Youi Pty Limited v Williamson

DETERMINATION OF REVIEW PANEL
CITATION:	Youi Pty Limited v Williamson [2024] NSWPICMP 855
CLAIMANT:	Reece Williamson
INSURER:	Youi
REVIEW PANEL
MEMBER:	Maurice Castagnet
MEDICAL ASSESSOR:	Leslie Barnsley
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 14 November 2022 when the insured vehicle lost control and collided with his vehicle at speed on the M5 freeway; dispute relating to the assessment of threshold injury; injuries to his cervical spine and lumbar spine; whether an annular tear at L4/5 disc was caused by the accident or whether it is the result of degenerative disease which predated the accident; Held – original assessment of threshold injury confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under ss 7.26(7) and (9) of the Motor Accident Injuries Act 2017 1. The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination 2. The Review Panel confirms the certificate of Medical Assessor Nelukshi Wijetunga, dated 5 September 2023.

STATEMENT OF REASONS

INTRODUCTION

On 14 November 2022, the claimant, Reece Williamson, was involved in a motor accident when a motor vehicle insured by Youi, lost control and collided with his vehicle at speed, on the M5 Freeway, Campbelltown.
As a result of the accident, the claimant claimed that he sustained injuries to his cervical spine and lumbar spine. He also claimed that he developed a psychological injury although that injury is not the subject of the dispute in this matter.
The insurer accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks. Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
On 3 March 2023, the insurer issued a decision that the claimant’s physical injuries caused by the accident, were threshold injuries for the purposes of the MAI Act. Following an internal review requested by the claimant, the insurer confirmed its decision on 22 March 2023.
Thus, the issue in dispute between the parties is whether the claimant’s physical injuries caused by the accident, were threshold injuries for the purposes of s 1.6 of the MAI Act.
To resolve the dispute, the claimant made an application for a medical assessment of the matter by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.[3]
[3] Schedule 2, cl (e) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor [4] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[4] Section 7.20 of the MAI Act.

THE MEDICAL ASSESSMENT UNDER REVIEW

The dispute was referred at first instance to Medical Assessor Nelukshi Wijetunga for assessment. Medical Assessor Wijetunga issued a certificate dated 5 September 2023.
The injuries referred to the Medical Assessor for assessment were an injury to the cervical spine and an injury to the lumbar spine.
The Medical Assessor noted that the claimant described a reasonably forceful motor accident which involved a vehicle travelling at high speed, resulting in lateral force to the left of his motor vehicle, which was later written off, and where he required hospital review after returning home.
The Medical Assessor was of the opinion that the mechanism of the motor accident is consistent with forced extension of the cervical spine and forced extension of the lumbar spine.
The Medical Assessor considered that there was no objective evidence of pre-accident lower back pain and that there was onset of back pain immediately after the accident. She noted that the claimant was in good physical health prior to the accident which was reflected in an active lifestyle.
The Medical Assessor noted that the MRI scan of the lumbar spine dated 3 April 2023 demonstrated both a small central disc protrusion with associated fissure. The Medical Assessor considered that at the age of 23, asymptomatic annular tears in the absence of any disc dehydration or degenerative disease are unlikely.
The Medical Assessor was of the view that the combination of protrusion with fissure was most probably a result of trauma such as the motor accident. She considered that it is improbable that the changes are degenerative aetiology. She concluded that on the balance of probabilities, given the absence of pre-accident lower back pain, the accident is causally related to the annular fissure and small central disc protrusion.
The Medical Assessor found that the following injuries were caused by the accident:
· cervical spine – whiplash now resolved, and
· lumbar spine – small central disc protrusion and annular disc fissure.

The Medical Assessor found that the cervical spine injury was a threshold injury, and the lumbar spine injury was not a threshold injury.

THE REVIEW APPLICATION

On 3 October 2023, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was registered by the Commission on 4 October 2023 and the application was accepted as being made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.

CONDUCT OF THE REVIEW

According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Leslie Barnsley, Medical Assessor Mohammed Assem and Member Maurice Castagnet (the Panel).
Part 5 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.[5]
[5] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
Upon review of the material that is before the Panel, the Panel formed the view that it could determine the proceedings based on the written application without requiring a re-examination of the claimant.
By directions issued on 14 August 2024, the Panel invited the parties to make submissions by 23 August 2024 if they had any objections to the proposed course of action and to provide their reasons.
Neither party made submissions on the issue.

RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES

The MAI Act

A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.

The Motor Accident Guidelines

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 Act. Version 9.2 of the Guidelines which commenced on 10 November 2023, relevantly provides:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“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.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[8]
[8] Clause 5.9 of the Guidelines.

Causation of injury

Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[9]
[9] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury. These provisions are equally of relevance to the issue of causation of threshold injury.
The following observations were made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“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
6.5 An 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.
6.6 Causation 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 judgment.
6.7 There 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.”

MATERIAL BEFORE THE REVIEW PANEL

The Panel received the material:

(a)    the claimant’s first bundle of documents filed on 12 January 2024 (343 pages);
(b)    the insurer’s first bundle of documents filed on 2 February 2024 (78 pages);
(c)    the claimant’s first bundle of late documents filed on 29 February 2024, filed pursuant to the Panel’s directions which included:
(i)a discharge summary from Ryde Hospital issued on 26 October 2022;
(ii)clinical records of Balmain Sports Medicine;
(iii)clinical records of Birkenhead Medical Centre;
(iv)a series of 8 photographs depicting the damage to the subject vehicles, and
(v)a dashcam footage capturing the accident.

(d)    the claimant’s second bundle of late documents filed on 25 March 2024, comprising of the report of Dr Benson Pek, dated 1 March 2024;
(e)    the insurer’s second bundle of late documents filed on 15 April 2024, pursuant to the Panel’s directions which included an MRI report of the lumbar spine dated
4 April 2024;
(f)    the insurer’s third bundle of late documents filed on 28 June 2024, pursuant to the Panel’s directions which included supplementary submissions, the report of Dr John Korber dated 17 May 2024, the report of Dr Raymond Wallace dated
24 June 2024;
(g)    the claimant’s third bundle of late documents filed on 21 August 2024, which included supplementary submissions, a statement of the claimant dated
19 August 2024 and a statement of the claimant’s father, Bradley Williamson dated 19 August 2024, and
(h)    the claimant’s fourth bundle of late documents filed on 12 November 2024, pursuant to the Panel’s directions which comprised of a discharge summary from Ryde Hospital issued on 15 November 2022 and a whole body bone scan with Spect/CT dated 22 March 2024.

The Panel considered all of the above material.

SUBMISSIONS

The insurer’s submissions

The insurer says that the annular tear at the L4/5 region is a result of degenerative disease, predating the accident and not caused by the accident. On that basis, the claimant has sustained a threshold injury to the lumbar spine in the accident.
For that proposition, the insurer relies primarily on the opinions of radiologist, Dr John Korber and orthopaedic surgeon, Dr Raymond Wallace.
The insurer points out that Dr Korber confirms that disc degeneration in the lumbar spine would have preceded the accident and that he goes on to state that ‘the most important thing about imaging is clinical correlation’. In coming to this conclusion, Dr Korber conducted his own review of the MRI scans of the lumbar spine of 1 April 2023 and 4 April 2024 rather than accepting the radiologists’ interpretations of the scans.
Dr Wallace accepted the presence of an annular tear at L4/5 but was of the opinion that this was not as a result of the accident because the MRI performed on 1 April 2023 showed evidence of degenerative disease at the L4/5 level and that pathology would have predated the accident.
As stated by Dr Korber, clinical correlation is an important consideration. Dr Wallace reviewed the imaging of the claimant’s lumbar spine, confirming the presence of degenerative disc disease at L4/5 with shallow central disc protrusion. Taken with the claimant’s clinical presentation, Dr Wallace concluded that the pathology at L4/5 is not causally related to the accident.

The claimant’s submissions

The claimant says that the single Medical Assessor considered a range of factors, including the mechanism of the accident, the young age of the claimant, the claimant’s good state of health prior to the accident, the absence of evidence of any back pain prior to the accident, the immediate onset of back pain after the accident, the combination of both protrusion with fissure (as shown in the 1 April 2023 MRI scan) to reach the conclusion that on the balance of probabilities, the accident caused the annular fissure and small central disc protrusion.
The claimant says that the existence of the tear in the 4 April 2024 MRI scan in combination with the small central disc protrusion lends further support to the conclusion reached by the single Medical Assessor. Having reviewed both scans, Dr Korber’s opinion was that in the clinical circumstances of the claimant, it is reasonable to conclude that the fissure was traumatic in aetiology and likely caused by the accident.

THE EVIDENCE BEFORE THE REVIEW PANEL

The evidence before the Panel that is directly relevant to the issues in dispute may be conveniently summarised as follows.

Pre-accident medical evidence

The general practitioner (GP) records of the Birkenhead Medical Centre showed a medical history of the claimant from April 2021 to the date of the accident and thereafter. There was no evidence of any pre-accident treatment or complaints about any condition or injury relating to the lumbar spine or cervical spine in those records.[10]
[10] The claimant’s first bundle of late documents - unpaginated.
A discharge summary from Ryde Hospital issued on 26 October 2022 recorded that the claimant presented to the emergency department on that day, following a motor accident the day before, reporting “neck spasms and pain”. Palpation of the left trapezius and left side of the cervical spine produced pain. An X-ray of the cervical spine was performed that reported normal findings. It was concluded that there was “no acute traumatic cervical spine injury”. The claimant was discharged the same day with analgesics and advised to follow up with his GP in two days if there were any continuing problems.[11]
[11] The claimant’s first bundle of late documents- unpaginated.
In a signed statement dated 19 August 2024, the claimant said that his neck resolved later that week, and his neck was “fine” at the time of the subject motor accident.[12]
[12] Page 4 of the claimant’s third bundle of late documents.
There was no other medical evidence before the Panel to suggest any other pre-accident condition or injury to the cervical spine and the lumbar spine.

The claimant’s statement

In his application for personal injury benefits dated 2 December 2022, the claimant described his injuries in the following terms:
“All through my back and neck has been very stiff and most movements casuing [sic] acute pain up and down my back.”[13]
[13] Page 9 of the insurer’s bundle.

The motor accident

In a signed statement dated 19 August 2024, the claimant described the circumstances of the motor accident as follows:
“I was travelling north on the M5, towards the city. I was at the point where the speed limit on the M5 changes from 110km/h to 100km/h. I was travelling in the middle right lane of 4 lanes.
I slowed to 100, and then saw a Holden Commodore in the lane to my left as it flew past me. Given my speed, I could tell that the driver of the Holden had not slowed to match the new speed limit.
A four-wheel-drive was travelling in front of me in my lane and went to merge into the lane to the left.
To avoid the collision with the four-wheel drive, the Commodore driver swerved to the right, across my lane and into a Nissan Navara ute travelling in front of me in the lane to my right.
The Commodore swerved again and smacked into the driver’s side of my Rodeo.”[14]
[14] Page 5 of the claimant’s second bundle of late documents.
The Panel has reviewed a series of eight photographs depicting the vehicles involved in the accident. They included a photograph depicting the claimant’s vehicle at the scene of the accident, a photograph of the insured vehicle at the scene of the accident and a photograph of the claimant’s vehicle sometime after the accident. These photographs showed significant damage to the driver’s side of the claimant’s vehicle.[15]
[15] Claimant’s first bundle of late documents- unpaginated.
The Panel has reviewed video footage captured by the claimant’s dashcam as he was travelling slightly behind the insured vehicle. In the Panel’s interpretation, the footage showed images of a high impact collision between the insured vehicle and another vehicle in a 100kmph zone. A subsequent impact was then heard to have occurred between the claimant’s vehicle and the insured’s vehicle, jolting the claimant’s dashcam out of position.[16]
[16] Claimant’s first bundle of late documents - unpaginated.

Post-accident medical evidence

The discharge summary from Ryde Hospital issued on 15 November 2022 recorded that on the day of the accident, the claimant presented with lower back pain following a collision on the M5 on the driver’s side of his vehicle. On examination, there was tenderness at the L3 level of the spine. An X-ray of the lumbar spine revealed no bony injuries. A diagnosis of lumbar back sprain was made, and the claimant was discharged and advised to follow up with his GP in two days.[17]
[17] Claimant’s fourth bundle of late documents- unpaginated.
The GP records of the Birkenhead Medical Centre recorded the clinical notes of Dr Peter Chen for the first visit by the claimant after the accident on 5 December 2022:
“Car accident 14/11
on way back from work
Holden Commodore lost control swerving on M5
Hit patient’s car on drivers [sic] side (Holden rodeo)
minimal intrusion into cabin
went to Ryde Hospital after developing pain 30mins after the accident in lower back and neck x-ray of lower back and cleared neck
has been seeing physio sari coakley (Balmain sports medicine)
has been working up until this point-light duties
o/e
lower back paraspinal pain
no midline tenderness on palpation or percussion
LL normal neurology
neck-no midline pain
from
normal UL power
Imp: non specific back and neck pain”[18]
[18] The claimant’s first bundle of late documents – unpaginated.
At the review by Dr Chen on 3 January 2023, the claimant reported persisting complaints of low back pain despite receiving physiotherapy and that the pain was exacerbated by moving and lifting.[19]
[19] The claimant’s first bundle of late documents – unpaginated.
At the review by Dr Chen on 7 February 2023, the claimant complained of persisting back pain which was worse in the morning. On examination, paraspinal pain was noted but there no neurological findings.[20]
[20] The claimant’s first bundle of late documents – unpaginated.
At the next review by Dr Chen on 7 March 2023, the claimant complained of ongoing back pain across the L4/L5 paraspinal region, back stiffness in the morning and that driving and twisting were very painful.[21]
[21] The claimant’s first bundle of late documents - unpaginated
Due to his continuing back symptoms, the claimant was referred to sports and exercise physician, Dr David Samra for further management.
At the initial consultation on 9 March 2023, Dr Samra found widespread tenderness over the lumbar spine. He concluded that the claimant had persistent lumbar and thoracic pain, and specifically noted “features suspicious for underlying occult facet joint strain, trabecular vertebral fracture or annulus fissures”. He recommended that the claimant undergo an MRI scan of the thoracic and lumbar spine.[22]
[22] Page 31 of the insurer’s bundle.
An MRI of the lumbar spine performed on 1 April 2023 by radiologist, Dr Wendy Brown (the April 2023 scan) reported the following findings:

“At L4-5 there is disc degeneration with loss of the normal T2 disc signal. There is a shallow central disc protrusion and annular fissure. There is no central canal stenosis. There is mild subarticular recess narrowing for the L5 nerve roots, greater on the right. There is no neural foraminal narrowing. At L5-S1 there is no disc herniation, central canal stenosis or neural foraminal narrowing.”[23]
[23] Page 35 of the insurer’s bundle.

The report came to the following conclusion:
“Minor disc degeneration at L4-5. Small central disc protrusion and annular disc fissure without significant central canal stenosis. There is mild subarticular recess narrowing for the L5 nerve roots, greater on the right.” [24]
[24] Page 35 of the insurer’s bundle.
An MRI of the thoracic spine also performed on 1 April 2023 by Dr Brown showed no disc herniation or neural compression and no fracture.[25]
[25] Page 33 of the insurer’s bundle.
Following a review of the MRI of the lumbar spine on 12 April 2023, Dr Samra believed that the result corroborated well with the location of maximal pain with annulus fissuring at the L4-5 level. He noted that there was approximation and narrowing around the descending L5 nerve roots in the lateral recess and believed that this was likely why the claimant was getting more pain down his legs when he was using extension-based exercises (in combination with dehydration of his disc).[26]
[26] Page 35 of the insurer’s bundle.
In a report dated 30 May 2023, Dr Chen noted that the claimant had neurological pain down both legs when assessed on 5 May 2023, and had since received two epidural corticosteroid injections without lasting benefit.[27]
[27] Page 35 of the claimant’s bundle.
In his report dated 31 May 2023, Dr Samra opined that the annulus fissuring at the L4-5 level was post-traumatic and represented a “partial thickness injury of the posterior intervertebral disc”. He considered that the mechanism of injury was seated lateral flexion when there was a collision on the driver’s side of the claimant’s vehicle with a vehicle that had lost control.[28]
[28] Page 289 of the claimant’s bundle.

Further evidence received by the Panel that was not before the single Medical Assessor

The claimant was examined on 1 March 2024 by consultant occupational physician,
Dr Benson Pek at the request of the claimant’s lawyers.
In this report of the same date, Dr Pek expressed the opinion that the claimant had sustained a L4/5 disc injury involving annular tearing and radicular symptoms. Dr Pek considered that the observed annular tearing was caused by the accident, given the high impact lateral flexion mechanism of the injury from the driver’s side of the vehicle.[29]
[29] Page 8 of the claimant’s second bundle of late documents.
A whole-body bone scan performed on 22 March 2024 showed no evidence of a significant facet joint arthropathy, vertebral cause for the ongoing back pain. [30]
[30] The claimant’s fourth bundle of late documents - unpaginated

A further MRI of the lumbar spine performed on 4 April 2024 by radiologist, Dr Duncan Snodgrass (the April 2024 scan) reported the following findings:
“At L4-5 there is a small central disc protrusion with a slight indentation of thecal sac but no foraminal narrowing.
The other lumbar discs have normal appearance. The vertebrae are in normal alignment. There is no pars defect or spondylolisthesis. The facet joints are preserved.
There is no abnormal signal in the sacroiliac joints. The conus ends at the T12/L1 level. There is no atrophy or fatty infiltration of the paraspinal musculature.
COMMENT:
L4/5 mild central disc protrusion.”[31]
[31] Page 3 of the insurer’s second bundle of late documents.
Thus, according to Dr Snodgrass’s findings above, the images did not show an annular tear that was reported in the April 2023 MRI scan. On that basis, the insurer made a request to the Panel for an extension of time to seek a further opinion from an expert radiologist of the April 2024 imaging. The insurer’s request was granted. The Panel was subsequently provided with a report from radiologist, Dr John Korber dated 17 May 2024.
Upon review of the April 2023 MRI imaging, Dr Korber found “the L4/5 disc space is narrow in keeping with disc degeneration and that there is a posterocentral disc protrusion associated with an annular fissure.” [32]
[32] Page 84 of the insurer’s third bundle of late documents.
Upon review of the April 2024 MRI imaging, Dr Korber found in the sagittal scan, there is “certainly an annular fissure at L4/5” which would appear to not have been reported.[33]
[33] Page 84 of the insurer’s third bundle of late documents.
Dr Korber was of the opinion that, given the clinical history and pre-imaging diagnosis of
[34] Page 85 of the insurer’s third bundle of late documents.
Dr Samra of annular tear and the clinical presentation, it would be reasonable that the claimant had discogenic pain, noting that there is no pre-accident history of pain and the disc degeneration preceding the accident.[34]
Dr Korber was of the opinion that given the clinical circumstance, it is reasonable to conclude that the fissure was traumatic and likely caused by the accident and it would be difficult to argue otherwise. [35]
[35] Pages 84 and 85 of the insurer’s third bundle of late documents.
Dr Raymond Wallace, orthopaedic surgeon, was qualified by the insurer. He examined the claimant on 30 May 2024 and provided a report on 4 June 2024.
Dr Wallace was of the opinion that the lumbar spine injury was caused by the motor accident with a proportion being due to preexisting degenerative disc disease at the L4/5 level.[36]
[36] Page 84 of the insurer’s third bundle of late documents.
Dr Wallace was of the opinion that the claimant did not suffer an annular tear at the L4/5 level as a result of the accident but rather he suffered an aggravation of pre-existing degenerative disc disease at that level. In support of his opinion, Dr Wallace refers to the findings of Dr Brown on the April 2023 MRI which he says is consistent with pre-existing degenerative disc disease at the L4/5 level rather than acute trauma.[37]

CONSIDERATION

[37] Page 84 of the insurer’s third bundle of late documents.

Causation

The single Medical Assessor’s conclusion in her assessment was that the motor accident caused a lumbar spine injury involving a lumbar disc protrusion and annular disc fissure. As the annular fissure is a partial tear of a ligament, the single Medical Assessor’s conclusion meant that the lumbar spine injury is a non-threshold injury as defined in s 1.6 of the MAI Act.
The clinical records from Ryde Hospital and the GP records of Dr Chen show that the claimant sustained a lumbar spine injury as a result of the accident.
The available evidence shows that there is an absence of lumbar spinal symptoms prior to the accident.
The records of complaints made by the claimant to (and the treatment given by) Dr Chen and Dr Samra show that immediately after the accident from December 2022 to at least
May 2023, there is evidence of new back pain that has persisted.
There is no longer any controversy that there is an annular tear or fissure in the claimant’s L4/5 disc. This has been confirmed in the April 2023 scan as well as the April 2024 scan and acknowledged by both insurer’s medical experts, Dr Korber and Dr Wallace, the claimant’s treating specialist, Dr Samra and the claimant’s medical expert, Dr Bek.
There is also no controversy that the April 2023 scan showed that the L4/5 disc space is narrow in keeping with disc degeneration.
The insurer’s argument (based on the evidence of Dr Korber and Dr Wallace) is that the annular tear at L4/5 was not caused by the accident but rather the result of degenerative disease in the region which predated the accident. If there was a degenerative tear before the accident, then the accident must not have caused the tear.
In considering whether the annular tear was caused or materially contributed to by the motor accident, the Panel notes that the motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.
Having considered all the medical evidence, the dashcam footage and the damage to the subject vehicles post-accident depicted in the photographs, the Panel considers that the accident occurred at high speed and resulted in a lateral force being applied to the claimant. The Medical Assessors of the Panel consider that the lumbar spine is not protected from excessive or abnormal movements in that setting. These movements have the potential to be injurious to disc components, particularly the annulus fibrosus, that are susceptible to injury from flexion and rotational forces. The Panel accepts that the motor accident could have caused the annular fissure or tear.
The Medical Assessors of the Panel consider that degenerative changes are increasingly common with age and are relatively infrequent in younger individuals such as the claimant. The Medical Assessors of the Panel accept that there was some disc space narrowing at L4/5 prior to the accident, as suggested by the April 2023 scan. However, the presence of disc space narrowing and disc dehydration (which is of the nucleus pulposus or central part of the disc) is not synonymous with annular tears. The Medical Assessors of the Panel consider that a degree of degeneration may compromise the structural integrity of the disc, rendering it susceptible to further injury.
The issue is therefore not only whether there were any degenerative changes that predated the accident but whether they are the only cause of the observed annular tear. On the balance of probabilities, the Panel considers that the contribution of the accident to the observed annular tear was more than negligible.
This conclusion is consistent with the evidence of the insurer’s own expert radiologist,
Dr Korber. Dr Korber was of the opinion that, given the clinical history and pre-imaging diagnosis of Dr Samra of annular tear and the clinical presentation, it would be reasonable that the claimant had discogenic pain, noting that there is no pre-accident history of pain and the disc degeneration preceding the accident. Dr Korber was of the opinion that given the clinical circumstance, it is reasonable to conclude that the fissure was traumatic and likely caused by the accident and it would be difficult to argue otherwise.

FINDINGS

The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], and [64].
The Panel finds the injury to the cervical spine (whiplash now resolved) caused by the motor accident, is a threshold injury as defined in s 1.6 of the MAI Act.
The Panel finds that the injury to the lumbar spine (small central disc protrusion and annular disc fissure) is NOT a threshold injury for the purposes of the MAI Act.
Accordingly, for these reasons, the Panel confirms the certificate of Medical Assessor Nelukshi Wijetunga dated 5 September 2023.

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Citations

Youi Pty Limited v Williamson [2024] NSWPICMP 855

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13

Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372

Insurance Australia Group Ltd v Keen [2021] NSWCA 287

[2024] NSWPICMP 855

18 September 2024