Hassan v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Hassan v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 513
CLAIMANT:	Kh Tarique Hassan
INSURER:	IAG Ltd t/as NRMA Insurance
REVIEW Panel
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	14 December 2022
CATCHWORDS:	MOTOR ACCIDENTS – This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of cervical and lumbar spine pain and right leg pain following the motor accident and submitted that he suffered from radiculopathy and/or sustained an annular tear or fissure in the motor accident which meant the injuries were classified as non-minor injuries; subsequent scan evidence otherwise showed changes that appeared to be long standing and the accident did not explain changes; claimant did not demonstrate radiculopathy before any assessor or his treating specialist; treating specialist noted no neurological changes since 2021 accident; Held – the Panel were not satisfied that the claimant suffered an annular tear or fissure in the motor accident as it was more likely that the pathology was degenerative and generally pre-existing and asymptomatic; the Panel were not satisfied that the claimant had two objective signs of radiculopathy at any time following the motor accident; observations that radiculopathy was established if it occurred at any time and was verified and not only during an examination by a Medical Assessor; injuries were soft tissue injuries so were minor as defined by section 1.6 of the Motor Accident Injuries Act 2017.
DETERMINATIONS MADE:	Review Panel Assessment of Minor Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) The Review Panel confirms Medical Assessor Shahzad’s certificate dated 4 January 2022 and issues a certificate determining that: The following injuries caused by the motor accident: · Soft tissue injury to the cervical spine. · Soft tissue injury to the chest. · Soft tissue injury to the right knee. · Soft tissue injury to the lumbar spine and thoracic spine. are each a MINOR INJURY for the purposes of the MAI Act. All the injuries below referred to the Panel for assessment have been assessed and determined not caused by the motor accident. · Spine - C3/4 disc bulging, C4/5, C5/6 and C6/7 osteophyte complex. · Lumbar spine - L3/4 annular tear, L4 Pars Defect, L5/S1 disc bulge, and joint hypertrophy at L2/3, L3/4, L4/5 and L5/S1 causing nerve compression. · Thoracic spine - T7/8 disc desiccation with osteophyte complex injury. A decision as to whether these injuries are a minor injury is not required for the MAI Act.

REASONS

Background

Mr Tarique Hassan (the claimant) suffered injury in a motor accident at approximately 6.00pm on 16 April 2021 whilst he was working as an Uber driver. Mr Hassan was travelling on Canterbury Road, Campsie in the left lane when the car travelling behind him rear-ended his vehicle. Mr Hassan estimates the vehicle at fault could have been travelling at a speed of up to 60 kph before the collision.
Mr Hassan’s airbag did not deploy. He says the collision caused his body to be pushed forward and backwards multiple times, and his head and back hit his seat multiple times with force, and his seatbelt was tightened around his chest. The claimant stated he felt a thrust on his chest, neck, and hand. The police attended the accident scene.
The insurer insured the owner and/or driver of the vehicle at fault for liability to pay to the claimant any statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Hassan lodged the claim form for personal injury benefits with the insurer on 3 May 2021.
The insurer issued a post 26-week liability decision on 27 July 2021, accepting liability, but denying Mr Hassan sustained a non-minor injury.
On 28 July 2021 Mr Hassan requested an internal review of this decision.
The insurer affirmed the original decision on 18 August 2021. Mr Hassan applied to the Personal Injury Commission (the Commission) to refer the insurer’s decision to a Medical Assessor to resolve the dispute.
Medical Assessor Shahzad (the Assessor) conducted the original medical assessment on 13 December 2021 and produced a certificate dated 4 January 2022.
On 25 January 2022 Mr Hassan applied to the Commission to refer Assessor Shahzad’s certificate to a Review Panel (the Panel), which was within 28 days after the parties were issued with the original certificate.[1]
[1] Section 7.26(10) of the MAI Act.
On 1 March 2022 the President’s delegate referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[2]

Legislative framework

[2] Section 7.26(5) of the MAI Act.

Statutory provisions

Section 1.6 of the MAI Act defines a minor injury to include a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
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 the motor accident caused a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in clause 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury will be assessed as a minor injury.
Part 5 of the Personal Injury Commission Act, 2020 (the 2020 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 merit reviewer or a medical assessor.[3]
[3] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[5] and Insurance Australia Ltd v Marsh.[6]
[5] [2021] NSWCA 287 at [40], [41] and [45].
[6] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[7] that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.
[7] [2021] NSWPICMP 227 at [84]-[104].
We also adopt the reasoning in Lynch v AAI Ltd[8] that the claimant bears the onus of proof in establishing any injury is not a minor injury for the purposes of the MAI Act.
[8] [2022] NSWPICMP 6 at [44]-[62].

Review

On 6 April 2022 the Panel met via telephone, and all Panel members confirmed they had no previous involvement with this matter or with Mr Hassan.
The Review Panel members directed the parties, pursuant to rule 70 of the Commission Rules the parties are directed to confer and on or before 6 May 2022 to lodge a joint signed statement setting out –
(a) the facts and issues on which the parties agree, and
(b) the facts and issues that continue to be in dispute.
The Panel decided eventually to consider afresh all aspects of the assessment under review as it was apparent all injuries were in dispute as to their minor injury status.
The Panel determined re-examination of the claimant was necessary in order to reach a decision, following the Court of Appeal said in Sydney Trains v Batshon[9]:
“[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the ‘Review Panel Practice Note 3/2005’, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review ‘is not limited to a review only of that aspect of the assessment that is alleged to be incorrect’, but rather ‘is to be by way of a new assessment of all the matters with which the medical assessment is concerned’: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
[9] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
Batshon’s case concerned a workers compensation medical assessment matter dealing with whole person impairment. Paragraph 41 is an observation of what happens in motor accidents matters where a practice note from 2005 is referenced. The case does not mandate a re-examination in every motor accident case but talks of the ‘default position’ which ‘generally’ applies and would apply if a party objected to an assessment on the papers. The judge’s observations also suggests the option of no re-examination where there is no dispute, ambiguity or uncertainty about findings.
As there was considerable dispute about the original Assessor’s findings on radiculopathy, it was decided re-examination was necessary to see whether the required signs for that condition could be verified.
Medical Assessor Berry arranged to conduct this examination on behalf of the Panel at his rooms at Fairfield on 26 May 2022.
The claimant was directed to bring all relevant imaging studies to the appointment.
The claimant was also directed to lodge the following treating doctors’ clinical notes created after his earlier 2015 car accident to the subject accident in the portal within 14 days of the date fixed for the re-examination.
(a)    Dr Lutfun Nahar, general practitioner, Icare Medical Centre & Sports Clinic;
(b)    UniquePhysio Bankstown, and
(c)    Dr Simon McKechnie, neurosurgeon.
The Panel noted there were some errors in the copies of Dr McKechnie’s correspondence already provided referring to 2016 examinations when the reports were post-dated the subject accident. It appeared the same date was generated on each digital copy, being the date it was provided from Dr McKechnie’s records in August 2021.
The Panel met on 9 June 2022 to discuss the matter further and deliberate.
The Panel met again on 25 November 2022 to clarify the discussion about the earlier Assessor's findings.

Assessment under review

On the face of the certificate Assessor Shahzad certified Mr Hassan sustained the following injuries, which he classified as minor under the MAI Act:

“Cervical spine – C3/4 disc bulging, C4/5, C5/6 and C6/7 osteophyte complex, impinging on nerves with radiculopathy down the right upper limb and causing headaches.
Chest – soft tissue injury caused by the motor vehicle accident.
Right leg – soft tissue injury to the right knee and radiculopathy down right leg.
Lumbar spine – L3/4, L4/5 pars defect, L5-S1 disc bulging and joint arthropathy at L2/3, L3/4, L4/5 and L5-S1 causing nerve compression and impingement.
Thoracic spine – T7/8 desiccation and osteophyte complex.”

However, at the end of the certificate’s reasons Assessor Shahzad wrote he had found the accident caused the following injuries classified as minor:
•       Cervical spine soft tissue injury.
•       Soft tissue injury to the chest.
•       Soft tissue injury to the right knee.
•       Soft tissue injuries to the lumbar spine and thoracic spine.
Assessor Shahzad found the following on examination:
“General presentation
All movements performed in examination were active and voluntary. No movements were undertaken to the point it would have caused or inflicted any further injury or pain.
The claimant reported he stands 5 foot 11 inches tall and weighs 90 kg. He was wearing an elastic compression bandage on his right knee and required assistance to climb in and out of his chair. He was unable to perform a squat, unable to stand on his tiptoes and unable to stand on his heels.
He demonstrated sluggish movements due to pain and there was evidence of a mild limp on walking. He was slow to get on and off the examination bed due to pain. Guarded and fear-avoidance behaviour was noted and there was inconsistency in his range of movement on assessment. There was a lack of effort noted with generalised tenderness.
Chest:
There was tenderness over upper chest but overall, there was no tenderness over the ribs and the clavicles. There was an old scar noted below the right nipple from previous surgery and procedures. On inspection, the thorax is symmetrical with good expansion.
Cervical spine:
There was moderate restriction in his range of movement on cervical spinal flexion. There is severe limitation on extension, lateral rotation, and lateral flexion.
There was no muscle guarding, swelling, rigidity or spasms noted over the cervical spine. There was no tenderness noted over the supraspinatus or over the spinal and paraspinal region.
Thoracic spine:
There was tenderness over the thoracic spine, more around the T7/T8. He was unable to demonstrate lateral flexion or lateral rotation.
Lumbosacral spine:
There was severe limitation in the claimant’s range of movement on lumbosacral spinal flexion, extension, lateral rotation and lateral flexion. There was localised, general tenderness over the lumbosacral spine and the paraspinal musculature with superficial tenderness. Straight leg raise was negative bilaterally.
Neurological examination of the upper limbs:
Radiculopathy was reported bilaterally. His upper limb reflexes were normal bilaterally. However, there was evidence of non-dermatomal dysesthesia in the upper limbs.
Right knee
Right knee flexion and extension was preserved. There was mild crepitus noted throughout his range of movement.
There was no particular joint line tenderness or laxity of the cruciate or collateral ligaments noted.
McMurray’s grind test, anterior and posterior drawer tests were negative.
There is no effusion in the knee joint, no patellofemoral tenderness noted, no swelling or length discrepancy present.
Neurological examination of the lower limbs:
Examination of the lower limbs did not identify any abnormal neurology. Muscle power, tone and deep tendon reflexes were normal bilaterally in the lower limbs. On examination of the myotomes and dermatomes associated with L2, L3, L4, L5 and S1, no deficits were noted.”
The reported symptoms were residual, intermittent chest pain; residual, lower back pain which is associated with pins and needles and numbness in both feet; and reports residual neck pain with associated pins and needles in both upper limbs together with pain in both arms.
Mr Hassan reported to Assessor Shahzad that his symptoms have also affected his sleep as he wakes regularly during the night.

Comments on consistency during Assessor Shahzad’s examination

The claimant was questioned as to consistency.
Scans taken after the earlier motor accident on 21 August 2015 showed Mr Hassan there was pre-existing degeneration before the more recent accident. The Assessor found the changes were long-standing and chronic, which the accident mechanism could not justify or explain.
There is no note whether Mr Hassan could explain it either.

Disputes and issues identified for review

The claimant highlighted that the following aspects of the original assessment were identified as disputed:
(a)    Mr Hassan’s injury to his cervical spine is a minor injury.
(b)    Mr Hassan’s injury to his thoracic spine is a minor injury.
(c)    Mr Hassan’s injury to his lumbar spine is a minor injury.
It was apparent that Mr Hassan was alleging the suffered radicular symptoms, but they have not been verified on examination as required In the Guidelines.
The insurer opposed the application on the basis the Assessor had not made any material error in his assessment.

Documentation

The Panel considered the following documentation:
·         Assessor Shahzad’s certificate dated 4 January 2022;
·         Mr Hassan’s application for review and attached documents identified as AD4-Hassan's Paginated Bundle – 23 March2022;
·         Reply and attached documents identified as AD3-2022.03.22 NWRTP210107201 Tarique Hassan – insurer Reply documentation;
·         the President’s delegate’s reasons dated 1 March 2022 referring this matter to a Panel, and
·         all the documents which were provided to Assessor Shahzad before the assessment under review.

The parties did not submit additional evidence.

SUBMISSIONS

Claimant’s submissions

Cervical spine

The Review Panel has relied on the parties submissions provided with each bundle to ensure each party’s case is addressed.
The claimant refers to his statement, dated 21 September 2021[10], which notes he has radiculopathy in the right upper limb as a result of an injury to the cervical spine. The statement notes the claimant experiences numbness and pins and needles down the right arm, radiating from the cervical spine, with constant numbness in the third, fourth and fifth fingers on the right hand.
[10] AD4 page 27

The statement explains the claimant was involved in a motor vehicle accident on 21 August 2015, in which he sustained injury to the cervical spine which resulted in radicular symptoms. However, this injury healed with treatment, and he was not experiencing any symptoms of radiculopathy, numbness in the right arm or pain in the cervical spine at the time of the accident.
The claimant refers to the CT scan of the cervical spine dated 16 November 2015[11] after the first accident, found in Dr McKechnie’s clinical notes. This scan’s report notes there are disc protrusions at the C4/5, C5/6 and C6/7 levels, but did not find any injury at C3/4.
[11] AD4 page 41.
Comparatively, the MRI of the cervical spine dated 4 June 2021[12] found at C3/4 there is symmetric disc bulging causing minor central canal and foraminal stenosis.
[12] AD4 page 34.
Further, the CT scan of the cervical spine dated 26 April 2021[13], noted severe bilateral neural exit narrowing.
[13] AD4 page 50.
The claimant submits, despite having previously sustained injury to the cervical spine, the medical imaging shows further and separate injury, which was as a result of the subject accident. Since the claimant had not experienced symptoms of radiculopathy for some time before the accident these symptoms are a direct consequence of the injury sustained in the accident.
The claimant refers to the clinical notes from I-Care Medical Centre and Sports Clinic[14] and the following is noted:
(a) The entry on 24 May 2021 notes bilateral intermittent upper limb numbness and restricted range of motion and instability in the cervical spine.
(b) On 23 July 2021 it is noted the claimant had headaches and numbness in the right upper limb.
[14] AD4 pages 67, 66.
The claimant submits, on clinical examination, the radiculopathy radiating from the cervical spine would meet the requirements under the Guidelines. As such, the injury to the cervical spine, resulting from the accident, falls outside of the definition of a minor injury, as per the MAI Act.

Thoracic spine

The claimant refers to Dr McKechnie’s report of the consultation on 1 July 2021, which notes the MRI of the thoracic spine showed a T7/8 disc protrusion.[15]
[15] AD4 page 63.
It is noted a disc protrusion occurs where a piece of the inner part of a vertebral disc has pushed through the outer wall of the disc. This necessarily requires there to be a tear in the cartilage of the disc.
As the definition of a minor injury under the MAI Act does not include a partial rupture of cartilage, this disc protrusion falls outside the definition of a minor injury.
It is noted the clinical notes indicate the claimant had not previously made any complaints of pain in the thoracic spine, and it is therefore submitted this injury was a direct consequence of the accident.

Lumbar spine

The claimant’s statement dated 21 September 2021 asserts the claimant has radiculopathy in the right leg as a result of the accident related injury to the lumbar spine. The claimant states experiences numbness down the right leg from the lumbar spine.
The claimant refers to the CT of the lumbar spine, dated 4 June 2021[16], which identifies a left sided pars defect at the L4 level, noting there is impingement of the L4 and L5 nerve roots bilaterally.
[16] AD4 page 32.
Further, the MRI of the lumbar spine on 19 April 2021[17], again notes the Pars defect at L4 and L4/5 spondylolisthesis, with associated bilateral neural exit foraminal narrowing, appearing worse on the right. The MRI also diagnosed an annular tear at L3/4.
[17] AD4 page 38.
It is submitted the annulus fibrosus is a strong outer ligamentous ring. An annular tear is a tear in this ligamentous ring.
Accordingly, an annular tear is a complete or partial rupture of ligaments, thereby falling outside the definition of a minor injury in accordance with the MAI Act definition.
The SIRA Case Study 45 confirms an annular fissure associated with a disc bulge was not a minor injury.
Further, the injury to the lumbar spine has resulted in a radiculopathy in the lower limbs.
The claimant refers to the clinical notes from I-Care Medical Centre and Sports Clinic and the following is noted:
(a)    On 18 April 2021[18] it was noted the claimant had pain in the lumbar spine, being unable to bend.
(b)    The entry on 26 April 2021[19] noted the lower back pain radiated to the right leg.
(c)    On 3 May 2021[20] there is a note of numbness in the lumbar spine area.
[18] AD4 page 70.
[19] AD4 page 69.
[20] AD4 page 69.
The claimant submits, on clinical examination, the radiculopathy radiating from the lumbar spine would meet the requirements under the Guidelines. The injury to the lumbar spine, resulting from the accident, falls outside of the definition of a minor injury, as per the MAI Act.

Insurer’s submissions

Cervical spine

The insurer provided submissions addressed to the presidential delegate, which are applicable to the Review Panel’s considerations.
Specifically, the claimant submits on clinical examination, the claimant presented with radiculopathy radiating from the cervical spine which accordingly does not fall within the definition of a minor injury as per the MAI Act.
The insurer highlights however, based on the Assessor’s clinical examination at the time of assessment, there is no evidence of verified radiculopathy.
Whilst the claimant complained of radiculopathy the insurer highlights the Assessor’s clinical examination of the cervical spine and upper limbs did not indicate evidence of verified radiculopathy as defined in the Guidelines. Further, the Assessor notes there were clinical findings of “non-dermatomal dysesthesia in the upper limbs.” Accordingly, the insurer refers to clause 5.9 of the Guidelines, which states:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
The insurer refers to imaging taken after a motor accident on 21 August 2015, before the accident, including the X-ray of the cervical spine dated 15 September 2015, CT dated 16 November 2015 and MRI dated 22 February, all evidencing extensive pre-existing disc degenerative changes.
As such, the insurer submits the accident mechanism cannot justify or explain the post-accident imaging findings of the cervical spine, but rather are related to progression of longstanding chronic degenerative changes, with the noted osteophyte complex associated with chronic presentations.
At [17]-[19] of the claimant’s submissions it is noted there was no evidence of pre-existing disc protrusion at C3/4 encroaching on the nerve root before the accident, but definite evidence of disc bulging with encroachment after the accident.
The insurer refers to the posthoc ergo propter hoc fallacy referred to at [63] as per Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096, where in this case, the following was noted:
“The approach adopted by Dr Anderson, with respect, is redolent of the post hoc ergo propter hoc fallacy. That is to say, the medical assessor seems to have proceeded on the basis that since an additional worsened symptom load followed the workplace incident, it must have been (solely) caused by it. Looked at this way, the apparent non-compliance with Guideline 1.23 feeds into the central and essential causation issue.”
Based on the posthoc ergo propter hoc fallacy referred to above, the insurer highlights it is erroneous to adopt an approach that assumes if an imaging finding is found after the accident, then the accident caused the finding as the claimant asserts.
As per clause 6.6 of the Guidelines, the test for causation is whether the accident could have caused the injury and whether the accident did cause the injury. In reading the Assessor’s reasons in its entirety, the insurer submits the Assessor discharged his obligation, engaged in and answered the question of causation. The Assessor referred to pre-accident MRI imaging of the cervical spine dated 22 February 2016 indicating disc degeneration from C3/4 to C6/7 and opined there was extensive pre-existing degenerative changes noted. Noting this background, the Assessor then concluded the findings noted in post-accident imaging mainly reflect an osteophyte complex associated with chronic presentations, which the accident mechanism does not justify or explain.
In summary, the insurer asks the Panel to follow the Assessor who provided sufficient reasons to substantiate his conclusion the claimant sustained a soft tissue injury to the cervical spine, noting there is no evidence of verified radiculopathy on clinical examination and the radiological imaging findings of the cervical spine post-accident are related to longstanding pre-existing degenerative changes.

Thoracic spine

The claimant asserts the clinical notes demonstrate he had not previously made any complaints related to the thoracic spine and the post-accident imaging findings of the thoracic spine are a direct consequence of the accident.
The insurer relies on the above submissions regarding the posthoc ergo propter hoc fallacy, and reiterate it is erroneous to adopt an approach that assumes if an imaging finding is found after the accident, then the accident caused it.
Regarding the imaging findings of the thoracic spine of T7/8 disc desiccation with osteophyte complex injury, the Assessor opined these findings relate to “longstanding chronic changes which cannot be justified or explained by the mechanism of the subject motor vehicle accident.”
As such, the Assessor provides reasons to support his conclusion regarding causation and determined the pathology identified on imaging is degenerative rather than acute or traumatic in nature.

Lumbar spine

The claimant submits on clinical examination; the claimant presents with radiculopathy of the lumbar spine. Accordingly, they submit radiculopathy of the lumbar spine falls outside the definition of a minor injury as per the MAI Act.
The insurer refers to the Assessor’s clinical examination of the lumbar spine found no clinical evidence of verified radiculopathy.
As such, the insurer highlights there is no clinical evidence of verified radiculopathy as per the Guidelines to support the claimant’s assertion the claimant’s injury to the lumbar spine is a non-minor injury as per the MAI Act.
The claimant further submits the pathology noted on post-accident imaging of the lumbar spine, namely the annular tear at L3/4 reported on the MRI of the lumbar spine dated 19 April 2021, is not a minor injury as per the MAI Act.
The Assessor acknowledged the imaging findings pertaining to the lumbar spine, however concluded the accident did not cause the pathological findings and are related to longstanding chronic changes which the accident mechanism does not justify or explain.
In summary, the Assessor determined the injury to the lumbar spine is a minor injury on the basis there was no evidence of lumbar radiculopathy on clinical examination and the imaging findings of the lumbar spine are related to degenerative changes. There was no evidence of acute pathology that can be related to post-traumatic lesions on review of the radiological imaging.

Annular tear – minor injury determination

The claimant submits the Assessor has erred in his minor injury determination pertaining to the L3/4 annular disc tear identified on the claimant’s MRI of the lumbar spine.
As noted above, the Assessor opined the imaging findings of the lumbar spine are related to longstanding chronic changes which the accident mechanism does not justify or explain.
Even if the imaging finding of L3/4 annular tear was deemed related to the accident (which the Insurer does not concede to in light of the Assessor’s reasons above), the insurer submits an annular tear does not fall outside the definition of a minor injury as the claimant asserts.
At [29] of their submissions, the claimant states the annulus fibrosus is a strong outer ligamentous ring and as such, an annular tear is a tear in this ligamentous ring. Accordingly, the claimant submits an annular tear is a complete or partial rupture of ligaments, thereby falling outside the definition of a minor injury in accordance with the MAI Act.
The insurer submits the claimant errs in the submission an annular tear is a tear in the “ligamentous ring” which makes up the annulus fibrosus. The medical literature demonstrates that intervertebral discs, that is the nucleus pulpous (NP) and annulus fibrosus (AF), are fibrous connective tissue. This fibrous connective tissue is joined to the endplate of the vertebrae (BEP) by means of a cartilage layer (CEP).[21], [22] [image unable to render]
[21] 1 Newell, N., Little, J. P., Christou, A., Adams, M. A., Adam, C. J., & Masouros, S. D. (2017). Biomechanics of the human intervertebral disc: A review of testing techniques and results. Journal of the mechanical behaviour of biomedical materials, 69, 420-434. 2 Adams, M. A., & Roughley, P. J. (2006). What is intervertebral disc degeneration, and what causes it? Spine, 31(18), 2151-2161. DOI: doi: 10.1097/01.brs.0000231761.73859.2c.
As per s1.6 of the MAI Act, a “Minor injury” is defined as a soft tissue injury. A soft tissue injury is an 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.
Anatomically and as noted in the above referenced medical literature, the annulus fibrosus is made up of fibrous connective tissue and is not a “ligamentous ring” as the claimant asserts. As such, the insurer highlights the claimant has an annular tear, which is essentially a tear in the annulus fibrosus made up of fibrous connective tissue, which in turn is a soft tissue injury as the Assessor determined. This is consistent with the definition of a soft tissue injury as per s1.6 of the MAI Act outlined above.
At [31] of the claimant’s submissions, it states:
“The SIRA Case Study 45 confirms that an annular fissure associated with a disc bulge was not a minor injury.”
The insurer highlights the Case Study referred to had not been put to the Assessor in the claimant’s submissions or supporting documents in their Application for Review.
Additionally, the insurer relies upon Pham v Shui [2006] NSWCA 373, where at [91] it is stated:
“I understand the latter reference to be to the degree to which such a certificate can constitute evidence which is not conclusive bearing upon economic loss. I do not take that reference to mean that the certificate has any extended conclusivity beyond the matters specifically referred to in s61(2).”
In essence, the insurer highlights a medical assessor’s determination is not binding on another, therefore the determinations made in SIRA Case Study 45 did not bind Assessor Shahzad.
In any event, the insurer refers to SIRA Case study 45, whereby the allocated Assessor determined the claimant’s lumbar spine injury was not a minor injury on the basis the claimant’s clinical presentation met the criteria for radiculopathy as defined in the Guidelines.
Whilst the claimant had MRI imaging evidence of an annular fissure and annular disc bulge, this was not the determinant factor as to why his lumbar spine injury was classified a non-minor injury, as the claimant asserts.
The insurer highlights Assessor Shahzad’s clinical examination of the claimant’s lumbar spine, where it is noted the claimant had no clinical signs of a lumbar spinal nerve root compression and no signs of verified radiculopathy.
As such, the insurer submits there is no material error/s in the medical assessment of Assessor Shahzad capable of review. The Assessor has adhered to his obligations and has considered all the medical evidence made available to him, performed his own clinical examination, made his own determinations has provided clear and logical reasons to substantiate his determinations.

Annular tear – causation

The insurer submits the Assessor has provided sufficient reasons to support his conclusion the radiological imaging findings of the lumbar spine (including the findings of the L3/4 annular tear) are not related to the effects of the accident.
The insurer relies on the following submissions to support that the L3/4 annular tear is not a consequence of the accident.
Whilst the claimant did not have any symptoms affecting the lumbar spine before the accident, the Insurer highlights there is extensive medical literature, which indicates the prevalence of spinal pathology in the asymptomatic population as a result of typical age-related degenerative disc disease and in the absence of acute trauma.
The insurer highlights the journal article by Boden et al. is not the only literature supporting the epidemiology and prevalence of spinal pathology.[23] Dr Coroneous confirms the high incident of spinal abnormalities such as bulges, protrusions, herniations, and disc osteophyte complex are terms used interchangeably. Although they give the impression of a traumatic causation, these changes are often part of the aging and degenerative progress given their prevalence in the asymptomatic population.[24]
[23]Boden, S. D., McCowin, P. R., Davis, D. O., Dina, T. S., Mark, A. S., & Wiesel, S. (1990). Abnormal magnetic-resonance scans of the cervical spine in asymptomatic subjects. A prospective investigation. JBJS, 72(8), 1178-1184.
[24] Coroneous, M. (2020). Incidence Evaluation and Classification of lumbar spine MR abnormalities in asymptomatic individuals. Retrieved October 27, 2020, from >
Stadnik et al. found asymptomatic population disc protrusions is present in 33% of the population, 81% had disc bulges, 72% show mild to moderate disc degeneration and 55%severe disc degeneration.[25] Brinjkji et al. conducted a systematic review of features of asymptomatic spines highlighting the prevalence of disc bulges, protrusion, fissures, and other features across ages.[26] Disc degeneration, as in the claimant’s imaging are present in 80% of asymptomatic 50-year-olds, whilst annular fissure is present in 23% of the asymptomatic 50-year-old population.
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[25] Stadnik, T. W., Lee, R. R., Coen, H. L., Neirynck, E. C., Buisseret, T. S., & Osteaux, M. J. (1998). Annular tears and disk herniation: prevalence and contrast enhancement on MR images in the absence of low back pain or sciatica. Radiology, 206(1), 49-55.
[26] Brinjikji, W., Luetmer, P. H., Comstock, B., Bresnahan, B. W., Chen, L. E., Deyo, R. A., ... & Wald, J. T. (2015). Systematic literature review of imaging features of spinal degeneration in asymptomatic populations. American Journal of Neuroradiology, 36(4), 811-816.
Carragee et al. similarly highlights the prevalence of intervertebral abnormalities on imaging and comments: “when it is the only imaging available, as it is usually the case in clinical practice, it often results in the conclusion the findings developed de novo, particularly following the first serious acute spinal complaints. However, when one considers these structural findings were already present in more than 90% of the cases at the time of the accident, in the absence of significant neurological symptomology associated with these specific findings, the causation of these findings to the reported symptoms becomes untenable. The study found less than 5% of follow-up imaging scans showed clinically relevant new findings and trauma while commonly reported, did not correlate with serious symptomology or cause clinically significant structural spinal changes.” [27]
[27] Carragee, E., Alamin, T., Cheng, I., Franklin, T., & Hurwitz, E. (2006). Does minor trauma cause serious low back illness?. Spine, 31(25), 2942-2949.

In short, the medical literature shows disc degeneration commencement occurs from early on in life later compounded with minor traumatic or repetitive occupational events. Such imaging findings within 12 weeks of new and serious spinal complaints are highly unlikely to represent any new structural change. Most new changes such as disc signal, facet osteoarthritis and endplate signal changes represent progressive age-related changes not associated with acute events.
Thus, the insurer submits the presence of the annular tear evidenced on the MRI of the lumbar spine dated 19 April 2021 is likely to be an incidental finding, given their prevalence in the asymptomatic population of similar age. This is consistent with the Assessor’s findings and reasons why the injuries suffered in the accident met the definition of minor injury.

MATERIAL BEFORE THE REVIEW PANEL

The parties filed bundle of documents in accordance with the initial Direction.

Pre-accident medical records

Mr Hassan's general practitioners’ clinical notes commence on 2 March 2021, shortly before the motor accident on 16 April 2021.
In spite of the claimant being directed to produce the general practitioner’s clinical notes relating to the 2015 accident these were not produced, and the Review Panel is not in the position to measure Mr Hassan's complaints after the 2015 accident and the more recent accident.
We have the claimant’s correspondence from Dr McKechnie, who examined him for both accidents.

Motor accident

Mr Hassan’s claim form dated 3 May 2021[28] described the motor accident 16 April 2021 as Mr Hassan driving in Hurlstone Road Canterbury Road left lane side when “SUDDENLY BEHIND SPEEDY CAR HIT MY CAR FORM(sic) BACK”. He records he injured his “NACK [sic], UPPER BACK, LOWER BACK AND RIGHT LEGS KNEE”.
[28] AD4 claimant’s bundle page 21.
Mr Hassan also noted he was suffering from “NACK” [sic] pain at the time of this accident, and he had been in an earlier motor accident on 21 August 2015. There is no police report, although police attended.

Claimant’s statement

Mr Hassan’s statement dated 21 September 2021[29] describes the accident as:
“The collision caused my body to pushed forward and backwards multiple times. My head and back hit my seat multiple times with force, and my seatbelt was tight around my chest.”
[29] AD4 page 21.
Immediately after the accident, he says he developed pain in neck, middle back and lower back, and right knee and chest.
He underwent scans and his general practitioner referred him to a specialist and physiotherapist. He took Panadeine Forte to relieve pain.
He saw Dr Simon McKechnie, neurosurgeon, on 25 May 2021 for further scans. Dr McKechnie prescribed a bone scan and cortisone injection, but the insurer declined to fund the injection. The letter from Georges River Medical Imaging confirms Mr Hassan still underwent that injection on 11 November 2021[30].
[30] AD4 page 92.
He continues to also seek assistance from his general practitioner, Dr Lutfun Nahar. He is also seeking psychiatric treatment.
On 21 August 2015 he sustained injury to the neck with radiating symptoms into the right arm and headaches, with numbness in the medial three digits of the right-hand. It was a rear end accident too. This injury healed after treatment and at the time of the accident he was not experiencing any symptoms of radiculopathy, numbness in the right arm or pain in the cervical spine.
He had no issues with his thoracic or lumbar spine before the accident.
His treating doctors are the same for both accidents.

Medical evidence

The medical evidence relied on is identified in the submissions.
It is noted that Dr McKechnie’s clinical notes and correspondence regarding the 21 August 2015 accident ends in 2016.

Radiology

The relevant scans are identified in the above submissions.

REVIEW PANEL FINDINGS

Pre-accident medical history and relevant personal details

The Review Panel has addressed those aspects above.

Clinical examination

Re-examination findings

As directed, Assessor Neil Berry examined Mr Tarique Hassan on 26 May 2022 at his rooms in Fairfield.
Mr Hassan attended with his brother and confirmed he is 52 years of age and pre-dominantly right-handed. He confirmed he was involved in a motor vehicle accident on 16 April 2021.
Mr Hassan told Assessor Berry he has been unable to drive since the accident.
Mr Hassan stated when he struck in the rear, he was thrown forward and backwards a few times. He was shaken and dazed, and he subsequently contacted his wife who drove him to Bankstown Hospital complaining of pain in his neck, back, mid-back and right knee and leg. Mr Hassan told Assessor Berry the hospital kept him for about 78 hours, and he was subsequently discharged to his general practitioner’s care.
Initially, when the vehicle was hit, he felt numbness involving the whole right side of his body from the head down.

Current situation

Mr Hassan told Assessor Berry he continues to suffer pain in the neck, which is aggravated by any movements, it disturbs his sleep at night. He has pain in the thoracic spine and in the lumbar spine which interferes with his ability to walk, and he also continues to have pain in the right knee.

Physical examination

Mr Hassan was 183cm in height and 90kg in weight. He was using a walking stick on the right side and walked with a marked limp. His brother assisted him into the room and his brother helped him to sit down. His brother also indicated the claimant was wearing a soft corset and had a hot water bottle inserted into the corset.

Cervical spine

Mr Hassan demonstrated half the normal range of flexion. There was less than a quarter range of movement of extension and right and left rotation. Lateral flexion was minimal on both sides. There was no evidence of any muscle guarding or muscle spasm and spinal contour was normal.

Thoracic spine

Mr Hassan was tender in the midline over the lower thoracic spine. He could not rotate the spine to the left or right, nor could he flex.

Lumbar spine

Mr Hassan showed less than a third of the normal range of flexion, no extension and less than half the normal range of lateral rotation to the right and left. He was tender throughout the thoracic and lumbar spine without any paraspinal muscle spasm and no loss of the normal thoracolumbar spine contour.

Upper extremities

Mr Hassan could only lift his arms to 90 degrees. His other movements were relatively normal. Assessor Berry could see no unilateral muscle wasting and there was no particular sensory loss.

Lower extremities

Mr Hassan was unable to get onto the examination couch and Assessor Berry was therefore unable to perform the standard tests. He had a brace on the right knee and with the brace removed reflexes could not be detected. Flexion was to 90 degrees. The movement of the other joints in the lower limbs was not restricted.

No other physical examination was carried out.

Comments on consistency

Mr Hassan’s condition today was worse than previously reported. Assessor Berry asked about how Mr Hassan was able to be examined physically at the earlier assessment and his presentation recorded in Dr McKechnie’s correspondence.
Mr Hassan told Assessor Berry his condition had become much worse since he saw Assessor Shahzad and Dr McKechnie but did not explain why or how.

Panel decision

The Review Panel’s conclusions on the parties’ issues

Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation. However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a minor injury, it is unclear and unlikely the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment apply to assessing causation in minor injury disputes. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.
In order to promote consistency and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in clauses 6.6 and 6.7 of the Guidelines.
The decision in Peet v NRMA Insurance Ltd[31] provides guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW[32] who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
[31] [2015] NSWSC 558.
[32] [2012] NSWSC 560.
Further, in the recent case of Hunter v Insurance Australia Ltd[33] the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.” -
[33] [2021] NSWSC 623.
The Panel decided it would adopt Assessor Berry’s examination report as evidence in its conclusions.

Presence of radiculopathy

The claimant submits there are recorded observations of two signs of radiculopathy in the cervical spine and right leg as defined by the Guidelines.
The Panel refers to the claimant’s statement, dated 21 September 2021[34], and the treating general practitioner’s clinical notes which confirm he had experienced radiculopathy in the right upper limb as a result of the cervical spine injury.
[34] AD4 page 27.
The statement also confirms although Mr Hassan claims he also suffered radiculopathy after the 2015 accident, he says it had abated well before he was involved in the recent accident.
Clinical notes provided with this application regarding both accidents show there were no entries regarding further treatment after 2016 for the earlier accident.
The statement notes after the later accident the claimant experienced numbness and pins and needles down the right arm, radiating from the cervical spine, with constant numbness in the third, fourth and fifth fingers on the right hand. Mr Hassan also said he had numbness in the right leg as a result of the accident related injury to the lumbar spine.
Mr Hassan’s treating neurologist Dr McKechnie did not detect any neurological changes when he examined him on 25 May 2021.
Mr Hassan did not have radiculopathy in either the lumbar or cervical spine when the original Assessor examined him.
Assessor Berry, who examined Mr Hassan on behalf of the Panel did not have the opportunity to test radiculopathy due to the claimant’s pain behaviour.
The Panel is guided by the Panel’s findings in David v Allianz Australia Insurance Ltd 2021 NSWPICMP 227 (David).
At [84]-[105] the David panel considered the issue of “whether an injury is not a minor injury if radiculopathy is present at any time following injury”.
At [98] the David panel observed:
“Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities.”
The David Panel found at [104] that if it is established (via an assessment that complies with cl 5.5) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time, the injured person falls outside the definition of ‘minor injury’. This Panel agrees with that view.
In spite of Mr Hassan’s claim that examination would produce verifiable demonstrations of radiculopathy in his cervical spine, lumbar spine and right leg, it did not occur in either the original assessment, or during Dr McKechnie’s evaluation. It was not possible to verify during Assessor Berry’s examination, because Mr Hassan would not allow Assessor Berry to touch him.
For these reasons we conclude Mr Hassan’s motor accident related cervical spine condition has not satisfied cl 5.8 of the Guidelines requirement for, at any time, the presence of two clinical signs of radiculopathy.

Cervical Spine

The Panel found the accident caused a soft tissue injury to the cervical spine.
The claimant's submissions that that the cervical spine radiculopathy would be verifiable on examination did not prove true, because the claimant would not allow Assessor Berry to examine him in the way that could verify the radiculopathy.
The Panel agrees with Assessor Shahzad’s method to assess causation regarding the changes seen in scans. The Panel is of the opinion that in referring to pre-accident MRI imaging of the cervical spine dated 22 February 2016 indicating disc degeneration from C3/4 to C6/7, it demonstrated extensive pre-existing degenerative changes noted. The Panel agrees with Assessor Shahzad’s conclusion that the findings noted in post-accident imaging mainly reflect an osteophyte complex associated with chronic presentations, which the accident mechanism does not justify or explain.
The radiological imaging findings of the cervical spine post-accident are related to longstanding pre-existing degenerative changes, rather than the accident, because the scans do not demonstrate recent trauma.
The Panel cannot be satisfied the accident caused those changes due to the changes appearing longstanding.

Thoracic Spine

Dr McKechnie’s report of the consultation on 1 July 2021, noted a thoracic spine MRI showed a T7/8 disc protrusion.[35]
[35] AD4 page 63
The claimant submits that necessarily requires a tear in the disc cartilage, and this disc protrusion is not a minor injury under the MAI Act.
The claimant relies on nil references in his GP’s clinical notes to support the claim there were no pre-accident complaints of thoracic spine pain, and the post-accident imaging findings are a direct consequence of the accident.
The countervailing submission is that a lack of previous complaints, coupled with protrusions seen for the first time indicate a correlation, but do not indicate a causal link to the accident.
The scans do not show recent trauma, but long standing degenerative changes, which the original Assessor described as “longstanding chronic changes which cannot be justified or explained by the mechanism of the subject motor vehicle accident.”
The Panel agrees with that description and cannot be satisfied the accident caused those changes.

Annular tear – causation

The scans showed long term changes consistent with chronic presentations. The Panel is satisfied that changes such as disc protrusion would be present if the annular tears were acute and suffered in the accident.

Minor injury

The Panel’s findings in relation to the minor injury are in line with the findings as stated in Assessor Shahzad’s certificate because there was no verifiable radiculopathy in the cervical and lumbar spine or the right leg. Further, we agree that the changes observed in scans were the result of aged degeneration and the accident could not explain the changes.
Accordingly, the Panel has determined this certificate is to be confirmed and the Panel will not issue a new minor injury certificate.

CONCLUSION

Mr Hassan has not established the accident caused him to suffer a non-minor injury. We affirm the certificate of Assessor Shahzad.
The following injuries caused by the motor accident are each a MINOR INJURY for the purposes of the MAI Act
Soft tissue injury to the cervical spine.
Soft tissue injury to the chest.
Soft tissue injury to the right knee.
Soft tissue injury to the lumbar spine and thoracic spine.
All the injuries below referred to the Panel for assessment have been assessed and determined as not caused by the motor accident.
Spine - C3/4 disc bulging, C4/5, C5/6 and C6/7 osteophyte complex.
Lumbar spine - L3/4 annular tear, L4 Pars Defect, L5/S1 disc bulge, and joint hypertrophy at L2/3, L3/4, L4/5 and L5/S1 causing nerve compression.
Thoracic spine - T7/8 disc desiccation with osteophyte complex injury.
A decision as to whether these injuries are a minor injury is not required for the purposes of the MAI Act.
Member O’Riain, Medical Assessor Moloney and Medical Assessor Berry have viewed this certificate and confirmed they are in agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established