Zalghout v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Zalghout v AAI Limited t/as GIO [2024] NSWPICMP 374
CLAIMANT:	Mohamed Zalghout
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	11 June 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was involved in two low-impact motor vehicle accidents within ten days; claimant’s car was either stationary or travelling slowly and was hit from behind by other car; Held – original medical certificate set aside; original assessment found the claimant sustained numerous soft tissue injuries including to left shoulder which was assessed at a whole person impairment (WPI) of 1%; Panel found a total 6% WPI; left shoulder at 1% WPI; lumbar spine injury was an aggravation of pre-existing facet arthralgia resulting in a finding of DRE category II at 5% WPI; all of the other injuries showed a normal range of motion and no assessable impairment; claimant raised the issue of scarring after the Panel had completed its re-examination of the claimant; the original Medical Assessor did not consider the effect of scarring; no submission about scarring was made by either party until after the re-examination was completed and the Panel was deliberating; Panel referred to the Court of Appeal decision in Mandoukos v Allianz Australia Insurance Ltd and the meaning of a ‘medical dispute’; Panel determined that the scarring to the lumbar spine caused by or resulting from a L5/S1 microdiscectomy was not caused by the motor accident; Panel confirmed the certificate of original medical assessor regarding treatment and care of a L5/S1 microdiscectomy which was not reasonable and necessary in the circumstances and does not relate to the injury caused by the motor accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated 17 January 2023 and issues a replacement certificate determining that the following injuries were caused by the motor accident and gives rise to a permanent impairment of 6% which is not greater than 10%: (a) lumbar spine – soft tissue injury; (b) cervical spine – soft tissue injury; (c) left shoulder – soft tissue injury; (d) right shoulder – soft tissue injury; (e) right hip – soft tissue injury; (f) left hip – soft tissue injury, and (g) right knee – soft tissue injury. 2. The Review Panel determines that the following injuries were not caused by the motor accident: scarring to the lumbar spine caused by or resulting from a L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020. 3. The Review Panel confirms the certificate of Medical Assessor Alexander Woo dated 17 January 2023 regarding treatment and care determining that the following treatment and care of a L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020, is not reasonable and necessary in the circumstances. 4. The Review Panel confirms the certificate of Medical Assessor Alexander Woo dated 17 January 2023 regarding treatment and care determining that the following treatment and care of a L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020, does not relate to the injury caused by the motor accident.

STATEMENT OF REASONS

BACKGROUND

Mohamed Zalghout (the claimant) was involved in two motor vehicle accidents on 16 and 25 July 2017. In both motor accidents it seems that the claimant’s car was either stationary or travelling slowly and was hit from behind by other cars. This review relates to an assessment of Mr Zalghout’s injuries from the accident on 25 July 2017.
After the subject accident on 25 July 2017 the claimant was able to drive his car home. He did not attend any hospital immediately after the accident nor did ambulance or police services attend at the scene of the subject accident.
AAI Limited trading as GIO (the Insurer) is the relevant insurer with liability to pay any damages to Mr Zalghout under the Motor Accident Compensation Act, 1999 (the MAC Act).
In a certificate dated 17 January 2023, Medical Assessor Alexander Woo determined that Mr Zalghout’s injuries from the accident on 25 July 2017 gave rise to permanent impairment of 1% and that the treatment and care in dispute was not related to the injury and was not reasonable and necessary.[1]
[1] Insurer’s bundle of documents AD 2 p 17.
This present dispute is in relation to whether the degree of permanent impairment sustained by Mr Zalghout as a result of his injuries caused by the accident on 25 July 2017 is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2] There is also a dispute about whether the treatment and care of a microdiscectomy operation performed by Professor Van Gelder on 15 June 2020 related to the injury caused by the motor accident and whether it was reasonable and necessary in the circumstances.
[2] Sections 57 and 58 of the MAC Act.

REVIEW PROCEDURE AND PROCEDURAL FAIRNESS

The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The relevant medical assessment was conducted by Medical Assessor Woo. He issued a certificate dated 17 January 2023.
In an application dated 16 February 2023 the claimant’s solicitor sought a review of Medical Assessor Woo’s assessment certificate.
On 3 April 2023, a delegate of the President decided that that she was satisfied that there was a reasonable cause to suspect that the medical assessment of Medical Assessor Woo was incorrect in a material particular. The delegate was satisfied that the assessment was incorrect because of the medical assessor’s failure to evaluate evidence about the cause of the lumbar spine injury and his failure to respond to the claimant’s argument about evidence of nerve root compression in the MRI dated 3 August 2017 and the report of Dr Bazina dated 22 August 2017.
The delegate has referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 63(2B) of the MAC Act. Decision of the Presidents delegate dated 11 October 2021. Insurer’s bundle of documents AD 4 p 7.
All Panel members have had no previous involvement with the claimant or with this matter.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Clause 14F of Schedule 1 of the PIC Act provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[4] that a Panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[4] Sub-s 63(3) of the MAC Act.
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] Sub-s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to sub-section 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[7]
[7] Clause 1.2 of the Guidelines.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The Panel is not required to choose between competing medical opinions but is required to form its own opinion. See the decisions in: Insurance Australia Group Ltd v Keen[9] and Insurance Australia Ltd v Marsh.[10]
[9] [2021] NSWCA 287 at [40], [41] and [45].
[10] [2022] NSWCA 31 at [11], [21] and [64].
The Panel notes the recent Court of Appeal decision in AAI Limited trading as GIO v Amos [2024] NSWCA 65 which considered the content of procedural fairness obligations owed by a medical review panel as compared to a court or tribunal. In Amos the court held that procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it.[11] The Panel was not obliged to put to the claimant its thought processes or to alert the claimant to the consequences of describing his symptoms in a particular way.[12]
[11] See Adamson JA at [55], Kirk JA at [1], Basten AJA at [74] and [91]-[92].
[12] See Adamson JA at [63] and [67], Kirk JA at [1], Basten AJA at [74].
In Amos her Honour described the requirements of procedural fairness for a medical review panel as follows:
“52. Procedural fairness depends, in part, on context. For example, in a judicial or arbitral setting, procedural fairness generally requires a hearing, whereby parties have an opportunity to put their cases to relevant witnesses in cross-examination and in submissions to an independent arbiter or judge. However, in the context of a Review Panel, the requirements of procedural fairness are different from those in a contested hearing.
53.   The High Court considered what procedural fairness requires in the context of a body such as the Review Panel in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) and said, at [47]:
‘The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
(Emphasis added and footnotes omitted.)
55.   Having regard to Wingfoot, it can be seen that the legislative choice to have the assessment of %WPI performed by a medical assessor or a review panel (constituted by three members, two of whom are medical assessors) rather than in court proceedings, had significant ramifications for the nature and extent of procedural fairness which was required. In the context of a medical assessment conducted by a medical assessor or a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing), citing Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81.
56.   In the present case, the critical issue was whether the fall was caused by an injury sustained in the accident. Rules that apply in court proceedings, such as the rule in Browne v Dunn,usually have no analogue in a medical assessment under the Act….
61.    In these circumstances, it is difficult to accept that the claimant was taken by surprise by the Review Panel’s adverse conclusion, since this was the conclusion for which the insurer contended, as supported by its submissions and documents, and in particular, the clinical notes which recorded the claimant’s presenting histories and contemporaneous symptoms. The Review Panel was not obliged to provide a running commentary of its thought processes or of the effect of particular answers given by the claimant in the course of its examination and questioning of him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J). Further, the Review Panel was entitled to apply its medical expertise to make findings on the basis of answers given by the claimant to its questions and to explain, as it did in its reasons, that the presence or absence of some PPV symptoms was neither the only, nor a critical, factor in its decision….
67.    The Review Panel was not obliged to put to the claimant the various versions he had given about his symptoms over time, with a view to ascertaining which version was the correct, or most accurate, one. …… The Review Panel was entitled to accept the description of the claimant’s symptoms which the claimant gave in the course of the examination it conducted. The Review Panel was not obliged to spell out its thought processes or inform the claimant of the consequences of giving one answer rather than another, or of describing dizziness or vertigo in one way rather than another.”
His Honour Basten AJA then stated that it is not necessary for a Medical Review Panel to provide sufficient information and/or questioning to the claimant so that the claimant is on notice of the precise issue with which the claimant must deal with or respond to.[13] What the claimant sought to do, and the primary judge accepted, was to expand that obligation to impose on the panel a requirement to provide information to the claimant as to the nature of the medical evidence which the panel thought might be dispositive, so that the plaintiff or his legal representatives could deal with it. That is not the way a medical examination is conducted. The proposed expanded obligation is inconsistent with the function of the medical assessors identified in Wingfoot and with the statutory scheme under the New South Wales legislation noted above.[14]
[13] At [91].
[14] At [92].
In this matter, the Panel considered it appropriate for the Panel to assess the claimant and for it to review the range of matters with which the assessment of Medical Assessor Woo was concerned. Consistent with the decision in Amos the Panel focused its attention on the matters raised by the parties in their: application and reply; medical evidence and written submissions.
On 15 September 2023 Mr Zalghout was examined by Medical Assessor Gibson and Medical Assessor Dixon by video conference on behalf of the Panel.

RELEVANT STATUTORY PROVISIONS AND GUIDELINES

A brief summary of the legislation and Guidelines relevant in this case can be stated as follows.[15]
[15] For a detailed explanation of how the legislation and Guidelines work together please refer to the decision of Walton J in: Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045.
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 58 of the MAC Act also provides that a disagreement between a claimant and an insurer includes a disagreement about whether treatment and care is reasonable and necessary or is caused by the subject motor accident.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and causation. The Guidelines provide in part:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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.
1.6 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 judgement.
1.7 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.”
The Panel notes that when considering the issue of causation of injury it had regard to the recent decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. In Jacobs the insurer argued that the medical assessor had disregarded all of the contrary views so that the causation issues had not been properly dealt with. In response the claimant submitted that the medical assessor found there had been physical injuries which in turn caused psychiatric injuries. The court then held that the medical assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available to him. His Honour stated that:
“In other words, it is obviously not enough to simply consider one side’s material, but that does not mean that every dispute in the material needs to be described and particularly resolved. This, albeit imperfect, assessment did look at both sides and did reach a conclusion, including specifically on causation.”[16]
[16] Per Elkaim AJ at [45]-[46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41]-[44]].

The provisions of the Civil Liability Act 2002(the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[17] In Raina v CIC Allianz Insurance Ltd Campbell J stated:[18]
“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.”
[17] Sub-section 3B(2) of the CL Act.
[18] [2021] NSWSC 13 (Raina) at [65].

MEDICAL ASSESSMENT UNDER REVIEW

In his certificate dated 17 April 2023 Medical Assessor Woo assessed the claimant’s whole person impairment (WPI) arising from the injury sustained in the motor accident on 25 July 2017 and whether treatment and care (spinal surgery) was reasonable and necessary.
Medical Assessor Woo noted that the following injuries were referred by the Commission to him for assessment:
(a)   cervical spine – soft tissue injury, discal injury, numbness, whiplash;
(b)   lumbar spine – soft tissue injury, discal injury, L4/5 & L5/S1 paracentral discal protrusion;
(c)   left shoulder – soft tissue injury, rotator cuff injury, subacromial bursitis;
(d)   right shoulder – soft tissue injury;
(e)   left hip – contusion;
(f)    right hip – contusion, and
(g)   right knee – hyporeflexia, radiculopathy.
Medical Assessor Woo summarised in detail the claimant’s medical history and also reviewed his symptoms and treatment.
The history that Mr Zalghout gave was that he had a neck injury during a motor vehicle accident in or about 2000. He made a compulsory third party (CTP) claim which was settled through a solicitor. In 2008, he made a claim for right knee while working with New Star and obtained $7,000. He underwent a right knee arthroscopy and partial medial meniscectomy on 26 October 2009 at Canterbury Hospital. He was diagnosed with rheumatoid arthritis in 2010.
In his clinical examination Medical Assessor Woo found a normal range of movement in the claimant’s cervical spine. In the lumbar spine he found verifiable radicular complaints. In the claimant’s left shoulder he found a slight tenderness. In the claimant’s hips, knees, ankles and feet he found a normal range of movement with some tenderness in the hip and ankle joints.
Medical Assessor Woo made the following diagnosis and conclusion on causation. Based on the history of the accident on 25 July 2017, mechanism of injury, clinical and medical imaging as well as the past medical history, Medical Assessor Woo found that Mr Zalghout has the following injuries:
(a)   lumbar spine – soft tissue injury (facet joint contusion at L4/5 & L5/S1 levels);
(b)   cervical spine – soft tissue injury;
(c)   left shoulder – soft tissue injury;
(d)   right shoulder – soft tissue injury;
(e)   right hip – contusion;
(f)    left hip – contusion, and
(g)   right knee – soft tissue injury.
Medical Assessor Woo further found that Mr Zalghout had symptoms related to the alleged injuries immediately after the accidents on 25 July 2017 and that his injuries are caused by the motor accident. The MRI scan of lumbar spine on 3 August 2017 showed facet joint arthritis at the L4/5 and L5/S1 levels without evidence of nerve root compression. He found no evidence for the claimant’s right leg radiculopathy until January 2019. The MRI scan of lumbar spine on 13 January 2019 showed compression of the S1 nerve root at the L5/S1 level. Medical Assessor Woo found that the claimant’s right leg radiculopathy was not caused by the injury caused by the accident on 25 July 2017.
When calculating the claimant’s WPI Medical Assessor Woo found the following. For the lumbar spine he found evidence of right S1 radiculopathy which converted to a 10% WPI. However Medical Assessor Woo found this current impairment to the lumbar spine was unrelated to the subject accident on 25 July 2017. He attributed 1% WPI for the left shoulder as there is restriction of internal rotation to 70o with 1% upper extremity impairment which converted to 1% WPI. The other movements were found to be normal. For all the other remaining listed injuries Medical Assessor Woo found 0% WPI.
In regard to the treatment and care dispute, Medical Assessor Woo noted that Mr Zalghout underwent two microdiscectomy operations at the L5/S1 level on 13 October 2017 and 15 June 2020. He noted there were no medical records of any back injury after the accident on 16 July 2017 or prior to the second accident on 25 July 2017. He also found no evidence of a right L5/S1 radiculopathy caused by the accident on 16 July 2017.
Medical Assessor Woo noted that Mr Zalghout presented with symptoms of right leg radiculopathy in January 2019 which Medical Assessor Woo considered was not related to the injury caused by the accident on 25 July 2017.
Medical Assessor Woo found that the L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020 is not casually related to the injury sustained in the accident on 16 July 2017. He further found that the L5/S1 microdiscectomy performed by Professor van Gelder on 15 June 2020 was not casually related to the injury sustained in the accident on 25 July 2017. Medical Assessor Woo found that the microdiscectomy was not reasonable and necessary in relation to the injury sustained in the accident on 25 July 2017.

MATERIAL BEFORE THE REVIEW PANEL

The Panel issued Directions to the parties dated 17 August 2023 which required each party to file an indexed, paginated bundle of documents and requested Mr Zalghout to attend a medical examination.
In response to this direction the solicitor for the Insurer and claimant filed bundles of documents.
On 6 May 2024 the Panel sent a message in the portal to the parties which stated as follows:
“As you would be aware the panel has met with the claimant Mohamad Zalghout and assessed him in a MS teams meeting on 15 September 2023.
The Panel has commenced reviewing the material and is currently preparing its written certificate and reasons.
In the course of this process the Panel notes that both the claimant and insurer solicitors have essentially only provided written submissions about the claimant’s lumbar spine injury and whether or not surgery was reasonable and necessary for that injury.
Neither party has given detailed submissions on the other injuries considered by Medical Assessor Woo.
Assessor Woo noted that the following injuries were referred by the Personal Injury Commission to him for assessment:
• Cervical spine – soft tissue injury, discal injury, numbness, whiplash
• Lumbar spine – soft tissue injury, discal injury, L4/5 & L5/S1 paracentral discal protrusion
• Left shoulder – soft tissue injury, rotator cuff injury, subacromial bursitis
• Right shoulder – soft tissue injury
• Left hip – contusion
• Right hip – contusion
•Right knee – hyporeflexia, radiculopathy
At the MS teams meeting on 15 September 2023 when the Panel asked Mr Zalghout what injuries he had sustained in the subject accident, he replied he had injured his low back. He was asked again later in the assessment to confirm whether there had been any other injuries apart from the low back injury and he said there had not been.
Because neither the claimant nor the insurer solicitors made substantial written submissions about the other alleged injuries and also because Mr Zalghout himself told the panel his only ongoing injury is his lumbar spine the panel proposes only to substantially consider and address the lumbar spine injury. The panel does not propose in detail to address the other injuries which are listed above.
Can both parties confirm that they agree or disagree with the proposed course outlined by the Panel by 5 PM Friday, 10 May 2024.
If both parties agree the Panel will finalise its reasons and issue it certificate shortly.
If one or both parties disagree they are requested to provide further detailed written submissions as to what other injuries or body parts the parties wish the Panel to consider. Any further detailed submissions must refer to relevant medical and other evidence the parties want the Panel to consider.
Depending upon the parties’ submissions, the Panel may then to re-examine Mr Zalghout in person. If a further physical re-examination is required by the panel the panel will set a date and advise the parties of that re-examination date and place.
If one or both parties require the panel to consider any other alleged injury or body part other than the lower spine the parties detailed written submissions must be completed and filed with the Commission by 5 PM Friday, 17 May 2024.”
The insurer responded on 6 May 2024 as follows:
“We agree with the Review Panel's proposed course of action.
That said, the insurer does refer to its submissions dated 6 March and 2 May 2023 and documents lodged for consideration by the review panel on 2 May 2023, document named 'AD1 - Zalghout submissions' on the portal. The insurer's documents included its submissions from the permanent impairment and treatment dispute, which address the injuries to the lumbar spine, left and right hip, left and right knee, left and right shoulder, and cervical spine. These are annexed to 'AD1 - Zalghout submissions' dated 2 May 2023, and commence at pages 33, 454 (incorrectly referenced as page 401 in the index) and 678 of the insurer's bundle.”
The claimant responded on 16 May 2024 as follows:
“We are instructed to request the review panel only consider the claimant's lumbar spine injury and scarring noting that Assessor Woo has already provided an assessment of 1% in respect of the claimant's left shoulder.
Kindly confirm that the review panel will proceed on the above basis.
We also note that the claimant relies on the submission already provided.
We look forward to hearing from you.”
The Panel notes that the claimant’s above response refers to scarring. The Panel notes that Medical Assessor Woo did not consider the effect of scarring. Nor does it appear that scarring was referred to in any submission from either party in this review application prior to 16 May 2024.
On 20 May 2024 the Panel sent another message in the portal to the parties which stated in part as follows:
“The panel has advised they will not consider the scarring as an injury to be assessed as it was never part of the original application for Assessor Woo to assess and was not part of the review and has not been assessed in Assessor Woo's decision dated 17/1/2023.
The only injury that will be assessed in the review matter will be the lumbar spine injury only and will mention the other injuries listed in the review application.”
On 21 May 2024 the Panel sent another message in the portal to the parties which stated in part as follows:
“The Panel refers to its earlier message dated 20 May 2024 concerning the scarring issue.
If either party wishes the Panel to consider the scarring issue they are directed to make written submissions about the scarring issue by 5 PM Friday, 31 May 2024.
Any submissions should include any references to any medical evidence or report contained in the documents or evidence currently before the Panel.
If the claimant makes a submission they are also required to include at least two clear photographs of the claimant’s scarring so that the Panel can evaluate the scarring without the need for a further physical re-examination.
If the parties don’t respond by 5 PM Friday, 31 May 2024 the Panel will proceed on the basis that scarring is not to be considered by the Panel as part of its review. The Panel then finalise its certificate and decision.”
On 31 May 2024 both the claimant and insurer solicitors responded to the above message with brief written submissions on the scarring issue which are summarised below.
The Panel notes and refers to the recent Court of Appeal decision on Mandoukos v Allianz Australia Insurance Ltd[2024] NSWCA 71, clearly defines the meaning of a ‘medical dispute’ under the Motor Accident Injuries Act 2017. The matter relates to a medical assessment about a minor injury (now threshold injury) dispute. The claimant had sought to argue that surgery to his neck resulted in the injury not being a minor injury. This issue had not been in dispute between the parties and was not considered by the original medical assessor. The Court of Appeal found that:
“... a dispute between a claimant and an insurer about a medical assessment matter, in s 7.17, is a reference to the dispute which has in fact arisen between a claimant and an insurer, albeit that, to fall within the definition of ‘medical dispute’ in s 7.17, that dispute must relate to the subject matter of a medical assessment matter”. (at [73])
The court went on to say (at [94]) that:
“The key matter arising out of the analysis set out above ... is that the medical dispute referred for assessment under s 7.20, or referred again for assessment under s 7.24 of the Act, is the actual medical dispute between the claimant and the insurer about the relevant medical assessment matter.”
This means that all first instance medical assessments and any subsequent review panels may only consider the matters presented to them by the parties as being in dispute. There is no warrant for any inquiry as to whether the claimant’s injuries are in fact different to those disputed.
The Panel notes that there are over 2,000 pages of medical records. These extensive and voluminous medical records, reports and clinical notes relate to the claimant’s psychological and physical injuries including: cervical spine, lumbar spine, right knee, left and right hips, left and right shoulders. The Panel has read and carefully considered all of these medical records reports and notes before it. The Panel has not referenced or summarised the records relating to Mr Zalghout’s physical injuries unless they are relevant or have some bearing on the consideration of Mr Zalghout’s injuries which are the subject matter of the Panel’s reassessment process. Nor has the Panel referenced or summarised all of the records relating to Mr Zalghout’s psychiatric injuries. If some of those medical records and reports are not referred to in the Panel’s review, it should not be assumed that the Panel was unaware of that medical material or that the Panel failed to take the material into account. See Roger v De Gelder [2015] NSWCA 211 and Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119 which decided that there is no requirement for a medical assessor to address each and every report which offers a different opinion and explain how and why his/her own opinion differed.
In its review the Panel is endeavouring to carry out its statutory function and promote the objects of the legislation it operates under including the legislator’s guiding principle that proceedings in the Commission be just, quick and cost-effective resolution of the real issues in the proceedings.[19]

Pre-accident records
[19] Sections 3 and 42 Personal Injury Commission Act 2020.

There are a large volume of medical and clinical records relating to Mr Zalghout’s pre-accident medical history. The pre-accident medical records show that the claimant experienced or variously reported back pain and other complaints including to his knees, elbows, hips, legs and feet prior to the motor accidents in July 2017.
The claimant saw one of his treating general practitioners Dr Thaar Al-Khalidy at the Wetherill Park Medical and Specialist Centre on 8 January 2016.[20] He noted that the claimant reported a history of back pain, bilateral elbow pain, bilateral knee pain and bilateral ankle pain. Dr Al-Khalidy diagnosed the claimant with rheumatoid arthritis. By letter dated 8 January 2016 Dr Al-Khalidy wrote to Greenfield Physiotherapy and Hydrotherapy. In the letter he referred to the claimant's rheumatoid arthritis, back pain, hip pain and joint pain for an opinion and management.
[20] Insurer’s bundle of documents R7 p 88.
In a report dated 5 February 2016, Dr Loretta Rozario, consultant rheumatologist wrote that the claimant presented with polyarthralgia/polyarthritis in 2010 and was diagnosed with inflammatory joint disease. The claimant also presented with stiffness in the survival and lumbar spine. In a letter dated 4 August 2016, Dr Rozario wrote to Dr Al-Khalidy that Mr Zalghout has inflammatory joint disease and osteoporosis.[21]
[21] Claimant’s bundle p 59.
The claimant consulted Dr Thaar Al-Khalidy again on 27 April 2016.[22] Dr Al-Khalidy noted a diagnosis of osteoporosis and back pain. He recorded the reasons for the claimant’s visit as including: rheumatoid arthritis, osteoporosis, back pain, hip pain and joint pain.
[22] Insurer’s bundle of documents R7 p 93.
The claimant consulted Dr Thaar Al-Khalidy again on 2 February 2017.[23] Dr Al-Khalidy recorded the reasons for the claimant’s visit as including: rheumatoid arthritis, osteoporosis and back pain.
[23] Insurer’s bundle of documents R7 p 96.
The claimant consulted Dr Thaar Al-Khalidy again on 17 February 2017.[24] Dr Al-Khalidy recorded the reasons for the claimant’s visit as including: kneeling at work ,rheumatoid arthritis and osteoporosis. Dr Al-Khalidy noted a history of bilateral knee pain and bilateral foot pain.

Post-accident records
Motor Accident Personal Injury Claim Forms
[24] Insurer’s bundle of documents R7 p 96.

In his Motor Accident Personal Injury Claim Form dated 7 March 2018,[25] Mr Zalghout wrote as follows. He nominated the date of the accident as 16 July 2017.
[25] Insurer’s bundle of documents pp 40-46.
In answer to question 7 in the form, he wrote that he was taking medication for arthritis.
In answer to question 22 in the form, he listed his injuries as low back disc, whiplash in the neck.
In answer to question 24 in the form, which asks if there were any other injuries or illnesses before the accident, the claimant wrote: arthritis, back, neck, right knee, shoulders, and anxiety.
In answer to questions 27-29 on the form the claimant wrote that he was employed as a security guard before the accident, he had not taken time off work as a result of the accident and he had returned to work.
In a second Motor Accident Personal Injury Claim Form dated 9 March 2018,[26] Mr Zalghout wrote as follows. He nominated the date of the accident as 25 July 2017.
[26] Insurer’s bundle of documents R5 pp 25-29.
His answers to question 22 in the form are unclear and difficult to read. His listed injuries appear to include: low back soft tissue, left and right shoulders, soft tissue neck, aggravated both knees, psychological post-traumatic stress anxiety state and depression and hips.
In answer to questions 27-29 on the form the claimant wrote that he was employed as a security guard before the accident, he had taken time off work as a result of the accident and he had returned to work.

Statements of Mohamed Zalghout 6 September 2018 and 26 April 2022

Mr Zalghout has produced two statements dated 6 September 2018 and 26 April 2022.[27]
[27] Claimant’s bundle A 30 and A 32 pp 391-397 and 468-473.
In his first statement Mr Zalghout describes how he arrived in Australia in 1988, worked as a printer and then as a labourer working in paving and then as a taxi driver for 12 years until 2002. He also states that in 2012 he obtained his security licence and commenced work with Stargate security.
The claimant describes his diagnosis with an arthritic condition in 2010. He also describes both car accidents which occurred on 16 July and 25 July 2017 and how he felt immediate pain in his back left and right shoulders, neck, knees and hips and was in shock.
He describes some detail the history of his medical treatment July 2017 until he travelled to Lebanon in May 2018.

Mr Zalghout said he told Dr Bazina that he was a paver and had not worked as a paver for at least four years and that he'd been working security for the past four years.[28] He said that his symptoms started about two months earlier and this coincided with the change in the nature of the pain that he was experiencing since the car accidents.
[28] Claimant’s bundle of documents AD 2 p 395.
In his second statement dated 26 April 2022 the claimant denies telling Dr Bazina that he worked as a tiler. He says he obtained his security licence in 2012 and worked as a security guard until 2019 when he could no longer do that work due to his first back operation.
The claimant says he assisted his sons Ali and Hassan working at the business New Star Paving. He said that he did not receive any money for helping his sons run that business that he once operated. He says he attended jobs from time to time to give quotations but that he only managed jobs and directed his sons on how to do the jobs. But the most he ever did was only hold a string line and a broom. He was never expected by his sons to do any hard work. He said he only occasionally receive money from his sons working in business.
He told medical assessor Robertson in February 2022 that he was helping to operate the family paving business but that it was mainly being operated by his sons and all the money went to them.[29]
[29] Claimant’s bundle of documents AD 2 p 475.
The claimant says he did not renew his paving licence as he was never did paving work since his car accidents and because of his rheumatoid arthritis.

Treating general practitioner records

There are a large number of treating general practitioner records that have been supplied to the Panel by both the claimant and insurers solicitors including Wetherill Park Medical and Marketplace MediClinic. The Panel has carefully reviewed all of these general practitioner records.
Dr Peter Conrad said he first reported on the claimant in 2008 as a result of a work place accident in his own business called New Star Paving where the claimant injured his right knee and back.[30]
[30] Claimant’s bundle of documents A 6 to A 7 pp 46-57.
On 29 July 2017, (four days after the subject matter accident) the claimant consulted one of his treating general practitioners Dr Assem Ahmed at the Wetherill Park Medical and Specialist Centre.[31] Dr Ahmed noted that the claimant presented with low back pain for three days. No numbness, no weakness, no incontinence, no referred pain. Working as security. Right paravertebral muscles spasm. Normal muscle tone power and reflexes. Normal peripheral sensation.
[31] Insurer’s bundle of documents R7 p 88.
On 17 August 2017 Dr Al-Khalidy noted a history of back pain with a complaint of right-sided sciatica L4/L5, L5/S1.[32]
[32] Insurer’s bundle of documents R7 p 105.
On 21 December 2017 Dr Al-Khalidy noted a history of back pain and work part-time as a tile layer. His diagnosis was facet joint dysfunction. Dr Al-Khalidy noted the reason for his visit was: rheumatoid arthritis , sciatica, osteoporosis, overweight, back pain, facet joint dysfunction.[33]
[33] Insurer’s bundle of documents R7 p 108.
On 7 March 2018 the claimant consulted Dr Xin Ye.[34] She noted that an motor vehicle accident happened in July 2017, twice in one month. Complaints of low back pain after that. Had MRI done in August 2017. Confirmed with discoverable change, mild. Had steroid injection. Back pain comes and goes. Request to fill in a medical assessment form. Spine range of movement (ROM) slightly reduced.

Medico-legal reports
[34] Insurer’s bundle of documents R7 p 109.

Reports of Dr Loretta Rozario, consultant rheumatologist 2016-2023

There are several reports from Dr Loretta Rozario, consultant rheumatologist who was a treating doctor for the claimant for the period 2016 until 2023.
In a report dated 2 August 2017 Dr Rozario noted that the claimant has been diagnosed with rheumatoid arthritis and osteoporosis. He has been having lower back pain and has great difficulty standing. He denies any neurological symptoms in his legs.
In a report dated 5 February 2018, Dr Rozario noted that she reviewed Mr Mohamed Zalghout with inflammatory joint disease and osteoporosis. He complains of left shoulder pain radiating into his left arm which occurs occasionally. He is now working as a paver.[35]
[35] Claimant’s bundle of documents AD 2 p 182.
In a report dated 15 January 2019, D Rozario noted that the claimant has seronegative inflammatory joint disease and has been well controlled so far on Arava 20mg daily. He has osteoporosis and is on Prolia injections six monthly and Caltrate plus D twice daily. He presents because of a two-week history of worsening right sided lower back radiating into his right buttock and down the right leg. Occasional paraesthesia is noted. Two years ago, he had two intra-articular steroid injections to the right L4/5 and right L5/S1 facet joints and felt much improved. His symptoms have now recurred. This occurred spontaneously.
In a report dated 5 February 2019 Dr Rozario noted an MRI of the lumbar spine from 19 January 2019 shows a right paracentral disc protrusion at L5/S1 which is displacing and compressing the S1 nerve roots. The SI joints were normal.
In a report dated 3 February 2020 Dr Rozario noted that the claimant was complaining that his left shoulder is a problem with pain and restricted movements. This happened after his motor vehicle accident in 2017. It settled for a couple of years with the steroid injection but has now recurred. A further steroid injection was organised about three days ago and since then, he has been having numbness in the left thumb, index and middle finger.
In a report dated 12 August 2021 Dr Rozario noted that Mr Zalghout seems to be doing reasonably well. He is obese but is joints appear to be reasonably good.
In a report dated 7 February 2022 Dr Rozario noted that the claimant has not had any pathology but has been complaining of some right knee problems which shows a small knee joint effusion and an undisplaced tear. His joints are reasonably good.
In a report dated 29 September 2022 Dr Rozario noted that the claimant continues to have mild inflammatory arthropathy, osteoporosis and has recovered from his right L5/S1 laminectomy with mild numbness in the soul of his right foot. Dr Rozario observed that the claimant seems to be doing reasonably well. He continues to complain of right knee pain.
In a report dated 23 March 2023 Dr Rozario notes that the claimant’s joints are really quite good although he is obese.
In a report dated 14 August 2023 Dr Rozario notes that the claimant continues to have back pain which is mechanical.

Report of Dr Renata Bazina, neurosurgeon, 22 August 2017

Dr Renata Bazina, neurosurgeon, examined the claimant on 17 August 2017.[36]
[36] Claimant’s bundle of documents AD 2 at A 21 p 172.
In a report addressed to his treating general practitioner Dr Thaaer Al-Khalidy dated 22 August 2017 Dr Bazina wrote:
“I reviewed Mr Zalghout in my Liverpool Rooms Thursday 17 August 2017. He reports a 2 month history of low back pain, right worse than left. MRI scan shows broad base disc bulging at L5/S1, it contacts the S1nerve in the right lateral recess, but is not significant enough to warrant major treatment. At L4/5 he has a slight foraminal bulge which is not concordant with the right sided symptoms. I suspect most of his problems are facet joint arthropathy, there was signal change on MRI scan and I would concur that a CT guided steroid injection for the right L4/5 and L5/S1 facets organised by yourself should hopefully help. Mr Zalghout remains on medications under your care, he has been advised to abstain from activities which aggravate his back. He advised he has been working as a tiler part time for extra income, this is probably the cause.”
The Panel notes that Mr Zalghout denies in his statement telling Dr Bazina that he was working as a tiler. The Panel also notes that Mr Zalghout reported to Dr Bazina a two month history of low back pain which predates the motor accidents in July 2017. The Panel notes that Mr Zalghout does not deny in his statement giving that history to Dr Bazina.

Report of Dr Warwick Stenning, neurosurgeon, 19 September 2019

Dr Warwick Stenning, neurosurgeon, examined the claimant on 16 September 2019.[37]
[37] Insurer’s bundle of documents p 232.
Dr Stenning wrote that it is difficult to tribute the claimant's current disabilities to the subject accident. His current symptoms relate to a disc protrusion which was not present during the subject accident. The symptoms of sciatica came on the beginning of 2019.
Dr Stenning noted the mild degenerative changes seen in the lower lumbar spine in the MRI of 2 August 2017 which he found to be of longer standing. The first motor accident appears to have aggravated those pre-existing changes causing the onset of low back pain. The second injury on 25 July 2017 further aggravated that aggravation. The right-sided L5/S1 disc protrusion seen in the January 2019 MRI scan occurred after the subject accident and most likely in early 2019.
Dr Stenning’s whole person assessment for the claimant's disabilities resulting from the first and second motor vehicle accidents are as follows. The Guidelines, Table 6.7, page 114 notes that lower back pain falls into diagnosis related estimate diagnostic related estimate (DRE) category II. AMA 4 Guides, Table 74 DRE Thoraco lumbar spine impairments, allocates a WPI of 5% to DRE category II. Dr Stenning contributes 50% of the above WPI to each of the motor vehicle accidents.
In conclusion Dr Stenning attributes 3% (rounded) to the subject matter accident on 25 July 2017.

Report of Dr Robert Kaplan , forensic psychiatrist 26 November 2019

On 26 November 2019 the claimant was examined by Dr Robert Kaplan, forensic psychiatrist.[38]
[38] Insurer’s bundle of documents pp 428-438.
Dr Kaplan made a diagnosis of chronic pain disorder or somatic disorder which he said could not be attributable to either of the motor vehicle accidents that occurred on 16 July or 25 July 2017.

Reports of Dr Peter Conrad 2019-2020

There are a number of reports from Dr Peter Conrad.[39]
[39] Claimant’s bundle of documents A 6 to A 7 pp 46-57.
In a report dated 2 April 2019 Conrad said he first reported on the claimant in 2008 as a result of a work place accident in his own business called New Star Paving where the claimant injured his right knee and back.
Dr Conrad’s opinion is that the claimant was injured in two motor vehicle accidents on 16 July and 25 July 2017 where he injured his neck, left shoulder and back with back pain radiating to his right leg. The claimant continues to have pain and restriction of movement in his left shoulder associated with a rotator cuff injury. He has right sided radiculopathy and weakness in the right leg and MRI of the lumbar spine is a significant L5/S1 disc prolapse.
In another report dated 8 December 2020 Conrad assesses the claimant’s WPI as 16% which he says is directly attributable to the motor accidents. Conrad states that the claimant has the DRE category III back impairment on the basis of back pain radiculopathy and surgery giving him a 10% WPI. Dr Conrad said he bases his opinion on there being no evidence of pre-existing generative disease or other accidents therefore the 16% WPI relates directly to the motor accidents of 16 July and 25 July 2017.
There is a third report from Dr Conrad dated 8 December 2020. The physical examination by Dr Conrad showed normal movements in the cervical spine and right shoulder and limited movement in the left shoulder. Dr Conrad notes that the claimant continues to have increased pain in the left shoulder and back pain. He’s had a microdiscectomy which is not helping symptoms. He continues to have pain and radiculopathy and right leg.
Dr Conrad states that the claimant required a L5/S1 right microdiscectomy. Dr Conrad disagrees with Dr Loretta Reiter’s reports which state that the claimant back condition has improved with surgery. He also disagrees with the Dr Reiter’s opinion that the impingement of the S1 nerve root injury is not related to the accident. Dr Conrad says there was absolutely no evidence of any injury to the claimant’s lower back in the region of the L5/S1 prior to his motor accidents. Conrad strongly disagrees that the claimant has no impairment as a result of either motor accident. He says that he rejects Dr Reiter’s opinion and says that she totally lacks credibility in view of the substantial motor accidents.

Dr Loretta Reiter, rheumatologist, 6 October 2020

Mr Zalghout was reviewed by Dr Loretta Reiter, Rheumatologist on 6 October 2020.[40]
[40] Insurer’s bundle of documents p 220.
Dr Reiter noted the claimant’s current symptoms. She recorded that the claimant's lumbar spine condition had improved with surgery and that he currently reported intermittent lower back pain but without any right limb lower pain.
Regarding his past medical history, Dr Reiter noted that Mr Zalghout has a 10 year history of rheumatoid arthritis, which is well controlled with Arava (a disease modifying antirheumatic drug–DMARD) 20mg daily and he also has Prolia injections every six months for osteoporosis. Previously he had an arthroscopy for a right knee condition.
Dr Reiter’s opinion of Mr Zalghout’s injuries are that the only injury that he possibly sustained with the motor vehicle accident was an exacerbation of his lumbar spine facet joint degenerative disease, which has resolved. Dr Reiter stated that prognosis is excellent, as he has recovered from any possible injuries that he had in both motor vehicle accidents dated 16 July 2017 and 25 July 2017.
Dr Reiter’s full diagnosis and opinion of Mr Zalghout’s injuries are as follows:
“Lumbar Spine.
Mr Zalghout reported that he experienced lower back pain that followed his first motor vehicle accident 16 July 2017 when he was the driver of a vehicle that was rear-ended, which he alleged increased in intensity following his second motor vehicle accident where he was again the driver of a motor vehicle that was also rear ended on 25 July 2017. He was referred for CT-guided facet joint (right L4/L5 and L5/S1) injections of cortisone, which improved his pain by 90% indicating that this was the source of his right lower back pain, with a lumbar spine MRI dated 03 August 2017 not showing any evidence of nerve root impingement, but showing evidence of degenerative lumbar spine disease. He then had sudden onset of right lower back pain radiating to his right lower limb when he was at home, which is when he prolapsed his L5/S1 disc that resulted in impingement of his S1 nerve root, which required him to have surgery at Liverpool Hospital on 15 June 2020.
Therefore it is very clear from the history that his right S1 nerve root impingement that required an L5/S1 right microdiscectomy by Prof Van Gelder, from which he has had an excellent outcome, bears no relationship to either motor vehicle accident – 16 July 2017 or 25 July 2017. He possibly had a flareup of his pre-existing lower lumbar facet joint degenerative disease from which he recovered following his CT guided lower lumbar facet joint injections of cortisone, which was a pre-existing condition, as he did report that prior to his first motor vehicle accident he would experience low back pain with prolonged sitting. Also, prior to his first motor vehicle accident he had presented to his general practitioner with sufficient lower back pain to warrant an x-ray of his lumbar spine.
Left shoulder
It is also very clear from the history provided by Mr Zalghout that neither the motor vehicle accident on 16 July 2017 or 25 July 2017 has in anyway caused or contributed to his left shoulder condition. He reported that his symptoms started one month after his first motor vehicle accident, which is 2 weeks after his motor vehicle accident, so there is no temporal relationship. In addition, he had complete resolution of his left shoulder pain with an ultrasound-guided cortisone injection, with his pain then returning sometime after this injection.”

Dr Stephen Rimmer, orthopaedic surgeon, 19 September 2019 and 26 November 2020

On 19 September 2019 and 26 November 2020 Dr Stephen Rimmer, orthopaedic surgeon , provided a report and a supplementary report.[41]
[41] Insurer’s bundle of documents pp 684-692.
In his supplementary report dated 26 November 2020 Dr Rimmer agreed with Dr Stenning that the claimant’s disc protrusion at the L5/S1 level was not present at the time of the accidents in July 2017 and that the disabilities are unrelated to his motor accidents.
In this report Dr Rimmer noted the earlier report of Dr Warwick Stenning (consultant neurosurgeon) dated 19 September 2019. In his report Dr Stenning had written the following:
"…it is difficult to attribute the claimant’s current disabilities as his current symptoms relate to disc protrusion which was not present following the subject accident on 27 August 2017. The symptoms of sciatica came on in the beginning of 2019. I received no history of any incident precipitating this but it must be assumed, on the balance of probabilities that the disabilities are unrelated to the motor vehicle accident.”
In response to Dr Stenning, Dr Rimmer wrote that:
“…at the time of my assessment, I was only provided with the MRI scan of the lumbar spine dated 18 January 2019 and not the MRI scan of the lumbar spine dated 2 August 2017 which Dr Stenning makes reference to and which shows no evidence of disc protrusion at L5/S1. Therefore, given this information, I am in total agreement with Dr Stenning that the cause of right L5/S1 disc protrusion and the need for discectomy is not related to either motor vehicle accident, either 16 July 2017 and 25 July 2017 and this occurred on the balance of probabilities due to a separate incident and therefore, his insurers without question are not liable for this procedure.”
In an impairment assessment report dated 19 September 2019 Dr Rimmer assessed the claimant’s combined whole person impairment as 0%.

Reports of Dr James Van Gelder, neurosurgeon and spine surgeon

There are several reports available from Dr James Van Gelder, who is the claimant’s treating neurosurgeon and spine surgeon.[42] These reports include descriptions of the operations conducted by Dr Van Gelder on the claimant’s spine during 2020 and 2021.
[42] Insurer’s bundle of documents pp 237-242.
In a report dated 2 May 2019 Dr Van Gelder writes that:
“…Mr Zalghout has had an aggravation of sciatic for the last 10 days. Symptoms have been going on since January. Pain and numbness radiates down his right leg. Symptoms increase with standing and walking. It feels like a knife in his calf. In 2017, he had back pain and had an MRI scan. He attributes this to two motor vehicle accidents. More recently, he has had two injections, which helped him partly. He is on Arava for rheumatoid arthritis and he sees Dr Rozario. He had taken short courses of Prednisolone in the past. He is currently taking opioids. He has come in requesting an operation…..Mr Zalghout has had MRI scan of the lumbar spine. This shows moderate, but not severe disc herniation on the left side at L5-S1 impacting the S1 nerve root accounting for his symptoms. I do not think there is enough clinical indication to repeat his MRI scan. I have provided him with paperwork for admission to Liverpool Hospital for lumbar microdiscectomy. I advised him that it is likely that his current acute flare up is going to settle down. I advised him that if his symptoms improve while he is on waiting list for surgical treatment, then it would not be necessary.” [43]
[43] Claimant’s bundle A 9 p67

Radiology x-rays and CT scans

An X-ray lumbar spine dated 16 December 2015 showed finding were reported as normal.
On 3 August 2017 an MRI scan of the claimant's lumbar spine was performed.[44] This showed at the L3/L4 level no disc lesion or neural impingement. At the L4/L5 level it showed tiny annular stairs with low-grade disc bulge and focal disc protrusion without neural impingement. Mild facet joint arthropathy. At the L5/S1 level it showed posterior annular steer with low-grade disc bulge with mild compression of the thecal sack. Facet joint arthropathy. The conclusion of the report was mild discovertebral changes without cause for radiculopathy ascertained.
[44] Insurer’s bundle of documents R7 p 173 and p 269.

Lumbar spine injection dated 21 August 2017 reported that CT-guided injections were made into right L4/L5 and L5/S1 facet joints.
An X-ray of the left shoulder dated 20 February 2018 was reported by Dr Dinesh Gooneratne. [45]This x-ray showed the shoulder alignment was normal. No significant degenerative changes detected. Normal appearance at the acromioclavicular joint.
[45] Insurer’s bundle of documents pp 261-262.
An ultrasound left shoulder dated 20 February 2018 showed supraspinatus insertion articular surface high-grade tendinosis with partial thickness tearing. Mild subacromial bursal thickening without sonographic evidence of impingement.
On 19 January 2019 an MRI scan of lumbar spine showed a right paracentral disc protrusion with neural displacement and compression of the S1 nerve root at the L5/S1 level.[46] The findings of this scan included the following:
“There is a disc desiccation in the L5/S1 disc in keeping with degenerative disease…. L1/2, L2/3 and L3/4 levels demonstrate no significant disc bulging herniation or exit foraminal stenosis. L4/5 demonstrates no significant disc bulging herniation or exit foraminal stenosis. There is minor bilateral facet joint arthropathy. L5/S1 demonstrates a right paracentral disc protrusion compressing and displacing the S1 nerve root in the lateral recess of the spinal canal there is no exit foraminal stenosis. Bilateral facet joint arthropathy identified….. There is definite radiological evidence of sacroiliitis ….. Impression: right paracentral disc protrusion with neural displacement and compression of the S1 nerve root at the L5/S1 level as described above. No definite evidence of sacroiliitis.”
[46] Insurer’s bundle of documents pp 425-426.
On 19 January 2019 an MRI scan of the sacroiliac joint found the joint was normal.
There is an ultrasound of the left shoulder dated 30 January 2020.[47] This only showed thickening of the bursa indicative of bursitis. The subscapularis, supraspinatus, infraspinatus and bison tendons are intact. No tendon tear was evident. There was a normal range of movement with no evidence of impingement with abduction of the arm.
[47] Claimant’s bundle of documents A 10 pp 70-71.
There is an MRI left shoulder dated 11 March 2020. This showed type I acromion process and thickened Coracoacromial ligament resulting some lateral arch impingement. Moderate effusion in the subacromial bursa, with intermediate grade partial thickness articular surface tear of the supraspinatus tendon. Torn rotator cable with retraction was noted.
There is an MRI of the sacral spine dated 24 November 2020. The findings show at the L5/S1 level there was mild discovertebral degenerative change and type I modic endplate change. There is a moderate right posterior paracentral disc protrusion impinging the right S1 nerve roots in the lateral recess. There is a mild narrowing of the right neural foramen. There is no spinal canal stenosis. In the sacral spine the exiting nerve roots were found to be unremarkable.
There is a MRI of the right knee which was performed on 16 December 2022.[48] This shows a small knee joint effusion. There has been a previous meniscectomy. There is an ardent displaced care of the remnant posterior horn of the medial meniscus. No tear of the ACL or the PCL was identified. No lateral meniscal tear was identified.

SUBMISSIONS

[48] Insurer’s second bundle of documents p 138.

Claimant’s submissions

The claimant provided undated submissions which appear to have been filed on 16 February 2023 in the application for review.[49] On 31 May 2024 the claimant’s solicitors responded to requests from the Panel with brief written submissions on the scarring issue which are summarised below.
[49] Claimant’s bundle of documents A 1 pp 1-8.
The claimant’s submissions list all of the injuries the subject of Mr Zalghout’s claim. The submissions also refer to the treatment dispute concerning the L5/S1 microdiscectomy.
The claimant’s submissions then contend that Medical Assessor Woo failed to: provide adequate reasons in relation to his assessment of the causation of the claimant’s lumbar spine injury, failed to evaluate the evidence regarding causation of the lumbar spine injury and failed to respond to arguments raised by the claimant.
The claimant’s submissions focus almost entirely on the assessment of the causation of the claimant’s lumbar spine injury. None of the other six injuries listed on page 1 of the submissions are referred to further in the claimant submissions. No submissions are made alleging any error has been made by Medical Assessor Woo in his assessment of the claimant’s: cervical spine, left shoulder, right shoulder, right hip, left hip or right knee.
The claimant submits that Medical Assessor Woo failed to properly evaluate evidence relevant to his determination of the causation of the claimant’s lumbar spine injury.
The claimant refers to both the MRI report dated 4 August 2017 and Dr Bazina’s report dated 22 August 2017. The submissions argue that the extent of radiological disease did not explain the apparent cause of right sided symptoms of radiculopathy. The claimant says that it was significant that such symptoms were noted at the time, as the presence of symptoms, even if they were not then explained by reference to radiological findings, is contrary to the conclusion reached by the Medical Assessor at paragraph 24 of his reasons.
The claimant also notes that he first reported symptoms of sciatica to Dr Thaeer Al- Khadidy on 17 August 2017, which indicated that the claimant was experiencing relevant symptoms well before 2019. That submission was provided in response to a medico-legal opinion of Dr Stenning dated 19 September 2019 in which it was suggested that the relevant symptoms had not appeared until the beginning of 2019.
The claimant also refers to the reports of Dr Peter Conrad, orthopaedic surgeon, dated 2 April 2019 and 8 December 2020 and his opinion that the lumbar spine symptoms of radiculopathy were caused by the subject accident as was the need for L5/S1 right microdiscectomy.
The claimant further submits that had medical assessor Woo not fallen into error the L5/S1 microdiscectomy would have been determined as being related to the lumbar spine injury and reasonable and necessary in the circumstances.
The written submissions about the scarring issue are dated 31 May 2024. The submissions also attached a good quality coloured photograph of the claimant’s scar over his lumbar spine. The claimant submits in part as follows:
“2.     The claimant has instructed that the review panel should consider the following injuries:
- Lumbar spine; and
- Scarring.
3.      It is submitted and pursuant to the material before the Review Panel, Dr Rozario was the claimant; treating specialist for his inflammatory joint disease and osteoporosis prior to the motor vehicle accidents.
4.      The claimant attended her surgery shortly after the second motor vehicle accident on 25 July 2017 reporting lower back pain and difficulty standing which subsequently progressed and manifested into lumbar radiculopathy, down his right buttocks.
5.      The various medical material before the panel, including the physiotherapy report clearly indicate severe back pain at his presentation on 31 July 2017, being 5 days after the motor vehicle accident.
6.      On the claimant’s attendance to his then GP Dr Al Khalidy, on 29 July 2017, he reported a history of back pain for the last three days, which is consistent with the date of motor vehicle accident (being the 25 July 2017), such that the onset of the claimant’s lower back pain can be, on the balance of probabilities, linked with reasonable certainty to the motor vehicle accident of 25 July 2017.
7.      The claimant also draws attention to his statement dated 6 September 2017 which states the impact of the second motor vehicle accident on 25 July 2017, was of much greater impact, stating the following ‘It too was a major impact however more than the last one and I felt immediate pain in my back, left and right shoulder, neck knee and hips… my car was a write off’.
8.      The claimant subsequently underwent surgery in the form of an L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020, after the failure of conservative treatment.
9.      The surgery was required as a direct result of the claimant’s lumbar spine injury sustained in the subject motor accidents. It is further submitted the consolidated series of the events also provide clarity and can reasonably conclude the subject accidents have, at the very least, made a materially contribution to the need for surgery and that but for the accident, the need for surgery would have arisen.
10.    Furthermore, at page 3 of his report dated 8 December 2020, Dr Conrad states “I agree that Mr Zalghout required an L5/S1 right microdiscectomy surgery due to the subject accidents.”
11.    It is clear, the surgery resulted in a pigmented operative scar at least 4cm in length on the claimant’s lower back. See attached photographs of the claimant’s scar.
12.    The scar attracts, at the very least 1% whole person impairment in accordance with the TEMSKI classification.
13.    The report of Dr Peter Conrad dated 8 December 2020 states the following at page 2: ‘Lumbar Spine: There was a 4 cm pigmented operative scar present which was thickened and prominent.’
14.    Dr Peter Conrad also provided a whole person impairment of 1% in respect of the claimant’s scarring.
15.    It is submitted that considering the review panel will be considering the claimant’s lumbar spine injuries as part of the review, it would be inappropriate not to consider scarring to the lumbar spine which resulted from surgical intervention required as a result of the lumbar spine injury.”

Insurer’s submissions

The Insurer provided submissions dated 7 March 2023 and 21 December 2020.
On 31 May 2024 the insurer’s solicitors responded to requests from the Panel with brief written submissions on the scarring issue which are summarised below.
The submissions dated 7 March 2023 argued that the claimant’s application ought to be dismissed on the basis that there is no material error in the certificate issued by Medical Assessor Woo so as to satisfy the criteria of section 63.[50]
[50] Insurer’s bundle of documents AD 1 pp 3-7.
The submissions note that Medical Assessor Woo has provided cogent reasons in his determination of causation and has clearly demonstrated that he has considered the relevant issues in arriving at his conclusion. Medical Assessor Woo summarised the findings of the MRI scan of the lumbar spine on 3 August 2017, i.e. taken shortly after the subject accident, which showed facet joint contusion at the L4/5 and L5/S1 levels but no evidence of nerve root compression. He summarised the findings on the MRI scan on 13 January 2019 which showed compression of the S1 nerve root at the L5/S1 level. Medical Assessor Woo found that that the right leg radiculopathy was not caused by the injury caused in the subject accident on 25 July 2017.
Regarding the issue of treatment and care – causation, Medical Assessor Woo notes that the main indication for surgery was the radiculopathy and said that the claimant presented with symptoms of right leg radiculopathy in January 2019, and therefore was not he did not consider it to be related to the accident on 25 July 2017.
The insurer notes the claimant’s submission that Assessor Woo has not considered relevant evidence in regard to causation, including responding to the claimant’s submission.
The insurer also notes the claimant reference to the MRI scan of the lumbar spine on 3 August 2017 which reported “L5/S1 posterior annulus tear with a low grade disc bulge with mild compression of the thecal sac …” and the report of Dr Bazina dated 22 August 2017 which noted that the “MRI scan shows broad base disc bulging at L5/S1, it contacts the S1 nerve in the right lateral recess…”. The claimant suggests that this demonstrates that there was radiculopathy complained of after the subject accident.
The insurers submission in response to the claimant is that the claimant’s solicitors have misunderstood or misconceived the evidence. The claimant suggests that there was evidence of radicular complaints after the subject accident but insurer argues that is not in fact the case. In a report dated 29 July 2017 Dr Ahmed at Wetherill Park Medical Centre [R22] recorded a consultation that the claimant had “low back pain/3 days., no numbness, no weakness, no incontinence, no referred [sic] pain.” There was also no reference to the subject accident. The claimant was then seen by Dr Lawal at the same practice on 11 August 2017, insurer states that there was no mention of radiculopathy at that consultation. The claimant again saw Dr Al-Khalidy on 17 August 2017 who noted a history of “back pain” and noted on examination “affected joint: tender. Movement restricted.” Although Dr Al-Khalidy nominated sciatica under his diagnosis, the insurer argues that this appears to be a reference only to the MRI findings and not any complaints of radiculopathy, of which there were none recorded. On 2 August 2017 Dr Rozario [R19, p 168] recorded “He has been having lower back pain …He denies any neurological symptoms in his legs” . On 22 August 2017 Dr Bazina [R18] recorded there was a history of low back pain “right worse than left”; but again there is no reference to radiculopathy.
In summary the insurers argument is that Medical Assessor Woo, having reviewed the clinical records, noted that there was no complaint of radiculopathy after the subject accident, until the issues in January 2019.
These earlier submissions dated 20 December 2020 deal in greater detail with a longer list of injuries including the claimant's hips, left and right knees, neck, left and right shoulders and lumbar spine.[51]
[51] Insurer’s bundle of documents A all 1 pp 33-39.
Regarding the lower back complaints, the insurer refers to the reports of Dr Reiter and Dr Stening which refer to the claimant's lumbar facet joint disease which is insurer said had resolved by the time of the motor accidents. Insurer submission Dr Stening referred to the symptoms of sciatica which she says began in 2019 and that the claimant's ongoing lower back disabilities were unrelated to the motor vehicle accident.
The insurer submits that there were ongoing complaints of rheumatoid arthritis and osteoporosis that were documented before either motor accident. The insurer also submits there were earlier complaints of back pain from 2016 before the motor accidents.
The insurer refers in detail to the claimant's pre-accident medical records and states that there is little or no evidence that the claimant sustained injuries to his hips, knees, shoulders or neck in either of the motor accidents in July 2017.
The insurer’s written submissions about the scarring issue are dated 31 May 2024.The submissions state in part:
“The insurer responds by referring to the submissions contained in its reply to the application for review, namely that causation in respect to the lumbar spine injury, including the surgery, is disputed. In particular, in its submissions at R4, paragraphs 9 to 24 addressing the lumbar spine. Any assessment of scarring arising from the lumbar spine surgery is of course subject to the same issues in respect to causation as for the need for surgery itself. “

RE-EXAMINATION AND MEDICAL ASSESSMENT

On 15 September 2023 Mr Zalghout was examined by Medical Assessor Gibson and Medical Assessor Dixon by an audio-visual link via MS Teams. An Arabic interpreter Ms Abida Chala NAATI number CPN7AU32NY was also present.
Mr Zalghout confirmed that he had been involved in two motor vehicle accidents. The earlier accident was on 16 July 2017 where he alleged injuries to cervical and lumbar spine, both shoulders, both hips and right knee. Then the subject accident of 25 July 2017.
The Panel noted that the original assessor had recorded that Mr Zalghout had advised him that, as a consequence of the subject accident, he had sustained aggravation of the injuries sustained in the earlier accident of 16 July 2017. The Panel also noted that the original assessment had been performed without the assistance of an interpreter.
The Medical Assessors asked Mr Zalghout about his work history. He said he had worked as a security guard up until a week after the subject accident. When asked about his tiling work, and in particular an entry in the general practitioner, Dr Al-Khalidy's note of 17 February 2017 that he was kneeling at work, he confirmed this related to his security guard work as he had left the tiling work three to four years prior to the subject accident.
When the Panel asked Mr Zalghout what injuries he had sustained in the subject accident, he replied he had injured his low back. He was asked again later in the assessment to confirm whether there had been any other injuries apart from the low back injury and he said there had not been.
He confirmed the circumstances of the subject accident were that he had been driving a Holden Rodeo with his seat belt fastened when he was rear-ended by another vehicle. There had been no further collision. Mr Zalghout confirmed that following the subject accident no ambulance attended, he hadn’t required any immediate medical treatment, and he was able to drive his car home.
He confirmed that he had attended his general practitioner, Dr Ahmed following the subject accident. The Panel asked why he had made no mention of the accident to the doctor on 29 July 2017. Mr Zalghout responded that he was "too concerned about the pain and more focused on the pain and treatment" and at that stage "didn't think about the accident." The Panel noted that Dr Ahmed on 29 July 2017 had recorded a three-day history of low back pain, and no neurological compromise on examination and no radicular complaint or any pain or symptoms, apart from the low back were recorded.
There were subsequent visits to the general practitioner and Mr Zalghout stated that he was eventually referred for a steroid injection by Dr Al-Khalidy. At that stage, the doctor had recorded complaints of sciatica.
An MRI scan of the lumbar spine performed 3 August 2017 demonstrated facet joint arthropathy at L4/5 and L5/S1 and mild discovertebral changes, however no cause for any radiculopathy.
He was asked about his travel to Lebanon for five weeks in May 2018 to visit his elderly parents. He admitted this had been a long trip in the plane and he had experienced some stiffness and pain during the trip and had taken a painkiller.
The Panel also noted that Mr Zalghout had some years later, in January 2019, reported developing severe right sided sciatic pain. He confirmed he had required ambulance transfer to Bankstown Hospital.
He had visited neurosurgeon, Dr James Van Gelder on 2 May 2019. The doctor had noted:
"He has had an aggravation of sciatica for the last 10 days. Symptoms have been going on since January. Pain and numbness radiates down his right leg. Symptoms increase with standing and walking. It feels like a knife in his calf. In 2017, he had back pain and had an MRI scan. He attributes this to two motor vehicle accidents."
It is then that Dr Van Gelder recommends admission to Liverpool Hospital for lumbar microdiscectomy. On examination, he finds positive straight leg raise and decreased ankle jerk on the right, but no sensory changes and no motor loss. He underwent a right L5/S1 microdiscectomy on 15 June 2020, but unfortunately was later found to have a recurrent right L5/S1 disc herniation, so required revision microdiscectomy, which was performed on 13 October 2021.
Mr Zalghout maintained today that he still has low back and right leg pain, sometimes with pins and needles into the right leg, extending down the outer aspect of right leg to the side of the right foot and numbness involving all of the toes. He said these symptoms can disrupt his sleep, and when affected his walking is limited to 10 minutes duration.

Currently, he takes Panadeine Forte but no other medication.

Comments of consistency

There were generally some inconsistencies in Mr Zalghout’s history or presentation. He gave differing accounts of when and where he worked and what his symptoms and injuries were.
In his first statement Mr Zalghout’s describes both car accidents in July 2017 and how he felt immediate pain in his back left and right shoulders, neck, knees and hips and was in shock. Shortly after he attended Dr Ahmed on 29 July 2017 at the usual medical centre of family doctor, Dr Al-Khalidy. Mr Zalghout told him he was having very bad back pain but did not mention the car accident or any other injuries he received as he just thought it was due to the arthritic condition.
In his second statement dated 26 April 2022 the claimant denies telling Dr Bazina that he worked as a tiler. He says he obtained his security licence in 2012 and worked as a security guard until 2019 when he could no longer do that work due to his first back operation. On 5 February 2018 he complained to Dr Rozario of left shoulder pain and said he was working as a paver. He told Dr Conrad that after the second accident, 25 July 2017, he was off work for two months then returned to his duty as a security guard 15 hours per week. He did this for about 18 months but stopped late in 2018 due to back pain. Dr Conrad noted that when he last saw Mr Zalghout he was not working.
The Panel found it difficult to obtain a consistent work and health history from Mr Zalghout and reconcile all the different accounts he had given. Despite this lack of clarity the Panel has not drawn any adverse inferences against any inconsistencies apparent in Mr Zalghout’s history or presentation.

DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION

In the subject motor vehicle accident on 25 July 2107, Mr Zalghout sustained a number of soft tissue injuries. Based on the contemporaneous documentation and later clinical records these were predominantly to his lumbar spine. He also could have sustained contusion or soft tissue injuries to his: cervical spine, both shoulders, both hips and right knee.
The Panel notes that Mr Zalghout has a past history of injury and disability to his back and right knee following a workplace accident in 2008 and another earlier minor motor accident in 1997. The Panel notes the history given by Mr Zalghout to Medical Assessor Woo that was that he had a neck injury during a motor vehicle accident in or about 2000. He made a CTP claim for the neck injury which was settled through a solicitor. In 2008, he made a claim for right knee while working with New Star. He underwent a right knee arthroscopy and partial medial meniscectomy on 26 October 2009 at Canterbury Hospital.
Prior to the motor accidents in July 2017 he also has a reported history of rheumatoid arthritis, osteoporosis, inflammatory joint disease, hip pain, elbow pain, bilateral knee pain and bilateral ankle pain.

Cervical spine soft tissue injury

The Panel accepts that Mr Zalghout sustained soft tissue injury to his cervical spine as a result of the subject accident. There are no X-rays, CT scans and MRI scans of the cervical spine which show any fractures.
Mr Zalghout reported a neck injury arising from a motor vehicle accident in or about 1997 or 2000.
At the medical assessment, the Panel questioned Mr Zalghout and found no reduced range of motion in the cervical spine. The Panel noted no ongoing radicular symptoms or signs in either upper limb. The Panel did not find any evidence of complete or partial rupture of tendons, ligaments, menisci or cartilage. In summary there was a normal neurological examination with no radiculopathy.
The Panel also notes that when asked at the re-examination what injuries he had sustained in the subject accident, Mr Zalghout replied he had injured his low back. He was asked again later in the assessment to confirm whether there had been any other injuries apart from the low back injury and he said there had not been.
The Panel also notes the examination by Dr Conrad on 8 December 2020 which found a full range of movement in Mr Zalghout’s cervical spine and 0 % WPI.[52]
[52] Claimant’s bundle p 44 and p 48.
Having considered all the evidence on balance the Panel did not find sufficient evidence to support a diagnosis of any ongoing signs of injury to the cervical spine. Therefore, the appropriate assessment for his cervical spine was that it was a soft tissue injury which had now resolved.

Lumbar spine soft tissue injury

The subject motor accident was a cause of this soft tissue injury to the claimant’s lumbar spine. The Panel accepts that Mr Zalghout sustained a soft tissue injury to his lumbar spine as a result of the subject accident. The Panel finds that his low back injury is of aggravation of pre-existing facet arthralgia.
The Panel concluded that Mr Zalghout had sustained a soft tissue injury to his low back as a result of the subject accident. This was based on the clinical information. The low back injury was an aggravation of pre-existing facet arthralgia which he had been treated in the past, more particularly by his rheumatologist Dr Rozario. There was no clear evidence of radiculopathy until 2019. Following the subject accident, the claimant had experienced some sciatic symptoms into the right leg and some reports exist of sciatic symptoms reported by the claimant but there was no reliable diagnoses made of radiculopathy prior to early 2019.
Between 2015 and 2022 there are a number of X-rays, CT scans and MRI scans of the lumbar spine. These showed no fractures but they did show long standing multilevel degenerative changes and disc desiccation. The MRI scan on 3 August 2017 of the claimant's lumbar spine showed at the L3/L4 level no disc lesion or neural impingement. At the L5/S1 level it showed posterior annular tear with low-grade disc bulge with mild compression of the thecal sac and facet joint arthropathy. The first radiological evidence of L5/S1 nerve root compression is on 19 January 2019 where an MRI scan of lumbar spine showed a right paracentral disc protrusion with neural displacement and compression of theS1 nerve root at the L5/S1.
The Panel noted and carefully considered the reports of Dr Rozario, Dr Bazina, Dr Stenning, Dr Conrad and Dr Reiter. Apart from Dr Conrad and Dr Bazina, some of the other treating doctors did not report any finding of impingement of the L5/S1 nerve root with radiculopathy until after January 2019. The Panel notes in particular that Dr Bazina reviewed Mr Zalghout on 17 August 2017 which was a few weeks after the motor accidents. Mr Zalghout reported to Dr Bazina a two month history of low back pain, right worse than left. Dr Bazina noted an MRI scan shows broad base disc bulging at L5/S1 which contacts the S1 nerve in the right lateral recess, but is not significant enough to warrant major treatment. Dr Bazina noted L4/5 he has a slight foraminal bulge which is not concordant with the right sided symptoms. Dr Bazina suspected that most of his problems are facet joint arthropathy.
At the Panel’s medical assessment, the Panel found no ongoing radicular symptoms or signs in either lower limb. The Panel did not find any sign of complete or partial rupture of tendons, ligaments, menisci or cartilage.
The Panel notes but does not accept the submissions made by the claimant solicitors referring to the MRI report dated 4 August 2017 and Dr Bazina’s report dated 22 August 2017. The claimant argues that the extent of radiological disease did not explain the apparent cause of right sided symptoms of radiculopathy. The claimant says that it was significant that such symptoms were noted at the time even if they were not then explained by reference to radiological findings. The Panel gives significant weight to Dr Bazina’s report and findings because she saw him soon after the two motor accidents and examined him in the context of a recent MRI which showed no nerve root entrapment but broad base disc bulging at L5/S1 and contact with the S1 nerve (not nerve root compression) in the right lateral recess.
Having considered all the evidence, on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for his lumbar spine was that it was a soft tissue injury.
The Panel disagreed with the original medical assessor where he found a 0% WPI for the lower back condition. The Panel is of the opinion that there was sufficient evidence from the clinical notes of the treating doctors to support DRE category II given the presence of non-verifiable radicular complaints. The Panel were of the view that this would meet the criteria for DRE category II, therefore result in a 5% WPI.
Based on the Panel’s questioning of the claimant and his clinical presentation at the time of the Panel’s assessment his presentation is consistent with a finding of DRE Lumbosacral Spine category II impairment rating. The clinical findings required for a diagnosis of radiculopathy as set out in s 6.138 of the Guidelines, October 2021, page 112 are not met. A 5% WPI rating arises in accordance with the methodology set out in the AMA 4 Guides, Chapter 3, page 102. The determination as to permanent impairment is made in accordance with the AMA 4 Guides and Part 6 of the Motor Accident Guidelines, Permanent Impairment Table.

Left and right shoulders

The Panel accepts that the claimant may have experienced soft tissue injuries to both his shoulders caused by or as a result of the motor vehicle accident.
At the medical assessment, the Panel found clinically there is no indication of primary shoulder pathology. Mr Zalghout first reported that his left shoulder symptoms about two weeks after his motor vehicle. An X-ray of the left shoulder on 20 February 2018 showed the shoulder alignment was normal. No significant degenerative changes detected. Normal appearance at the acromioclavicular joint. An ultrasound of the left shoulder dated 20 February 2018 showed supraspinatus insertion articular surface high-grade tendinosis with partial thickness tearing. Mild subacromial bursal thickening.
In his report dated 8 December 2020 Dr Conrad found the right shoulder had full movements and the left shoulder: abduction 120°, flexion 120°, adduction 30°, extension 30°. No loss of lateral or medial rotation.
The Panel notes the examination of Medical Assessor Woo of the upper limbs who found reflexes were normal and symmetrical. There was no weakness and no atrophy. There was no sensation loss. For the left shoulder he found a restriction of internal rotation to 70 degrees with 1% upper extremity impairment and converted to 1% WPI. For the right shoulder he found a normal range of movement with no assessable impairment.
The Panel also notes that when asked at the re-examination what injuries he had sustained in the subject accident, Mr Zalghout replied he had injured his low back. He was asked again later in the assessment to confirm whether there had been any other injuries apart from the low back injury and he said there had not been.
During its re-examination the Panel found Mr Zalghout’s left shoulder continued to show a restriction of internal rotation. The Panel’s finding was similar to the conclusions reached by Medical Assessor Woo of a 70 degrees restriction of internal rotation with 1% upper extremity impairment and converted to 1% WPI.
Having considered all the evidence, on balance the Panel did find sufficient evidence to support a finding of restriction of internal rotation with 1% upper extremity impairment and converted to 1% WPI for the left shoulder. Therefore, the appropriate assessment for his right and left shoulders was that the right shoulder was a soft tissue injury and the left shoulder is assessed as having 1% WPI.

Left and right hips

The Panel accepts that the claimant may have experienced contusions or soft tissue injuries to both his hips caused by or as a result of the motor vehicle accident which have now resolved.
The Panel notes the examination of Medical Assessor Woo of both hips found a normal range of motion and no assessable impairment.
The Panel also notes that when asked at the re-examination what injuries he had sustained in the subject accident, Mr Zalghout replied he had injured his low back. He was asked again later in the assessment to confirm whether there had been any other injuries apart from the low back injury and he said there had not been.
Having considered all the evidence, on balance the Panel did not find sufficient evidence to support any finding of any abnormality in either hip. Therefore, the appropriate assessment for his right and left hips was that it was a soft tissue injury.

Right knee

The Panel accepts that the claimant may have experienced contusions or soft tissue injuries to both his right knee which has now resolved. The Panel notes the prior history of a right pain and complaints prior to the motor accidents in July 2017.
The Panel notes the claimant sustained a knee injury in 2008 while working with New Star Paving. Mr Zalghout underwent a right knee arthroscopy and partial medial meniscectomy on 26 October 2009 at Canterbury Hospital.
On 17 February 2017 Dr Al-Khalidy recorded the reasons for the claimant’s visit as including: kneeling at work, rheumatoid arthritis and osteoporosis. Dr Al-Khalidy also noted a history of bilateral knee pain and bilateral foot pain.
The Panel notes the examination of Medical Assessor Woo of the right knee found a normal range of motion and no assessable impairment.
Having considered all the evidence, on balance the Panel did not find sufficient evidence to support any finding of any abnormality in the right knee. Therefore, the appropriate assessment for his right knee was that he sustained a soft tissue injury in the subject motor accident.

TREATMENT DISPUTE

The Panel found from the assessment and interview with the claimant and its review of the radiological evidence that there was no clear evidence of radiculopathy until January 2019. There was no causal basis between the radiculopathy reported in 2019 and the subject motor accident in 2017 and the L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020. In the Panel’s view the microdiscectomy was not causally related to the subject motor accident.
The Panel notes in particular the report of Dr Bazina who reviewed Mr Zalghout on 17 August 2017 which was a few weeks after the motor accidents. Mr Zalghout reported to Dr Bazina a two month history of low back pain, right worse than left. Dr Bazina noted an MRI scan shows broad base disc bulging at L5/S1 which contacts the S1 nerve in the right lateral recess, but is not significant enough to warrant major treatment. Dr Bazina noted the L4/L5 has a slight foraminal bulge which is not concordant with the right sided symptoms. Dr Bazina suspected that most of the claimant’s problems are facet joint arthropathy.
Because there had been no radiculopathy caused by the subject accident and the disc protrusion was a later event dating to early 2019, the Panel agreed with the original medical assessor that the L5/S1 microdiscectomy performed by Prof Van Gelder on 15 June 2020 was unrelated to the subject accident.
The MRI scan performed following the subject accident on 3 August 2017 had shown facet joint arthritis at L4/5 and L5/S1 with no evidence of nerve root compression. The first clinical or radiological evidence of any nerve root compression was not until the MRI on 13 January 2019 which confirmed S1 nerve root compression at L5/S1.

Proposed treatment and care

Sub-section 58 (1) of the MAC Act provides in part that:
“(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters)—
(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident,…”
The Panel’s conclusion is that the surgery performed by Professor Van Gelder was not reasonable and necessary in the circumstances of the claimant’s case because it does not relate to the injury caused by the motor accident.
In this claimant’s case, the Panel is satisfied that the proposed treatment and care does not relate to the injury caused by the motor accident. As discussed above.

Reasonable and necessary in the circumstances

In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[53] Grove J stated:[54]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[53] [2003] NSWCA 52 (Clampett).
[54] Clampett at [22]-[23], Meagher and Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[55] See also the recent and comprehensive discussion of the relevant principles in Whitton v Ready Workforce (A Division of Chandler McLeod) Pty Ltd [2023] NSWDC 620.
[55] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[56] They include:
(a)   the appropriateness of the particular treatment;
(b)   the availability of alternative treatment;
(c)   the cost of the treatment;
(d)   the actual or potential effectiveness of the treatment, and
(e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[56] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.

Does the proposed treatment relate to the injury resulting from the motor accident

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[57] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[57] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[58] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[58] [2018] NSWSC 1710 at [29] (Phillips).
In this case the Panel accepts that there was a soft tissue injury to the claimant’s lower back which was an aggravation of pre-existing facet arthralgia caused by the subject motor accident. However, the Panel does not accept that the L5/S1 microdiscectomy performed by Prof Van Gelder on 15 June 2020 relates to any injury caused by the motor accident and is not reasonable and necessary in the circumstances. As was detailed above, the Panel found no radiculopathy was caused by the subject accident and the disc protrusion was a later event dating to early 2019. The Panel agreed with the original medical assessor that the L5/S1 microdiscectomy performed by Prof Van Gelder on 15 June 2020 was not caused by and was unrelated to the subject motor accident.

CONCLUSION AND CERTIFICATION

The Panel’s opinion is that the accident caused soft tissue injuries to the claimant’s: cervical, and lumbar spine and also to both shoulders, both hips and right knee.
In relation to the lumbar spine the Panel finds DRE category II given the presence of non-verifiable radicular complaints which results in a 5% WPI.
In relation to the left shoulder the Panel finds a restriction of internal rotation with 1% upper extremity impairment which converts to 1% WPI for the left shoulder.
In relation to all of the other injuries, the balance of the clinical records and medical reports shows a normal range of motion and no assessable impairment.
For the above reasons the Panel revokes the certificate of Medical Assessor Woo dated 17 January 2023.
The Panel confirms the certificate of Medical Assessor Alexander Woo dated 17 January 2023 regarding treatment and care determining that the following treatment and care of a L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020, does not relate to the injury caused by the motor accident.
The Panel confirms the certificate of Medical Assessor Alexander Woo dated 17 January 2023 regarding treatment and care determining that the following treatment and care of a L5/S1 microdiscectomy performed by Professor Van Gelder on 15 June 2020, is not reasonable and necessary in the circumstances.
The Panel’s certificate is attached at the commencement of these reasons.

[2024] NSWPICMP 374

11 June 2024