DETERMINATION OF REVIEW PANEL	
	
CITATION:	Hong v Allianz Australia Insurance Limited [2023] NSWPICMP 194	
		
CLAIMANT:	Tu Vy Hong	
		
INSURER:	Allianz Australia Insurance Limited	
		
REVIEW Panel	 	
		
MEMBER:	Terence O’Riain	
		
MEDICAL ASSESSOR:	Tai-Tak Wan	
		
MEDICAL ASSESSOR:	Shane Maloney	
		
DATE OF DECISION:	1 May 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS –   Motor Accident Injuries Act 2017; this dispute is about whether the claimant suffered a threshold injury (which was previously called a minor injury) in a motor accident on 13 September 2019; X-ray after accident showed L2 lumbar spine fracture; claimant applied for review of Medical Assessor (MA) Cameron’s certificate dated 19 December 2021 which certified 2019 accident caused threshold injury and that L2 fracture existed before the accident due to lack of trauma signs at that site; Panel considered re-examination unnecessary; dispute was about whether the motor accident caused the claimant’s L2 fracture; outcome depended on scans analysis and not the claimant’s history or possible radiculopathy to elicit in re-examination; submissions confirmed the only question to be resolved was whether the accident caused, worsened or aggravated the L2 fracture; treating GPs notes of pre-existing lumbar pain due to osteoarthritis with a referral to physiotherapy on 13 April 2019 for back pain; thoracic spine X-ray on 11 September 2018 reported osteoporotic changes with compression fractures in the mid thoracic region; treating GP record low back and neck pain one day after the accident; CT L2 scan documented compression fracture and no surrounding soft tissue swelling which indicated pre-existing fracture; lumbar spine MRI 10 February 2020 noted that compression fracture with no associated bony oedema expected in an acute fracture; Dr McKechnie, treating neurosurgeon opined MRI showed no bony oedema, which he determined as an old fracture. Held – balance of evidence supports back injury was threshold injury; the Panel was satisfied that the accident did not cause L2 fracture; section 1.6; MA Cameron’s certificate affirmed.
	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Review Panel Assessment of Threshold Injury
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act)
The Review Panel confirms Medical Assessor Cameron’s certificate dated 19 December 2021.

The following injuries caused by the motor accident:
head – soft tissue injury;
cervical spine – soft tissue injury;
lumbar spine – soft tissue injury, and
chest – soft tissue injury.
are THRESHOLD INJURIES for the purposes of the MAI Act.	

	

REASONS
BACKGROUND 
1.	On 13 September 2019, Ms Hong (the claimant) was a pedestrian crossing the road when a vehicle that was driving in a pedestrian area struck her. She remembers the collision knocked her to the ground. She said she hit her head and other parts of her body. 
2.	The ambulance and police services attended the accident scene. 
3.	The ambulance took Ms Hong to Royal Prince Alfred Hospital where the Emergency Department assessed her condition. The hospital discharged her to her home. X-rays taken at the hospital showed a lumbar spine fracture at L2.
4.	The insurer insured the owner and/or driver of the motor vehicle for liability to pay to the claimant any damages and statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
5.	Ms Hong lodged a claim for statutory benefits due to the motor accident causing her injuries. 
6.	The insurer declined liability for statutory benefits beyond 26 weeks from the date of the accident. The insurer decided this because it assessed Ms Hong’s injuries met the definition of "minor injury" under the MAI Act. 
7.	The claimant applied to the former Dispute Resolution Service (now the Personal Injury Commission (the Commission) to assess Ms Hong’s injuries. 
8.	The Commission referred the following injuries to Medical Assessor Cameron for assessment:
•	brain – head injury – concussion;
•	cervical spine – neck injury;
•	lumbar spine – low back injury, and
•	chest – chest injury.
9.	Medical Assessor Cameron examined Ms Hong and produced a certificate dated 19 December 2021, finding she suffered minor injuries which were minor for the purpose of the MAI Act. 
10.	The claimant applied to the Commission to refer the medical assessment to a Review Panel within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
11.	On 31 March 2022 the President’s delegate referred the medical assessment to this Review Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. 
REVIEW
Legislative framework
Statutory provisions
12.	The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act on 1 April 2023 to substitute the term “threshold” for “minor”. The terms are interchangeable. This decision will retain the former term, except where the certificate is issued.
13.	At the time this dispute became apparent s 1.6 of the MAI Act defined a minor injury to include a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
14.	Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
15.	Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 	The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 	Diagnostic imaging is not considered necessary to assess minor injury.
5.5 	A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 	The assessment of whether an injury caused by the accident is a minor injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
16.	Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
17.	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.”
18.	Radiculopathy is defined in clause 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) 	loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) 	positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(e) 	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.”
19.	Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury were to be assessed as a minor injury. They are now described as a threshold injury.
20.	Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a Medical Assessor.
21.	Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
22.	The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were minor or non-minor as defined under the MAI Act.
23.	The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh. 
24.	The Review Panel adopts the reasoning in David v Allianz Australia Ltd that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.
25.	We also adopt the reasoning in Lynch v AAI Ltd that the claimant bears the onus of proof in establishing any injury is not a minor injury for the purposes of the MAI Act.
Review
26.	On 8 June 2022 the Review Panel met via telephone. 
27.	The Review Panel members had directed the parties, pursuant to rule 70 of the Commission Rules to confer and provide a joint signed statement setting out –
(a)	the facts and issues on which the parties agree, and
(b)	the facts and issues that continue to be in dispute.
28.	The Review Panel decided it was apparent that only the lumbar spine injury was disputed as to minor injury status.
29.	The Review Panel determined re-examination of the claimant was not necessary in order to reach a decision, being mindful of the Court of Appeal’s authority in Sydney Trains v Batshon [41]:
30.	Batshon’s case concerned a workers compensation medical assessment matter dealing with whole person impairment. Paragraph 41 is an observation of what happens in motor accidents matters where a practice note from 2005 is referenced. The case does not mandate a re-examination in every motor accident case but talks of the ‘default position’ which ‘generally’ applies and would apply if a party objected to an assessment on the papers. The judge’s observations also suggests the option of no re-examination where there is no dispute, ambiguity or uncertainty about findings.
31.	The submissions with the application confirmed that the only question to be resolved was whether the accident caused, worsened or aggravated the L2 fracture detected in the CT scan taken at RPA Hospital on the date of the accident.
32.	There were no submissions regarding the head, cervical spine injuries not being minor injuries.
33.	The Review Panel discerned the actual dispute was about whether the motor accident caused the claimant’s L2 fracture shown on the x-ray taken at the Emergency Department happened before or because of the accident. As this depended on scans analysis and not the claimant’s history or possible radiculopathy to elicit in re-examination, it was decided re-examination was unnecessary. The Review Panel considered afresh all aspects of the assessment under review.
34.	The Review Panel noted that the parties did not comply with the earlier direction that on or before 2 June 2022 pursuant to rule 70 of the PIC Rules the parties were to lodge a joint signed statement setting out—
i.	the facts and issues on which the parties agree, and
ii.	the facts and issues that continue to be in dispute.
35.	That direction was repeated and was to be complied with on or before 22 July 2022. 
36.	The Review Panel’s view was that re-examining the claimant would not be necessary to resolve the dispute and it could be decided on the papers. The parties were to confirm with submissions on or before 22 July 2022 if the findings on minor injuries on all injuries can be adopted, except for the L2 fracture and if the parties press for re-examination or object to the matter proceeding on the papers. 
37.	Further, the Review Panel noted the lack of clinical notes from Ms Hong’s nominated treating doctor from 2013 until 2017 and any correspondence or clinical notes from Dr Simon McKechnie, neurosurgeon. The parties provided those notes later.
38.	The Review Panel met again on 12 August 2022 to clarify the discussion about the earlier Medical Assessor's findings and the notes produced.
Documentation
39.	The Review Panel considered the following documentation:
•	Medical Assessor Cameron’s certificate dated 19 December 2021;
•	Application for review and attached documents;
•	Reply and attached documents;
•	The Proper Officer’s Reasons issued 31 March 2022 referring this matter to a Review Panel, and
•	All the documents which were provided to Assessor Cameron before the assessment under review.
40.	Dr McKechnie’s and Marrickville Medical Centre’s clinical notes, as well as a 9 April 2013 lumbar spine scan, which Medical Assessor Cameron did not have, were provided to the Review Panel.
Assessment under review
41.	Medical Assessor Cameron certified the following: 
•	head – soft tissue injury;
•	cervical spine – soft tissue injury;
•	lumbar spine – soft tissue injury, and
•	chest – soft tissue injury.
Diagnosis and reasons
42.	In the motor vehicle incident on 13 September 2019, in which Ms Hong was injured as a pedestrian, she sustained a soft tissue injury to the head without traumatic brain injury, soft tissue injuries to the cervical spine, lumbar spine and chest. 
Causation and reasons
43.	The incident in which Ms Hong was injured is clearly documented and is consistent with her explanation. Based on the imaging and contemporaneous clinical records, the observed fracture of L2 is old and does not represent a recent fracture. Had a recent fracture occurred, there would have been soft tissue abnormalities in the imaging and also Ms Hong would have had localised low back pain in that specific region, rather than a more general pain felt on the right side.
Disputes and issues identified by the parties
44.	The following aspects of the assessment were disputed: 
(a)	The applicant submits that the assessment was incorrect in a material respect because “the Assessor was not provided with and therefore did not have regard to x-ray lumbar spine, pelvis and right hip dated 9 April 2013 which was submitted as a late document to the [Commission]”.
(b)	Furthermore the Applicant submits that:
“the Assessor ought to have been provided with a copy of the x-ray report for consideration in making his determination in respect of the lumbar spine. Had the Assessor been provided with the x-ray report, the Assessor’s determination…may have been altered resulting in the outcome of the assessment being altered to an injury falling outside the definition of minor injury”.
(c)	Clause 5.6 of the Motor Accident Guidelines stipulates that the assessment of whether an injury caused by the accident is a minor injury “should be based on the evidence available” and include all relevant findings derived from “a review of all relevant records available at the assessment”.
(d)	The Presidential delegate noted that the X-ray report was received by the former Dispute Resolution Service (now the Personal Injury Commission) via correspondence dated 25 January 2021. However it appears on the Portal that the X-ray report was not shared with the Medical Assessor and thus was not before him at the time of the assessment. This is also supported by the absence of any mention of the subject X-ray report in the Medical Assessment Certificate. The Medical Assessor clearly outlines and discusses all available radiological evidence that was before him on pages 4 and 5 of the Medical Assessment Certificate, however this did not include any mention of the X-ray report of the lumbosacral spine, pelvis and right hip dated 9 April 2013.
45.	The insurer opposed the application.
SUBMISSIONS
Claimant’s submissions
46.	In response to the directions made after the conference 9 June 2022 the claimant contends that the facts and issues to be resolved are as follows: 
a)	The claimant sustained injury the head, cervical spine, lumbar spine and chest as a result of the subject accident. 
b)	The claimant injuries to the head, cervical spine and lumbar spine are not minor. 
c)	The claimant sustained a Grade 1 compression fracture of L2 vertebral body with radiculopathy as a result of the subject accident.
d)	The claimant sustained cervical spine radiculopathy as a result of the subject accident. 
e)	The claimant requires re-examining. A proper assessment cannot be undertaken in respect of physical injuries without examining to give an opportunity to address any issue the Review Panel raises. 
f)	The claimant obtained clinical notes of Dr McKechnie and Marrickville Medical Centre. 
47.	The claimant’s substantive submissions to the Medical Assessor followed the process that a party uses to apply for a review of a Medical Assessment Certificate. It pointed out errors in the internal review process, rather than simply directing the Medical Assessor to relevant evidence. The Review Panel noted there were submissions on giving reasons for the decision and the obligation to use the correct Guidelines.
48.	The claimant pointed out that the insurer, in respect of physical injuries has determined that the claimant has a minor injury as there is no evidence of nerve injury, complete or partial rupture of tendons, ligaments, menisci or cartilage. Further, there was no evidence of radiculopathy.
49.	The insurer erred in making this finding on the basis of the following:
a)	The ambulance report notes the claimant complained of low back pain.
b)	The hospital scanned the claimant’s thoracolumbar spine and cervical spine which recorded compression fracture a L2 and C7 lucency. There are no similar findings in the Claimant's radiology before the accident.
c)	Dr Lam’s Certificates of Capacity diagnosed "concussion, fracture of L2, soft tissue injury to beck, PTSD and anxiety.”
d)	The claimant was referred for chiropractic treatment with Dr David Pham. Dr Pham recorded "soft tissue injury spinal vertebra, compression fracture and head injury (concussion).” 
e)	Dr Pham’s Allied Heath Recovery Request(AHHR) dated 10 December 2019 recorded "soft tissue injury to neck and low back, pelvic pain with radicular symptoms into right arm and right leg outside of thigh and hip”
f)	Dr Pham referred the claimant to Dr Simon McKechnie, neurosurgeon for ongoing neck and back symptoms and headache. 
g)	The claimant refers to the findings in the radiology taken after the accident of vertebral compression fracture at L2 and symptoms of radiculopathy recorded on an AHHR dated 10 December 2019, as satisfying the definition for minor injury.
Insurer’s submissions
50.	The insurer provided submissions addressed to the presidential delegate. The following are relevant to the Review Panel’s considerations:
a)	The insurer points out that Medical Assessor Cameron's reasoning was based on the examination of imaging and contemporaneous clinical records to base his decision that the L2 fracture was old. This is because a recent fracture would have shown soft tissue abnormalities in the imaging and Ms Hong would have had localised low back pain, rather than general pain on the right side.
b)	The insurer submits with respect to the X-ray report dated 9 April 2013 that this report has no material effect on the outcome because the claimant could have sustained a lumbar spine fracture between that date and the accident, being over six years. A fracture sustained during this period would still be considered and. Subsequently it is not linked to the motor accident the insurer submits there is too big a gap between the X-ray report and the motor accident to alter Medical Assessor Cameron's decision. That earlier report has no material effect.
Matters considered and decided by the Review Panel
51.	The Review Panel considered the claimant’s request regarding re-examination and confirmed it would not re-examine. The Review Panel noted that the Guidelines require a careful and thorough physical examination and the ratio in Batshon.
52.	However, the claimant was seeking a finding that the accident caused the L2 fracture to establish she had suffered a non-minor injury. This relied on scans analysis rather than a physical examination. When it became apparent that it was a question of establishing 
53.	As the onus was on Ms Hong it was a matter for her to provide a statement with her history of the incident that led to her being X-rayed in 2013 and the absence of any incidents that could have caused a fracture in the meantime, but this was not provided. 
54.	There were references to radicular symptoms, but these have not been verified in accordance with the Guidelines.
Review Panel deliberations
55.	The Review Panel has determined that the compression fracture at L2, lumbar spine was pre-existing and not related to the subject accident on 13 September 2019.
56.	There was documentation in the treating general practitioner’s (GP) notes of pre-existing lumbar pain due to osteoarthritis with a referral to physiotherapy on 13 April 2019 for back pain. An X-ray of the thoracic spine on 11 September 2018 reported grade 1 osteoporotic changes with compression fractures in the mid thoracic region.
57.	The initial consultation notes of the treating GP one day after the accident recorded low back pain and neck pain. A CT scan of the lumbar spine documented the compression fracture but noted there was no surrounding soft tissue swelling which indicated that the fracture was pre-existing. A follow-up MRI of the lumbar spine dated 10 February 2020 also noted that it was a compression fracture with no associated bony oedema, which the Review Panel would expect to find in an acute fracture. 
58.	Mrs Hong’s GP referred her to Dr McKechnie, a neurosurgeon on 24 February 2020. The neurosurgeon opined that the MRI showed no bony oedema and he determined that it was an old fracture.
59.	The Review Panel notes that an old X-ray of the lumbar spine on 9 April 2013 reported no fractures in the lumbar spine. However, this was over six years before the accident and the Panel has determined that this is not a deciding factor in assessing a pre-existing compression fracture of L2.
60.	In summary, the Review Panel would have expected that an acute fracture at L2 would have been very painful immediately after the accident and due to her pre-existing osteoporotic fractures of the thoracic spine one year prior to the accident that the L2 compression fracture would have already been present. The radiologist’s reports support this conclusion in his analysis of the CT of the lumbar spine and the MRI. Both of these reports considered that the L2 fracture was pre-existing as did the treating neurosurgeon Dr McKechnie.
61.	The Review Panel agrees with Medical Assessor Cameron’s certificate and notes that there is no signs of radiculopathy in the cervical thoracic or lumbar spines. The Review Panel classifies these injuries as soft tissue injuries.
Review Panel decision
62.	The Review Panel found that the motor accident caused the following injuries:
•	head – soft tissue injury;
•	cervical spine – soft tissue injury;
•	lumbar spine – soft tissue injury, and
•	chest – soft tissue injury.

Threshold injury
63.	The Review Panel’s findings in relation to the threshold injury confirm Medical Assessor Cameron’s certificate dated 19 December 2023.
64.	Member O’Riain, Medical Assessors Tai-Tak Wan and Moloney have viewed this decision and agree with the finding.