Zalghout v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 226
•1 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Zalghout v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 226 |
CLAIMANT: | Ali Zalghout |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 1 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant was injured in a motor vehicle accident; whether the injuries sustained were threshold injuries; degree of whole person impairment (WPI); Review Panel conducted an examination and considered the factors contributing to the injury according to clause 6.6 of the Motor Accidents Guidelines; Held – MAC revoked; Review Panel determined that the cervical spine, thoracic spine, right shoulder, left shoulder, and lumbar spine injuries were threshold injuries; total WPI of 12%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Home and substitutes the determination to certify that the following injuries were each a threshold injury: · cervical spine; · thoracic spine; · right shoulder; · left shoulder, and · lumbar spine. 2. The Review Panel finds that the claimant has a total Whole Person Impairment assessment of 12% for the injuries sustained by him and arising out of the accident which occurred on |
STATEMENT OF REASONS
INTRODUCTION
Ali Zalghout (Mr Zalghout), the claimant, was injured in a motor vehicle accident (the Accident) on 21 January 2023. He was a front-seat passenger in a vehicle driven by his brother-in-law on The Avenue, Condor Park. The driver of a utility vehicle reversed out of the driveway from the left-hand side, impacting the front passenger side of the vehicle.
Insurance Australia Limited t/as NRMA (NRMA) was the insurer.
Under the provision of the Motor Accident Injuries Act 2017 (MAI Act) in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Mr Zalghout submitted an Application for Personal Injury Benefits dated 10 February 2023.
Threshold injury dispute
NRMA determined that Mr Zalghout had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
He filed an application in the Personal Injury Commission (Commission) in respect of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the accident was a threshold injury.
A medical assessment matter was required to be determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY – STATUTORY PROVISIONS
Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” was known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident was a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim was a threshold injury. Diagnostic imaging was not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident was a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.
Clauses 6.5 to 6.7 provided:‘Causation of injury
6.5 An assessment of the degree of permanent impairment was a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation was 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 was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Alan Home in respect of the dispute as to threshold injury (M21904/23) were:
· cervical spine: radiculopathy/disc injury;
· lumbar spine: radiculopathy/disc injury, and
· thoracic spine: radiculopathy/disc injury.
The injuries referred for assessment to the Medical Assessor in respect of the dispute as to permanent impairment (M21130/24) were:
· cervical spine: soft tissue/disc injury/radiculopathy;
· lumbar spine: soft tissue/disc injury/radiculopathy;
· thoracic spine: soft tissue/disc injury/radiculopathy;
· right shoulder: soft tissue/secondary to neck, and
· left shoulder: soft tissue/secondary to neck.
The Medical Assessor listed the submissions in M21904/23 in [5].
The Medical Assessor considered the documents referred to in [6]-[7].
The Medical Assessor’s examination is set out at [9]-[16].
Medical Assessor Home took the claimant’s history at [9] and provided the history of the accident at [10].
There follows a history of symptoms and treatment following the accident at [11]-[12].
Medical Assessor Home considered the claimant’s functional capacity and reported tolerances at [13] and [16].
The Medical Assessor undertook a clinical examination at [16], the essential conclusions being:
“Cervical spine
Normal spinal curvature, no spasm, full range of flexion and extension without dysmetria; cervical rotation to four-fifths on each side, no dysmetria, lateral flexion to 75% on each side, no dysmetria; no muscle guarding.
Upper extremities
Normal power throughout; Mr Zalghout reports reduced sensitivity in his fingertips, non-dermatomal in pattern; deep tendon reflexes are symmetrically preserved.
Right shoulder
No muscle wasting; range of movements as set out in the chart:
Shoulder Movements
Active ROM Measured
RIGHT
Flexion
180°
Extension
50°
Adduction
50°
Abduction
170°
Internal Rotation
80°
External Rotation
90°
Left shoulder
No muscle wasting; range of movements as set out in the chart:
Shoulder Movements
Active ROM Measured
LEFT
Flexion
180°
Extension
50°
Adduction
50°
Abduction
170°
Internal Rotation
80°
External Rotation
90°
Thoracic spine
Normal spinal dorsal curvature without spasm; forward flexion to 75%; extension 75% normal range; thoracic rotation symmetrically performed to 75% normal range and lateral flexion is symmetrically performed to 50% normal range.
Lumbar spine
Normal curvature; stooped posture; flexion to three-quarters, lumbar extension is nil, lumbar lateral flexion to two-thirds and rotation to two-thirds.
Lower extremities
Straight leg raised to 70 degrees; deep tendon reflexes are symmetrically preserved; no muscle wasting.”
Medical Assessor Home also commented on consistency at [16]. Mr Zalghout did not report his history of back pain when first questioned. Medical Assessor Home found Mr Zalghout unreliable regarding the extent of his previous spinal complaints; there is repeated documentation of chronic lumbar back pain of many years in duration.
At [17], Medical Assessor Home set out a summary of the documentation he reviewed:
(a) the clinical records of Australis Group;
(b) the notes of Dr Lieng of 5 February 2023;
(c) the clinical notes of Bankstown Family Medical Practice;
(d) records of Liverpool Hospital of 16 January 2020;
(e) the accident as first recorded on 1 May 2020 by Dr Hatoum;
(f) Certificate of Capacity commencing 5 February 2023 by Dr Lieng;
(g) the report of Dr McKechnie dated 17 May 2023;
(h) reports of Dr Nagesh dated 10 July 2023;
(i) the report of Dr Mastroianni dated 27 July 2023;
(j) the report of Dr Mastroianni dated 25 August 2023, and
(k) the medical file of Dr Alzabin.
Medical Assessor Home then summarised the diagnostic imaging and other investigations at [18].
Medical Assessor Home noted that he carefully compared imaging from 2018 and 2023 and noted that there was no difference with the left paracentral focal disc protrusion at L5/S1, identified on both scans. The underlying grade 1 anterolisthesis and left-sided pars defect are present in both scans. Foraminal narrowing on the left, adjacent to the emerging L5 root. Nerve root is identical on both. There is no lateral recess S1 compression identified in either scan.
Medical Assessor Home set out his diagnosis, causation and reasons at [19]. He commented that CT scans of the thoracolumbar spine in February 2018 demonstrated mild degenerative intervertebral disc space changes in the mid and lower thoracic spine. In the lumbar spine there was documented narrowing of the intervertebral disc spaces at L4/5 and L5/S1, with a grade 1 spondylolisthesis at L5/S1 with abnormality at the left facet joint at L5/S1. There was a broad-based disc protrusion L4/5 and at L5/S1 there was spondylolisthesis with a moderate canal stenosis and possible L5 neural compression.
The MRI scans of the whole spine performed on 4 May 2018 had the recorded history of an unexplained worsening of low back pain with grade 1 spondylolisthesis. At C5/6 there was a very minimal disc bulge without neural impingement. There was minimal disc bulging at T7/8, T8/9 and T9/10 without cord compression; at L4/5 a low-grade disc bulge, facet joint arthropathy and ligamentum flavum thickening reflecting chronic segmental changes. At L5/S1 there was a left paracentral focal disc protrusion with possible impingement of the left L5 nerve root associated a grade 1 spondylolisthesis.
The post-accident MRI scan of the whole spine performed 22 March 2023 again demonstrated developmental changes consistent with degeneration.
Disc desiccation was again noted at L4/5 and L5/S1.
Overall, Medical Assessor Home could not determine any significant changes in the imaging before and after the accident. The radiologist, Dr Ganeshan, recorded an annulus fissure or tear at L4/5. This however occurred in the context of a degenerative disc which was already desiccated five years prior. Medical Assessor Home concluded that the changes were most likely due to progressive degenerative change.
There was no separate injury to either the right or left shoulder. Coincidentally, the Personal Injury Claim Form was dated 10 February 2023.
Medical Assessor Home concluded that the injuries to the cervical spine, thoracic spine, and lumbar spine were all soft tissue and the last with underlying spondylolisthesis.
Each of them was a threshold injury.
REVIEW PROCEDURE
Mr Zalghout lodged an application for review of the assessment of the Medical Assessor.
On 28 June 2024, the delegate of the President, being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review was by way of a new assessment of all matters with which the medical assessment was concerned.
MEDICAL EXAMINATION BY THE PANEL
Mr Zalghout was examined by Medical Assessors Drew Dixon and Les Barnsley on 31 January 2025.
History of the accident
Mr Zalghout, age 27, attended the Commission’s Medical Suites for assessment following his motor vehicle accident on 21 January 2023 where he was a front seat passenger in a Toyota Kluger that was written off when it was struck on the driver's side by a Hilux Ute on The Avenue, Condell Park. The front airbag deployed. He was wearing a seat belt at the time. There was no head injury or loss of consciousness and no amnesia for the accident details. Ambulance attention was not required, and he was able to self-extricate from the vehicle. The Kluger was towed away and subsequently written off and the claimant was picked up by his brother and taken home.
The next day he was aware of pain in his neck and back and bilateral shoulder pain developed some three weeks later. He took Panadol and Nurofen, but the pain became more severe and then after two or three weeks, he saw his local general practitioner (GP), Dr Leong, who prescribed Panadeine Forte and he was referred to Dr Simon McKechnie, a neurosurgeon, who recommended non-operative treatment.
Prior to seeing Dr McKechnie, he had an MRI performed. Despite physiotherapy for a prolonged period of time, there was no sustained benefit. His medications were supplemented by Lyrica, which he took three times a day.
He did physiotherapy for six months and returned to work part-time, doing light duties promoting his landscaping business, invoicing for jobs and supervising his brother who did the physical work.
He was involved in a motor vehicle accident subsequently on 16 June 2023 when his Toyota Corolla was t-boned on the driver's side and this exacerbated his neck, back and shoulders. He was referred for a further MRI and was to have further review by Dr McKechnie and a pain specialist.
Current treatment
Mr Zalghout took Panadeine Forte, up to 10 tablets a day and Lyrica 300mg three times a day. He found Voltaren as an anti-inflammatory did not give sustained benefit and he ceased formal physiotherapy. He saw his local doctor regularly and would see the spinal specialist as referred.
Past health
His past history included consultation with his GP, Dr Petinga, on 10 May 2019, who he saw on one occasion complaining of back pain, after which he had the referral to Dr Van Gelder, a neurosurgeon and Dr Manohar, the pain specialist but the claimant did not attend those appointments as his back pain had settled.
It had been noted by his GP in a consultation that he had fallen at the age of 14 or 15, some six to seven years previously, with some back pain but the claimant was unable to recall that today. There were some CT scans done of his back in 2018.
He was prescribed Panadeine Forte by Dr Petinga. He did attend Liverpool Hospital on 16 January 2022 for review of scoliosis, chronic back pain and prescription of Lyrica. At that stage, he found that his work as a landscaper/paver aggravated his back condition, and he had to modify his duties back then. His family was reliant on his income, so he continued working on light duties.
Social history
Mr Zalghout lived in a two-level house with his mother and 10-year-old brother. He had difficulty doing the garden and lawns at home and these were done by his older brother.
Present symptoms
On review on 31 January 2025, he reported that in the main his neck had settled, as had his shoulder pains but he still had burning pain in the thoracolumbar spine. He reported his back pain disturbs his sleep and recurrent bending and stooping and heavy lifting and carrying aggravated his back pain.
He reported intermittent paraesthesia at the tips of his fingers and toes but no radicular complaint such as brachialgia in the upper extremities or sciatica in the lower limbs.
Examination
On examination, Mr Zalghout was 165cm tall and weighed 58kg.
There was a symmetrical range of motion of his cervical spine with no guarding and no tender areas. There was no neurological deficit of either upper extremity. There was 0.5cm wasting of his left upper extremity compared with his right, 20cm above the elbow, measuring 25cm on the right and 24.5cm on the left and the forearms measured 25.5cm on the right, 10cm below the lateral epicondyle, and 25cm on the left. There was no neurological deficit in either hand with thenar power, intrinsic power and grip strength grade 5 out of 5. His reflexes were symmetrical and there were no sensory changes.
The range of motion of each shoulder was mildly restricted with forward flexion 140 degrees on the right and 130 degrees on the left and active abduction 130 degrees on the right and 120 degrees on the left, external rotation was 90 degrees bilaterally and internal rotation 50 degrees bilaterally and extension was 50 degrees bilaterally and adduction was 50 degrees bilaterally. There was no tenderness of the shoulder girdle muscles but there was wasting bilaterally of both supraspinatus and infraspinatus muscles. There was no winging of either scapulae. The restriction of motion, particularly abduction on the left, appeared to be related to trunk pain on the axillary wall.
He was consistent on repetitive testing of his shoulder motion.
There was stiffness of his thoracic spine where there was moderately severe thoracic kyphosis. Flexion of his thoracic spine was decreased by one half, as was back extension and lateral flexion was decreased by one third bilaterally. There was some tenderness in the left paralumbar region with generalised hypertonicity with parathoracic muscles with some guarding. His trunk rotation was decreased by one third bilaterally.
There was stiffness of his lumbar segment with flexion decreased by one third with pain on back extension which was decreased by one half and lateral flexion was decreased by one third bilaterally. There was tenderness at the lower lumbar level in the mid line. There was mild spasm of the erector spinae muscles in the paralumbar region. His straight leg raise was 70 degrees bilaterally and there was no gross neurological deficit of either lower limb nor measurable wasting. His reflexes were symmetrical, his power was grade 5 out of 5 and his sciatic nerve root stretch tests were negative and there was some tightness of the hamstrings on straight leg raise at 70 degrees bilaterally. His plantar responses were negative. He had a slow gait and had moderate difficulty with toe walking due to back pain and moderately severe difficulty with heel walking due to back pain. He had bilateral pes planus and made a mild arch only on assisted toe standing.
Investigations
His investigations included pre-accident radiology with a CT of the thoracic and lumbar spine on 10 February 2018 which showed grade 1 L5/S1 spondylolisthesis and an L4/5 broad based disc protrusion.
MRI of the whole spine on 4 May 2018 showed a minimal disc bulge at C5/6 and disc bulges at T7/8, T8/9 and T9/10 with cord compression. At L4/5 there was low grade posterior disc bulge with canal narrowing and at L5/S1 a left paracentral focal disc protrusion which was thought may have impinged on the left L5 nerve root and there was a grade 1 spondylolisthesis at this level with a pars defect on the left.
Ultrasound of his left shoulder on 4 May 2020 showed supraspinatus tendonitis and fluid at the biceps tendon sheath but no evidence of rotator cuff tear or impingement.
Post-accident MRI of the whole spine on 22 March 2023 showed minor anterior wedging of T7/T8 with Schmorl’s nodes at T7/8 and T8/9 with mild desiccation at the L4/5 and L5/S1 discs. There were no acute compression fractures nor bony bruising. There was a low-grade disc bulge at C3/4 and at L4/5 bilateral facet joint arthropathy and grade 1 anterolisthesis and a foraminal disc protrusion at L5/S1. The study suggests there was no difference in the left paracentral focal disc protrusion at L5/S1 identified on both scans.
SUBMISSIONS ON THRESHOLD INJURY
Claimant’s submissions, dated 5 June 2024
The claimant submitted at [2] that Medical Assessor Home erred in failing to consider whether spondylolisthesis was a non-threshold injury.
The claimant submitted that spondylolisthesis did not fall within the definition of “threshold injury” or “soft tissue injury”, per s 1.6(2) of the MAI Act.
The claimant submitted that Medical Assessor Home did give any or any adequate consideration to the question of whether spondylolisthesis was a non-threshold injury.
The claimant submitted the Medical Assessor erred on the basis that he asked himself or applied the wrong test, being a jurisdictional error (Craig v South Australia [1995] HCA58).
The claimant also submitted that Medical Assessor Home failed to provide adequate reasons with respect to spondylolisthesis at [2.5], particularly:
· whether it was caused by the accident or simply aggravated by the accident, and
· if it was aggravated, the pathophysiology of the aggravation.
Insurer’s submissions in reply, dated 24 June 2024
The insurer submitted that there was no reasonable cause to suspect that assessment was incorrect in a material respect and that Medical Assessor Home’s method leading to his diagnosis was appropriate and well-reasoned.
In reply to the claimant’s submission that Medical Assessor Home failed to consider spondylolisthesis as a non-threshold injury, the insurer submitted that the claimant did not identify how the Medical Assessor failed to provide adequate consideration.
The insurer further submitted that there was no material error concerning Medical Assessor Home’s application of assessing spondylolisthesis as a non-threshold injury as in the event that the Medical Assessor was satisfied as to the presence of an injury to a spinal nerve root, he was also required to determine whether radiculopathy was present.
The insurer submitted at [22] that Medical Assessor Home had careful regard to the available pre-accident and post-accident radiology and considered that there was no new injury to the claimant’s lumbar spine as a result of the accident.
The insurer submitted that because Medical Assessor Home concluded that the claimant’s clinical presentation did not meet the criteria of radiculopathy, he was not required to expressly determine whether spondylolisthesis was considered a non-threshold injury.
The insurer disagreed with the claimant’s submission that Medical Assessor Home failed to provide adequate reasons as to whether the spondylolisthesis was caused or aggravated by the accident and submitted that there was no material error concerning Medical Assessor Home’s reasoning.
The insurer highlighted in [27]-[30] several instances in which Medical Assessor Home’s engagement with, outlined that the claimant suffered from a well-documented history of chronic low back pain.
The insurer thus submitted that Medical Assessor Home had provided findings consistent with the available evidence and did not err in a material aspect.
CONCLUSION
The Panel concluded that the claimant sustained injuries to his neck and thoracolumbar spine in the subject accident and subsequently developed bilateral shoulder brachialgia.
His diagnoses were:
“1. Whiplash injury to his neck with post traumatic stiffness without radicular complaint. He reports his neck in the main has settled;
2. Thoracic back strain injury with aggravation of thoracic spondylosis which is ongoing with spasm of the parathoracic muscles;
3. Low back strain injury with lumbar stiffness with erector spinae muscle spasm with aggravation of L5/S1 spondylolisthesis and persisting L5/S1 focal disc protrusion without sciatica.”
In arriving at its conclusion, the Panel considered the submissions of the parties. In this respect, the Panel referred to its finding that there was stiffness of the lumbar segment and in other respects, the Panel refers to its findings at paragraph [58] above. This led to the conclusion that contrary to what Medical Assessor Home found, the injury to the lumbar spine was not merely soft-tissue.
The medical examination also resulted in a finding of thoracic back strain injury with aggravation of thoracic spondylosis, which was ongoing with spasm of the parathoracic muscles.
There was a decrease of range of motion (ROM) in the thoracic spine and Mr Zalghout had moderately severe thoracic kyphosis.
With regard to the lumbar spine, the Panel found that there was prior spondylolisthesis of the lumbar spine, as evidenced by the imaging in 2018. This was not changed by the accident in that there was no evidence of a new fracture or tear of ligament, tendon, cartilage or meniscus.
The medical re-examination did not find any evidence of radiculopathy. The Panel noted a deterioration in his lumbar spine symptoms following the accident and consider there was an aggravation of his prior lumbar spinal problems, but no evidence of a new tear of cartilage, ligament, tendon or meniscus, no radiculopathy and no fracture of the lumbar spine. Accordingly, his lumbar spinal injury is threshold for the purposes of the MAI Act.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Home and substitutes the determination to certify that the following injuries were each a threshold injury:
· cervical spine;
· thoracic spine;
· right shoulder;
· left shoulder, and
· lumbar spine.
DISPUTE AS TO WHOLE PERSON IMPAIRMENT
The Panel was referred a whole person impairment (WPI) dispute in addition to the threshold injury dispute.
The Motor Accident Guidelines (Guidelines)
The Guidelines identify the test for causation in cls 6.6 and 6.7.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
There are two elements to address when assessing causation under s 5D(1):
“factual causation”; and
“scope of liability”.
Assessing "factual causation" and "scope of liability" involves making value judgments.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as ‘threshold injury’) and involved a question of causation in respect of an amputated toe.
The discussion in Kinchela concerning the correct principles to apply relating to causation follows:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d) (of the Motor Accidents Compensation Act). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said:
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a ‘left posterolateral annular tear’ with ‘mild disc desiccation’ shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1)‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2)‘a delamination may not fall within the definition of a tear’; and
(3)‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.”’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1)a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2)a review of all relevant records available at the assessment;
(3)a comprehensive description of the injured person’s current symptoms;
(4)a careful and thorough physical examination; and
(5)diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1)Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2)the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3)Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgment’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question”.
SUBMISSIONS ON WPI
Insurer’s submissions dated 10 April 2024
On 8 February 2024, the claimant requested that the insurer concede that his injuries exceed the 10% WPI threshold.
The insurer provided a decision on 7 March 2024 advising that they do not concede that the claimant’s injuries exceed the 10% WPI threshold.
In maintaining this decision, the insurer submitted that there were numerous occasions where the claimant failed to disclose his history of pre-existing injuries and subsequent injuries in independent medico-legal examinations. The insurer highlighted the following at [13]:
a. the claimant failed to declare any pre-existing conditions or any prior compulsory third party (CTP) claims in his Application for Personal Injury Benefits dated 10 February 2023;
b. the claimant initially denied suffering any previous neck or back symptoms to Dr Keller, occupational physician;
c. when Dr Keller asked whether the claimant had been involved in any previous motor vehicle accidents, the claimant reported that he was involved in a motor vehicle accident in around 2018 or 2019 resulting in lower back pain for which he had three or four sessions of physiotherapy for and was unfit for work for two months. The claimant reported to Dr Keller that he made a full recovery, despite making complaints of chronic lower back pain to Dr Petinga, GP on 2 July 2021;
d. Dr Keller highlighted that the claimant reported that he had not returned to work since the subject accident, despite being involved in a subsequent motor vehicle accident on 26 June 2023 when attending to quoting duties for work;
e. the claimant reported to Dr Keller that he kept working immediately after the accident until he attended Dr Lieng, GP two weeks after the accident. The claimant reported to Dr Lieng on 5 February 2023 that he had not returned to work following the subject accident;
f. Dr Keller reported:
“it is clear that he had a longstanding low back complaint including constitutional spondylolisthesis caused by pars defects and was seeking opiates that his doctor felt was inappropriate to prescribe” (emphasis added);
g. the claimant reported to Dr Keller that he requires his mother’s assistance with showering and dressing. Dr Keller noted that this was inconsistent with available medical evidence, and
h. the claimant denied any pre-existing anxiety and anger issues, as described to his GP in February 2019, and failed to report a psychological injury resulting from the prior motor vehicle accident on 29 February 2020 when he was examined by Dr Nagesh, psychiatrist.
Physical injuries
Lumbar, cervical and thoracic spine
The insurer submitted that the claimant’s physical injuries do not exceed the 10% WPI threshold based on the report of Dr Andrew Keller, occupational physician, dated 19 February 2024 and set out his findings at [14].
The insurer further submitted Dr Keller’s opinion should be preferred to that of Dr Mastroianni for the reasons outlined in [15].
Given that there was evidence of pre-existing conditions before the subject accident and a subsequent motor vehicle accident, the Insurer submitted that a Medical Assessor must review the evidence and consider that evidence when determining the claimant’s impairment as a result of the subject accident, as required by cl 6.31 of the Guidelines.
Shoulder (right and left)
The insurer submitted that the left and right shoulder impairment arising from the accident was 0% based on the most recent assessment of Dr Keller in February 2024.
Psychological injuries
The insurer submitted that the report of Dr Nagesh upon which the claimant relied was clearly inconsistent with medical evidence outlined at [20].
The insurer submitted that the report of Dr Nagesh cannot be relied upon as it did not accurately reflect the claimant’s condition and failed to accurately consider the claimant’s pre-accident psychological symptoms.
The insurer submitted that the evidence demonstrated the claimant’s alleged psychiatric injuries were not accident-related as they were a continuation of the claimant’s pre-existing depression and anxiety condition and therefore did not exceed the 10% WPI threshold.
The insurer further submitted that the Medical Assessor must review the claimant’s pre-existing history and consider that evidence when determining the claimant’s impairment as a result of the subject accident, as required by cl 6.218 of the Guidelines and calculate the value of any pre-existing WPI from the current WPI accordingly.
Mr Zalghout’s Thoracic Spine
As noted above, Mr Zalghout was examined by both Medical Assessors Drew Dixon and Les Barnsley on 31 January 2025.
On Medical Assessor Drew Dixon’s clinical observation, Mr Zalghout has marked spasm of his thoracic spine, with difficulty with trunk rotation and flexion and extension. He had marked thoracic kyphosis and could not correct this on extension of his back.
Thoracic flexion has decreased by one-third, and thoracic extension was restricted by one-half, and trunk rotation was decreased by one-third bilaterally.
CONCLUSION
The Panel arrives at the following conclusions in the dispute between the claimant and insurer about whether the injuries by the accident sound in an assessment of WPI:
(a) that for Mr Zalghout’s cervical spine is diagnostic related estimate (DRE) I, 0% WPI;
(b) that for his thoracic spine is DRE II, 5% WPI;
(c) that for his lumbar spine is DRE I, 0% WPI for pre-existing lumbar spondylolisthesis and L5/S1 disc protrusion on the left;
(d) that for the post-traumatic stiffness of the right shoulder, as per Nguyen, is from Pie Charts 38, 41 and 44, pages 43-45, American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA IV), 5% upper extremity impairment which equates to 3% WPI, and
(e) that for the post-traumatic stiffness of the left shoulder is from the same pie charts, 6% upper extremity impairment which equates to 4% WPI.
This gives a total from the Combined Values Chart of 12% WPI.
There were no symptomatic pre-existing conditions in the shoulders.
DETERMINATION
The Panel revokes the certificate of Medical Assessor Home dated 8 May 2024.
The Panel finds that the claimant has a total WPI assessment of 12% for the injuries suffered by him and arising out of the accident which occurred on 21 January 2023.
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