DETERMINATION OF REVIEW PANEL	
	
CITATION:	AAI Limited t/as AAMI v Yousif [2023] NSWPICMP 319	
		
CLAIMANT:	Galamer Yousif	
		
INSURER:	AAI Limited trading as AAMI	
		
REVIEW Panel	 	
		
MEMBER:	Susan McTegg	
		
MEDICAL ASSESSOR:	Drew Dixon	
		
MEDICAL ASSESSOR:	Tai-Tak Wan	
		
DATE OF DECISION:	26 June 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS –   Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 16 December 2020; assessment of threshold injury; injury to lumbar spine; Medical Assessor Assem identified radiculopathy and certified the claimant had sustained a non-threshold injury; Held – on examination Medical Assessor Wan on behalf of the review panel did not identify radiculopathy; presence of annular tears; having regard to circumstances of accident; contemporaneous complaints of lower back discomfort radiating to the left leg; the accident materially contributed to the aggravation of the lumbar disc pathology identified on the MRI of 28 April 2021 and the presence of L5/S1 radiculopathy identified by Medical Assessor Assem; panel adopts reasoning in David v Allianz Australia Ltd that the definition of threshold injury can be satisfied at any time following the accident; panel satisfied at the time of assessment by Medical Assessor Assem Mr Yousif had objective clinical evidence of left L5/S1 radiculopathy; the panel concludes the claimant sustained a non-threshold injury.
	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Assessment of Threshold  Injury
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel affirms the certificate of Medical Assessor Mohammed Assem dated 
29 July 2022 and determines that the following injury caused by the motor accident is not a threshold injury: 
•	injury to the lumbar spine – left L5/S1 radiculopathy.

	

STATEMENT OF REASONS
introduction
1.	Mr Galamer Yousif (the claimant) sustained injury when his 4.5 tonne Isuzu truck was rear-ended by another vehicle on 16 December 2020 (the accident). 
2.	AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Mr Yousif under the Motor Accident Injuries Act 2017 (MAI Act).
3.	On 12 January 2021 Mr Yousif lodged an application for personal injury benefits.  
4.	On 30 April 2021 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that his injuries were minor (threshold) injuries and that his entitlement to statutory benefits including treatment and care would cease.
5.	On 13 June 2021 Mr Yousif sought an internal review of the insurer’s minor (threshold) injury decision and on 2 July 2021 the insurer affirmed the earlier decision that the injuries sustained by the claimant all fell under the definition of “minor (threshold) injury” as per the MAI Act. 
6.	The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the threshold injury dispute between the parties. 
7.	Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”. 
8.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
9.	This dispute was assessed by Medical Assessor Mohammed Assem who issued a certificate dated 29 July 2022.
THRESHOLD INJURY- STATUTORY PROVISIONS
Threshold injury
10.	The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”. 
11.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
12.	Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have been caused by the accident is a reference to the word “threshold”. 
13.	A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.  Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
14.	Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 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 is a threshold injury, the Guidelines relevantly provide:
“5.3	The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident. 
5.4	Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5	A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer. 
5.6	The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)	a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)	a review of all relevant records available at the assessment
(c)	a comprehensive description of the injured person’s current symptoms
(d)	a careful and thorough physical and/or psychological examination
(e)	diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
15.	Clause 5.7 of the Guidelines states that 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. Clauses 5.8 and 5.9 are in the following terms:
“5.8	Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’. 
(a)	loss or asymmetry of reflexes (see the definition of clinical findings in Table 6.8 in these Guidelines) 	
(b)	positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines) 
(c)	muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines) 
(d)	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution 
(e)	reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9	Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
16.	In Briggs v IAG Limited trading as NRMA Insurance 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 is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5	An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6	Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 
1.	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
2.	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement. 
6.7	There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
17.	Medical Assessor Assem issued a certificate dated 29 July 2022. 
18.	The injury referred to Medical Assessor Assem for assessment was:
•	lumbar spine – left L4/L5 and L5/S1 discogenic pain. 
19.	Medical Assessor Assem reported Mr Yousif had low back pain radiating down the posterior aspect of the left thigh to his left foot. He reported sensory loss involving the plantar surface of his left foot.  He reported Mr Yousif could not feel the ground when walking, his left leg feels weak and gives way.  
20.	On examination he noted he was tender to palpation and had muscle guarding on forward flexion to above the knees.  Extension was one-quarter of normal range and lateral flexion, and rotation were half of normal range. Active straight leg raising in the supine position was 50º on the right and 30º on the left. Neural tension signs were mildly positive. He noted the right knee jerk reflex was reduced compared to the left and the left ankle jerk reflex was absent. He noted 0.5cm atrophy of the left calf compared to the right.  He noted mild weakness in dorsiflexion and extension of the left big toe compared to the right and noted sensory loss was reported at the sole of the left foot. 

21.	In respect of causation Medical Assessor Assem reported:
“His back injury is causally related to the motor vehicle accident as documented in the ambulance report. Although it was not documented in hospital records, he was reviewed soon after by his treating doctor and noted to have pain in his back and numbness involving his left leg. He has radiological evidence of an annular tear which could be degenerative or secondary to trauma. Given the nature of his work activities as a removalist and previous back complaints, the annular tear is more likely to be due to pre-existing and degenerative changes rather than trauma from the motor vehicle accident. However, at the time of my assessment, he had radicular symptoms involving his left leg. There was sensory loss, weakness, absence of the left ankle jerk reflex and mildly positive root tension signs. He therefore satisfied two or more of the criteria for lumbar radiculopathy, which is a non-minor injury. 
I have taken into consideration previous back complaints, previous positive root tension signs and previous numbness involving his left leg in 2018 but after that time, he appeared to have resumed his usual duties as a removalist, lifting heavy items. As there was no objective evidence of radiculopathy prior to the motor vehicle accident and no evidence of radiculopathy when he was examined by Dr Darwish on 23 August 2021, I have accepted that his current condition is causally related to the accident.”
22.	Medical Assessor Assem concluded Mr Yousif aggravated pre-existing degenerative lumbar disc pathology and whilst he probably had episodes of non-verifiable radicular symptoms in the past Medical Assessor Assem found he now had L5/S1 radiculopathy which is a non-minor (threshold) injury.  
REVIEW PROCEDURE
23.	The insurer lodged an application for review of the medical assessment of Medical Assessor Assem on 29 August 2022 within 30 days of the date on which the certificate of Medical Assessor Assem was made available to the parties.
24.	On 12 October 2022 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).
25.	Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act.  As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply. 
26.	The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the 
Commission.  Accordingly, the President’s delegate referred the matter to this Panel to assess. 
27.	Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
28.	Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
29.	The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
30.	The Panel issued a Direction to the parties on 24 November 2022 (the first Direction). 
31.	The insurer was asked to confirm that the documents marked A1 constituted the entirety of the documents relied upon by the insurer in the review.  On 28 November 2022 the insurer confirmed that was so. 
32.	On 25 January 2022 the claimant indicated he relied upon the reply and submissions previously submitted.  The submissions uploaded to the portal are dated 19 September 2022 and marked R1. Other than the proforma Reply it does not seem there are any other documents the claimant seeks to rely upon other than the documents furnished by the insurer. 
33.	The claimant attended an examination with Medical Assessor Wan on 6 March 2023 and on 20 March 2023.
34.	The claimant brought to the examination on 20 March 2023 the films and reports of the following radiological investigations:
•	Ultrasound of the left shoulder, 12 September 2022, and
•	CT scan of the lumbar spine, 24 January 2023 (copy attached). 
35.	In a Direction dated 12 April 2023 the Panel made the following directions:
1.	The insurer is, by close of business 26 April 2023, to provide any submissions sought to be relied upon addressing the CT scan of the lumbar spine of 24 January 2023. 
2.	The claimant is by close of business 10 May 2023, to provide any submissions in reply sought to be relied upon addressing the CT scan of the lumbar spine of 24 January 2023.
36.	In response to the Direction dated 12 April 2023 the insurer relied upon supplementary submissions dated 19 April 2023 uploaded to the portal and marked AD1. The claimant relied upon further submissions dated 10 May 2023 uploaded to the portal and marked AD2. 
EVIDENCE BEFORE THE REVIEW PANEL
Pre-accident records
Wetherill Park Medical Centre
37.	On 7 May 2015 Dr Al-Khalidy stated: “…Anxiety/depression, … Neuritis…”.
38.	On 21 March 2017 Mr Yousif consulted Dr Al-Khalidy. He reported “…back pain, left wrist pain, left hand pain… affected joint: tender. Movement restricted… carpal Tunnel syndrome, Back pain, Thoracic dysfunction…” and recommended an X-ray. On 
22 March 2017 Dr Qsous reported Mr Yousif presented with thoracic back pain, tenderness and restricted movements.
39.	On 7 April 2917 Mr Beadle reported mid back pain which started three weeks earlier. He also noted pain down the left leg anteriorly at times.
40.	On 9 June 2018 Dr Hameed reported back pain radiating to leg, numbness of the lower leg, restricted range of movement and noted Mr Yousif could not sit. 
41.	Mr Yousif saw physiotherapist Nancy El-Kazzi on 10 June 2018. She recorded the onset of back pain three days earlier when moving a washing machine. Mr Yousif underwent further treatment on 15 and 24 June 2018 by which time he was said to be feeling much better. 
42.	An ED Discharge Referral from Fairfield Hospital dated 27 June 2019 stated the claimant had left sided chest pain. He was advised to follow up his general practitioner (GP) in two days. 
43.	On 11 March 2020 Mr Yousif consulted Dr Elkhatib with a backache for two days and limited movements.  Dr Elkhatib recorded “also noted that the Pt has problem with binding forward >>> increasing since 10N years”.
Post- accident records 
Application for personal injury benefits
44.	In the application for personal injury benefits dated 12 January 2021 Mr Yousif reported as a result of the accident he had back pain, neck pain, left shoulder pain, left leg pain, class in chest – chest pain and anxiety. 
NSW Ambulance Service
45.	The claimant was transported by ambulance to Westmead Hospital. The report states:
“CT 32Y F presenting w/ L sided Lumbar pain and R trapezius pain. Pt was involved in 7 vechile MVA, pt was stationary when he was rear impacted. nil airbags. O/A: pt standing up speaking to police, speaking in full sentences, capacity and consent. O/E: pt states no pain for the first 5-10min after MVA but back pain is getting worse. worse on movement, pt denies any urinary symptoms. nil c-spine or midline tenderness, denies hitting head, nil LOC. pt self extricated and ambulating on scene. abdo soft and non tender.”
Westmead Hospital 
46.	Mr Yousif was discharged from Westmead Hospital on 17 December 2020. He reportedly presented following his involvement in a seven-vehicle pile-up on the M4. In the process Mr Yousif reported he had hit the back of his head on the cushion seat twice (and may also have hit the side panel next to the window). He also reported the vehicle in front of him was carrying timber and due to the sudden stop timber poles came through his windshield into his vehicle.  Mr Yousif was complaining of right sided neck pain and lower back pain/left flank pain. 
47.	The discharge summary states:
“Head: nil obvious haematoma or swelling. 
Face: PEARL 3 mm, nil facial bone tenderness.
Neck/Cervical spine midline bony tenderness at C7 (with tenderness in the adjacent right paraspinal region as well);
ROM limited due t pain; nil bruising or bruit (nil pulsatlile mass palpable).
Chest: no bruising, is clear.
Abdomen: no bruising, is soft and non-tender.
Upper limbs:
-	Right: normal power and sensation; reflexes symmetrical.
-	Left: normal power and sensation; reflexes symmetrical.
	Lower limbs:
-	Right: normal power and sensation; reflexes symmetrical.
-	Left: normal power and sensation; reflexes symmetrical.
Pelvis: stable
Back: nil midline bony tenderness; tender in the soft tissues around the left flank region; able to clench buttock muscles.” 
Wetherill Park Medical Centre
48.	Mr Yousif consulted Dr Hameed on 18 December 2020 when he reported he was driving his truck at 75 to 80 kmph on 16 December 2020 when it was hit from behind causing him to hit the vehicle in front. He complained of a whiplash injury, throbbing headache and dizziness, blurred vision and lower back pain. Dr Hameed reported he started to have numbness of the left side of the arm and leg for 20 minutes that morning. Dr Hameed referred Mr Yousif to Westmead Hospital noting his involvement in the accident and reporting left sided arm and leg numbness for 20 minutes. 
49.	On 22 December 2020 Dr Alokla diagnosed a likely muscular strain and noted the following findings on examination:
“patient looks well
neck in a collar limited ROM because of pain 
nil neurological deficit 
not Tenderness on pLPing the lower back 
SLRT restricted somewhat bilaterally due to the pain 
Power 5/5 bilaterally upper and lower limbs 
Light touch sensation normal bilateral 
DTR present and normal bilaterally.”
50.	On 3 January 2021 Dr Alokla referred Mr Yousif to JQ Physiotherapy for back pain radiating to the leg and whiplash. Dr Alokla referred to the recent MRI scan and reported there was no cord compression and no evidence of recent fracture or neural impingement. 
51.	On 11 January 2021 Dr Alokla recorded Mr Yousif was still complaining of neck pain and low back pain radiating to the left leg.  On examination he recorded:
“Tender midline lumbar and paraspinal muscles to palpation 
SLRT restricted somewhat bilaterally due to the pain 
Power 5/5 bilaterally 
Light touch sensation normal bilateral 
DTR present and normal bilaterally.”

Dr Balsam Darwish, neurosurgeon
52.	Dr Darwish provided a report dated 16 August 2021. He recorded he reviewed 
Mr Yousif on 8 April 2021 when he reported his involvement in the accident and the development of neck pain radiating to the left upper limb and lower back pain radiating to the left leg. Dr Darwish reported:
“On examination on that date, his gait was normal. Straight leg raising test was 80 degrees bilaterally with negative nerve stretch test. He had normal power and sensation in all limbs. His deep tendon reflexes were symmetrically depressed.”
53.	When reviewed on 17 May 2021 Dr Darwish reported the MRI of the lumbosacral spine of 7 May 2021 showed L4/L5 and L5/S1 disc dehydration and annular tears but no nerve root compression. 
54.	Dr Darwish diagnosed mechanical neck pain and L4/L5 and L5/S1 discogenic pain with no radiculopathy. He concluded the radiologically demonstrated changes in the lumbar spine were most likely degenerative in nature but aggravated by the injury. He also noted on the scans there was no evidence of nerve root, spinal cord or cauda equina compression and no fractures. 
SUBMISSIONS
Insurer’s submissions
55.	The insurer provided submissions dated 26 August 2022. The insurer notes that it is implicit from the definition of radiculopathy as defined at cl 5.8 of the Guidelines that it must be caused by dysfunction of a spinal nerve root. The insurer submits the Certificate of Medical Assessor Assem did not contain proper reasoning as to how the clinical signs were caused by dysfunction of a spinal nerve root where the radiology considered by Medical Assessor Assem did not reveal any nerve root compression. 
56.	The insurer submitted that the clinical signs were not concordant with the imaging findings and accordingly Medical Assessor Assem erred in diagnosing ‘left L5/S1 radiculopathy’ in the absence of radiological findings to support dysfunction of a spinal nerve root and/or nerve root compression.

57.	The insurer also noted Medical Assessor Assem found that:
(a)	the claimant aggravated pre-existing degenerative lumbar disc pathology as a result of the accident, and
(b)	the underlying pathology had progressed such that the claimant now had objective clinical evidence of radiculopathy.
The insurer submitted those findings were incongruent with each other and with the conclusion that the L5/S1 radiculopathy was caused by the accident particularly where Medical Assessor Assem was the first to observe clinical signs consistent with radiculopathy some 19 months after the accident. 
58.	The insurer provided submissions dated 20 September 2021 in respect of the minor injury dispute. The insurer noted:
•	Dr Alokla diagnosed lower back pain;
•	the MRI of 12 February 2021 reported a broad-based disc bulge at the L4-L5 level with an associated annular tear and a broad-based disc bulge at the L5-S1 level with a central protrusion;
•	the MRI scan of 7 May 2021 found annular tears and disc protrusions at the L4-5 and L5-S1 levels.  The insurer notes the annular tears were found on the background of disc desiccation and degenerative spondylotic changes at L4-5 and L5-S1 levels and notes spondylosis is the age-related degeneration of the vertebrae and disc in the spine;
•	at Westmead Hospital normal power and sensation in both lower limbs was reported; 
•	Dr Alokla reported a normal neurological examination on 22 December 2020;
•	Dr Darwish, the treating neurosurgeon reported the lumbar spine complaints were degenerative in nature, with no evidence of radiculopathy;
•	no treatment provider reported two or more signs of genuine radiculopathy, and
•	there is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the lumbar spine.
59.	In supplementary submissions dated 19 April 2023 the insurer notes the CT scan of the lumbar spine of 24 January 2023 reveals bilateral nerve root compressions which is not specific given the claimant complains of symptoms to his left lower limb only.  
60.	The insurer notes the CT scan was undertaken over two years post-accident in circumstances where earlier MRIs on 14 January 2021 (within one month of the accident) and 28 April 2021 (four months following the accident) revealed no nerve root compression. The insurer submits those findings of no nerve root compression are consistent with the opinion of Dr Darwish who found no radiculopathy on 
16 August 2021. 
61.	The insurer submits the bilateral nerve root compression evident on the CT scan of 
24 January 2023 is not causally related to the accident but due to the progression of the claimant’s pre-existing degenerative lumbar disc pathology.  The insurer submits that if the bilateral nerve root compression at L4 and L5 were caused by the accident the findings would have been evident on the MRI scans of 14 January 2021 and 
28 April 2021. 
Claimant’s submissions
62.	The claimant provided submissions dated 19 September 2022. 
63.	The claimant submits the insurer is attempting to artificially impose a condition precedent on the making of the radiculopathy finding, that is, a radiological finding of nerve root compression. The claimant submits the radiological evidence is designed to be considered in conjunction with the clinical findings. 
64.	The claimant also submits the MRI scans of 14 January 2018 and 28 April 2021 provide ample cause for a spinal nerve dysfunction, irrespective of what they find about nerve root compression. 
65.	The claimant also submits the claimant’s attendance upon Dr Hameed was as a GP from whom he sought treatment following an accident and that he was not required to determine the presence of radiculopathy by isolating a particular nerve root distribution. The claimant notes Medical Assessor Assem did not rely on a finding of radiculopathy by the GP but upon his own clinical assessment. 
66.	In response to the Direction dated 12 April 2023 the claimant uploaded further submissions dated 10 May 2023. 
67.	The claimant submits the attempt to compare the findings of the CT scan of 24 January 2023 with the prior MRI scans is not valid, either in terms of severity or progression over time.  Further the claimant submits the insurer misrepresents the prior MRI findings as having ruled out nerve root impairment, where the scan of 14 January 2021 found “the disc bulge is compressing the thecal sac at both levels, however, no specific nerve compression is identified”.
68.	The claimant submits the CT scan of 24 January 2023 makes a positive finding of nerve root compression and the same pathology may have been present but not identified in the prior MRI scan. Further known precursors to compression were present on the MRI scan, along with a key indicator of actual injury to the area, the annular tearing. 
69.	The claimant notes there have been symptoms of radiculopathy identified by both the treating GP and Medical Assessor Assem with no such history pre-accident. Whilst the Guidelines require radiculopathy to be determined clinically the claimant submits the CT scan provides additional support for the clinical findings of Medical Assessor Assem. 
THE MEDICAL EXAMINATION
70.	The claimant initially had an examination appointment booked on 6 March 2023 with Medical Assessor Wan and an interpreter. Both the claimant and Medical Assessor Wan, arrived on time. However, the Arabic interpreter was late and when she left the consultation room the re-examination had not finished. 
71.	Another scheduled appointment proceeded on 20 March 2023 with another Arabic interpreter present for the whole consultation.
72.	The claimant attended both appointments unaccompanied.
73.	The claimant is 34 years old. 
74.	The accident occurred on 16 December 2020. 
History as given by the claimant 
Pre-Accident medical history and relevant personal details
75.	Ms Yousif is currently unemployed. He said he worked as a self-employed removalist / truck driver (as a subcontractor) at the time of the accident. He said he normally worked 45 hours per week, in 5 days, but that depended on the availability of work. He said he usually did not lift heavy weights but used a forklift for any heavy lifting. He denied having any work-related injuries, car accidents and other injuries, despite doing a physically demanding job.

Past health
76.	Mr Yousif initially denied any history of injury, particularly back injuries. However, supporting documents suggested that he had the following past history:
•	March 2017, thoracic back, with tenderness and restricted movements;
•	April 2017, mid back pain for three weeks;
•	June 2018 back pain radiating to his left leg, with numbness;
•	June 2018, back pain for three days after moving a washing machine;
•	March 2020, back pain with limited movement for two days. ‘Anklyosing spondylitis” was initially suspected but not confirmed by an X-ray of the lumbar spine, and
•	December 2020 Dr Alokla recorded a previous history of left carpal tunnel syndrome and umbilical hernia repair. 
77.	When Medical Assessor Wan presented the above injuries to the claimant, he said he could not remember those injuries, and could not provide any further details. He said he had minor back pain from time to time, but it usually lasted only for a few days, and he continued to work. 
78.	Later Mr Yousif recalled he had an umbilical hernia operation in 2017.  He had no known history of allergy.
Social history
79.	Mr Yousif was born in Iraq. He came to Australia in 2014. He studied up to year 9 in Iraq then started working. After coming to Australia, apart from one week English course, he did not do any study. He said he was a carer for “an old lady friend” for two years and received a Centrelink benefit as a carer. He was unemployed for two further years before starting work as a removalist.
80.	Mr Yousif lives with his wife, who is 33 years of age and engaged in home duties and three children, a 13 year old daughter, an 8 year old son and a son who is 2 years and 8 months old, in a single storey house with no steps. 
81.	Mr Yousif said he and his wife mowed the lawn and shared the housewife. He said now his wife does most of the housework, including those tasks requiring heavy lifting. He can do light cleaning, washing cars and other light home duties.
82.	He is a chronic smoker, smoking 10 cigarettes a day, and an occasional drinker.
83.	He drives an automatic car, but he said he also drives manual vehicles.
84.	He said he likes cycling, and usually cycled every weekend before the accident. He said he has seldom ridden his bicycle since the accident.
History of the accident 
85.	Mr Yousif said on 16 December 2020 at about 10:30 am, he was driving his 4.5 tonne truck, travelling along the M4 freeway, at a speed of 70-75 kmph. He was a wearing seat belt, and there was headrest in his seat. There was no passenger. His truck was hit by another truck from behind and pushed forwards. The airbag was not deployed. He could get out of the car by himself. He said both police and ambulance attended the scene. He was transferred to Westmead hospital and stayed there overnight. He said his car was later written off.
86.	Mr Yousif said there was a brief loss of consciousness for an unknown period. He remembered the impact when the cars collided. The next thing he could remember after he regained consciousness was that he was still in the car. He later got out the car. He recalled that his face and tooth hit the pillar of the car. He exchanged details with the other driver (‘an old man’). He recalled both the police and ambulance came to the scene soon after the accident.
87.	This suggested there were no significant retrograde amnesia, brief anterograde amnesia (for a few seconds to minutes), and the LOC (loss of consciousness) was very brief if ever present.
History of symptoms and treatment following the accident 
88.	Mr Yousif recalled he had some headache, neck pain and low back pain, so he consulted his GP one week later. He was given some pain killing medication, Panadol. He was referred to physiotherapy five months later after waiting for approval from the insurer. He saw his lawyer one month after the accident. He said he finally had five sessions of physiotherapy which did not help.
89.	Mr Yousif said he has not returned to work since the accident.
90.	He could not recall seeing any rehabilitation medicine physician, brain injury specialist, neurologist or neuropsychologist. 
91.	From two months post-accident Mr Yousif has consulted a psychologist every two weeks, mainly by telehealth. So far, he has had one face-to-face consultation with the psychologist.
92.	 He has seen a vocational rehabilitation provider to assist him in a return to work.

Details of any relevant injuries or conditions sustained since the accident
93.	Mr Yousif initially denied any history of significant accidents, injuries or other relevant conditions sustained since the accident.
94.	However, in the second consultation, he recalled experiencing left shoulder pain six months ago. He could not recall any accidents or injury and said he was not working at the time.
Current symptoms                                                                                              
95.	Mr Yousif described the following current complaints:
•	low back pain, 6/10 on the visual analogue scale (VAS). It is an intermittent burning pain. It may radiate to both legs. It is aggravated by carrying heavy books;
•	left shoulder pain which scored 5/10 on the VAS. It is a sharp intermittent pain. Sometimes the whole left arm is numb. It is aggravated by sleeping on the left side or coughing a lot;
•	sometimes he also has right shoulder pain;
•	neck pain may occur, for example, if it is raining. It often gets better with the time of day. There was no neck pain on the days of the examination;
•	depression – for which he has been seeing a psychologist;
•	headache – bitemporal, 7/10 on the VAS. It is an intermittent sharp pain, and is aggravated by prolong sitting and often leads to stiffness in the left shoulder;
•	sleep is “incomplete”, due to both early waking and late sleeping. Mr Yousif often has to sleep prone (lying on the stomach);
•	he reported he sometimes has constipation;
•	he said he sometimes has nocturia;
•	he said at most he can sit for 30 minutes, stand for 20 minutes and walk for 15 minutes. He can drive for 1 hour, and
•	Mr Yousif remains independent in his personal care and most activities of daily living (ADL). He said he still does some of the housework, although less than before the accident which is now mainly done by his wife. 
Current and proposed treatment
96.	Mr Yousif stated that he has been taking Panadol or Panadeine when necessary. He said he avoids taking painkillers. He opts for a hot shower when he has pain. He said he once received physiotherapy, but has ceased it now
97.	He sees his psychologist twice monthly.
98.	He does not see an occupational therapist regularly, although he has seen a ‘therapist’ once or twice regarding a return to work.
99.	Apart from seeing his GP, he has never been referred to see any medical specialist.
CLINICAL EXAMINATION
100.	Examination on 20 March 2023 showed that Mr Yousif was orientated and alert. He is 180 cm tall, and weighs 81 kg, which gave a BMI of 25. Significant pain behaviours were observed during the interview. He walked independently without a walking aid in a normal symmetrical gait. He could walk on heels, and in tandem (heel-toes) way, but refused to try walking on tiptoes, saying it would cause back pain. He could only half-squat, again complaining of back pain, He could dress and undress independently. He could get on the examination couch independently.
101.	He is right hand dominant.
Lumbar spine (Lumbosacral)
102.	Examination of the lower back showed mild tenderness in the lumber region, but no muscle spasm or guarding. Initially movements of the lower back were severely restricted, which was inconsistent with the observation when not in formal examination, such as undressing, and was also inconsistent with the findings reported by other medical examiners. Medical Assessor Wan presented the discrepancies to the claimant, and he explained that the pain varies at different times and on different days and is often better after hot showering. I asked him to give his best effort on testing, and the measurements were repeated with some improvement in consistency. Active movements of the lumbar spine were restricted but symmetrical. There was no evidence of dysmetria. There was no evidence of radiculopathy nor non-verifiable radicular complaints.

Lumbar spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left	
ROM found	2/5,2/5,3/5 Normal	2/5,2/5,3/5 Normal	Normal	Normal	3/5, 4/5, 4/5 Normal	3/5, 4/5, 4/5 Normal	

103.	Straight leg raising was 60° on both sides in supine position but 80° on both sides in sitting position.
Lower extremity
104.	Examination of the lower limbs showed no gross muscle wasting. Measurements of mid-thigh circumference and mid-calf circumference were equal on both sides. Muscle power was normal and symmetrical, both proximally and distally. Reflexes were normal and symmetrical on both lower limbs. There was subjective sensory impairment to the whole left lower limb which did not follow dermatomal or peripheral nerve distribution. It was not a radiculopathy or non-verifiable radicular complaint.
105.	Examination of the hips showed no deformity or swelling. There was no tenderness over the hip regions. FABER test was normal on both sides. However, active movements of the hips were within normal limits.
Consistency of presentation
106.	The Panel notes the inconsistency in the active movements of the lumbar spine observed by Medical Assessor Wan. The Panel notes whilst Medical Assessor Assem found no inconsistencies in the claimant’s physical presentation he noted there was inconsistency in the information provided by Mr Yousif. 
RELEVANT IMAGING STUDIES
Reports available in the documentation 
The Panel reviewed the reports of the following investigations, but no films were available:
X-Ray thoracolumbar spine dated 21 March 2017
107.	Findings: Normal vertebral alignment with no vertebral compression fractures. Disc height is preserved. There are no substantial spondylitic changes and no focal lytic nor sclerotic bony lesions. No abnormal paravertebral soft tissue changes. No pars defect. 
CT cervical spine dated 16 December 2020 
108.	Comment: No acute cervical spine fracture or dislocation. Ligamentous injury is not excluded. 
Ultrasound left chest wall dated 22 December 2020
109.	Dr Dominic Collis reported the following findings:
“Scans over the area of clinical concern demonstrate an irregular margined dermal fluid collection measuring 5 x 5 x 3mm. This shows an oblique linear non-shadowing echogenic focus measuring 1.3mm in length, possibly due to a tiny foreign body. No further masses, collections or foreign bodies were seen.” 
MRI Cervical Spine dated 24 December 2020
110.	Dr Sugendran Pillay reported: 
“No cord compression, evidence of recent fracture or definite neural impingement.”
MRI Lumbar Spine dated 14 January 2021
111.	The MRI of the lumbar spine was approximately one month after the accident. Dr Zita Gacs reported:
“No evidence of fracture or dislocation.
There is loss of the lumbar lordosis.
Vertebral body height is preserved. Spinal canal is normal in calibre.
Conus is situated normally, shows normal signal.
There are spondylotic changes in the lower lumbar spine at L4-5 and L5-S1 level with dehydration of the disc and associated disc protrusion.
At L1-2 and L2-3 and L3-4 levels the discs are normal without nerve compression.
At L4-5 level broad-based disc bulge with associated annular tear is noted. The disc bulge has a subtle right sided prominence compressing the thecal sac. The disc bulge is abutting the exiting left L4 nerve root without compression. There is mild facet joint hypertrophy.
At L5-S1 level broad-based disc bulge with a central protrusion abutting the thecal sac and the origin of the S1 nerves. No evidence of focal disc herniation or specific nerve compression. Mild facet joint hypertrophy is noted.
Conclusion: 
No evidenced of fracture or dislocation.
‘Localised spondylotic changes at L4-5 and L5-S1 level with annular tear. 
At L4-5 level the disc bulge is abutting the exiting left L4 nerve without compression. The disc bulge is compressing the thecal sac at both levels however no specific nerve compression is identified. Facet joint hypertrophy is noted.” 
112.	The Panel notes the spondylotic changes and facet joint hypertrophy are degenerative changes and usually take months and years to develop and are most likely pre-existing.  
MRI cervical and lumbar spine dated 7 May 2021 
113.	The scan was undertaken on 28 April 2021. In relation to the lumbar spine Dr Niranjan Ganeshan reported as follows on 7 May 2021: 
“The conus terminates normally at L12. No abnormal signal in the distal thoracic cord. The vertebral alignment is anatomical. There are no compression fractures. Disc dehydration at L45 and L5S1. There is endplate oedema anteroinferiorly at L4 with small Schmorl's nodes. There is also endplate oedema involving the superior endplate of S1.
L1-2: No disc lesion.
L2-3: No disc lesion or neural impingement. No facet joint arthropathy.
L3-4: No significant disc lesion or neural impingement.
L4-5: Posterior annulus tear and low-grade disc bulge with mild thecal sac flattening. There is mild ligamentum flavum thickening. No root impingement.
L5-S1: Posterocentral annulus tear and disc protrusion with minimal contact with the thecal sac. Disc lies close to the S1 nerve roots without compression nor displacement. No foraminal L5 root compression.
Conclusion: 
1.	Disc desiccation with annulus tears and disc protrusions at L4-5 and L5-S1 with some endplate oedema at L4 and S1.
 2.	Mild thecal sac flattening. No root impingement.” 
Film and reports provided by Mr Yousif during the examination 
114.	The claimant brought films and reports of further radiological investigations to the second interview.

Ultrasound left shoulder dated 12 September 2022
115.	Dr Luke Pascoe reported the ultrasound showed a full thickness articular surface insertion tear of supraspinatus tendon. There was subacromial subdeltoid bursal thickening, and the radiologist opined that there was bursitis. The impingement manoeuvre was negative.
CT scan lumbar spine dated 24 January 2023
116.	The claimant underwent a CT scan of the lumbar spine with a history of low back pain, with severe radiculopathy. Dr Dominic Collis reported:
“Vertebral Alignment: Normal
Bony Density: Normal
Disc Space Height: Narrowing of the L4-5 and L5-S1 disc spaces is noted.
Osteophyte Formation:  None detected. Degenerative sclerosis is noted at the anterioinferior aspect of L4 vertebral body.
Spondylolysis Defects:  Non detected.
Apophyseal Joints:  Normal.
Sacroiliac Joints:  Normal.
Paravertebral Soft Tissues:  No abnormality detected.
Incidental findings:  Accessory ossicles are noted at the L3 inferior articular facets bilaterally (ossicles of Oppenheimer)
T12-L1:  Normal posterior disc margin.
L1-2:  Normal posterior disc margin.
L2-3:  Normal posterior disc margin.
L3-4:  Normal posterior disc margin.
L4-5:  Moderate diffuse disc bulge with anterior/right anterolateral thecal sac effacement. The disc extends into both neural exit foramina, where there is minimal posterior displacement of L4 nerve roots bilaterally.
L5-S1:  Moderate diffuse disc bulge with slight anterior thecal sac contact and contract with the S1 nerve root sheaths.
The disc extends slightly into the neural exit foramina where there is minimal posterior displacement of the L5 nerve roots bilaterally.
Scans through the upper sacral spinal canal show no abnormality.
Conclusion: 
Discal pathology noted at L4-5 and L5-S1.”
PANEL FINDINGS
117.	Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in part 6 of the Guidelines.
118.	In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.  His Honour stated at [70] – [72]:
“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 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; 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 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.”
119.	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 (Glass JA); Metro North Hospital at [140].
120.	At the time of his examination Medical Assessor Wan found no evidence of lumbar radiculopathy, no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that was anatomically localised to an appropriate spinal nerve root distribution. There was also no evidence of non-verifiable radicular complaint.
121.	The accident occurred on 16 December 2020. The diagram in the application for personal injury benefits shows that Mr Yousif’s vehicle was the third vehicle in a seven vehicle rear end collision. The force of the collision was clearly sufficient to force his vehicle and the three vehicles in front of him into the rear of each preceding vehicle. 
122.	The following diagram appears in the application for personal injury benefits:
[image unable to render]
123.	Mr Yousif was transported to hospital by ambulance complaining of left sided lumbar pain. The Westmead Hospital clinical notes suggest Mr Yousif stated he hit the back of his head on the cushion seat twice and may also have hit the side panel next to the window. He also described timber poles carried on the vehicle in front of him coming through his windshield into his vehicle.  At the hospital Mr Yousif reported tenderness in the soft tissues around the left flank region.
124.	Within one month of the accident on 14 January 2021 Mr Yousif underwent an MRI of the lumbar spine which disclosed an annular tear. There was a disc bulge compressing the thecal sac. An annular tear with facet joint changes was present at that time.
125.	Three months later a further MRI of the lumbar spine disclosed annular tears and disc protrusions with endplate oedema.   Whilst the Panel notes the early MRIs showed annular tears the Panel cannot say, under the circumstances, that they were pre-existing. 
126.	Whether or not the annular tears were pre-existing the Panel notes that additional stress can cause annular tears to evolve where the tear in the annulus allows the disc to protrude further through the annulus causing a disc protrusion. 
127.	The Panel agrees with the claimant that it cannot be definitively stated that the earlier MRI findings ruled out nerve root impingement where the scan of 14 January 2021 found known precursors to compression were present along with a key indicator of injury to that area, the annular tearing. The CT scan of 24 January 2023 demonstrated neural compression due to consequential derangement of the earlier disc lesions which showed annular tears. Those tears were the antecedent for lateral disc disruption, and the narrowing of the neural exit foramina due to the disc extending into the foraminae. 
128.	The Panel finds that is what has occurred here where the accident resulted in the evolution of the annular tear resulting in the disc protrusion and why at the time of his clinical examination on 29 July 2022 Medical Assessor Assem identified radicular symptoms involving the left leg.  Medical Assessor Assem identified sensory loss, weakness, absence of the left ankle jerk reflex and mildly positive root tension signs.  
129.	The failure of Dr Darwish to identify radiculopathy on 17 May 2021 is consistent with the MRI findings of 7 May 2021 and the evolution of the annular tear.
130.	The examination findings of Medical Assessor Wan suggests the radiculopathy had resolved since the claimant was examined by Medical Assessor Assem. The Panel notes that radiculopathy can resolve by limiting activities of daily living, particularly, heavy activities. Mr Yousif has not returned to his pre-accident occupation as a removalist and has limited his involvement in heavy and domestic activities leading to either a resolution or a lessening of the radicular symptoms.  
131.	Noting scientific certainty is not required to establish causation the Panel has regard to the circumstances of the accident; the contemporaneous complaints of lower back discomfort radiating to the left leg and finds the accident materially contributed to the aggravation of the lumbar disc pathology identified on the MRI of the lumbar spine undertaken on 28 April 2021 and the presence of L5/S1 radiculopathy identified by Medical Assessor Assem on 22 July 2022.
132.	The Panel adopts the reasoning in David v Allianz Australia Ltd that the definition of threshold injury can be satisfied at any time following the accident for the purposes of the MAI Act.
133.	The Panel is satisfied that at the time of his assessment by Medical Assessor Assem Mr Yousif had objective clinical evidence of left 5/S1 radiculopathy.  
134.	The Panel concludes the claimant has sustained a non-threshold injury.
135.	The Panel affirms the certificate of Medical Assessor Assem.