DETERMINATION OF REVIEW PANEL	
	
CITATION:	QBE Insurance (Australia) Limited v O'Sullivan [2023] NSWPICMP 475	
		
CLAIMANT:	John O’Sullivan 	
		
INSURER:	QBE Insurance (Australia) Ltd	
		
REVIEW Panel	 	
		
PRINCIPAL MEMBER:	John Harris	
		
MEDICAL ASSESSOR:	Neil Berry	
		
MEDICAL ASSESSOR:	Drew Dixon	
		
DATE OF DECISION:	26 September 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS –   Motor Accident Injuries Act 2017; dispute related to whether physical injury was a threshold injury; claimant involved in a motor accident on 13 May 2021 from head on collision; claimant had asymptomatic but probably pre-existing pathology at C3/4; claimant re-examined; contemporaneous clinical records showed onset of neck pain and referred pain in the C3/4 distribution following motor accident; clinical expertise of Medical Assessor from Panel examining claimant supported finding that motor accident aggravated pre-existing pathology at C3/4; nature of motor accident capable of aggravating disc pathology; finding made that the motor accident aggravated the C3/4 disc causing protrusion trough the annulus fibrosus; partial rupture of a ligament constitutes a non-threshold injury; Held – original assessment of non-threshold injury  confirmed.  

DETERMINATIONS MADE:  	Review Panel Assessment of Threshold Injury 
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 

The Review Panel confirms the certificate dated 9 February 2023 that the claimant suffered a non-threshold injury.

REASONS
BACKGROUND 
1.	Mr John O’Sullivan (the claimant) sustained injury in a motor accident on 13 May 2021. The claimant was stationary at traffic lights when the insurer vehicle misjudged a right-hand turn and collided head on with the claimant’s vehicle.
2.	The insurer is liable to pay to Mr O’Sullivan any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act). The issues presently in dispute are whether Mr O’Sullivan’s physical injuries caused by the motor accident are a “threshold injury” within the meaning of the MAI Act. 
3.	Mr O’Sullivan alleges that he sustained injuries to the neck, back and left arm.
4.	Pursuant to Schedule 2, cl 2 of the MAI Act, disputes about whether the injury is a threshold injury is a medical assessment matter. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
Original Medical Assessment
5.	The medical dispute was referred to Medical Assessor McGrath who issued a Medical Assessment Certificate dated 9 February 2023 (the medical assessment). The Medical Assessor found that the injury to the C3/4 disc was not a minor injury. The Medical Assessor noted:
“There is clinical support for the listed injury. The critical observation is the correlation between a significant pathology around C3/4 and biceps pain. The biceps muscle is innervated by spinal nerves originating from this level and adjacent levels. Given there was no local biceps injury, we can deduce that the pain is somatic referred or a central perception from spinal convergence. The spinal nerve emerging from this level, does need to be compromised, for the symptom perception.”
6.	The Medical Assessor concluded that it was probable that the disc disease existed prior to the motor accident but that the “evidence supports the conclusion of a significant aggravation with altered pathology”. The further reasons by the Medical Assessor on the C3/4 disc injury included the following observations:
“Mr O’Sullivan was involved in a motor vehicle accident on 13 May 2021. This was a front-end collision by a larger vehicle. Airbags did not deploy (unavailable). 
Mr O’Sullivan was aware of a warm and painful sensation in both biceps. That night he became more aware of neck stiffness and discomfort. He gradually deteriorated over the next week or so with neck locking. He continues to record neck discomfort and dysfunction. 
Mr O’Sullivan was investigated initially for soft tissue injury about the elbows which has proved negative. A plain x-ray of the neck on 31 May 2021 indicated some disc space narrowing at C3/4 but lacked resolution to detect an acute injury. A later MRI scan on 4 June 2021 gave greater definition to the pathology at C3/4 with a central disc protrusion.
 All of the historical and clinical information indicates that he sustained a neck injury in the index accident with resulting neck locking and referred pain into the bicep’s regions on both sides. Although it is not provable that the prolapsing disc pathology at C3/4 is a direct outcome of the motor vehicle accident; in a person who was previously asymptomatic, it is certainly possible. On the basis of probability, the C3/4 disc and intervertebral joint was injured in this accident and therefore should be considered as a non-minor injury. This is in agreement with the opinion of Dr Singh and Dr Lim. 
He does not have active radiculopathy but a disc prolapse is a non-minor injury under the Act. That is, there is a partial rupture of ligament as part of the posterior intervertebral disc anatomy.” (emphasis in original)
Amendment to legislation 
7.	The Motor Accident Injuries Amendment Act 2022 (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”. 
8.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. 
9.	The Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury.
10.	For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
11.	Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
12.	The assessment by the Medical Assessor and the parties’ submissions were made prior to 
1 April 2023 when the correct term was “minor injury”. Accordingly, the term “minor injury” and “threshold injury” are used in this assessment interchangeably as it reflects the relevant wording at the time of the submission and/or the medical assessment.
THE REVIEW 
13.	The insurer applied for referral to a review panel of the medical dispute.
14.	The President’s delegate referred the dispute to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment of minor injury was incorrect in a material respect having regard to the particulars set out in the application.
15.	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. 
16.	The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
17.	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.
18.	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.
19.	The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned. 
20.	The insurer filed a bundle of documents for the Panel’s consideration. On 14 July 2023 the Panel issued a further direction as follows:
“The Panel notes that the claimant has not filed its bundle. The solicitor’s communication that he relied upon previous documents filed is unacceptable as this raises the issue of what has been filed.
The purpose of our direction is to create certainty and efficiency of what is before the Panel. 
The claimant is again directed to file by close of business, 24 July 2023, his bundle of documents that he wishes the Panel to consider. Absent, any bundle, the Panel will not consider any material other than that contained in the insurer’s bundle.”
21.	The claimant subsequently filed a bundle in response to this direction.
STATUTORY PROVISIONS
22.	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”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
23.	Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
24.	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 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 minor psychological or psychiatric injury caused by the motor accident. 
5.4 	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.”
25.	Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury. 
26.	Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
27.	Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. 

SUBMISSIONS
Claimant’s submissions dated 23 May 2022 
28.	The claimant referred to the opinion of Dr Bhisham Singh dated 1 March 2022 that he injured his C3/4 disc and this was the likely source of the claimant’s condition.
Insurer’s submissions dated 10 August 2022
29.	The insurer submitted:
(a)	the claimant did not require hospitalisation following the motor accident;
(b)	the complaints in the weeks following the motor accident were limited to neck stiffness;
(c)	the X-ray of the cervical spine dated 31 May 2021 did not demonstrate any disc bulge at C3/4, and
(d)	the MRI scan of the cervical spine dated 4 June 2021 showed a disc protrusion at C3/4 reported as mild and not affecting the cord. That scan showed degenerative changes at multiple levels.
30.	The claimant’s treating doctors do not explain why the disc bulge is causatively related to the motor accident and do not explain why it is due to degenerative changes. 
31.	The insurer submitted that Dr Lim’s assertion that there was an annular tear is not supported by “any objective evidence” such as the MRI scan.
32.	The insurer submitted that there is no objective evidence to support the radiculopathy reported by Dr Lim and there is no objective evidence of any tear to the nerves, tendons or ligaments of the cervical spine.
Insurer’s submissions dated 19 September 2022
33.	These submissions were filed in response to further evidence lodged by the claimant.
34.	The insurer referred to cl 6.121 of the Guidelines which provides that the presence of a morphological variation from what is normal does not make the diagnosis. It otherwise noted that the prevalence of degenerative changes including disc bulges will increase with age.
35.	The insurer submitted that the there is an absence of evidence linking the disc bulge to the accident as opposed to being due to degenerative changes. 
Insurer’s submissions dated 10 March 2023
36.	These submissions were filed seeking to review the medical assessment.
37.	The insurer referred to the test for causation in the Guidelines and the reference by the Medical Assessor that it was “possible” that the disc pathology was a direct outcome of the motor accident. It submitted that the use by the Medical Assessor to both “possible” and “probable” created ambiguity in the reasoning.
38.	The insurer submitted:
“Despite acknowledging that there is evidence of pre-accident degenerative disc disease in the cervical spine, Assessor McGrath has not addressed how the morphological change present at C3/4 is causally different to the morphological change at other levels to demonstrate the accident was a more than negligible cause of the pathology present at this level of the cervical spine.”
39.	The insurer submitted that the Medical Assessor failed to explain how the “alleged referred pain symptoms are attributable to spinal convergence”.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
40.	Prior medical records do not refer to neck symptoms. 
Post- accident medical records
41.	The X-ray of the cervical spine dated 31 May 2021 showed mild disc space narrowing at C2/3 and the remaining disc spaces are normal in height with no osteophytes. There was no evidence of cervical spondylosis and no fracture or dislocation. The X-ray of the left shoulder showed a normal appearance with no evidence of a fracture or dislocation.
42.	The MRI scan of the cervical spine dated 4 June 2021 showed a mild central disc protrusion which abuts but did not cause mass effect on the anterior surface of the cord and a mild broad based disc osteophyte complex. There were mild degenerative changes noted at other levels of the cervical spine. 
43.	The application for personal injury benefits dated 7 June 2021 noted injuries to the cervical spine, back, left shoulder and left arm.
44.	The Allied health recovery requests dated 8 June 2021 and 6 July 2021 noted reduced cervical range of motion limited by pain and stiffness.
45.	Dr Lim, general practitioner (GP) provided a report dated 29 November 2021. The doctor diagnosed cervical spine radiculopathy, C3/4 mild disc protrusion, left shoulder strain and lumbar spine strain. Dr Lim described symptoms including pain radiating down the right arm with pins and needles in the right hand. A certificate of capacity of the same date diagnosed the same injures.
46.	Dr Bhisham Singh, spinal surgeon, provided a report dated 1 March 2022. The doctor noted that the claimant had neck and arm pain which was likely coming from the C3/4 disc and recommended an injection as a diagnostic and therapeutic measure.
EXAMINATION
47.	The claimant was medically examined by Medical Assessor Berry who provided the following examination report:
“Mr O’Sullivan attended on 4 September 2023 unaccompanied.  He told me he is 51 years of age and dominantly right-handed.  
History of the Motor Accident
Mr O’Sullivan told me that on 13 May 2021, he was the driver of a two door Toyota GT86 wearing a seatbelt on his way to work when he was involved in a motor accident.  He was stationary at an intersection; one block from home, when a vehicle travelling in the opposite direction attempted a right-hand turn and collided head-on with his vehicle.   The airbags did not deploy.  Mr O’Sullivan was shocked and dazed by the accident.  He was immediately aware of pain in his neck and left arm and could not self-extricate.
The driver of the other vehicle assisted him to get out of his vehicle.  He recalls that he then collapsed on the ground.  An ambulance attended and after assessing him he was allowed to drive home which was a short distance and advised him to present to Bankstown-Lidcombe Hospital if he had continuing problems.
Mr O’Sullivan took the following day off work and then returned to work carrying out his usual duties.  One week later, he developed a severe headache and clicking in his neck and he took a week off work and attended his general practitioner.  By that stage, he had stiffness in the neck, headaches and the left arm felt tight and when he tried to move the left arm, he experienced tingling in the fingers but not in the thumb.  Thereafter, the club was closed for five months due to the pandemic and during that time, he had physiotherapy weekly and sometimes twice weekly.  He found it very exhausting, but it provided him temporary relief.  
He returned to work after the pandemic, and he moved from heavier duties to light duties, and he worked four days a week where he previously worked five to six days a week.  He previously would set up for functions and he would be moving kegs and stools but now there is somebody from Nova who does this work, and he therefore has no heavy lifting as part of his duties.  He works the nightshift from 6pm to 4am and is training to become a manager.
Current Situation
Mr O’Sullivan told me today that he continues to experience pain in the neck which is aggravated by any turning movements and the left side of the neck feels tight.  He always feels tight and tender in the left upper extremity in the area of the biceps.  He has no symptoms in the right upper extremity.
Current Treatment
Mr O’Sullivan takes Panadol or Nurofen when necessary but is not having any physiotherapy.
Past History
About 15 years ago he developed sciatic nerve pain in the low back while working at Myers, Parramatta.  He had lifted an article and felt pain the pain down his right leg.  He was hospitalized overnight at Windsor Hospital and was treated conservatively, and the Insurer paid for his treatment and his time off work but there was no settlement.
Work History
Mr O’Sullivan told me that he completed his HSC and then did a number of computer studies and also did hospitality studies.  He then worked in a nightclub in Parramatta where he worked for 18 months until it was closed down.  He then obtained work at Myers and worked there for 10 years and then subsequently obtained employment at Richmond Club as a poker machine attendant where he has worked for the last 11 years.
Social History
Mr O’Sullivan is a married man for the second time.  He has three step-children from this relationship but no dependents from the first relationship.  Currently, he and his family are living in a rental house at Windsor and he is unable to do the lawn mowing as the vibrations from the mower cause him significant symptoms in the left upper arm and neck.
Physical Examination
Mr O’Sullivan was 178 cm in height and 78.7 kgs in weight.  He moved with normal posture and gait.
Cervical Spine
Examination of the cervical spine revealed tenderness in the left paraspinal muscles and down into the left trapezius muscle.  There was no muscle spasm and no muscle guarding and no alteration of spinal contour.  There was a normal range of left and right rotation, left and right flexion and lateral flexion to the left and right.
Upper Extremities
All active movements were measured using a goniometer.
Right Upper Extremity:  the right upper extremity was normal in all respects.
Left Upper Extremity:  there was tenderness on the trapezius muscle at the back of the shoulder but no spasm or guarding.  Mr O’Sullivan demonstrated a full range of shoulder movements.  There was no wasting, swelling or dropping of the shoulder.  The biceps muscle was tender to palpation consistent with irritation of the C3/4 disc.  Reflexes were intact.  There was a normal range of movement at the wrist and hand and no sensory changes.  There was no unilateral muscle wasting and no abnormality was detected.
Shoulder Movements	Active ROM Measured
RIGHT	Active ROM Measured
LEFT	
Flexion	180°	180°	
Extension	  50°	  50°	
Adduction	  50°	  50°	
Abduction 	180°	180°	
Internal Rotation	  90°	  90°	
External Rotation	  90°	   90°	
Investigations
Mr O’Sullivan had brought no investigations with him.”
FINDINGS 
48.	The review is a new assessment of all matters with which the medical assessment is concerned. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh. 
49.	We adopt the reasoning in Lynch v AAI Ltd that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
50.	We adopt the examination report of Medical Assessor Berry supplemented by the following reasons.
51.	A protrusion occurs where the nucleus pulposus has protruded through the annulus fibrosus. The annulus fibrosus is the outer portion of the intravertebral disc that surrounds the nucleus pulposus and is composed of layers of collagen and ligament fibres. 
52.	Doctors, including radiologists, normally use the tear “protrusion” as opposed to “bulge” because a bulge does not protrude through the annular fibrosis. 
53.	The clinical examination by Medical Assessor Berry supported the conclusion that there was irritation in the upper biceps muscle consistent with the pathology in the C3/4 disc. 
54.	The head on motor accident was clearly capable of causing a whiplash injury to the cervical spine through the deceleration forcers imposed on the neck. It is medically plausible that this nature of the motor accident could aggravated a degenerate disc. This conclusion is supported by the particular circumstances of this case that the claimant had no pre-existing neck symptoms and immediately complained of neck symptoms with radicular features in the C3/4 distribution (shoulder pain). That conclusion is also consistent with the findings by Medical Assessor McGrath. 
55.	The insurer’s submission that the X-ray of the cervical spine dated 31 May 2021 did not demonstrate any disc bulge at C3/4 is misconceived as X-rays do not demonstrate disc pathology. 
56.	The insurer otherwise referred to cl 6.121 of the Guidelines which provides that the presence of a morphological variation from what is normal does not make the diagnosis. It otherwise noted that the prevalence of degenerative changes including disc bulges will increase with age and submitted that the scan evidence was consistent with pre-existing degenerative pathology.
57.	On the balance of probabilities, the nature of the motor accident, the absence of prior neck symptoms, the immediate onset of post-accident neck and left arm symptoms in the C3/4 dermatome and the clinical findings of Medical Assessor Berry is sufficient for us to conclude, on the balance of probabilities, that the motor accident aggravated the C3/4 disc causing it to protrude through the annulus fibrosus. For these reasons we reject the insurer’s submission that the C3/4 disc pathology shown on MRI scanning was solely due to degenerative changes.
58.	The medical evidence, including the examination findings of Medical Assessor Berry otherwise does not show any objective signs of radiculopathy as defined in the Guidelines. That conclusion is not inconsistent with our finding that the claimant had dermatomal pain in the C3/4 distribution as pain, whilst suggestive of disc pathology, is not an objective sign of radiculopathy as defined in the Guidelines. 
59.	The aggravation of the C3/4 disc involving protruding material is a partial rupture of a ligament and falls outside the definition of a threshold injury. 
CONCLUSION
60.	For these reasons the Panel concludes that the certificate is confirmed.