Ul Haq v Transport Accident Commission

DETERMINATION OF REVIEW PANEL
CITATION:	Ul Haq v Transport Accident Commission [2024] NSWPICMP 592
CLAIMANT:	Amar Ul Haq
INSURER:	Transport Accident Commission
REVIEW PANEL
GENERAL MEMBER:	Gary Victor Patterson
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	21 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Medical dispute as to extent of permanent impairment arising from injuries caused by accident; claimant’s vehicle was a taxi but the claimant was not working at the time; the insured vehicle reversed into the claimant’s at very low speed; vehicle at-fault registered in Victoria; claimant says he was thrown around violently on impact; he was able to exchange details with the other driver and then drive home; he developed increasing neck pain within two hours which spread to his left shoulder and arm; the claimant says that he developed increasing lower back, left buttock and thigh pain over the next four or five days; claimant underwent lumbar fusion at L4/L5; surgery approved by insurer for statutory benefits (NRMA) but not by insurer for common law claim; whether surgery related to injuries suffered in accident; causation; biomechanical engineering evidence; Held – lumbar fusion surgery related to accident; whole person impairment assessed at 20%; not satisfied as to causation of cervical injury; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENTS Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 24 January 2024 and issues a new Certificate determining that: (a) The following injury caused by the motor accident give rise to a permanent impairment of 20% and IS GREATER THAN 10%: (i) lumbar spine – anterior and posterior fusion at L4/L5. (b) The following injury referred for assessment has been assessed and determined not caused by the motor accident: (i) cervical spine – soft tissue injury. 2. An assessment of the degree of permanent impairment of that injury is therefore not required.

STATEMENT OF REASONS

INTRODUCTION

Amar Ul Haq (the claimant) was involved in a motor vehicle accident that occurred on
18 July 2019 about 10:00pm (the accident). He was driving a Toyota Camry Hybrid sedan wearing a seatbelt. The vehicle was a taxi but the claimant was not working at the time. He was stationary behind another vehicle at the corner of St James Road and Elizabeth Street in the Sydney CBD. The insured vehicle (a Range Rover) reversed into the claimant’s vehicle at very low speed. The claimant says he was thrown around quite violently on impact. He was able to exchange details with the other driver and then drive home. He says that he developed increasing neck pain within two hours which spread to his left shoulder and arm. The claimant says that he developed increasing lower back, left buttock and thigh pain over the next four or five days. He says that the pain spread to involve the right leg.
Given that the at-fault vehicle was registered in Victoria, statutory benefits were paid by the NRMA, on appointment by SIRA, on behalf of the Nominal Defendant. Statutory benefits were paid pursuant to the Motor Accident Injuries Act 2017 (the MAI Act) for the initial period of six months. Further payments were declined on the basis that the claimant’s injuries relevantly were minor. The claim for modified common law damages is being handled by the Transport Accident Commission (TAC).
The claimant was employed as an onsite coordinator for a cleaning company at the time of the accident. He did not return to work. His employment was terminated about a month after the accident. He was referred to Dr Peter Khong, orthopaedic surgeon, who indicated in January 2020 that surgery was necessary. The claimant underwent an anterior lumbar fusion in August 2020, at the hands of Dr Khong, which did not improve his pain. He was referred to Dr Darwish Al Khawaja who recommended he undergo a further fusion which was approved by NRMA. The claimant underwent a posterior L4/L5 fusion on 24 May 2023 at the hands of Dr Al Khawaja.

ASSESSMENT UNDER REVIEW

As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2, cl 2(a) of the MAI Act, the claimant was referred for assessment by Medical Assessor Neil Berry, who certified on 24 January 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:

Cervical spine

I declined to make an assessment under s 7.21(4) of the Act. The following injuries are not yet permanent:

Lumbar spine – anterior and posterior fusion at L4/L5

The permanent impairment of these injuries should be capable of assessment twelve months after the injury date.

OTHER ASSESSMENTS

The Review Panel notes that Medical Assessor James Bodel certified on 10 June 2020 as follows:

The following injury caused by the motor accident:

Injury to the cervical spine

is a MINOR INURY for the purposes of the Act.

The following injury caused by the motor accident:

Injury to the lumbar spine

is a not a MINOR INURY for the purposes of the Act.

The following treatment and care:

L4/L5 anterior lumbar interbody fusion recommended by Dr Peter Khong

RELATES TO THE INJURY caused by the motor accident.

The following treatment and care:

L4/L5 anterior lumbar interbody fusion recommended by
Dr Peter Khong

IS REASONABLE AND NECESSARY in the circumstances.

The following treatment or care:

L4/L5 anterior lumbar interbody fusion recommended by
Dr Peter Khong

WILL IMPROVE the recovery of the injured person.

The claimant’s lumbar spine injury was referred to Medical Assessor Bodel for further assessment on the basis of additional material consisting of pre-accident clinical records, photographs of the damaged vehicles, property damage records and a report by Michael Griffiths, biomechanical engineer, which post-dated Medical Assessor Bodel’s previous assessments. Medical Assessor Bodel considered all of that material in detail and certified on 7 March 2023 as follows:

The following injury caused by the motor accident:

Lumbar spine injury

is not a MINOR INJURY for the purposes of the Act.

Medical Assessor Bodel was satisfied that additional structural damage did occur at the L4/L5 level in the accident because an MRI scan of the lumbar spine performed on
24 September 2019 demonstrated a posterocentral disc protrusion at L4/L5 which had increased in size since the previous MRI scan pre-accident.

Medical Assessor Bodel was satisfied that the structural damage shown on the later scan led to the need for the anterior body fusion. He was satisfied that the insurer’s qualified biomechanical expert, Mr Griffiths, in coming to his view that the accident could not have caused the claimant’s additional spinal injury, had not given sufficient weight to the claimant’s previous pathology involving a compromised post-surgical lumbar disc. The claimant initially underwent a L4/L5 discectomy in 2012 in Pakistan from which he says that he made a good recovery. Medical Assessor Bodel accepted that to be the case based upon his detailed examination of the clinical records.
In so far as the Review Panel is aware, neither party has challenged Medical Assessor Bodel’s latest certificate. Whilst Medical Assessor Bodel’s findings and reasons are not binding upon the Review Panel, they are to be given considerable weight.
The Review Panel notes that Medical Assessor Geoffrey (Paul) Curtin assessed 3% whole person impairment (WPI) for post-surgery lumbar spine scarring. Medical Assessor Curtin found that the scarring on the claimant’s back and abdomen resulted from surgery to correct lumbar spine injury associated with the accident. Medical Assessor Curtin’s certificate has been referred to the Review Panel for a separate review. There is a combined certificate for 8% WPI dated 17 February 2024 which the Review Panel may need to revise.
The Review Panel notes that Medical Assessor Michael Hong assessed 18% WPI arising from major depression disorder with anxiety arising from the accident. The insurer’s application for review of Medical Assessor Hong’s certificate was refused by the President’s delegate. Although the reasons of the President’s delegate are not in evidence before the Review Panel, the insurer says that the reason for refusal was that Medical Assessor Hong was bound by the certificates of Medical Assessors Berry and Curtin, as to causation of the claimant’s physical injuries, upon which the alleged psychiatric injuries are dependant, therefore no material error was demonstrated. However, that may be, it seems to the Review Panel that the current review applications may be otiose, when Medical Assessor Hong’s certificate is binding upon the insurer. However that is a matter for the claimant, who has not taken the point.

STATUTORY PROVISIONS

A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Review Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned, unless the parties otherwise agree, or the Review Panel otherwise decides.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the American Medical Association Guides (AMA 4) Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the American Medical Association Guides (AMA 4) Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

THE REVIEW

The insurer sought a review of Medical Assessor Berry’s certificate on the basis that it was incorrect in a material respect. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the MAI Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer submitted that Medical Assessor Berry fell into material error on the following bases:
(i)    failed to have proper or any regard to the principles of causation;
(ii)    failed to provide any or any adequate reasoning for his determination, particularly in terms of causation, on the background of significant pre-accident history;
(iii)   failed to properly address the insurer’s submissions on causation having regard to:
(i)the claimant’s pre-accident history;
(ii)the minimal nature of the accident that occurred, and
(iii)the ergonomic report dated 19 March 2021 by Mr Griffiths, biomechanical engineer, qualified by the insurer.
The insurer made detailed submissions in respect of each of those contentions. TAC submitted that decisions made by NRMA in relation to statutory benefits are not binding on the TAC, for the purposes of common law damages, as is the fact that the claimant underwent surgery funded by the NRMA.
The TAC relies on the ergonomic report of Michael Griffiths dated 19 March 2021 which subsequently was accepted by Dr Alan Home in his report dated 12 April 2022.
TAC then submits that it was not necessary to provide Medical Assessor Bodel’s certificate dated 10 June 2020 to Mr Griffiths and Dr Home as his certificate dated 7 March 2023 was provided. TAC submits it is relevant to note that Dr Bodel did not, at the time of his original assessment, have the claimant’s treating doctors’ records from Gold Cross Medical Centre. The Review Panel notes that Medical Assessor Bodel did have those clinical records when providing his subsequent assessment. As noted previously, the insurer has not challenged Medical Assessor Bodel’s certificate dated 7 March 2023, as far as the Review Panel is aware.
TAC then makes submissions in relation to the reports of Dr Korber, radiologist, and
Mr Cipriani, neuropsychologist, both of whom were qualified by the claimant. TAC submits that Dr Korber should be disregarded as he did not have all of the relevant information before him when preparing his two reports.
TAC submits the fact that NRMA approved spinal fusion surgeries is irrelevant, as it is not binding on the TAC, for the purposes of the Common Law damages claim.
TAC submits that the claimant had relevant pathology prior to the motor accident. Whether or not that pathology changed after the accident is a matter for determination. TAC submits that, if the Review Panel finds there was some change, then it must be determined whether or not that change was causally related to the accident. TAC submits that the Review Panel would find that any such change was a consequence of the natural deterioration of the claimant’s original pathology.
TAC then makes submissions in relation to apportionment in the event that its primary submission as to causation is rejected.
The final submission made by the solicitor for TAC is as follows:
“The simple fact is that this was an incredibly minor accident. This needs to be considered in combination with the claimant’s pre-existing pathology which seems to have continued to naturally deteriorate as supposed to having been exacerbated by the subject accident.”
The Review Panel notes that most of those further submissions were made after the decision of the President’s delegate was published. Nevertheless, they are summarised above, for the sake of completeness.
The insurer’s review application was opposed by the claimant. As the claimant’s submissions were not accepted by the President’s delegate, it is not necessary to refer to them in detail. Briefly, they can be stated as follows:
(i)    The insurer’s conduct orders on an abuse of process, in that the insurer has challenged each and every certificate, and each and every application issued by the Commission to date.
(ii)    The insurer has withheld reports by Dr Sheehy, orthopaedic surgeon, and has qualified its medical experts with a selected suite of reports.
(iii)   The insurer’s medical and other expert evidence ignores the objective evidence of Dr Korber, the only specialist radiologist qualified in the matter. Dr Korber opines that the claimant’s MRI scans, pre-dating and post-dating the accident, clearly establish objective changes in pathology in the claimant’s lumbar spine, since the accident. The claimant submits that Dr Korber’s objective and unchallenged opinion was the foundation for Medical Assessor Bodel’s causation findings that the claimant’s lumbar spinal injury relates to the accident, that the need for spinal fusion surgery related to the accident, and the insurer was unsuccessful in displacing that certificate.
(iv)   The claimant then notes that Medical Assessor Berry did not assess the lumbar spine. The claimant also submits that the insurer’s qualified psychologist,
Dr Cipriani, cannot comment in relation to orthopaedic issues, especially when the claimant has undergone a fusion surgery.
President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 20 May 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of the satisfaction of the President’s delegate was stated as follows:
“The insurer submitted that Medical Assessor Berry did not address the issue of causation of the claimant’s cervical spine injury. Medical Assessor Berry was required to determine the accident could have caused the injury (a medical determination) and if the accident did cause the injury (a non-medical determination). Medical Assessor Berry found that the claimant has a history of developing neck pain as a result of the accident and has had neck pain without radiculopathy since that time. Medical Assessor Berry did not address the issue of whether the accident could have caused an injury.”
Therefore, pursuant to s 7.26 of the MAI Act, the application was accepted.
The Review Panel is to assess WPI arising from each of the following injuries and whether those injuries were caused by the accident:
· cervical spine – soft tissue injury, and
· lumbar spine – disc injury to the lumbar spine requiring a lumbar fusion and surgery related to spinal stimulator.
These are the same mattes that were referred to Medical Assessor Berry for determination. The Review Panel notes that it is now more than 12 months since the claimant underwent lumbar spinal surgery and that permanent impairment of the lumbar spine should be capable of assessment.
As the claimant has undergone surgery, the main issue for determination being causation, the Review Panel did not think that it is necessary to conduct a re-examination of the claimant, as it would not yield any additional information that would be relevant to the Review Panel’s determination.

MATERIAL BEFORE THE REVIEW PANEL

The claimant relied upon the following material which the Review Panel has considered.

Claimant’s further submissions to Review Panel dated 21 June 2024

These further submissions were prepared after the decision of the President’s delegate to refer the claimant for further assessment. Those submissions can be summarised briefly as follows:
(a)    The claimant has undergone two lumbar fusion surgical procedures, approved and paid for by NRMA, following a decision by Medical Assessor Bodel that the need for surgery was causally related to the accident and both reasonable and necessary, in the circumstances. Neither NRMA, nor the insurer, sought a review of that decision, which remains binding.
(b)    The insurer seeks to circumvent that issue by seeking a review of the certificates issued by Medical Assessors’ Berry and Curtin, who were tasked to assess the different issue of WPI, by again agitating the issue of causation.
(c)    The claimant notes that the insurer has withheld its report by Dr John Sheehy, neurosurgeon, who examined the claimant on 22 April 2021 for medico-legal purposes. The claimant notes Dr Sheehy’s expertise in spinal surgery. The claimant submits that an inference should be drawn that
Dr Sheehy’s opinion does not assist the insurer’s position with respect to causation.
(d)    The claimant submits that the insurer relies upon the opinions of two qualified experts in relation to causation. They being Dr Alan Home, occupational physician (report dated 12 April 2022) and Dr Michael Griffiths, biomechanical engineer (report dated 19 March 2021). The claimant says that the evidence of those experts is tainted by the fact that they have not been provided with all of the evidence, particularly the report of Dr Sheehy and the initial certificate of Medical Assessor Bodel dated
10 June 2020. The claimant notes that Dr Home also was not provided with
Dr Sheehy’s expert opinion. Nor was either expert provided with
Dr Korber’s expert opinion as to the pre and post-accident radiology.
(e)    The claimant submits that, in addition to the Medical Assessors’ certificates, reliance is placed upon the following opinions with respect to causation:
(i)report of Dr Peter Bentivoglio, surgeon, dated 11 August 2022;
(ii)reports of Dr Thomas Rosenthal, occupational physician, dated 4 February 2022, 7 February 2022 and 27 September 2022;
(iii)reports of Dr Grant Johnston, consultant engineer, dated
14 August 2022 and supplementary report dated 2 April 2023 (referenced previously), and
(iv)reports of Dr John Korber, radiologist, dated 11 September 2022 and
22 September 2022.
The claimant notes that all of those experts opine that the surgery was related to the accident.
(f)    Claimant’s submissions to President’s delegate opposing application for review of Medical Assessor Berry’s certificate (previously summarised).
(g)    Claimant’s submissions opposing application for review of Medical Assessor Curtin’s certificate.
(h)    Claimant’s submissions in response to insurer’s application for further medical assessment (threshold injury dispute) dated 27 September 2023 and
14 February 2023.
(i)    Claimant’s submissions in respect of WPI dispute dated 27 April 2023 and
28 November 2023.
(j)    Claimant’s statements (x4).
(k)    Chronology up to 18 January 2022 cross-referencing extracts of clinical notes referring to pre-accident back pain.
(l)    Medico-legal report of Dr John Korber, radiologist, to the claimant’s solicitors (dated 11 September 2022).
(m)     Dr Korber compared the pre and post-accident MRI films of the cervical and lumbar spine. They were as follows:
(i)MRI cervical spine dated 22 January 2019;
(ii)MRI cervical spine dated 23 September 2019;
(iii)MRI lumbar spine dated 22 January 2019, and
(iv)MRI lumbar spine dated 24 September 2019.
Dr Korber was not provided with any details of the motor accident apart from its date. Dr Korber opined that, comparing the images of pre and post-accident, in the cervical spine there has been no change. In the lumbar spine there has been an alteration in the size of the posterior disc bulge/protrusion at the L4/L5 level, with some postero-inferior migration of that disc, that was not present on the pre-accident study.
(n)    Supplementary report of Dr Korber dated 22 September 2022.
Dr Korber notes that, since his previous report, he had been provided with details of the clinical symptoms or progression after the accident. A previous low back injury and discectomy in 2012 was noted. Dr Korber describes the symptoms in relation to worsening of previous neck pain and stiffness radiating to the left shoulder and left arm, as well as worsening low back pain radiating to both hips and legs, left greater than right, with pins and needles in the left foot. Lumbar spine flexion was limited. Dr Korber opines as follows:
“Taking into account my previous report, which was made without knowledge of the clinical symptoms or progression after motor vehicle accident, it is reasonable that the claimant had a super imposed disc protrusion at the L4/L5 level when comparing pre and post-accident images. This corresponds with a contemporaneous history of severe back pain requiring significant medication.”
Dr Korber says it is reasonable that the accident caused a new super imposed injury at the L4/L5 level when taking into account the contemporaneous record and the imaging findings.
(o)    Medico-legal report of Dr Peter Bentivoglio, neurosurgeon, to the claimant’s solicitors (11 August 2022).
Dr Bentivoglio opines that the claimant sustained an exacerbation of his neck problem and his disc problem at the L4/L5 level, all of which were present before the accident, but exacerbated by the accident. He thinks that the claimant’s neck pain, radiating into his left shoulder, is consistent with a C5 radiculopathy. It may need operative intervention in the future. Dr Bentivoglio expresses opinions as to the claimant’s future treatment needs, restrictions on activities of daily living, attendant and domestic care needs, which are not relevant for the Review Panel’s consideration.
Dr Bentivoglio observed that the claimant had a left C4/C5 foraminal stenosis pre-injury and a disc prolapse at L4/L5 pre-injury. Absent those injuries,
Dr Bentivoglio does not believe that the claimant would have had any significant problem. That is, the accident exacerbated his underlying cervical and lumbar problem. Dr Bentivoglio opines that the claimant likely would have needed cervical surgery and further lumbar surgery, within four or five years after the accident, if the accident had not occurred, because of his pre-existing condition.
(p)    Reports of Dr Thomas Rosenthal, occupational physician, to the claimant’s lawyer.
Dr Rosenthal records that, on examination, the claimant walked with a walking stick and slight antalgic gait. There was tenderness in the neck posteriorly and restriction of movement in the neck, both shoulders and lumbar spine.
Dr Rosenthal opines that, as a result of the accident, the claimant aggravated a C4/C5 disc bulge with a soft tissue injury, and also aggravated an L4/L5 disc, which resulted in the requirement for a spinal fusion at L4/L5. Dr Rosenthal thought that the prognosis is poor. Dr Bentivoglio opined that the claimant may require a discectomy or spinal fusion if his continuing neck symptoms worsened. He accepted that future cervical surgery would be a result of the injuries caused by the accident. He thought there was no indication for further lumbar surgery.
Dr Bodel opined that the lumbar disc injury resulted in a tear of the outer annular collagen fibres of the disc. He noted that Medical Assessor Bodel found a clinical radiculopathy.
(q)    In relation to the report of Michael Griffiths, Dr Rosenthal stated as follows:
“His opinion is based on information which does not pertain to your clients’ individual circumstances. The generalized opinion regarding whether certain impact can result in structural injury to the body takes in 25% confidence limits, and does not include the 5% of outlays that would be found statistically.”
Dr Rosenthal says that the claimant appears to have had a pre-disposition to his injury and thus would fit into the outlayer rather than into the general normal population. Dr Rosenthal also noted that Mr Griffiths is not a medical practitioner and had not examined the claimant to be able to determine whether an injury to his spine actually occurred. Dr Rosenthal rightly observed that such a medical determination is normally made by a medical practitioner who has examined the patient.
Dr Rosenthal was of the opinion that the L4/L5 anterior lumbar antibody fusion performed by Dr Khong on 8 August 2020 was causally related to the accident and reasonable and necessary in the circumstances. He says that the evidence indicates the claimant developed an L5 radiculopathy, as noted by Medical Assessor Bodel, which was not present prior to the accident. Dr Rosenthal further opines that the lumbar spine surgery and potential cervical spine surgery are direct results of the accident, and there is no evidence that the claimant would have required such surgery, but for the accident. Dr Rosenthal assessed 5% WPI for the cervical spine and 20% WPI for the lumbosacral spine. In his supplementary report dated 27 September 2022, Dr Rosenthal refers to various diagnostic scans and Dr Korber’s report. He opines that there was a new L4/L5 disc injury which progressed between the pre and post-accident MRI scans. He notes that radiculopathy in the lumbar spine was documented and says the subsequent fusion appears entirely related to the accident. Dr Rosenthal noted symptoms in the lumbar spine prior to the accident but says the L4/L5 disc injury certainly progressed, as a result of the accident. In regards to the cervical spine, Dr Rosenthal says that the pre-accident and post-accident MRIs indicate there has been no change in the C4/C5 disc bulge. He noted that the claimant reported new symptoms had developed in his left upper limb. Examination did not find objective evidence of radiculopathy in the left upper limb. Dr Rosenthal opined that it was more difficult to attribute causality in regard to the cervical spine surgery. Although the claimant reported increased symptoms around the neck and left upper limb, there was no objective evidence of worsening of the C4/C5 abnormality reported on the MRI, as confirmed by Dr Korber. Dr Rosenthal considered that the cervical spine injury is a “minor injury” for the purposes of the Act and that the lumbar spine injury is a non-minor injury.
(r)    There is a further report dated 9 December 2023 by Dr Rosenthal to the claimant’s lawyers. Dr Rosenthal records that the claimant had undergone a lumbar spinal fusion on 24 May 2023 by Dr Al-Khawaja, spinal surgeon, at the same level as the fusion previously performed by Dr Khong. The claimant reported that his lumbar spinal condition had been aggravated by travelling from Dubbo to Sydney in June 2023 for a medico-legal assessment. Dr Rosenthal notes that nerve conduction studies were normal and did not identify any nerve injury. There had been no further subsequent injuries. Dr Rosenthal noted the report dated 3 April 2023 by Grant Johnston, consulting engineer, which estimated the crash severity was greater than estimated by Mr Griffiths.
Mr Johnston believed the claimant’s pre-existing conditions reduced the likely threshold of an acute injury. Dr Rosenthal refers to an MRI of the spine dated
15 September 2023 which showed a solid L4/L5 fusion and degenerative changes from C7 to T1 bilaterally. Dr Rosenthal said that the following injuries were the result of the accident:
(i)an L4/L5 disc prolapse which required multiple surgical procedures;
(ii)a soft tissue injury to the cervical spine, and
(iii)a chronic pain syndrome as a result of his injuries.
(s)    Dr Rosenthal said the claimant is disabled from his injuries and is unlikely to have any significant future improvement. Dr Rosenthal assessed 20% WPI for the lumbosacral spine as a result of the spinal fusion, 1% WPI for scarring, under the TEMSKI table using the best fit principle, and 5% WPI for the cervicothoracic spine, resulting in a combined 25% WPI.
(t)    Report dated 7 January 2020 by Dr Gehr, orthopaedic surgeon, to the claimant’s solicitors.
Dr Gehr recites the circumstances of the accident. He records that, immediately after the accident, the claimant had severe pain in his back. He also had neck pain which became significantly severe over the following days. Dr Gehr describes the diagnostic scans of the cervical and lumbosacral spine following the accident. He describes the claimant’s then current symptoms. There is a description of Dr Gehr’s examination of the whole of the claimant’s spine. He notes the history of a previous surgical procedure on the claimant's lumbar spine in 2012 in Pakistan. The claimant told Dr Gehr that he only experienced occasional low back pain, and was able to work full-time in a cleaning business, prior to the subject motor accident. Dr Gehr was not able to identify any objective evidence of pre-existing symptomatic permanent impairment in the lumbar spine, at the time of the accident, due to the prior surgery, or any other cause.
Dr Gehr makes the following diagnosis:
(i)lumbar spine – soft tissue injury with left radiculopathy treated by a neurosurgeon with consideration for surgery. The MRI imaging from
24 September 2019 support disc pathology at L4/L5 level, and
(ii)cervical spine – soft tissue injury with left radiculopathy.
No diagnostic imaging was provided to Dr Gehr who thought that the claimant should remain under the care of a treating orthopaedic or neurosurgeon in regard to his cervical spine and lumbar spine problems. Dr Gehr then answered various questions relating to the claimant’s likely future treatment, work capacity, need for domestic assistance and attendant care. Dr Gehr did not think that the claimant’s pre-existing condition of the cervical and lumbar spine were relevant. Impliedly, he thought that the claimant’s presenting condition was entirely attributable to the subject accident, noting that the accident occurred just six months prior to
Dr Gehr’s examination.
Dr Gehr assessed 15% WPI for the cervical spine (soft tissue injury with left radiculopathy), 10% WPI for the lumbar spine (soft tissue injury with left radiculopathy), giving a combined 24% WPI. Dr Gehr was undecided whether a deduction should be made for pre-existing WPI.
(u)    Engineering reports by Grant Johnston (14 August 2022).
Mr Johnston report was commissioned in response to the report by Michael Griffiths, biomechanical engineer, who was qualified by the insurer. Mr Johnston was provided with the Mr Griffiths’ report and Medical Assessor Bodel’s certificate. Mr Johnston makes a detailed analysis of the circumstances of the accident. He considers the characteristics of the vehicles involved and their repairs. Mr Johnston summarises the claimant’s medical history. There is a detailed discussion of causation and biomechanical loading. For the reasons which he states, Mr Johnston refutes Mr Griffiths’ conclusions and findings. In his supplementary report dated 2 April 2023, in response to the insurer’s supplementary submissions dated 24 January 2023, Mr Johnston confirms his opinion that the nature of the impact made the overall injuries at least plausible based on the direction and magnitude of loading. Mr Johnston says that:
“As a general rule, the nature and severity of the impact at least with regards to the vehicles is identical whether or not the insured’s vehicle is reversing or the claimant was driving forward. There is still a closing speed and a direction of force of the same magnitude.”
That comment was made in response to a suggestion by the insurer that Medical Assessor Bodel was labouring under a misapprehension as to the mechanical circumstances of the accident. Mr Johnston concedes that whether or not the onset of the claimant’s condition, or at least worsening of a pre-existing condition, was caused by the accident, is a matter for medical opinion. He concludes by repeating his opinion that Mr Griffiths under estimated the force of the collision.
The insurer relied upon the following material which the Review Panel has considered:
(a)    Insurer’s further submissions dated 28 June 2024 for review of the certificates of Medical Assessors Berry and Curtin (previously summarised).
(b)    Insurer’s submissions for review of Medical Assessor Berry’s certificate (previously summarised).
(c)    Insurance records relating to repair of the vehicles involved in the accident.
(d)    Report dated 19 March 2021 by Michael Griffiths, bio-medical and mechanical engineer, to the insurer’s lawyers.
Mr Griffiths gives a detailed description of the accident scene and the vehicles involved. He notes the repairs to the vehicles. He analyses the Crash Dynamics and undertakes a biomechanical analysis based upon the cabin characteristics of the claimant’s vehicle. He describes the claimant’s injuries, treatment records and imaging studies. There is a discussion about what occurs when a person presents to a medical practitioner for examination and observations about medical imaging techniques. Mr Griffiths reviews the alleged injury, and feasibility of an injury mechanism, by anatomical region, with particular reference to the neck and lower back. Under the heading Summary and Conclusions,
Mr Griffiths says as follows:
“It is deduced that, for the claimant, this was a frontal impact, where the velocity changed experienced was probably about 5 kilometres/hour, but not greater than 10 kilometres/hour….. It is deduced that this incident would not have resulted in an injury mechanism which could have caused any exacerbation of injury to the neck or the lumbar spine….. It is deduced that in this incident:
·     The abnormal pathology of the neck, as identified by both reporting and more objectively MRI scan, could not, and did not, result in any acute exacerbation of his pre-existing abnormal neck pathology in this incident.
·     The abnormal pathology of the lumber (sic), as identified by both reporting and ore objectively MRI scan, could not, and did not, result in any acute exacerbation of his pre-existing abnormal lumber (sic) spine pathology in this incident.”
There is no supplementary report from Mr Griffiths.
(e)    Report dated 12 April 2002 by Dr Alan Home, occupational physician, to the insurer’s lawyers.
Dr Home make specific reference to Mr Griffiths’ report. He does not find it medically plausible that the mechanism of the accident, as described, would cause intervertebral injury at the cervical or lumbar region. Dr Home opines that no new pathology was caused by the accident. He finds that the accident was not more than a negligible cause of the subsequent symptoms described by the claimant. Dr Home observes that the claimant’s history is unreliable when compared to the medical records which, he assumes, were not available to Medical Assessor Bodel or Dr Rosenthal. Dr Home says that the annular tear of the L4/L5 intervertebral disc, to which Medical Assessor Bodel refers, was pre-existing. Dr Home agrees with Dr Rosenthal that it is not in the purview of
Mr Griffiths to make clinical decisions about causation. Dr Home says the pre-accident and post-accident imaging demonstrate identical pathology. He opines there were several non-organic clinical signs, reflecting a behavioural component to the presentation of disability. Dr Home then discusses future treatment, functionality and activities of daily living, which are not relevant for the Review Panel’s consideration.
In a separate report, Dr Home declines to assess permanent impairment, for the reason that none of the injuries referred to him for assessment were caused by the accident, in his opinion.
(f)    Review Panel decision in the matter of John Kelyanna, matter number M10446467/21.
This was a case involving a low impact collision in which there was competing evidence from biomechanical experts.

No submissions are made by the insurer in relation to the import, if any, of that decision. The Review Panel is aware that each case is sensitive to its own facts and declines to draw or infer any overarching principle from that decision, if that was the insurer’s purpose in referring to it.

MEDICAL ASSESSORS’ FINDINGS

The Medical Assessors’ findings are as follows:
“Past History
This 29 year old claimant injured his back while playing cricket in Year 12 in Pakistan. He had hemi laminectomy and discectomy performed at L4/5 in 2012.
He migrated to Australia in 2016 and worked as a taxi driver as well as an on-site co-ordinator at a cleaning company.
Social History
Following the subject MVA he and his wife and two children moved from Sydney to Dubbo where his wife found full time work and they were reliant on her income as he was unable to work due to his injuries in the subject accident. They currently live in a house.
History of subject MVA
The motor vehicle accident occurred on 18 July 2019. He was working as a taxi driver driving a Toyota Camry wearing his seat belt. He been at a social outing at the Opera House and was driving back into the city. He was stationary at the corner of St James Road and Elizabeth Street, Sydney when a Range Rover reversed into his vehicle. There was no head injury and he was not knocked unconscious and he had no amnesia for the accident details. He was able to drive his vehicle home to Greystanes. By the time he arrived home he had pain and stiffness in his neck and back.
History of symptoms and treatment following the accident
He was unable to return to work as an on-site co-ordinator for a cleaning company called Pro Clean and was terminated three to four weeks after his injuries. He eventually attended his GP as his neck and back were not settling and was referred for physiotherapy which he had until October 2019. He was then referred to Dr Peter Khong, an orthopaedic surgeon, and after an MRI scan and bone scan, Dr Khong indicated in January 2020 that surgery was necessary but was declined by the insurer. He subsequently had anterior lumbar fusion in August 2020 carried out at St George Hospital.
After surgery, the pain did not improve and despite having hydrotherapy, his condition did not settle and he had a trial of spinal cord stimulation and then insertion of permanent simulators around January 2022. Because of ongoing pain, he was referred to Dr Darwish Al Khawaja who recommended undergoing further fusion, which was approved by the insurer. He underwent posterior L4/5 fusion on 24 May 2023.
Details of any injuries and conditions diagnosed since the accident
Nil
Current symptoms
He reported to the PIC Assessor, Neil Berry, which was noted in the MAC that he continued to have pain in his neck which was aggravated on turning to the left and that his back pain increased after he had come down from Dubbo.
Current and Proposed treatment
He was taking medicinal cannabinoids for many months but that had been ceased and he was currently taking Gabapentin for neuropathic pain and Panadol for analgesia.
No further operative intervention was proposed.
The insurance company has challenged causation regarding the cervical spine and the use of cannaboids for the cervical spine and lumbar spine in the subject motor vehicle accident. It was noted when he saw Dr Jim Bodel on 1 June 2020 that he had low back pain with lumbar stiffness and radiculopathy. This was not challenged by the insurance company and represents an impairment of DRE III. Subsequent to his spinal fusion he still had radicular complaint but now he is DRE Category IV. The scarring from his surgical procedures has been assessed by Paul Curtin and in his MAC he gave 3% WPI.
It is noted that in James Bodel's PIC Certificate of 1 June 2020 that the cervical spine was assessed as a minor (threshold injury) and that the lumbar spine was not a minor injury and that the recommended surgery of L4/5 anterior lumbar interbody fusion was reasonable and necessary and would improve the recovery of the injured claimant.
In his further PIC Certificate, Dr James Bodel noted on 7 March 2023 that the lumbar spine was not a minor injury.
In the report of Dr Darwish Al Khawaja dated 20 March 2023, he noted the CT scan showed the fusion may not be complete at the L4/5 level following the anterior procedure and he requested approval for posterior L4/5 fusion.
Dr Tom Rosenthal, in his IME report of 4 February 2022, noted that the lumbar spine surgery and the potential surgery for the cervical spine were a direct result of the subject motor vehicle accident, and that there was no evidence that the claimant would have required such surgery, but for the subject motor vehicle accident.
In his additional report, he assessed the cervical spine at DRE II, 5% WPI and the lumbar spine at DRE IV, 20% WPI.
In his further report dated 27 February 2024, Dr Rosenthal altered his opinion that the C4/5 foraminotomy proposed Dr Khong was causally related and reasonable and necessary in relation to the subject accident. In summary he felt that the neck condition was not causally related and that the lumbar condition was causally related to the subject motor vehicle accident.
The IME report of Dr Peter Bentivoglio, spinal surgeon, dated 11th August 2022 found that it was probable that the claimant would have required surgery without the injury that occurred in the subject MVA, due to a pre-existing foraminal stenosis C4/5 and that the accident had exacerbated (temporary aggravation) the already narrowed foramen at C4/5 level. He did, however, assess the neck and back at 22% as a consequence of the subject motor vehicle accident.
The IME report of Dr Alan Home dated 2 April 2022 found that the injuries to the neck and lumbar spine were not causally related to the subject accident and no permanent impairment therefore arose.
The relevant imaging studies include an MRI of cervical spine dated 22 January 2019 which showed a left sided disc bulge.
MRI of the lumbar spine dated 22 January 2019 showed previous L4/5 discectomy.
MRI of the cervical spine dated 23 of September 2019 reported moderate to advanced narrowing on the left side of C4/5.
MRI of the lumbar spine on 24 September 2019 demonstrated increased size of the disc protrusion. This was verified by Dr John Korber, consultant radiologist, who reviewed the MRIs and regarded it as probative.
MRI of the lumbar spine on 23 July 2020 showed progression of the L4/5 disc herniation as noted above.
MRI of the cervical spine dated 12 November 2020 reports dehydration at the C4/5 disc.
MRI of the thoracolumbar spine on 14 January 2021 confirmed anterior lumbar fusion L4/5.
CT of the lumbar spine dated 24 September 2021 confirmed the fusion at L4/5.
X ray of the thoracolumbar spine on 17 February 2022 showed thoracic stimulator leads in a prior L4/5 fusion.
Diagnosis
The claimant has had a soft tissue injury to the cervical spine without evidence of radiculopathy and although he had dysmetria when assessed by Neil Berry in his MAC dated 24 January 2024, the Panel felt that the neck was non-causal as the claimant had seen his GP on 24 January 2019, six months before the subject accident, where Dr Zhao, the GP, recorded neck pain radiating to his head (occipital headaches) and to his left arm.
The GP also noted there was some burning to the left thigh and some sensory changes in the right pre-tibial region (shin).
The previous PIC Panel that assessed the patient was in relation to a motor vehicle accident on 10 January 2017 where he was injured as a bus driver and it was determined that the neck and back strain injuries were minor, that is threshold injuries.
The Panel is of the view that the cervical spine injury was a threshold injury and the impairment was DRE I, 0% WPI.
The Panel was of the view that the claimant had a non-threshold injury to his lumbar spine requiring 360° fusion, (that is anterior and posterior) which had been approved by the insurance company. This is from Table 72, Page 110 of the AMA 4th Edition Guides, DRE IV, 20% WPI.
It is noted that in the MAC of 24 January 2024 the Assessor found no evidence of radiculopathy in regard to the cervical spine, although he did find some dysmetria on neck motion. The Panel thought the neck injury was non-causal.
With regard to lumbar spine, the claimant had bilateral radicular complaint with positive nerve root tension signs bilaterally with straight leg raise to 50° and the reflexes in the knees and ankles were reduced. There was no objective alteration or sensation and no unilateral muscle wasting. The Assessor felt, in his MAC, that the claimant was co-operative throughout and there was no evidence of illness behaviour or exaggeration. He noted the reversing manoeuvre brought the rear of the four wheel drive into impact with the claimant’s Toyota Camry taxi sedan, causing a frontal impact to the claimant’s vehicle, which is damaged due to the tow bar of the four wheel drive which reversed into the claimant’s vehicle.
It is worthwhile reiterating that the previous Panel Statement of Reasons dated 12 March 2024 was in relation to the motor vehicle accident on 10 January 2017 in which it was found:
1.The cervical spine C3/4 disc prolapse and left C4 nerve impingement;
2.Right shoulder impingement (Nguyen Principle);
3.Left shoulder impingement (Nguyen principle);
4.Lumbar spine aggravation with underlying disc prolapse.
These were causally related to the subject accident on 10 January 2017 which was in relation to an unrelated bus driving accident, after which the claimant was able to drive the bus from the scene and back to the depot. He had a subsequent motor vehicle accident on 28 March 2017 which involved much more force to the claimant’s body than the subject accident in July 2019.
In summary, following the subject matter vehicle accident on 18 July 2019, the Panel finds the cervical spine was non-causal and the lumbar spine was causal and that the impairment for the cervical spine was DRE I, 0% whole person impairment and that for the lumbar spine was DRE IV, 20% whole person impairment.”

FINDINGS

The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the findings and reasons of Senior Medical Assessor Dixon with which Medical Assessor Moloney concurs.
[5] Section 7.26(6) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the bases of their assessment which is not greatly different to those provided by Medical Assessor Bodel, and other qualified medical experts, particularly Dr Rosenthal, with whom the Review Panel concurs.
[6] Insurance Australia Group Ltd v Keen [2021] NSWCA 287.

CONCLUSIONS

For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Neil Berry on 24 January 2024 should be revoked. The new certificate appears at the commencement of these reasons.

[2024] NSWPICMP 592

21 August 2024