Witt v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 238
•4 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Witt v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 238 |
CLAIMANT: | Lee-Anne Witt |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Clive Kenna |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 4 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) certified injuries to the cervical spine, thoracic spine, lumbar spine, and groin were threshold injuries; MRI six months post-accident demonstrated compression fracture of T12 and L1 and disc protrusion with annular tear at L5-S1; Held – test for causation as per Briggs v IAG Limited Trading as NRMA Insurance considered; soft tissue injury to cervical spine and muscular strain groin were threshold injuries; T12 and L1 compression fractures caused by the accident; disc protrusion with annular tear not acute but degenerative and not caused by accident; MAC revoked; new certificate issued; soft tissue injury to cervical spine and muscular strain of groin caused by the accident are threshold injuries; lumbar spine compression fracture of L1 and thoracic spine compression fracture of T12 are non-threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated · cervical spine – soft tissue injury; and · groin – muscular strain. 2. The Review Panel determines that the following injuries caused by the accident are · thoracic spine – compression fractures at T12; and · lumbar spine – compression fractures at L1. |
STATEMENT OF REASONS
INTRODUCTION
On 29 May 2023 Ms Lee-Anne Witt (the claimant) whilst driving her vehicle was about to exit a roundabout when her vehicle was T-boned causing it to spin anticlockwise (the accident).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay statutory benefits to Ms Imer under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 52 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Ms Witt submitted an Application for personal injury benefits dated 6 July 2023.[2] In that Application Ms Witt described her injuries as:
“I have neck/back/groin pain. I also have a constant headache.”
[2] Claimant’s documents p 25
On 15 April 2024 the insurer determined that Ms Witt had sustained a threshold injury and denied liability for statutory benefits beyond 52 weeks after the accident.
On 6 May 2024 Ms Witt purported to seek an Internal Review of the threshold injury decision. The insurer stated it did not receive the request for internal review and, therefore, has not made a determination in respect of that internal review.
Ms Witt filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]
[3] Section 7.20 of the MAI Act.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
On 30 January 2025 the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 156 (claimant’s documents). On 31 May 2025 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 190 (insurer’s documents).
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.3 of the Guidelines commenced on 6 December 2024 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
ASSESSMENT UNDER REVIEW
Medical Assessor Wijetunga issued a certificate dated 16 October 2024 in which she certified that the following injuries were threshold injuries for the purposes of the MAI Act:
· cervical spine injury;
· thoracic and lumbar – musculoligamentous strain, and
· groin – muscular strain.[4]
[4] Claimant’s documents p 10
The injuries referred for assessment to Medical Assessor Wijetunga were the following:
· cervical spine injury;
· thoracic spine injury;
· lumbar spine injury, and
· groin injury.
Medical Assessor Wijetunga reported Ms Witt was studying at the time of the accident to enable her to work as a disability carer. She has been in receipt of a disability pension for mental health since 2000. She lives in a NDIS funded group home. She reported she had been in remission since being diagnosed with cervical cancer in 2000 and undergoing a laparoscopy. She denied any musculoskeletal history. She reported she did not sustain any injuries from a minor motor vehicle accident on 29 January 2022.
Medical Assessor Wijetunga reported following the accident Ms Witt exited her vehicle when she felt a twinge in the thoracic spine. No police or ambulance attended the scene. She drove her vehicle home. She reported increased neck and lower back pain the following day. She went to her general practitioner (GP) who diagnosed whiplash. Over the following months she reported continued pain in her neck, shoulders, thoracic and lower back pain.
A couple of days after the accident she experienced an acute spasm in her thoracic spine when she attempted to pick up an object. She reported an improvement in her neck and shoulder pain and in her lower thoracic and upper lumbar spine.Medical Assessor Wijetunga found tenderness of the cervical spine but no muscle guarding or spasm. She reported normal range of movement. The neurological examination of the upper limbs reflected normal tone, muscle strength, and bilateral symmetrical reflexes of the upper limbs. She noted Ms Witt described reduced sensibility over both upper extremity lateral upper arm, left lateral forearm, and right hand which did not correspond to a specific dermatomal area.
She found normal spinal curvature of the thoracic and lumbosacral spine with tenderness over the thoracic and lumbar area. There was no pain on palpation of spinous processes of the thoracic spine. She reported guarding of the lower thoracic and upper lumbar areas. She reported normal range of motion of the lumbar spine. She noted normal tone, muscle strength, bilateral symmetrical reflexes of the lower limbs and areas of reduced sensibility of the lower limbs of the right thigh, lateral calf and whole foot which did not correspond to a specific dermatome. She could straight leg raise to 70 degrees bilaterally. The sciatic stretch test was negative.
Lower limb circumference was equal, and she demonstrated normal range of movement of both hips. There was no tenderness of the groin area, although the groin pain was reproduced with flexion and adduction of her right leg.
Medical Assessor Wijetunga concluded it was plausible that the mechanism of the accident resulted in cervical, thoracic and lumbar pain and may have resulted in a strain in the groin. She found the acute lower back pain eventuated from an incident a few days prior. She stated annular tears caused by an acute traumatic incident present with acute severe pain and if it had been related to the accident it would have occurred immediately. Medical Assessor Wijetunga concluded the annular tear was probably related to degenerative disc disease which was aggravated by bending.
Medical Assessor Wijetunga concluded there were no signs of radiculopathy on examination. She concluded the claimant’s presentation was consistent with musculoligamentous strain of the thoracic and lumbar spine. It did not involve nerve injury or a complete or partial rupture of tendons, ligaments, menisci or cartilage. She determined the injuries to the lumbar and thoracic spine were soft tissue injuries. She also found the injury to the cervical spine was a soft tissue injury. In relation to the groin Medical Assessor Wijetunga concluded the claimant had a muscular strain which was a soft tissue injury.
REVIEW PROCEDURE
The claimant lodged an application for review of the assessment of Medical Assessor Wijetunga on 12 November 2024 within 28 days of the date on which the certificate of Medical Assessor Wijetunga was made available to the parties.
On 17 December 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 18 February 2025 the Panel agreed a medical examination was required.
EVIDENCE BEFORE THE PANEL
Treating medical records
Dr Shaila Jaham, GP issued a certificate of Fitness/Certificate of Capacity dated 22 June 2023 in which she diagnosed a whiplash injury to the neck and muscular sprain at the lower back. She reported complaints of headache, neck pain and back pain.
Dr Balsam Darwish, neurosurgeon
Dr Darwish saw Ms Witt on 19 March 2024.[6] He reported following the accident she developed neck pain and pain in the interscapular region, lower back pain and pain in the groin. He reported she was complaining of neck pain and occipital headaches. He reported her gait was normal. She had normal power and sensation in all limbs. Her deep tendon reflexes were depressed.
[6] Claimant’s documents p 51.
Dr Darwish reported:
“MRI scan of the cervical spine on 23 November 2023 showed loss of cervical lordosis indicating muscle spasm. There is no nerve root or spinal cord compression. MRI scan of the lumbosacral spine on same date showed L1 superior endplate fractures and mild kyphosis at that level. The report mentioned this is secondary to old injury as there was no bone marrow oedema. The MRI scan was done 6 months after the injury, and I believe that the fracture is caused by the accident.”
Dr Darwish recommended continued physiotherapy and prescribed Celebrex.
Valentina Khiek - JT Physio
In the Allied health recovery request No 1 dated 19 July 2023 Ms Khiek provided a diagnosis of:
· cervical spine Musculo-ligamentous strains;
· thoracic-lumbar spine Musculo-ligamentous strains;
· groin strain; and
· intercostal strain/rib contusion.[7]
[7] Insurer’s documents p 30.
In a JT Physio Discharge Report dated 17 October 2023 it was reported Ms Witt had made slow progress and it was recommended she transition from physiotherapy to exercise physiology in hydrotherapy to assist in pain management.[8] She was discharged from physiotherapy with the following functional capacity:
· sitting/driving: as tolerable;
· standing/walking; as tolerable;
· lifting: up to 5 kg;
· pushing/pulling up to 5 kg; and
· bending/twisting/squatting: as tolerable.
[8] Insurer’s documents p 31.
Ms Khiek provided a report dated 13 November 2023.[9] Ms Khiek reported the following symptoms:
· pain when lifting >5kgs and unable to perform household chores independently;
· headaches that come and go throughout the day;
· frequent cramping/pins and needles/numbness in bilateral legs;
· constant pain in the neck and back; and
· bending aggravates symptoms.
Complete Allied Health Care
[9] Claimant’s documents p 136.
In an AHRR dated 9 April 2024 Ms Khiek reported Ms Witt had made improvements with hydrotherapy although her pain symptoms as well as deconditioned muscles were a barrier to functional progress.[10] She complained of tenderness in the bilateral hips and lumbar spine, a constant bruising type pain throughout her entire spine musculature, and a sharp stabbing pain in her thoracic to lumbar spine. She also reported pain in her neck radiating to her shoulders and frequent headaches.
Imaging/investigations
[10] Insurer’s documents p 164
MRI cervical and lumbar spine, 23 November 2023[11]
[11] Claimant’s documents p 146
The report reads:
“CERVICAL SPINE:
There is loss of the normal cervical lordosis most likely due to muscle spasm.
Odontoid and craniocervical relationships are preserved.
There is no pathological marrow infiltration detected.
No inherent cord signal abnormality is identified.
There is no evidence of a syrinx.
C2-3 and C3-4 levels demonstrate no significant disc bulging, herniation or exit foraminal stenosis.
C4-5 demonstrates a minor broad-based disc bulge. There is mild disc osteophytic encroachment on the left exit foramen, the right exit foramen is patent. Minor facet joint arthropathy identified.
C5-6 demonstrates a minor broad-based disc bulge. There is disc osteophytic encroachment on the right exit foramen. Left exit foramen is present.
C6-7 and C7-T1 demonstrates no significant disc bulging herniation or exit foraminal stenosis.
The vertebral artery flow voids are preserved and symmetrical.
The paraspinal musculature defines normally.
Impression:
Minor disc bulging as described above which could be post-traumatic.
There is loss of the normal cervical lordosis most likely due to muscle spasm.
LUMBAR SPINE:
Lumbar lordosis is preserved.
There is compression of the T12 and L1 vertebral bodies with localised kyphosis at this region most likely secondary to the previous trauma.
There is no marrow oedema currently to indicate acute trauma.
The cauda equina and conus are unremarkable.
No retropulsed fragments into the spinal canal identified.
T12-L1 and L1-2 demonstrates no significant disc bulging, herniation or exit foraminal stenosis.
L2-3, L3-4 and L4-5 demonstrate no significant disc bulging, herniation or exit foraminal stenosis.
Bilateral L4-5 facet joint arthropathy identified.
L5-S1 demonstrates a left paracentral annular tear and disc protrusion impinging on the left S1 nerve root in the lateral recess of the spinal canal. There is no exit foraminal stenosis. Facet joints are unremarkable.
The paraspinal musculature defines normally.
IMPRESSION:
Disc protrusion with annular tear at L5-S1 as described above.
Old compression fractures of T12 and L1.
Other findings as above.”
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 12 November 2024.The claimant submits Medical Assessor Wijetunga failed to engage with the report of Dr Darwish dated 19 March 2024.
Dr Darwish stated:“…MRI scan of the lumbosacral spine on same date showed L1 superior endplate fractures and mild kyphosis at that level. The report mentioned this is secondary to old injury as there was no bone marrow oedema. The MRI scan was done 6 months after the injury, and I believe that the fracture is caused by the accident.”
The claimant submits Medical Assessor Wijetunga did not consider Dr Darwish’s report or assess the endplate fracture at all where her reasons at page 7 contain no reference to the fracture.
The claimant also submits that Medical Assessor Wijetunga’s reasons were insufficient as regards causation of the annular tear. It is submitted that she found the annular tear had pre-existing and subsequent causes but not the accident. It is submitted she failed to consider whether the accident was a contributing cause to the injury sustained by the claimant.
Insurer’s submissions
The insurer provided submissions dated 29 November 2024 in response to the application for review.[12]
[12] Insurer’s documents p 2
The insurer noted the MRI of the lumbar spine dated 24 November 2023 outlined a compression of the L1 vertebral body with localized kyphosis which is an old fracture. The insurer submits the fracture is old and not causally related to the accident.
The insurer submits the reasoning of Medical Assessor Wijetunga in respect of the annular tear were sufficient.
The insurer provided submissions dated 5 July 2024 in respect of the threshold dispute.[13] The insurer submits for a diagnosis of radiculopathy to be made clause 5.8 of the Guidelines states there must be evidence of two or more clinical signs of dysfunction of a spinal nerve root or nerve roots found on clinical examination. The insurer submits the details of neurological testing by the GP, physiotherapist and radiological reports of both strength and sensation require further clarification and are insufficient evidence for a diagnosis of radiculopathy.
[13] Insurer’s documents p 6
MEDICAL EXAMINATION
Ms Witt was examined by Medical Assessor Gorman at the Medical Suites at the Personal Injury Commission on 18 March 2025. Ms Witt attended the assessment unaccompanied.
History
Pre-accident medical history and relevant personal details
Ms Witt is 57-year-old right hand dominant woman who lives in Campbelltown.
She has been on a disability pension for her mental health condition (schizophrenia) since 2000. She was last hospitalised two years ago and has been stabilised on medication, including four weekly depot Olanzepine injections, for the last two years.
Ms Witt lives in a NDIS approved studio in a house with eight others.
She smokes 20-25 cigarettes per day and does not drink alcohol.
She has four adult children who live separately.
Ms Witt was diagnosed with cervical cancer in early 2000 and this was surgically removed via laparoscopy and has been in remission since.
Ms Witt fractured her left arm years ago.
Ms Witt describes a minor motor vehicle accident on 29 January 2022 but did not sustain any injuries from this accident.
Ms Witt worked as a sales assistant for different employers after leaving school. She has also qualified as a nursing assistant. She stopped working at the age of 21 at which time she was married and remained at home as a stay-at-home mother. She intermittently did call centre work for brief periods of up to two years. She last worked in 2012 as a hair dressing assistant.
Ms Witt was not working at the time of the accident. She was studying to enable her to work as a disability carer.
History of the motor accident
At the time of the accident on 29 May 2023 Ms Witt was driving around a roundabout and was about to exit when the offending car failed to give way and T-boned her vehicle which forced her vehicle to spin anti clockwise.
Ms Witt recalls being jolted backwards from the restraint of the seat belt. No airbags were deployed. She exited the vehicle at which time she felt a twinge in the thoracic spine. No police or ambulance attended when she was at the site. She drove her vehicle home. Her vehicle was subsequently written off.
History of symptoms and treatment following the accident
The following day Ms Witt reported her neck and lower back pain increased. She also had groin pain.
She saw her doctor who diagnosed her with whiplash. She was referred for X-rays.
Ms Witt felt a “lump” on the left side of her neck which resolved over a few days.
When she bent over a few days later Ms Witt reported she felt a spasm of thoracic pain.
Over the following months, Ms Witt continued to experience pain in her neck, shoulders, thoracic spine and lower back regions.
Ms Witt underwent physiotherapy for about 12 months. She also attended hydrotherapy.
Ms Witt reported some improvement with treatment. Her neck and shoulder pain improved. However, she describes intermittent numbness in her left hand.
When she saw Dr Balsam Darwish on 19 March 2024 she described neck pain, interscapular pain, low back pain and pain in the groin.
Ms Witt reported that her lower thoracic and upper lumbar have improved by about 30%.
She had a period where she was not driving after the accident, but she is driving now.
Details of any relevant injuries or conditions sustained since the accident
Ms Witt fell down the stairs a couple of months after the accident. Ms Witt stated the fall did not change the site of the pain, and although she experienced some worsening of her back pain, that aggravation only lasted a few weeks.
Current symptomsMs Witt still gets “tingling” pains around the shoulders and neck. There is also a “bruise-like” pain and tightness on occasions around the neck and shoulders. It can radiate down the thoracic spine, but it is not in the thoracic spine all the time.
Ms Witt no longer has the intermittent pins and needles in the hands she had early on.
The low back pain is over her buttocks now.
The groin pain is very mild and intermittent now.
Current and proposed treatment
Ms Witt has ceased having physiotherapy.
She is on Clozepine 25mg daily, Olanzepine long-acting injection 405mg every 4 weeks and Panadol Rapid occasionally.
Clinical examination
Her height was 166cm and her weight 63.2kg.
Ms Witt was able to demonstrate standing and walking on her toes and heels and to adopt a squatted position.
Cervicothoracic spine
There was no tenderness over the cervical spine. There was no muscle spasm or guarding. Ms Witt demonstrated a full range of normal cervical spinal movements in all planes.
The neurological examination of the upper limbs showed normal tone, normal muscle strength bilaterally and symmetrical reflexes of the upper limbs. Sensation was normal on examination.
Thoracic spine
Ms Witt had normal and pain free flexion, extension and rotation of the thoracic spine.
There were no radiating symptoms around the chest.
Lumbar spine
The only spinal pain Ms Witt indicated was over the upper lumbar spine. There was mild tenderness over the upper lumbar spine. There was normal forward flexion, extension and lateral flexion to the left and right in the lumbar spine.
There were no abnormalities of power, sensation or reflexes in the lower limbs. There was normal muscle bulk.
DETERMINATION
Diagnosis
Cervical spine
The claimant has sustained a soft tissue, “whiplash” type injury to the cervical spine.
Thoracic spine
The interscapular pain has resolved but the claimant continues to have pain in the lower thoracic/upper lumbar region consistent with the compression fracture at T12. The claimant has sustained a soft tissue injury of the thoracic spine with a compression fracture at T12.
Lumbar spine
The claimant has sustained a soft tissue injury, namely a musculoligamentous strain of the lumbar spine with a compression fracture of L1 and a disc protrusion with an annular tear at L5-S1.
Groin
The claimant sustained a muscular strain of the groin which has now resolved.
Causation
In Briggs v IAG Limited trading as NRMA Insurance (Briggs No 2)[14] Wright J stated at [35]:
[14] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 (Briggs (No 2).
“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 clause 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 AMA4 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 AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic 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 judgement.
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.”
In summary the test of causation is on the balance of probabilities and involves a medical decision and a non-medical informed judgment. The injury need only be a material contribution to the impairment. Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[2]
[2] Briggs [2022] NSWSC 372.
Ms Witt was involved in a motor vehicle accident where her vehicle was T boned resulting in the vehicle spinning anticlockwise. She described immediate neck, thoracic and lower back pain.
Ms Witt reported as a result of putting her foot on the brake in the accident she developed groin pain. The Panel notes the groin pain was most likely secondary to the fact that the distal attachment to the iliopsoas muscle (which is the hip flexor), the proximal attachment, is at the thoraco-lumbar junction. As a result of injury at the thoraco-lumbar junction the claimant incurred pain at its distal attachment, which would explain Ms Witt’s perception of groin pain at the time of the accident. But as there was no specific injury to the groin, other than the initial referred symptoms, as expected, the groin symptoms dissipated.
The Panel finds the mechanics of the accident could have caused or contributed to the injuries to the cervical spine, the thoracic spine, the lumbar spine and the groin.
The more difficult question is whether the accident did cause or contribute to a worsening of those injuries.
Cervical spine
Ms Witt complained of acute pain described was in the neck. Her GP diagnosed a whiplash injury to the neck shortly after the accident and Ms Witt has continued to complain of pain around the neck and shoulders.
The Panel is satisfied the accident did cause the soft tissue injury to the cervical spine.
Thoracic spine and lumbar spine
Ms Witt describes ongoing low thoracic and lumbar spinal pain and there is tenderness on examination.
Dr Jaham diagnosed a muscular sprain at the lower back and reported the claimant’s complaints of back pain following the accident.
In relation to the thoracic spine Ms Witt informed Medical Assessor Gorman she felt a spasm of thoracic pain when she bent over a few days after the accident. Whilst the Certificate of Capacity dated 22 June 2023 issued by Dr Jaham did not specifically identify the thoracic spine, on 19 July 2023 Ms Khiek diagnosed a thoracic-lumbar spine musculo-ligamentous strain.
The claimant ultimately underwent an MRI scan on 23 November 2023, six months post-accident which disclosed compression of the T12 and L1 vertebral bodies with localised kyphosis which the radiologist thought was likely secondary to the previous trauma.
Whilst the compression fractures were described as “old” the treating spinal surgeon
Dr Darwish noted the MRI scan was done six months after the injury and considered the fractures were caused by the accident.In the experience of the Panel the thoraco-lumbar junction can be subject to greater forces in a flexion-extension injury.
The Panel notes that she is more likely to have reduced bone strength considering her long history of schizophrenia, anti-psychotic medications and her smoking.
Where the relevant legal test in relation to causation does not require scientific certainty, the Panel is satisfied that the accident did cause the T12 and L1 compression fractures, noting the accident involved significant trauma and where the MRI scan was undertaken six months after the accident which explains the lack of marrow oedema at that time.
The MRI scan also disclosed a disc protrusion with an annular tear at the L5-S1 level. While the annular tear at L5/S1 may have been caused by the accident, considering the forces involved, the Panel believes, on the balance of probabilities, that the annular tear is likely age-related degeneration. The Panel agrees with Medical Assessor Wijetunga that if the annual tear was caused by acute trauma the claimant would have experienced immediate severe pain. That did not occur. The Panel also notes the symptoms in this region have improved which also supports the conclusion that the annular tear was not traumatic.
Groin injury
Ms Witt does not describe any previous history of groin pain. She experienced onset of groin pain after the accident which has since significantly improved.
Ms Khiek referenced a groin strain when she commenced treatment of the claimant on
19 July 2023.The Panel finds the claimant did sustain a muscular strain of the groin caused by the accident.
Threshold injury
Cervical spine
Whilst the claimant sustained a soft tissue injury to the cervical spine the Panel is not satisfied there has been any evidence of the presence of two or more of the clinical signs mentioned in cl 5.9 of the Guidelines to satisfy the diagnosis of radiculopathy at any time since the accident. The injury did not involve nerve injury or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The soft tissue injury to the cervical spine is a threshold injury.
Thoracic spine and lumbar spine
The Panel has concluded the T12 and L1 compression fractures were caused by the accident. They are not soft tissue injuries as defined in s 1.6 of the MAI Act.
The Panel finds the compression fractures of T12 of the thoracic spine and L1 of the lumbar spine are non-threshold injuries.
Groin
The muscular strain of the groin is largely resolved. In any event it did not involve an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The muscular strain of the groin is a threshold injury.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated 16 October 2024 and determines that the following injuries caused by the accident are threshold injuries:
· cervical spine – soft tissue injury; and
· groin – muscular strain.
The Panel determines that the following injuries caused by the accident are non-threshold injuries:
· thoracic spine – compression fractures at T12; and
· lumbar spine – compression fractures at L1.
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