Smith v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 43
•22 January 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Smith v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 43 |
| CLAIMANT: | Tania Smith |
| INSURER: | NRMA |
| REVIEW PANEL | |
| MEMBER: | Nolan |
| MEDICAL ASSESSOR: | Kenna |
| MEDICAL ASSESSOR: | Oates |
| DATE OF DECISION: | 22 January 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant involved in a low-speed multi-car collision while stationary at traffic lights; reported persistent neck pain and radicular symptoms following the accident; pre-existing degenerative changes at C5/6 and C6/7 were asymptomatic before the collision; post-accident symptoms progressively worsened, leading to cervical spine surgeries including total disc replacements at C6/7 in 2017 and C5/6 in 2018; Panel found the motor accident materially aggravated pre-existing conditions, rendering them symptomatic and necessitating surgical intervention; permanent impairment assessed as DRE Cervicothoracic Category IV, resulting in 25% whole person impairment (WPI); scarring assessed at 0% WPI; Held – motor accident caused symptomatic aggravation of pre-existing cervical spine conditions and resulted in permanent impairment exceeding 10% WPI. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the Medical Assessment Certificate of Medical Assessor Ian Cameron dated 29 August 2023. 2. The Review Panel certifies that the following injuries caused by the motor accident give rise to a permanent impairment which is greater than 10%: · cervical spine – loss of motion segment integrity – 25%, and · scarring – 0%. |
INTRODUCTION
The claimant, Tania Smith, was involved in a motor vehicle accident on 19 September 2014 while driving her five-door Holden Astra hatchback along Pennant Hills Road, near the intersection with Glencoe Avenue in North Parramatta (the motor accident). At the time of the motor accident, the claimant was stationary at a red traffic light behind four to five vehicles. As the light turned green and the vehicles in front began to move, the claimant heard screeching tyres followed by a loud bang. A prime mover rear-ended the vehicle behind her, propelling it into the rear of the claimant’s vehicle. The impact caused the claimant’s head to strike the headrest and then move forwards and downwards while her chest pressed against the seatbelt. Her hands remained on the steering wheel throughout the collision.
The rear panels and bumper of the claimant’s vehicle sustained moderate damage. Despite the damage, her vehicle remained drivable. The claimant’s two dogs were in the vehicle at the time. One was dislodged from its harness and thrown into the passenger footwell, while the other was left dangling in its harness in the rear. Fortunately, neither animal appeared to be injured. The claimant exchanged details with the drivers of the truck and the car behind her before continuing her journey.
Following the motor accident, the claimant reported feeling shocked and dazed. By the evening, she experienced stiffness and pain in her neck and across her shoulder girdle, which worsened over the weekend. She returned to work the following Monday but attended her general practitioner (GP) later that day. The GP diagnosed whiplash and advised conservative management. Dissatisfied with the initial assessment, the claimant sought further medical opinions as her symptoms persisted.
The claimant’s symptoms progressively worsened in the months following the motor accident. She developed significant neck pain and brachial radicular pain radiating into her right arm and hand, accompanied by paraesthesia. Despite undergoing physiotherapy and chiropractic treatments, she experienced limited relief. In May 2016, she was referred to neurosurgeon Dr Marc Coughlan, who identified a significant disc protrusion at C6/7. This diagnosis led to a cervical disc replacement at C6/7 in February 2017 and a subsequent C5/6 disc replacement in May 2018 due to continuing symptoms.
The dispute centres on whether the motor accident caused or materially contributed to the aggravation of the claimant’s pre-existing asymptomatic cervical spine degenerative changes, necessitating the surgeries. The insurer contended that the accident was a low-severity rear-end collision, with biomechanical expert Dr Andrew McIntosh estimating a change in velocity (\(\Delta v\)) of 2.7–8.2 kmph. Dr Andrew McIntosh opined that the biomechanical forces generated by the collision were insufficient to cause significant injuries or require surgical intervention.
The claimant however, relied on medical opinions from experts such as Dr Warwick Stenning and Professor Michael Fearnside, who concluded that the accident aggravated her pre-existing degenerative changes, resulting in the need for surgical treatment. Both experts identified a significant Whole Person Impairment (WPI) attributable to the motor accident. In contrast, the insurer’s expert, Dr Andrew Keller, concluded that the motor accident caused, at most, a temporary exacerbation of the claimant’s symptoms and did not necessitate her surgeries.
The dispute referred for assessment concerns the determination of whether the injuries sustained by the claimant as a result of the motor accident, caused a WPI exceeding the threshold of 10%, thereby entitling her to compensation for non-economic loss. Central to the dispute is whether the accident caused or materially contributed to the aggravation of her pre-existing cervical spine degenerative changes and the subsequent necessity for surgical intervention, including disc replacements at C6/7 and C5/6. The dispute also addresses the causation of surgical scarring and its relationship to the motor accident. The insurer disputes both the degree of WPI and the causal link between the motor accident and the surgeries.
The assessment is governed by s 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). The dispute is regulated by the Motor Accident Permanent Impairment Guidelines (the Guidelines) and the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (the Guides). Pursuant to s 61 of the MAC Act, the Medical Assessment Certificate issued by the appointed Medical Assessor is binding on the parties in respect of the degree of permanent impairment. The claimant’s application for a review of the assessment invokes s 63 of the MAC Act, allowing for a review by a Medical Review Panel if reasonable cause exists to suspect material error in the original determination.
The medical dispute was initially referred by the Personal Injury Commission (the Commission) to a single medical assessor for determination.
MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW
By certificate and reasons dated 29 August 2023 (the MAC), Medical Assessor Ian Cameron (the Medical Assessor) assessed the claimant in relation to permanent impairment arising from the motor accident. The Medical Assessor concluded that the claimant sustained a soft tissue injury to her cervical spine, described as a whiplash-associated disorder, which aggravated pre-existing degenerative changes. This injury was causally related to the motor accident. However, the Medical Assessor determined that the claimant’s cervical spondylosis and subsequent surgeries, including C6/7 and C5/6 disc replacements in 2017 and 2018, were unrelated to the motor vehicle accident. The surgeries were instead necessitated by pain and symptoms resulting from the claimant’s pre-existing spondylosis.
In assessing the degree of permanent impairment, the Medical Assessor relied on the Diagnosis-Related Estimate (DRE) method in accordance with the and Guidelines. The claimant was assigned to DRE Cervicothoracic Category II, corresponding to a 5% WPI. This assessment was based on findings of mild and asymmetric reductions in cervical spine range of motion, with flexion reduced to 70% and other planes reduced to 80% of normal movement. The Medical Assessor observed no clinical signs that would support a higher rating under DRE Category III. The impairment was considered permanent, as nearly nine years had elapsed since the accident, and the condition was stable.
The Medical Assessor noted that the claimant continued to report symptoms including neck pain, stiffness, headaches, and occasional pins and needles in the hands. However, these symptoms were attributed to cervical spondylosis, not the subject accident. It was further concluded that the claimant’s surgical interventions were not causally related to the accident but were instead performed to address issues associated with the pre-existing spondylosis.
Clinical examination findings supported the Medical Assessor’s conclusions. The claimant demonstrated a normal gait, no neurological abnormalities in the upper or lower extremities, and no muscle spasm, guarding, or dysmetria. A 10cm anterior neck scar from the surgeries was noted, with slight adherence to underlying tissue, but this was unrelated to the accident. While the claimant experienced pain at the extremes of cervical spine movement, there was otherwise full range of motion in both shoulders and other extremity joints.
The Medical Assessor concluded that the claimant’s permanent impairment arising from the motor vehicle accident was limited to a 5% WPI, exclusively attributable to the soft tissue injury and the associated aggravation of degenerative changes. The claimant’s ongoing symptoms and surgeries were determined to be unrelated to the motor accident. Accordingly, the Medical Assessor found that the injuries sustained as a result of the motor vehicle accident did not exceed 10% WPI, as alleged by the claimant.
APPLICATION FOR REVIEW
The claimant applied for a review of the MAC under s 63 of the MAC Act, alleging that the MAC was materially incorrect. The claimant submitted that the Medical Assessor had failed to adequately explain how he accepted that the accident caused an aggravation of degenerative changes but concluded that the cervical spondylosis was not related to the accident. The application also alleged that this lack of reasoning rendered the assessment materially flawed.
The insurer opposed the application, arguing that the MAC was accurate and that the Medical Assessor had provided sufficient reasoning to support his conclusions. The insurer maintained that the claimant’s cervical spondylosis and subsequent surgeries were not causally related to the motor vehicle accident but stemmed from pre-existing degenerative conditions.
First, the claimant alleged that the Medical Assessor failed to provide adequate reasoning to support his conclusion that the claimant had suffered only a soft tissue injury. The claimant argued that Dr Fearnside’s opinion, which attributed the claimant's symptoms to aggravated cervical spondylosis, had not been adequately considered. In response, the insurer relied on authority which established that a medical panel was not obliged to explain why it did not agree with other medical opinions. The insurer asserted that the Medical Assessor had properly considered Dr Fearnside’s report, as referenced in the MAC, and had no obligation to explain why he did not adopt the same conclusions.
Second, the claimant criticised the Medical Assessor’s reasoning in accepting an aggravation of degenerative changes to the cervical spine but concluding that the claimant’s cervical spondylosis was unrelated to the subject accident. The insurer maintained that the Medical Assessor reasonably determined that the motor accident caused a soft tissue injury with an aggravation of pre-existing degenerative changes but did not cause the claimant’s ongoing symptoms or cervical spondylosis, which led to surgery. This position was supported by Dr Andrew Keller’s 2022 report, which indicated that the claimant’s cervical spine degeneration may have been temporarily exacerbated by the accident but was otherwise longstanding and unrelated.
Third, the claimant alleged a failure to either differentiate degenerative changes from spondylosis or provide sufficient reasons for assessing the claimant’s impairment at 5% WPI. The insurer argued that the Medical Assessor was not required to equate the two conditions and that his assessment was consistent with the evidence before him. The insurer further contended that the assessment of 5% WPI, based on asymmetric loss of cervical spine movement and assignment to DRE Cervicothoracic Category II, was adequately reasoned in the certificate. The Medical Assessor concluded that there were no symptoms or signs to justify a higher WPI rating within DRE Category III.
The President’s Delegate determined that there was reasonable cause to suspect that the medical assessment was materially incorrect. Specifically, the Delegate found that the Medical Assessor’s reasoning regarding the relationship between the motor accident, the aggravation of degenerative changes, and the exclusion of cervical spondylosis required further scrutiny. As a result, the Delegate referred the matter to the Review Panel, presently constituted (the Panel) pursuant to s 63(2B) of the MAC Act.
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.
Under sub-s 63(3A) of the MAC Act, a review of a medical assessment is not limited to a review of only what is alleged to be incorrect, it is a new assessment of all the matters with which the medical assessment is concerned.
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.
By directions issued on 8 December 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 and the Panel was provided with a voluminous bundle of material, which it has read and considered in detail. The following is a brief overview of the relevant material provided.
MATERIAL ON THE REVIEW
The claimant sustained injuries in a motor vehicle accident on 19 September 2014.
On 22 September 2014, she consulted her GP, who conducted a brief examination, diagnosed her with whiplash-associated disorder, and advised her to continue normal activities. Despite this advice, the claimant’s symptoms persisted and included radiating pain into her right arm, consistent with brachial radicular pain, along with paraesthesia and intermittent numbness in her hand. These symptoms were exacerbated by prolonged sitting and driving, which interfered significantly with her daily life and work.
In an attempt to manage her symptoms, the claimant initially sought conservative treatments. She commenced physiotherapy in November 2014 under the care of Helen Brown. However, this intervention failed to provide substantial or lasting relief.
In July 2015, she sought chiropractic care with Dr Angus Steventon. In his report dated 28 July 2015, Dr Steventon noted that the claimant’s arm pain was likely radicular in origin and stemming from her cervical spine. While chiropractic treatments provided temporary alleviation of her symptoms, they quickly recurred.
In February 2016, the claimant began a structured exercise physiology programme with Lee Shires, aimed at improving strength and mobility. Despite these efforts, her condition continued to deteriorate, with persistent neck pain, stiffness, and right arm symptoms prompting further diagnostic investigations and specialist referrals.
Prior to the motor accident, the claimant had experienced a single episode of neck stiffness in 2011, which she attributed to prolonged hours of desk work. Imaging performed at that time, including a CT scan of the cervical spine on 3 January 2012, documented mild diffuse disc bulging at C5/6 and a moderate broad-based disc bulge at C6/7 that abutted the spinal cord. However, her symptoms fully resolved following three chiropractic treatments, and she remained asymptomatic until the motor accident in 2014. The claimant reported no functional limitations or need for further medical care related to her cervical spine prior to the accident.
Following the motor accident, several imaging studies were conducted to assess the claimant’s ongoing symptoms. An X-ray of the cervical and thoracic spine performed on 22 October 2014 revealed calcification of the anterior longitudinal ligament at C6/7, anterior osteophytes, and narrowing of the C6/7 disc space. These findings aligned with the claimant’s complaints of persistent neck pain. Subsequently, an MRI of the cervical spine on 12 May 2016 identified a large central disc protrusion at C6/7, compressing the spinal cord, and degenerative changes at C5/6, including narrowing of the intervertebral disc space. These findings correlated with the claimant’s symptoms of radiculopathy and increasing pain. A CT-guided cervical spine injection on 7 July 2016 was attempted to alleviate her pain but provided only limited relief. Further imaging included an X-ray and CT myelogram on 28 July 2017, which confirmed significant disc protrusion at C6/7 indenting the spinal cord and identified left paracentral uncovertebral joint changes at C5/6 without neural compression. A bone scan with SPECT/CT performed on 1 November 2017 demonstrated increased activity at the left uncovertebral joint of C5/6, consistent with degenerative arthropathy, and no abnormal activity around the C6/7 disc replacement. Additionally, an X-ray of the cervical spine taken on 22 August 2018 showed two disc replacements at C5/6 and C6/7, with no hardware complications.
Based on the imaging findings and her worsening clinical presentation, the claimant was referred to neurosurgeon Dr Marc Coughlan, who determined that surgical intervention was necessary. On 9 February 2017, the claimant underwent an anterior cervical discectomy and total disc replacement at C6/7. Intraoperative findings included a large calcified fragment compressing the dura and the C7 nerve root, necessitating removal. Severe degenerative changes were also noted at C6/7. While the surgery resulted in partial improvement of the claimant’s arm pain, she continued to experience significant neck pain and stiffness. Post-operative imaging revealed adjacent segment degeneration at C5/6, likely attributable to increased biomechanical stress following the C6/7 arthroplasty. This prompted a second surgical intervention.
On 21 May 2018, the claimant underwent an anterior cervical discectomy and total disc replacement at C5/6, which aimed to decompress the nerve roots and stabilise the cervical spine. Her recovery was complicated by a wound infection in June 2018, requiring hospitalisation at Wyong Hospital and intravenous antibiotics. The infection delayed her post-operative rehabilitation, which was further delayed by the insurer’s refusal to fund physiotherapy. The claimant relied on unsupervised exercises at home using a resistance band, which she found insufficient for recovery. Despite the surgeries, the claimant continued to experience significant neck pain, functional limitations, and reduced quality of life.
Several medical professionals provided detailed evaluations of the claimant’s condition. Dr Stening, a neurosurgeon, examined the claimant in February 2019 and concluded that the accident had caused an aggravation of pre-existing degenerative changes at C5/6 and C6/7. He documented severe restrictions in cervical spine movement, reduced sensation in the upper right arm, and diminished reflexes in the left biceps and supinator. Reviewing imaging studies, Dr Stening emphasised the progression of pathology post-accident, including the large disc protrusion at C6/7 and uncovertebral arthropathy at C5/6. He assessed the claimant’s WPI at 32%, deducting 10% for pre-existing conditions, and determined that both surgeries were medically necessary and directly linked to the accident. Professor Fearnside, another neurological surgeon, examined the claimant in January 2020 and categorised her condition as DRE Cervicothoracic Category IV. He assessed her WPI at 26%, concluding that the motor accident had transformed previously asymptomatic cervical spondylosis into a symptomatic and disabling condition. Dr Peter Bentivoglio, a neurosurgeon, described the claimant’s condition as failed cervical surgery syndrome, characterised by persistent mechanical neck pain despite surgical intervention. He assessed her WPI at 25% and attributed the entirety of her impairment to the motor accident.
Dr Andrew Short, a biomechanical expert, evaluated the forces involved in the collision in his report dated 5 September 2022. He concluded that while the impact forces were moderate, they were sufficient to exacerbate pre-existing asymptomatic conditions and render them symptomatic. He noted that the claimant’s symptoms, including radicular pain, correlated with the documented disc pathology and were consistent with injuries sustained in the collision. Conversely, Dr Andrew McIntosh, a biomechanical expert engaged by the insurer, argued in his report dated 28 August 2018 that the collision forces were minimal, with a likely speed change of 2.7–8.2 km/h. He cited photographs of the claimant’s vehicle, which showed minor damage, to support his conclusion that the forces involved were insufficient to cause significant structural damage to the cervical spine. Dr McIntosh attributed the claimant’s symptoms to the natural progression of degenerative changes rather than trauma. Similarly, Dr Andrew Keller, an occupational physician, concluded in his report dated 30 May 2022 that the claimant’s cervical spine condition primarily reflected pre-existing degenerative changes. He assessed her WPI at 5% and opined that the surgeries at C6/7 and C5/6 were unnecessary and unrelated to the motor accident, attributing her symptoms to a temporary exacerbation of pre-existing conditions.
The biomechanical evidence section has now been meticulously updated to incorporate the supplementary report of Dr Andrew McIntosh dated 20 December 2023, alongside the previously discussed biomechanical and medical evidence.
Dr McIntosh prepared a Supplementary Collision and Biomechanics Report dated 20 December 2023, which sought to further analyse the forces involved in the claimant's accident and assess their capacity to cause the injuries claimed. In this report, Dr McIntosh reiterated his original findings from his report dated 28 August 2018 and provided additional commentary on the dynamics of low-speed rear-end collisions and their relationship to cervical spine injuries, specifically whiplash-associated disorders (WAD).
Dr McIntosh estimated that the change in velocity (Δv) for the claimant’s vehicle during the motor accident was less than 8kmph, a figure derived from standard calculations for rear-end impacts involving vehicles of similar mass and damage profiles. He noted that this Δv fell within the range observed in volunteer rear-end crash tests, where no structural injuries or permanent symptoms were recorded in participants. Referencing numerous studies, including volunteer sled tests and real-world crash analyses, Dr McIntosh asserted that Δv values below 10-15kmph are generally regarded as insufficient to cause structural cervical spine injuries or significant musculoskeletal damage. He highlighted that at this Δv, the forces acting on the cervical spine remain well within normal physiological tolerances observed during routine physical activities such as vigorous walking or sitting down abruptly.
To support his conclusions, Dr McIntosh detailed the typical occupant dynamics in a low-speed rear-end collision. In such collisions, the vehicle's sudden acceleration causes the seat to push the occupant forward while the head initially lags behind due to inertia, creating a "whiplash" motion in the cervical spine. This is followed by forward movement of the head as the neck pulls it into alignment with the trunk. Based on high-speed video footage of similar collisions, Dr McIntosh stated that the movement of the cervical spine in the claimant's collision would have been less than the normal range of motion, with no excessive or damaging forces applied to the spinal structures. The forces acting on the claimant were characterised as minimal and unlikely to result in ligamentous or disc damage.
Dr McIntosh further referenced controlled experiments conducted by McConnell et al., Matsushita et al., and Krafft et al., which consistently demonstrated that participants exposed to rear-end collisions with Δv values of up to 13kmph did not sustain injuries beyond transient stiffness or soreness. He compared these findings to the claimant’s reported injuries, concluding that her cervical spine injuries were inconsistent with the biomechanical forces generated in the incident. Dr McIntosh also highlighted studies indicating that compression forces acting on the cervical spine during collisions of this magnitude are significantly lower than those experienced during normal activities such as hopping, skipping, or even reclining into a chair.
The report also addressed the claimant’s pre-existing cervical spine degeneration. Dr McIntosh acknowledged that individuals with pre-existing conditions might theoretically experience exacerbation of symptoms following a collision. However, he stated that even accounting for these factors, the Δv in the claimant’s accident remained below the threshold required to produce symptomatic aggravation or structural damage. He described the mechanism of injury for her reported symptoms, including radiculopathy, as biomechanically improbable given the impact forces.
In response to the claimant’s reported injuries, including radicular pain and the need for cervical disc replacement surgeries, Dr McIntosh expressed scepticism regarding causation. He noted the absence of evidence of direct trauma, such as blunt force impacts or occupant compartment intrusion, within the claimant’s vehicle. Additionally, he referenced research indicating that cervical disc injuries typically result from high-magnitude compressive forces or repetitive stress, neither of which were present in the claimant’s accident. He concluded that her symptoms were more likely attributable to the natural progression of her pre-existing degenerative spinal condition rather than the collision.
To support his analysis, Dr McIntosh referenced data from volunteer sled tests, bumper car experiments, and studies utilising anthropomorphic test devices (ATDs) in controlled crash simulations. These studies consistently demonstrated that the forces generated in low-speed rear-end collisions, such as the claimant’s, are insufficient to cause structural damage to the cervical spine or exacerbate degenerative conditions significantly.
While Dr McIntosh acknowledged the claimant’s symptoms, he categorically concluded that the collision lacked the biomechanical capacity to cause her injuries. He described her surgeries as unrelated to the incident and instead attributed her symptoms to degenerative processes pre-dating the collision.
SUBMISSIONS
The Panel sought submissions with respect to:
(a) the appropriate methodology for re-examination, viz. whether the spinal surgery is to be examined by way of analogy under the Guides, the DRE method, or by any other methodology that the parties submit is the correct approach;
(b) causation of injuries, and
(c) any other matter relevant to the matters the subject of the review.
The claimant submitted that the motor accident aggravated pre-existing degenerative changes in her cervical spine, resulting in referred symptoms, ongoing pain, and the need for surgical intervention in February 2017 and May 2018. Prior to the motor accident, the claimant asserted that she was asymptomatic and there was no competing cause for the onset of her symptoms of neck and arm pain, stiffness, and functional limitations, which significantly affected her ability to work and engage in recreational activities.
The claimant relied on the medical opinions of her treating neurosurgeon, Dr Coughlan, and medico-legal experts, including Professor Fearnside and Dr Stenning, to support her application – notably, Dr Coughlan’s reports from 2016 describing the claimant’s surgeries as necessary to address referred symptoms arising from the aggravation of her degenerative condition; Professor Fearnside’s assessment of WPI at 26%, attributing this impairment to the aggravation caused by the motor accident; and Dr Stenning’s opinion that the motor accident caused a low-speed hyperextension/hyperflexion injury that exacerbated the claimant’s pre-existing but previously asymptomatic cervical spine condition. Both experts concluded that the surgical interventions were directly related to the injuries sustained in the motor accident.
The claimant also referred to the Guidelines, specifically paragraphs 1.143 and 1.145, which address conditions involving multilevel structural compromise, including intervertebral disc replacement. The claimant argued that her condition met the criteria for DRE Cervicothoracic Category IV or V, based on the structural compromise of her cervical spine and the necessity for disc replacement surgeries.
In further response to the Panel’s direction inviting submissions, the claimant provided detailed arguments addressing the deficiencies in the assessment by the Medical Assessor. The claimant challenged the Medical Assessor’s reasoning, asserting that he failed to adequately explain how he could accept an aggravation of degenerative changes while concluding that spondylosis and the related surgeries were unrelated to the motor accident. The claimant maintained that degenerative changes and spondylosis were effectively the same condition and that their exclusion represented a fundamental error in the Medical Assessor’s approach.
The claimant contended that the insurer’s reliance on the opinion of Dr McIntosh was misplaced. The claimant argued that Dr McIntosh’s report was deficient, as it failed to address her pre-existing degenerative changes or consider their role in her post-accident symptoms. Furthermore, the claimant noted that the insurer’s own neurosurgeon, Dr Bentivoglio, supported her case. In his report dated 9 December 2020, Dr Bentivoglio diagnosed an accident-related aggravation of degenerative changes and assessed the claimant’s WPI as 25%.
The claimant responded to the insurer’s submissions, arguing that they failed to provide a coherent rebuttal to the expert evidence she had submitted. She pointed out that the insurer’s reliance on Dr McIntosh’s supplementary report dated 20 December 2023 was unpersuasive, as it merely reiterated findings from his earlier report without addressing the critical issue of the claimant’s pre-existing degenerative changes. Additionally, the claimant argued that Dr McIntosh’s opinion was unsupported by the insurer’s other medico-legal evidence, which did not challenge the link between the motor accident and the surgeries.
In response to the Panel’s request for submissions on the appropriate impairment classification, the claimant reiterated her reliance on the Guidelines, which explicitly classify conditions involving multilevel structural compromise as eligible for higher impairment categories. She argued that a proper assessment of her condition, including the surgeries and the resulting functional limitations, would result in a WPI of greater than 10%.
The insurer submitted that the claimant’s spinal surgeries, specifically the C6/7 disc replacement performed on 9 February 2017 and the C5/6 disc replacement performed on 21 May 2018, were not causally related to the motor vehicle accident. It argued that Medical Assessor Ian Cameron’s finding, as outlined in his certificate, that the surgeries were necessitated by the natural progression of the claimant’s pre-existing degenerative condition rather than the motor accident, should not be disturbed. The insurer maintained that the claimant’s pain and symptoms were attributable to her ongoing cervical spondylosis, which was not caused or materially contributed to by the motor accident.
In support of its position, the insurer referred to the Guides and the Guidelines. It emphasised the causation framework set out in the Guidelines, which required both a medical and non-medical determination that an accident materially contributed to an injury or impairment. The insurer noted that the motor accident needed to be more than a negligible contributing factor. It further cited the glossary in the Guides, which defined causation as requiring verification that the alleged factor both could and did contribute to the worsening of the impairment.
The insurer relied on biomechanical evidence provided by Dr McIntosh in his supplementary report.
The insurer addressed the Review Panel’s direction seeking submissions on the appropriate methodology for assessing impairment. It argued that if the Panel determined, contrary to the insurer’s position, that the claimant’s surgeries were accident-related, the appropriate assessment methodology would involve Table 70, page 3/108 of the Guides in conjunction with the Guidelines. The insurer acknowledged that multilevel structural compromise, including intervertebral disc replacements, was referenced in paragraph 1.145 of the Guidelines. However, it reiterated that these surgeries were unrelated to the motor accident.
The insurer concluded by requesting that the Panel confirm the Medical Assessor’s findings, including his determination that the claimant’s need for surgery was unrelated to the motor accident. It submitted that the injuries sustained by the claimant during the motor accident, as assessed by the Medical Assessor, were limited to a soft tissue injury with aggravation of degenerative changes, resulting in a 5% WPI. Accordingly, the insurer maintained that the claimant’s surgeries and ongoing symptoms were the result of the natural progression of her pre-existing degenerative cervical condition.
RECONSIDERATION BY THE PANEL
The Panel determined that a re-examination of the claimant was required.
Re-examination
The claimant, a 53-year-old female, was seen by Medical Assessor Kenna in the Commission’s rooms on 15 November 2024. The following accurately records the contemporaneous examination report.
HISTORY
Pre-accident medical history and current relevant personal details
By way of background, she is single with no children.
She was involved in a motor vehicle accident on 19 September 2014.
At the time of the motor accident, she was working full-time as a Chief Financial Officer for a number of small businesses and has continued to live on the NSW Central Coast.
It is to be noted she had not been involved in motor vehicle accidents prior to that date and has not been involved in any motor vehicle accidents since.
Prior to the motor accident in 2014, she did office work and post-accident continued part time until pre-surgery in 2017. She then ceased work due to her medical condition and did not work for several years as a result of debilitating symptoms.
Subsequently at the time of the Panel’s assessment, she notes she has since returned to work and is back working as an accountant since July 2023.
With regards to past history, she denies any prior history of substantive neck symptoms previously, but does acknowledge that she had seen her GP prior to the motor accident for an intermittent sore neck over the years and had a cervical CT in 2011.
It is noted in that letter that with regards to past history, there was an episode of neck stiffness in 2011, which she attributed to working longer hours at her desk. She did attend a chiropractor on two or three occasions and her neck stiffness resolved.
She states, when asked about such, that she had no formal treatment for such, and she was essentially asymptomatic up until the time of the motor accident in September 2014.
In the run-up to surgery in 2017 (i.e. three years post the motor accident), she left her accountancy type job as by then, she essentially was not working, surgery then occurred in early 2017, and she never returned to work until 2023 but with a different firm.
History of the motor accident
On 19 September 2014, she states she was the driver of a car, no passengers, when she was hit from behind by another vehicle, which had in turn been hit from behind by a truck. Hence, there was a concertina motor vehicle accident in which she was the third car in line.
When discussing it in detail, she states that she had slowed to a stop at light. The car behind her was rear-ended by a truck and that car was pushed into the rear of her vehicle.
After that, she states the car was driveable. She was stunned at the time and felt little in the way of symptoms. The car was able to be driven home.
Neither ambulance nor police attended, and she did not attend hospital.
History of symptoms and treatment following the motor accident
She attended her GP, who immediately diagnosed whiplash-type injury and over the next few days had increasing neck pain with symptoms into both shoulders and upper limbs.
Recommended treatment was a trial of chiropractic (which she states was funded by the Motor Accident Authority), however in view of stated symptoms and the steady deterioration, she was then referred to Dr Coughlan, a neurosurgeon.
During this time, it needs to be noted that he reviewed her on several occasions, and she continued to work part time from 2014 through to early 2017 but on a reduced capacity.
Dr Coughlan recommended a C6/7 disc replacement with operative procedure on 9 February 2017. But post-operatively continued to experience substantive cervical symptoms which progressed over the next 18 months. A review by Dr Coughlan considered that the C5/6 disc was now also further symptomatic.
As a result, she then underwent a C5/6 disc replacement on 21 May 2018, about 15 months post initial operative procedure on the C6/7, the level below.
She noted following the initial procedure in 2017, she had three months of rehabilitation. She had a further period of rehabilitation which was funded by the insurer.
In recalling her symptoms some six to seven years ago, she states she felt she was no better after the initial operative procedure. As a result of that, the second surgery was recommended and she feels that following the second operative procedure, there also has been little substantive benefit.
Details of any relevant conditions sustained since the motor vehicle accident
In March 2018, she underwent a left-sided parathyroidectomy.
Current symptoms
In the pain pattern diagram, drawn by the patient but not incorporated in the report, she notes that following the motor accident in 2014, but pre-surgery in 2017, her symptoms were primarily cervical with associated occipital headaches, and some temporal aspect.
The pain and intensity were well localised to the cervical spine, with no real referral to either shoulder or into the interscapular region. It was not as intense and referral into either upper extremity, although she described some degree of numbness or paraesthesia in a glove type presentation involving both hands, possibly the left arm being slightly more affected, but there was no real involvement of the upper arm or forearms until the hands, with no symptoms involving either lower extremity. She described those continuing symptoms post motor accident but prior to any surgery as 8+/10.
Following the first surgery in 2017, she still experienced glove type distribution of numbness and paraesthesia.
Once again, there was intense localised cervical pain but not even referral towards both shoulders, just localised over the whole cervical spine. There was a slight change in headaches involving purely the occipital region.
As a result of that intensity not improving, she came to a second operative procedure in 2018 and states her symptoms have substantially not changed from then, over the last six years until now, in which she describes now only mild intermittent paraesthesia involving both hands, no substantive symptoms involving both upper arms, or distally in either lower extremities, but again localised intense pain of 8/10 involving the cervical spine with occipital headaches.
Overall, if there has been any change, she feels there is less upper arm symptoms and less distal symptoms, but the numbness has persisted.
She acknowledges that post-operative procedures her range of movement has improved. Pain does fluctuate but she believes, in some respects, particularly with regards to cervical symptoms, there has been little improvement overall.
After this, the Panel noted she was assessed by the Medical Assessor in August 2023 who at that point in time stated that the claimant said that she was not able to work. Nevertheless, Medical Assessor Kenna confirmed with regards to current symptoms, that she has returned to work doing accountancy work, like previously.
It was also noted that she continues to experience localised neck pain and associated headaches, no longer taking Palexia, which she had been taking previously long-term. She has also returned to driving but is very cautious.
Current treatment
At this point in time, she takes medications on a daily basis.
In regard to current treatment, she takes Aspro Clear for headaches.
She still experiences quite severe cervical pain and takes Panadol Osteo, which she self-funds.
She has had no further rehabilitation other than that for three months post each procedure.
Current medications consist of Panadol Osteo, Aspirin or Brufen.
Her GP remains Dr Aung.
CLINICAL EXAMINATION
General presentation
Findings on clinical examination including specific measurements of range of movement (ROM) (where applicable) of each of the injuries assessed.
The claimant was a well presented individual of stated age.
Clinical findings are as follows. She was only asked to demonstrate what she was comfortable with, in view of the irritability of the condition. She is right-handed.
Cervical spine (cervicothoracic)
Whilst side bending is substantially decreased, she retains a good range of rotation (indicative of the disc replacement biomechanics).
Medical Assessor Kenna considered that she may have been capable of a greater degree of extension and flexion, but nevertheless Medical Assessor Kenna would acknowledge that there is some degree of restriction. All restrictions were self-reported and limited.
On palpation, no muscle spasm was present on either apophyseal pillar and note there were no trigger points present in the levator scapulae, upper trapezii or scaleni.
Surprisingly unreactive with regards to any reflective muscle spasm.
There was a well-healed anterior scar over the anterior aspect of the neck, barely visible.
MOVEMENTS
RANGE EXHIBITED
Flexion
50% restriction
Extension
70% restriction
Rotation to the right
50% restriction
Rotation to the left
25% restriction
Lateral bending to the right
60% reduction
Lateral bending to the left
60% reduction
NEUROLOGICAL TESTS
Reflexes
C5 and C6 reflexes were present, symmetrically subdued but did not fatigue on repetition.
C7 reflex was brisk and unaffected in amplitude.
Both reflexes were subdued but did not fatigue on repetition.
Sensation
Normal. Although there is a complaint of numbness, which she describes also as involving both hands, examination of distal nerve roots was normal.
Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.
Muscle wasting
One centimetre difference could be attributed to her right hand dominance.
LEFT (cm)
RIGHT (cm)
Upper arm
39
40
Forearm
30
31
Muscle power
Surprisingly good power pertaining to C5, C6 and C7 on both sides (which also did not result in reproduction of cervical symptoms).
LEVEL
MOTOR POWER
LEFT
RIGHT
C4
5/5
NORMAL
NORMAL
C5
5/5
NORMAL
NORMAL
C6
5/5
NORMAL
NORMAL
C7
5/5
NORMAL
NORMAL
C8
5/5
NORMAL
NORMAL
T1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
Findings: No evidence of radiculopathy.
Upper extremity
Right shoulder
Measurement
Reference
(4th ed.)
Normal
Upper Extremity Impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension
50°
Figure 38 (43)
50°
0
Adduction
50°
Figure 41 (44)
50°
0
Abduction
180°
Figure 41 (44)
180°
0
Internal Rotation
90°
Figure 44 (45)
90°
0
External Rotation
90°
Figure 44 (45)
90°
0
Total
0
Goniometer measured.
Inspection of the right shoulder was normal. Arc, resisted motions, and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative.
Left shoulder
Measurement
Reference
(4th ed.)
Normal
Upper Extremity Impairment
Flexion
180°
Figure 38 (43)
180°
0
Extension
50°
Figure 38 (43)
50°
0
Adduction
50°
Figure 41 (44)
50°
0
Abduction
180°
Figure 41 (44)
180°
0
Internal Rotation
90°
Figure 44 (45)
90°
0
External Rotation
90°
Figure 44 (45)
90°
0
Total
0
Goniometer measured.
Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.
RADIOLOGY
A CT scan conducted on 3 January 2012, approximately two years before the motor accident, was obtained against the background of GP notes indicating chronic neck pain. The findings of the CT scan were as follows:
(a) at C5/6, there was a mild disc bulge that did not appear to abut the anterior cord;
(b) at C6/7, there was a moderate-sized broad disc bulge that appeared to abut the anterior cord;
(c) the most prominent disc bulge was observed at C6/7, which appeared to abut the cord, and
(d) multi-level degenerative disc disease was present.
On 22 October 2014, following the motor accident, a plain film of the cervical spine was obtained. The findings noted narrowing of the disc space at C6/7.
On 22 July 2015, another plain film of the cervical spine was conducted. The report identified minor C5/6 and C6/7 disc and neurocentral joint degeneration, with mild narrowing of the right C6/7 intervertebral foramen.
On 12 May 2016, an MRI of the cervical spine was performed. The findings indicated a relatively large central protrusion at C6/7, which was indenting the thecal sac and causing slight flattening of the cord parenchyma.
PANEL’S FINDINGS ON CAUSATION AND APPROACH TO THE WPI RATING
The assessment of permanent impairment hinges on determining whether the motor accident caused or materially contributed to the cervical spine injuries and subsequent surgical interventions at C6/7 and C5/6. The evaluation is governed by the MAC Act, the Guidelines, and the Guides.
Causation involves a twofold inquiry: first, whether the motor vehicle accident could have caused or contributed to the claimant’s impairment (a medical determination), and second, whether it did cause or contribute to the impairment (a non-medical determination). The motor accident does not need to be the sole cause but must materially contribute to the impairment to a degree that is more than negligible.
The claimant’s medical history establishes that she had pre-existing cervical spine degeneration prior to the motor accident, as documented in a 2012 CT scan. This imaging revealed mild bulging at C5/6 and a moderate disc bulge at C6/7 that abutted the spinal cord. However, it is significant that the claimant was asymptomatic, engaged in full-time work, and participated in recreational activities such as dancing and netball without limitations. There is no evidence of ongoing treatment, functional limitations, or any indication that surgical intervention was anticipated prior to the motor accident.
Following the motor accident, the claimant experienced persistent and progressively worsening symptoms, including neck pain, stiffness, and brachial radicular pain radiating into her right arm and hand. Imaging conducted post-accident demonstrated a marked progression of pathology, including a large central disc protrusion at C6/7 compressing the spinal cord and degenerative changes at C5/6. These findings were consistent with the claimant’s symptoms and ultimately led to surgical interventions.
In February 2017, the claimant underwent an anterior cervical discectomy and total disc replacement at C6/7. Persistent symptoms necessitated a second surgery at C5/6 in May 2018. Her treating neurosurgeon, Dr Coughlan, and medico-legal experts, including Dr Stening and Professor Fearnside, concluded that the motor accident caused a symptomatic aggravation of her pre-existing degenerative changes, necessitating both surgeries. Dr Stening assessed her WPI at 32%, with a 10% deduction for pre-existing conditions. Professor Fearnside categorised her condition under DRE Cervicothoracic Category IV, reflecting significant structural compromise due to multilevel intervertebral disc replacements, and assessed her WPI at 26%. Both experts attributed the claimant’s ongoing symptoms and surgical needs to the motor accident.
Conversely, the insurer argued that the claimant’s injuries and surgeries were unrelated to the accident and instead resulted from the natural progression of her degenerative condition. Biomechanical expert Dr McIntosh estimated a change in velocity (Δv) of less than 8kmph during the collision and asserted that the forces generated were insufficient to cause structural cervical spine injuries. He relied on data from sled tests and real-world crash studies to argue that the biomechanical forces in the motor accident were within normal physiological tolerances. Similarly, Dr Keller, an occupational physician, attributed the claimant’s symptoms to the progression of her pre-existing condition and assessed her WPI at 5%, concluding that the surgeries were unnecessary and unrelated to the motor accident.
However, critiques of the insurer’s evidence highlight its failure to address the claimant’s specific circumstances. Dr McIntosh’s analysis did not adequately consider the claimant’s documented progression from an asymptomatic condition pre-accident to symptomatic and disabling pathology post-accident. Furthermore, the insurer’s reliance on generalised biomechanical thresholds does not account for individual variability or the potential for low-speed impacts to aggravate pre-existing asymptomatic conditions. The Panel acknowledges that the motor accident despite its characterisation by Dr McIntosh could occasion the aggravation of previously asymptomatic degenerative changes. Notably, the insurer’s own neurosurgeon, Dr Bentivoglio, diagnosed an accident-related aggravation of the claimant’s degenerative changes and assessed her WPI at 25%.
The Guidelines explicitly recognise multilevel structural compromise, including intervertebral disc replacements, as a significant factor in assessing impairment. Under paragraphs 1.143–1.145, conditions involving multilevel spinal surgeries qualify for DRE Cervicothoracic Category IV or V, depending on the presence and significance of radiculopathy. These categories reflect substantial structural compromise, with potential WPI ratings of 25% to 35%. The claimant’s surgeries at C6/7 and C5/6 meet these criteria and align with the higher impairment categories outlined in the Guidelines.
The original assessment by Medical Assessor Ian Cameron assigned a WPI of 5% for soft tissue injuries and attributed the claimant’s surgeries solely to the natural progression of her degenerative condition. This finding is inconsistent with the Medical Assessor’s acknowledgement of the aggravation of the claimant’s degenerative changes caused by the motor accident. The Medical Assessor failed to reconcile this aggravation with the decision to exclude the surgeries from the impairment rating. This inconsistency was a central issue in the claimant’s application for review and prompted the Panel to revisit the causal relationship between the motor accident, the surgeries, and the claimant’s impairment.
The claimant’s ongoing symptoms, functional limitations, and imaging findings provide compelling evidence that the motor accident materially contributed to her cervical spine condition, necessitating surgical intervention. The Guidelines require that impairment be assessed holistically, incorporating the impact of structural compromise, functional limitations, and causation. The claimant’s condition clearly meets the criteria for multilevel structural compromise under Table 70 of the Guides. This conclusion is further supported by the medical opinions of her treating specialists and independent experts.
In conclusion, the claimant’s condition should be recognised as having been materially contributed to and thereby caused by the motor accident, with the surgeries at C6/7 and C5/6 representing necessary medical responses to the causally related exacerbation of her pre-existing degenerative changes. Her impairment should be assessed as meeting or exceeding the threshold for multilevel structural compromise, with a WPI reflective of her functional limitations and the significant impact of the accident, which the Panel has determined below as 25%WPI. The insurer’s reliance on general biomechanical evidence is insufficient to rebut the specific medical and factual evidence supporting the claimant’s position. The motor accident is a material contributing factor to her impairment, and the claimant’s entitlement to compensation should be determined accordingly.
WPI ASSESSMENT
The Panel assesses the injury to the cervical spine caused by the motor accident as DRE Cervicothoracic Category IV, Loss of Motion Segment Integrity giving 25% WPI.
Scarring was assessed using the Table for the Evaluation of Minor Skin Impairment (TEMSKI) criteria as 0% WPI.
This gives a total rating of 25% WPI.
0
0
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