DETERMINATION OF REVIEW PANEL	
	
CITATION:	Tan v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 379	
		
CLAIMANT:	Peter Tan	
		
INSURER:	Insurance Australia Ltd t/as NRMA Insurance	
		
REVIEW Panel	 	
		
MEMBER:	Ray Plibersek	
		
MEDICAL ASSESSOR:	David Gorman	
		
MEDICAL ASSESSOR:	Michael Couch	
		
DATE OF DECISION:	8 August 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a pedestrian hit by a car in a shopping centre car park at low speed; injuries reported to his spine, chest, shoulders, arms, legs, knees and psychological injuries; original Assessor found most injuries not caused by the accident; only injury of fractured rib found to be a non-threshold injury; injury to rib and two knees assessed at permanent impairment of 0%; Held – original medical certificates affirmed; claimant gave inconsistent account of how accident occurred; claimant had history of soft tissue injury to his cervical, thoracic and lumbar spines but has no radiculopathy.

	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
The Review Panel affirms the two certificates of Medical Assessor David McGrath both dated 
22 October 2022. 
 1.	The Panel affirms the certificate of Medical Assessor McGrath regarding the assessment of threshold and non-threshold injuries (formerly minor and non-minor injuries). 
2.	The Panel affirms the certificate of Medical Assessor McGrath regarding the assessment of injuries caused by the motor accident which give rise to a permanent impairment of 0% which is not greater than 10% for the chest for undisplaced fracture of the 9th rib and also for both knees for contusion.

STATEMENT OF REASONS
introduction
1.	On 21 August 2019 Mr Peter Tan (the claimant) was walking in a car park about 11:30am when he was hit by a car in the car park. Mr Tan reported being struck by the car in the chest and leg region, hitting the bonnet of the car and falling onto the road injuring his spine, chest, shoulders, arms, legs and knees. Mr Tan also claimed that he developed psychological injuries as a result of this accident. 
2.	Shortly after the accident Mr Tan called the police and ambulance himself and was taken to Fairfield Hospital where he stayed for approximately six hours. 
3.	In the Application for Personal Injury Benefits dated 2 September 2019 Mr Tan stated he received injuries to his back, neck, chest, both arms and hands, right shoulder, left ankle, shock and both knees in the accident. At the date of the accident Mr Tan was receiving an aged pension benefit.
4.	NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to 
Mr Tan under the Motor Accident Injuries Act 2017 (MAI Act).
5.	By letter dated 12 December 2019 the insurer wrote to Mr Tan indicating that it had decided that his injury was a minor injury and that his claim for statutory benefits after 26 weeks is declined.
6.	In a decision dated 2 June 2022 Medical Assessor Arman Suman determined that Mr Tan fulfilled the criteria of adjustment disorder with mixed anxiety and depressed mood and that this is a minor injury for the purposes of the MAI Act.
7.	The claimant sought a review of the insurer’s decision dated 26 June 2022. In a decision dated 25 July 2022 the insurer determined that Mr Tan’s physical and psychological whole person impairment does not exceed 10%.
8.	Medical Assessor David McGrath issued a certificate dated 22 October 2022. In that certificate he certified that the injuries sustained by Mr Tan to both of his knees was a contusion and is a minor injury for the purposes of the MAI Act. Medical Assessor McGrath also certified that the injury to Mr Tan’s un-displaced fracture to the ninth rib was caused by the motor accident and was not a minor injury for the purposes of the MAI Act. Medical Assessor McGrath also certified that the following injuries referred for assessment were not caused by the motor accident: cervical spine, lumbar spine, thoracic spine, right shoulder arm and elbow, right hand, left hand, left ankle/foot and right leg. Medical Assessor McGrath also certified that the chest injury of undisplaced fracture of the ninth rib and both knees gave rise to a permanent impairment of 0% which is not greater than 10%. Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
9.	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”. 
10.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
11.	On 25 July 2022 the insurer filed an application with the Personal Injury Commission (Commission) seeking a Panel review of a single medical assessment of the certificate of Medical Assessor Bodel. 
1.	ASSESSMENT UNDER REVIEW
12.	The dispute was referred to Medical Assessor McGrath who assessed Mr Tan and issued a certificate dated 22 October 2022. 
13.	The injuries referred for assessment included: cervical spine, thoracic spine, lumbar spine, shoulders, arms and both knees. 
14.	Medical Assessor McGrath medically examined the claimant on 11 October 2022. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
15.	Medical Assessor McGrath examined the claimant’s cervical spine, thoracic spine and lumbar spine. He found that Mr Tan’s cervical spine to have a restricted range of motion. In the upper limbs he found a neurological examination of both arms to be normal. There were normal reflexes power and sensation with no muscle atrophy. Medical Assessor McGrath found a normal range of bending and rotation in the thoracic spine. There were no neurological symptoms in the thoracic spine. In the lumbar spine he found a restricted range of motion with the claimant reporting discomfort in the lower back region. A neurological examination of the lower limbs was normal. The claimant had normal deep tendon reflexes power and sensation with a slight diminution of reflexes. There was no sign of muscle atrophy and the bilateral calf measurement was 36 cm. 
16.	Medical Assessor McGrath also found that Mr Tan had a normal range of movement in all joints in both arms and also in both shoulders. He further found that Mr Tan had a normal range of joint movements in both legs in all joints and both ankles had a normal range of motion without signs of impairment.
17.	Medical Assessor McGrath found that Mr Tan’s only injuries resulting from the motor vehicle accident were an undisplaced fracture of the ninth rib and contusion to both knees. In summary Medical Assessor McGrath found that Mr Tan sustained a chest wall injury in the motor vehicle accident with an undisplaced fracture of the ninth rib. He found this to be a non-minor injury under the MAI Act. Mr Tan probably bruised his knees which is a minor injury. In making his permanent impairment determination Medical Assessor McGrath found 0% whole person impairment for the rib fracture and also 0% whole person impairment for the injury to his knees.
REVIEW PROCEDURE
18.	An application for review of the medical assessment of Medical Assessor McGrath was lodged within 28 days of the date on which the certificate was made available to the parties.
19.	On 18 January 2023, 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). The delegate’s reasons were that the Medical Assessor had failed to consider whether the loss of axial rotation in the knee could be assessed by analogy in accordance with clause 6.24 of the Guidelines. 
20.	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 cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply. 
21.	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. 
22.	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.
23.	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.
24.	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.
25.	The Panel issued a Direction to the parties dated 31 January and 23 March 2023 requiring each party to file an indexed, paginated bundle of documents and advising the parties that the Panel had decided to re-examine the claimant. In response to this Direction the solicitor for the insurer and claimant both filed a bundle of documents and the claimant attended his re-examination on 19 April 2023.  
26.	The Directions dated 23 March 2023 also required the production of a number of further documents records and radiological studies. After the medical re-examination of the claimant the Panel again requested from the claimant’s solicitors that these further documents be produced. On 31 July 2023 the Panel received an application to admit late documents from the claimant’s solicitor. This application included records from the claimant’s treating general practitioner’s (GP). The application notes that the documents were lodged in accordance with the Panel’s earlier directions issued on 23 March 2023. In the interests of justice the Panel admits all of the late documents into evidence which it considered in its deliberations. 
2.	
THRESHOLD INJURY (formerly minor injury) - STATUTORY PROVISIONS
27.	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”. 
28.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
29.	Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”. 
30.	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”. 
31.	Sub-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.”
32.	Section 1.6 of the MAI Act 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)”.
33.	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. 
34.	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.”
35.	In respect of injury to the neck or spine clauses 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7	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.
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 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.
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.”
36.	In Briggs v IAG Limited trading as NRMA Insurance his Honour Justice Wright stated at [35]:
3.	“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
4.	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.
5.	6.6	Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 
6.	‘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: 
7.	1.	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
8.	2.	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
9.	This, therefore, involves a medical decision and a non-medical informed judgement. 
10.	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.”
EVIDENCE BEFORE THE REVIEW PANEL
11.	Application for Personal Injury Benefits
37.	In the Application for Personal Injury Benefits dated 2 September 2019 Mr Tan stated he received injuries to his back, neck, chest, both arms and hands, right shoulder, left ankle, shock and both knees in the accident.
12.	Ambulance report
38.	The ambulance report was made on 21 August 2019. The ambulance records indicate that the claimant denied falling to the ground, striking his head or any loss of consciousness. The case notes in the ambulance report reads as follows (original spelling quoted):
“OA 68yom walking around carpark, pt states was hit by car and hit bonnet at low speed, <10km/h,Description did not fall to ground, has pain to knees & wants police, pt witnessed to be ambulant around carpark for45min prior to calling 000, Nil PMHx. OE pt alert, orientated, GCS 15, FAST neg, speaking in full sentences, nil resp distress. Tachycardiac, all other obs unremarkable. Denies headsrtike, denies LOC, denies c spine pain. Pt states heart is racing, denies chest pain, monitored in sinus tach with 4 lead ECG. Pt state both krees are sore, not tender on palpation, nil obvious injury, deformity or hematoma to knees. Pt ambulant with normal gait prior to AOs arrival. Nil pain or obvious injury to head, abdo, pelvis and limbs. Pt stable and appeared comfortable on route to Fairfield ED.”
13.	Police report
39.	The police report was made on 25 November 2019. The police report describes the circumstances of the accident. The report records that on 21 August 2019 a white Toyota Corolla was travelling in the Fairfield Showgrounds car park when it collided with a 68-year-old male crossing a section of the car park.
40.	The claimant also provided a statement to the police on 22 August 2019 which was the next day after the motor vehicle accident. Mr Tan reported that he was walking in the car park when he was suddenly hit in the legs and fell onto a bonnet of a car and then fell to the ground. Mr Tan reported that he initially called the police who did not turn up and then called for an ambulance.
14.	Statement of the claimant Mr Peter Tan
41.	The claimant made a statement dated 15 February 2021 about the accident.  He states he was walking in the car park when he was hit by a motor vehicle which caused him to fall onto the bonnet of the vehicle and then onto the ground. The claimant lists the injuries he suffered including anxiety and insomnia. Mr Tan states that he hit his head and face on the bonnet of the car then on the ground. He describes undergoing various CT scans and X-rays. He says he become more depressed since the accident due to pain and he is taking painkillers and sleeping tablets to help him sleep he says he has referred pain and numbness in both arms and legs. He also says he has had two teeth removed for his upper jaw and his dentist says that he would require two more teeth to be removed.
Treating medical evidence
Pre-accident treating records 
42.	There are few medical records available for the claimant’s medical history prior to 2019. The available records are contained in the claimant’s bundle of documents. There are also statements made by the claimant to the Panel during his re-examination where he referred to previous motor vehicle accidents and a workers compensation accident where he told the Panel that his symptoms have now resolved. 
15.	 Post-accident treating records 
43.	A discharge referral report from Fairfield Hospital emergency department dated 
21 August 2019 contains the following summary of progress. The hospital notes record as follows (original spelling quoted):
“Thank you for the on going care of this 68 yrs old male patient BIBA with MVA.
Pt was walking in a car park and was hit on to his right lower leg by that car which was turning slowly
He was bent and hit the bonnet of the car and developed mild chest discomfort ad dizziness
Pt was able to ambulate after this injury
No neck pain
No SOB
Nil abdominal pain or vomiting.”
44.	There are numerous certificates of capacity available from Dr Pukanic and Dr Tran who are the claimant’s treating GPs. The certificates are variously dated from August 2019 to early in mid-2022. The early certificates state that the claimant has no current capacity for any work. 
45.	More detailed records from the claimant’s treating GPs were also supplied to Panel in an application to admit late documents from the claimant’s solicitor. The application notes that the documents were lodged in accordance with the Panel’s earlier directions issued on 
23 March 2023. These notes were reviewed by the Panel and gave the Panel a further detailed understanding of the claimant’s various medical and psychological complaints as recorded by his treating doctors.
16.	Medico-legal reports and other reports
46.	Many of the medicolegal and radiology reports are summarised in the below section headed review of radiology. 
17.	REVIEW OF THE RADIOLOGY
47.	A report of an X-ray of the right-hand by Dr Lott on 28 April 2014 referred to previous trauma, painful right hand for three weeks.  The comment was thickening of the right 4th palmer interosseous muscle distally. 
48.	A CT of the thoracic spine dated 17 September 2019 reported as follows. There is severe left-sided facet joint arthropathy at T11/12 level. No further abnormality seen in thoracic spine.
49.	A CT of the lumbar spine reported on 17 September 2019 as follows.  Straightening of lumbar curvature likely due to muscular spasm. At L4/5 level disc height is mildly reduced with end-plate sclerosis. There is mild broad-based disc bulge causing mild bilateral lateral recess narrowing. There is bilateral facet joint arthropathy. At L5/S1 level disc height is reduced with end-plate sclerosis. There is broad based disc bulge seen causing bilateral neuroforaminal narrowing and minimal compression upon both exiting L5 nerve roots. There is bilateral facet joint arthropathy. The rest of the lumbar intervertebral disc levels are normal. No disc bulge or disc prolapse seen. No facet joint arthropathy seen.
50.	A CT scan of the cervical spine reported on 18 September 2019 as follows. There is severe left sided facet joint arthropathy at C2/3, C3/4, C4/5 and C5/6 levels. There is severe right sided facet joint arthropathy at C6/7 level. There is a right paracentral disc bulge, with right facet joint arthropathy causing right sided neural foraminal narrowing and compression upon right exiting nerve root.
51.	A CT scan of the right elbow dated 16 October 2019 referred to a clinical history of painful right elbow following a direct hit. The scan was reported as follows.  There is no fracture seen along bones of right elbow. There are osteoarthritic changes seen involving radiocapitellar and ulnohumeral joint. No further abnormality.
52.	A bilateral hand X-ray dated 13 December 2019 reported deformity in the neck of the right 5th metacarpal bone, probably due to previous healed old fracture.  No acute fracture or focal bone abnormality was identified, the bone alignment was normal and there was no degenerative or erosive arthropathy.
53.	A CT scan of the cervical spine dated 16 June 2022 showed no fracture or dislocation. The CT scan also showed cervical spondylitic changes at the lower cervical levels. There was bilateral facet arthropathy most severe at the C4/C5 and C5/C6 levels with possible nerve root impingement.
54.	On 18 October 2022 an MRI was conducted on the claimant’s cervical spine. The MRI showed some left route nerve impingement at the C5/C6 level. The report concluded as follows. There was multilevel hypertrophic facet joint arthropathy with discovertebral changes. Fused left C3/C4 facet joint. Multilevel foraminal stenosis and root impingement. Cord compression particularly at the C4/C5 and minor changes at the C3/C4 and C5/C6 without significant intramedullary cord signal.
55.	On 9 September 2022 an X-ray of the claimant’s chest performed by Dr Wong showed an undisplaced fracture of the right 9th rib.
56.	On 20 November 2022 an MRI was conducted on the claimant’s lumbar spine. The MRI showed a disc bulge at the L5/S1 level with right and potentially left S1 nerve root compression. Left paraforminal disc bulge at the L5/S1 level with possible left L5 root impingement.
18.	SUBMISSIONS
19.	Claimant’s submissions
57.	The claimant’s solicitors provided two sets of written submissions dated 21 November 2022 and 26 July 2022. 
58.	In the submissions dated 21 November 2022 the claimant submitted that Medical Assessor McGrath found objective loss of axial rotation in the knee but erred by finding that that amounted to a 0% whole person impairment because it was not rateable under the Guidelines. The Medical Assessor, on finding objective clinical findings of loss of axial rotation, should have proceeded to perform an assessment by way of analogy under clause 6.24 of the Motor Accident Guidelines. By failing to do so, the Medical Assessor applied incorrect criteria and made a demonstrable error.
59.	The claimant further submitted that the Medical Assessor erred in applying the incorrect test of causation. It is submitted that it was clear on the available evidence that the claimant had sustained aggravations to pre-existing complaints and old injuries as a result of the motor vehicle accident with the Medical Assessor noting on page 7 of the medical assessment certificate that there may have been possible aggravation of pre-existing complaints and old injuries.
60.	The submissions referred to the attendance by the claimant on 29 August 2019 with 
Dr Pukanic who recorded a number of injuries to the claimant’s legs, neck, shoulders, left arm, left-sided chest, middle of chest, both knees, left ankle, thoracic spine and right shoulder. The claimant submits that had Medical Assessor McGrath taken those injuries into account the claimant’s degree of whole person impairment would exceed 10%.
61.	In the second set of submissions dated 26 July 2022 the claimant submitted that the claimant injuries have deteriorated since the insurer’s earlier determination. The claimant’s solicitors submit that the claimant has developed significant depression and an adjustment disorder. They also submit that the claimant has experienced radiculopathy in his neck and low back with evidence of disc bulges.
20.	Insurer’s submissions
62.	The insurer has provided two sets of written submissions dated 9 December and 
1 September 2022. 
63.	In the submissions dated 9 December 2022 the insurer objects to the production of new MRI scans without the accompanying expert opinion commenting on the scans and also because the insurer has not had an opportunity to properly consider the scans. Regarding the alleged error that Medical Assessor McGrath applied incorrect criteria with respect of the right knee, the insurer submits that Medical Assessor McGrath had appropriate regard to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA 4) and the Guidelines when assessing the impairment of the lower limbs.
64.	Regarding the alleged second error that the Medical Assessor erred in his determination of the causation of injury, the insurer submits that Medical Assessor McGrath is cognisant of and applied the proper test of causation. It is also evident that Medical Assessor McGrath closely examined the available evidence and sought clarification through a close questioning of the claimant during the re-examination process. The insurer’s submissions note that in making his assessment Medical Assessor McGrath noted that none of the disputed body parts gave rise to an assessable percentage impairment under AMA 4 and so any error allegedly made by Medical Assessor McGrath is immaterial.
65.	In the submissions dated 1 September 2022 the insurer made submissions about the degree of the claimant’s whole person impairment. After referring to the ambulance and hospital records the insurer submits that the claimant was involved in a low-speed mode of vehicle accident. That he did not hit his head nor lose consciousness and that the claimant did not suffer any significant injuries.
66.	At the time of making the written submissions dated 9 December 2022, the insurer submitted that the claimant’s injuries had not stabilised. The claimant was struck at low speed insufficient to cause him to fall to the ground. According to the insurer the claimant suffered only modest injuries without any evidence of radiculopathy. The insurer submits that the claimant’s accident related injuries do not give rise to a whole person impairment greater than 10%.
MEDICAL EXAMINATION
67.	On 19 April 2023 Mr Tan was examined by Medical Assessor Dr David Gorman at the Commission’s Rooms, 1 Oxford St, Darlinghurst. Medical Assessor Michael Couch was to attend but did not as he was unwell with COVID-19.
Who attended the assessment? 
68.	Mr Tan attended unaccompanied. 
History 
69.	Pre-accident medical history and relevant personal details are as follows.
70.	Mr Tan is 72 years of age. He is married for the fourth time and has six children, four by previous marriages and two by his current marriage. The youngest children are aged 6 and 7 and his oldest child is in his 30s. His current wife immigrated from the Philippines and is not engaged in any employment. Mr Tan came from Singapore around aged 25. 
71.	In Singapore he graduated from high school and then became a chef. He continued this occupation in Australia mostly working at public hospitals. 
72.	He had an industrial accident which led to low back pain. He went on to workers’ compensation for a couple of years before becoming redundant. He had some physiotherapy and the pain settled until being aggravated by the subject accident. 
73.	Mr Tan then became a cab driver until he retired about three years ago. 
74.	He was suffering from bilateral cataracts and needed surgery as required by the Road Traffic Authority. Mr Tan decided to retire.
75.	Mr Tan suffers from high blood pressure and perennial asthma for a number of years. 
76.	He has been in previous motor vehicle accidents but without reported injury. 
77.	There is no history of falls or broken bones or surgeries. 
History of the motor accident 
78.	Mr Tan was involved in a motor vehicle accident on 21 August 2019 at around 11.30am. He was on a daily walk and was intending to move into a marketplace when a car emerged from a carpark and struck him.
79.	Mr Tan states that he was hit about the chest region and then hit the bonnet of the car. He also believes he fell from the bonnet onto the road striking both his knees. He also recalls having pain in the neck and back. The ambulance arrived and he was taken to Fairfield Hospital where he remained for the next five or six hours.
80.	The ambulance records record bilateral knee pains and document the low-speed accident. Mr Tan reconfirmed that it is his belief that he fell to the ground. 
81.	At Fairfield Hospital, the discharge summary indicates that his right leg was involved in the collision. They record mild right chest discomfort due to the trauma with the bonnet. They did not diagnose any spinal injuries. Their overall impression was “mild chest injury following a slow MVA”. An undisplaced right rib fracture was later seen on X-ray on 9 September 2022.
82.	Mr Tan took a taxi home but stated he could not sleep that night. He consulted his GP the following day.
83.	According to Mr Tran, he sustained the following injuries: 
•	back injury; 
•	neck injury; 
•	shoulder injuries, and 
•	left and right knee injuries. 
84.	Mr Tan believes that pain in the vicinity of the right 3rd and 4th metacarpal occurred after the accident and originates from his neck and is some type of radiculopathy as suggested by one of his therapists – however an x-ray showed an old fracture. 
85.	He has also had right elbow pain.
86.	In addition to these musculoskeletal pains, he indicated that he has had recent difficulties with urinary incontinence and impotence. He sometimes needs to wear incontinence pads.
History of symptoms and treatment following the motor accident 
87.	Mr Tan was treated with physiotherapy and medications. He did not benefit he recalls from the physiotherapy.
88.	He states that he has not improved over time. 
89.	Most recently he has seen Dr Simon McKechnie (neurosurgeon). He suggested hydrotherapy.
Details of any relevant injuries or conditions sustained since the motor accident 
90.	There have been no further injuries or conditions.
Current symptoms 
91.	He continues to have the following symptoms: 
•	lower back pain radiating down both legs;
•	right and left knee pain; 
•	neck pain, and
•	right hand pain between 3rd/4th and between 4th/5th metacarpals. 
92.	He also had episodic right elbow pain.
93.	He does not have any problems cooking and shopping. However, he has become depressed because of his condition he reports. 
94.	He only sleeps 4-5 hours per night.

Current and proposed treatment 
95.	He takes medications for his impotence including Viagra – he says that they are not very helpful. He is on mirtazapine for his depressed mood.
96.	He takes Celebrex for his musculoskeletal pains.
97.	He takes Stilnox for sleep.
98.	He takes Candesartan for hypertension. 
Clinical examination 
General presentation 
99.	His height was 158cm and his weight 69.7kg.
100.	He was a well looking older man who gave a clear account of his history.
Cervical spine 
101.	Mr Tan has a uniformly restricted range of motion of the neck to two thirds normal in all planes without any signs of muscle spasm or guarding. 
102.	He did not have any symptoms interpretable as non-verifiable radicular complaints. 
103.	Neurological examination of both arms was normal. He had normal deep tendon reflexes, power and sensation. There was no muscle atrophy. 
Thoracic spine 
104.	Mr Tan has a normal range of thoracic spinal movements in axial rotation and flexion/extension. There were no neurological symptoms pertaining to this area of the spine. He did not have any tenderness. 
Lumbar spine 
105.	Mr Tan has no restriction in range of motion of the lumbar spine in flexion/extension and lateral flexion. His fingertips reached 10cm from the floor. Overall, his movements were normal in all planes. He reported discomfort in the lower back region with end range movements. 
106.	Neurological examination of the lower limbs was normal. That is, he had normal deep tendon reflexes, power and sensation although the reflexes were diminished slightly. There were no signs of muscle atrophy. 
Upper extremities 
107.	Mr Tan had a normal range of movement of all of the joints in both arms. Although he complained of intermittent right elbow pain, there were no local signs to distinguish an injury – there was no tenderness and no restriction in range of motion. 
108.	He was tender over the 3rd/4th and between 4th/5th metacarpal of the right hand – the cause was uncertain. 
109.	Both shoulders were examined. He essentially had a normal range of motion of both shoulders with no discomfort. 
110.	He could easily reach the occiput bilaterally and could reach the spinous process of T9 bilaterally.
Shoulder Movements	Active ROM Measured
RIGHT	Active ROM Measured
LEFT	
Flexion	180	180	
Extension	50	50	
Adduction	50	50	
Abduction 	180	180	
Internal Rotation	80	80	
External Rotation	80	80	

Lower extremities
111.	Mr Tan had a normal range of joint movements in both legs in all joints. In particular, the right knee had a normal range of motion in flexion and extension. Both knee range of motion was from 0 to 130 degrees.
112.	Axial rotation of the right and left sides of the tibia on femur was equal and normal. 
113.	There was no swelling in either knee.
114.	Ligament integrity testing was normal. 
115.	There were no signs of locking or significant ligament damage. 
116.	There were no anterior crepitations under the kneecap. 
117.	Both ankles had a normal range of motion without any signs of impairment.
Chest
118.	There was no chest tenderness. Air entry bilaterally was normal – there were no added sounds. 
Comments on consistency 
119.	Mr Tan was cooperative and consistent. 
Summary of relevant radiological and medical imaging and other investigations 
120.	The following radiological and medical imaging were reviewed:
•	CT scan of the thoracic and lumbar spine dated 17 September 2019 – No fractures or acute injuries were identified. There were severe degenerative changes at T11/12. In the lumbar spine the L5/S1 disc space was reduced with broad-based bulging;
•	CT scan of the cervical spine dated 18 September 2019 – This investigation reports mild degenerative changes at most levels but worse at C6/7;
•	CT scan of the right elbow dated 16 October 2019 – There are osteoarthritic changes in two of the joint spaces;
•	bilateral hand X-rays dated 13 December 2019 – There was deformity of the neck of the right 5th metacarpal bone which has been interpreted as an old fracture, and 
•	chest X-ray dated 9 September 2022 reveal non-displaced 9th rib fracture.
PANEL DELIBERATIONS 
Causation and reasons 
121.	Mr Tan was involved in a motor vehicle accident  on 21 August 2019. He was struck by a slow-moving vehicle coming out of a carpark. It is not clear where the vehicle struck him but he did roll over the bonnet and possibly to the ground. He states that both his knees were swollen after the accident. In hospital they diagnosed a right chest wall injury consistent with hitting the bonnet. 
122.	Mr Tan reports that he also had neck pain and also a worsening of his low back pain after the accident – he did have pre-existing lumbar pain.
123.	 A more recent chest X-ray on 9 September 2022 indicated a non-displaced fracture of the 9th rib. It is possible he fractured this rib in the trauma. 
124.	A plain X-ray of the right hand on 13 December 2019 indicated an old fracture of the 5th metacarpal. Other investigations have demonstrated osteoarthritis. 
125.	He bruised his knees. 
126.	He did not have a history of injury to his left upper limb or left ankle.
127.	He had a history of soft tissue injury to his cervical, thoracic and lumbar spine but has no radiculopathy.
128.	He gave a history of pain in the right elbow from a soft tissue injury. 
Summary of injuries referred by the parties 
The following injuries WERE caused by the motor accident: 
•	chest- undisplaced fracture of 9th rib;
•	both knees - contusion;
•	cervical spine - strain/whiplash;
•	lumbar spine - strain;
•	thoracic spine -strain; 
•	right shoulder, arm and elbow - soft tissue injury, and
•	right hand - strain 
The following injuries WERE NOT caused by the motor accident: 
•	cervical spine - radiculopathy and compression of right C6/7 nerve root;
•	lumbar spine - radiculopathy and compression of the L5 nerve roots;
•	right hand - bone injury; 
•	left hand-strain; 
•	left arm injury, and
•	left ankle/foot – strain.
Threshold injury 
129.	Under sub-section 1.6(2) of the MAI Act, a soft tissue injury is (subject to this section) 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. Under Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017: 1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the MAI Act. 
130.	In the Panel’s view the claimant’s reported injuries can be classified in accordance with the MAI Act and Guidelines as follows: 
•	chest-undisplaced fracture of 9th rib - he sustained a chest wall injury in the accident and most probably an undisplaced fracture of the 9th rib. This is a non-threshold injury under the MAI Act. The Panel notes that a simple fracture sustained in an accident that heals by the time of the assessment is a non-threshold (non-minor injury) even though the claimant may have recovered from it;
•	both knees – contusion - he probably bruised his knees, which is a threshold injury. There is no evidence of a complete or partial rupture of tendons, ligaments, menisci or cartilage;
•	cervical spine- strain/whiplash – this is a threshold injury with no signs of radiculopathy or a complete or partial rupture of tendons, ligament or cartilage;
•	lumbar spine- strain– this is a threshold injury with no signs of radiculopathy or a complete or partial rupture of tendons, ligament or cartilage;
•	thoracic spine -strain – this is a threshold injury with no signs of radiculopathy or a complete or partial rupture of tendons, ligament or cartilage;
•	right shoulder, arm and elbow - soft tissue injury – this is a threshold injury no complete or partial rupture of tendons, ligament or cartilage, and
•	right hand - strain – the fracture seen on X-ray is old - this is a threshold injury no complete or partial rupture of tendons, ligament or cartilage.
131.	The assessment of whether an injury is a ‘threshold injury’ is not a direct measure of a persons symptoms or disability. A finding that an injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the MAI Act and the Regulation. 
Conclusion – Threshold Injury 
132.	The following injuries are threshold injuries: 
•	both knees – contusion;
•	cervical spine - strain/whiplash;
•	lumbar spine – strain;
•	thoracic spine – strain;
•	right shoulder, arm and elbow - soft tissue injury, and
•	right hand – strain.
133.	The following injury is not a threshold injury: 
•	chest-undisplaced fracture of 9th rib.
134.	The following injuries referred to the Panel for assessment have been assessed and determined to be not caused by the motor accident:
•	cervical spine - radiculopathy and compression of right C6/7 nerve root;
•	lumbar spine - radiculopathy and compression of the L5 nerve roots;
•	right hand - bone injury;
•	left hand- strain; 
•	left arm injury, and
•	left ankle/foot – strain.
135.	A decision as to whether these injuries are a threshold injury is not required for the purposes of the Act. 
Permanency of impairment 
Statement about permanent impairment 
136.	Permanent impairment is defined in the AMA 4 (p.315) as follows: 
21.	“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
137.	His motor vehicle accident is three years old. 
138.	His injuries are stable and a permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment. 
Determinations - Permanent impairment 
139.	The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of the Motor Accident Guidelines. Permanent Impairment Table;
•	chest-undisplaced fracture of 9th rib. He has no lung complications and no symptoms – this does not give any assessable impairment;
•	both knees – contusion. His knees are now normal on examination. There is no assessable impairment;
•	cervical spine - strain/whiplash. He has symptoms but no asymmetry of motion or radicular symptoms. He is DRE category I giving him a whole person impairment of 0% based on Table 73 on page 110 of AMA 4;
•	lumbar spine -strain. He has symptoms but no asymmetry of motion or radicular symptoms. He is DRE category I giving him a whole person impairment  of 0% based on Table 72 on page 110 of AMA 4;
•	thoracic spine - strain. He has no symptoms and no assessable impairment;
•	right shoulder, arm and elbow - soft tissue injury. He has no abnormal findings and no assessable impairment, and
•	right hand - strain. He has symptoms caused by his old fracture and no assessable impairment.
	Body Part or System	AMA Guides/ Guidelines References
(chapter/ page/table)	Permanent (YES/NO)
	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident	
1	Chest	No assessable impairment	Yes	0%	0%	0%	
2	Both knees	No assessable impairment	Yes	0%	0%	0%	
3	Cervical spine	Table 73 on page 110 	Yes	0%	0%	0%	
4	Thoracic spine	No assessable impairment	Yes	0%	0%	0%	
5	Lumbar spine	Table 72 on page 110	Yes	0%	0%	0%	
6	Right shoulder, arm and elbow	No assessable impairment	Yes	0%	0%	0%	
7	Right hand strain	No assessable impairment	Yes	0%	0%	0%	

140.	Regarding the impairment assessment of the claimant’s knees, the Panel notes the claimant’s solicitor’s submission that Medical Assessor McGrath found objective loss of axial rotation in the knee but erred by finding that that amounted to a 0% whole person impairment because it was not rateable under the Guidelines. The claimant’s solicitor argued that the Medical Assessor, on finding objective clinical findings of loss of axial rotation, should have proceeded to perform an assessment by way of analogy under clause 6.24 of the Motor Accident Guidelines. In its re-examination of the claimant the Panel found no apparent injury, loss of rotation or impairment to either of the claimant’s knees and thus found no assessable impairment.
CONSISTENCY
141.	The Panel notes that there are a number of versions about how the accident occurred and what injuries the claimant suffered. The claimant himself also gave a number of different explanations about how he was injured in the motor accident. The ambulance report records that the claimant denied falling to the ground, striking his head or any loss of consciousness. The report notes that the claimant complained of pain to the knees. The ambulance report records that there is no obvious injury to the knees and that the patient was walking normally prior to the arrival of the ambulance. The ambulance also records no pain or obvious injury to the head, abdomen, and pelvis or limbs. 
142.	The Fairfield Hospital Emergency Department notes record that the claimant was hit on his lower right leg, he was bent and hit the bonnet of the car and developed mild chest discomfort and dizziness. There is no record that he fell the ground, lost consciousness or hit his head.
143.	The ambulance and hospital reports are in contrast to the other statements made by Mr Tan. In a statement made to the police on 22 August 2019 Mr Tan reported that he was walking in the car park when he was suddenly hit in the legs and fell onto a bonnet of a car and then fell to the ground. In another statement dated 15 February 2021 about the accident Mr Tan states that he was walking in the car park when he was hit by motor vehicle which caused him to fall onto the bonnet of the vehicle and then onto the ground. Mr Tan states that he hit his head and face on the bonnet of the car then on the ground.
144.	At the medical re-examination with the Panel, Mr Tan stated that he was hit about the chest region and then hit the bonnet of the car. He also believes he fell from the bonnet onto the road striking both his knees. He also recalls having pain in the neck and back. The ambulance arrived and he was taken to Fairfield Hospital where he remained for the next five or six hours. When asked by the Panel about the ambulance records Mr Tan reconfirmed that it was his belief that he fell to the ground. 
145.	After carefully considering all the accounts and available evidence, the Panel accepts the evidence contained in the ambulance report and the hospital notes which record that Mr Tan did not hit his head on the ground or lose consciousness after the accident. The Panel accepts the claimant’s account that his legs were hit by the motor vehicle and that his chest hit the bonnet of the motor vehicle. Despite Mr Tan telling the Panel that he believed he fell to the ground during accident, the Panel prefers the account contained in the ambulance report and hospital notes. Those notes were made soon after the accident. They record that Mr Tan did not hit the ground either with his knees or his head or lose conscious. Those notes also record that Mr Tan was examined by both the ambulance officers and doctors at Fairfield Hospital shortly after the accident. The notes did not record that he hit the ground nor do they contain medical evidence of injuries consistent with him hitting the ground. The notes also record that his knees and head were examined and showed no physical or medical signs of hitting the ground.
CONCLUSION AND CERTIFICATION
146.	For the above reasons, the Panel affirms the two certificates issued by Medical Assessor McGrath. 
147.	The Review Panel’s certificates are attached at the commencement of these Reasons.