunction and exceeds the definition of a threshold injury.
The Panel’s examination revealed definite abnormalities in the lumbar spine, including dysmetria, positive neural tension in the left lower limb, weakness, and sensory impairment in the left L5 distribution. These findings conform to a diagnosis of left L5 radiculopathy. Such radiculopathy involves nerve dysfunction and is excluded from the definition of a threshold injury.
There was moderate restriction of active range of motion (AROM) in both shoulders, more marked on the right. On the left, the restriction was consistent with the cervical spine condition. On the right, additional evidence of intrinsic abnormality in the right glenohumeral joint or rotator cuff, with associated pain, was identified. This condition was consistent with soft tissue pathology and aligns with the definition of a threshold injury under the Act, as there is no evidence of nerve or structural rupture involvement.
The cervical and lumbar spine injuries identified in this examination both involve radiculopathy, which is explicitly excluded from the definition of threshold injuries under the Act. Both injuries therefore qualify as non-threshold injuries due to their neurological involvement and evidence of nerve root dysfunction.
In conclusion, the cervical spine injury (right C6 radiculopathy) and lumbar spine injury (left L5 radiculopathy) are non-threshold injuries due to the confirmed presence of radiculopathy. The right shoulder injury is a threshold injury, as it remains confined to soft tissue abnormalities without neurological or structural exclusions.
The conclusion that the claimant has suffered non-threshold injuries necessitates the assessment of WPI occasioned by these injuries.

WPI

Cervical spine: with objective signs at the Panel re-examination of right C6 radiculopathy, this injury is classified in the Guidelines and Guides as diagnosis-related estimate (DRE) Cervicothoracic Category III, giving 15% WPI.
Lumbar spine: with objective signs of left L5 radiculopathy at the Panel re-examination, this injury is classified in the Guidelines and Guides as DRE Lumbosacral Category III, giving 10% WPI.
Right shoulder: the clinical picture, supported by ultrasound examination less than a month after the accident, was of restricted range of movement due to rotator cuff pathology. From the tabulated AROM in paragraph 182 above, applied to Figures 38, 41 and 44 of the Guides, there is 14% upper extremity impairment. This converts to 8% WPI. The Panel notes lesser restriction of AROM in the left shoulder. This was considered to be causally related to the cervical spine injury. It cannot be used as a pre-injury baseline for the right shoulder. The Panel has not assessed impairment for the left shoulder, as it was not referred to the Commission for assessment.
Finally, 15%,10% and 8% are combined using the Combined Values Chart to give 30% WPI.

Right	Left
Flexion	100°	140°
Extension	30°	40°
Abduction	80°	90°
Adduction	20°	30°
External rotation	60°	80°
Internal rotation	50°	60°

[2025] NSWPICMP 42

21 January 2025