DETERMINATION OF REVIEW PANEL	
	
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Witt [2024] NSWPICMP 73	
		
CLAIMANT:	Kristie Witt	
		
INSURER:	Insurance Australia Limited t/as NRMA Insurance	
		
REVIEW Panel	 	
		
MEMBER:	Terence Stern OAM 	
		
MEDICAL ASSESSOR:	Mohammed Assem 	
		
MEDICAL ASSESSOR:	Drew Dixon	
		
DATE OF DECISION:	13 February 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) and review under section 58(1)(d); claimant injured in two motor vehicle accidents of July and August 2016;  issue of causation; Medical Review Panel re-examination conducted; Held – Panel confirmed the diagnosis of MA; claimant sustained soft tissue injury to the cervical, thoracic and lumbar spine with disc disruption at L4/5 and L5/S2 assessed as DRE IV; MA’s determination affirmed; Panel confirmed 20% WPI.

DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
1.	The Review Panel affirms the Certificate of Medical Assessor Christopher Oates, determining Whole Person Impairment of 20%. 

	

STATEMENT OF REASONS
introduction
1.	Kristie Witt, the claimant, born in April 1984, was involved in two motor vehicle accidents. 
2.	The medical dispute that was referred to the Review Panel was the accident of 29 July 2016, the reference to which is R- M10568118/23.
3.	The claimant states that she was injured in the first accident and sustained further injury in the second accident and has made a claim for damages against NRMA, the third-party insurer of the vehicle which caused the first accident and her injuries as a result of it. 
4.	A medical dispute with respect to the assessment of whole person impairment (WPI) has arisen in connection with the claim and a dispute was referred to the Personal Injury Commission (Commission) for assessment. 
5.	The assessment was referred to Medical Assessor Christopher Oates, who was referred the following injuries for assessment: 
(a)	cervical spine – musculo-ligamentous strain injury with C5/6 disc protrusion; 
(b)	thoracic spine – musculo-ligamentous strain injury; 
(c)	right shoulder – musculo-ligamentous strain injury; 
(d)	lumbar spine – L4/5 disc bulge and facet arthropathy, L5/S1 disc bulge and musculoligamentous strain injury and, 
(e)	skin – scarring – midline lumbar scar. 
6.	On 16 March 2023, Medical Assessor Oates certified that the accident, that is the accident on 29 July 2016 had given rise to a permanent impairment of 20%, the injury being: 
(a)	lumbar spine – soft tissue injury at the L4/5 disc annular tear and L5/S1 disc disruption. 
7.	The insurer lodged an application with the Commission for a review of the determination.
8.	The delegate of the President of the Commission found that there was reasonable cause to suspect a material error in the assessment of Medical Assessor Oates. 
9.	The review has been referred to this Review Panel. 
LEGISLATIVE FRAMEWORK
10.	 The claimant’s entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act) and the Motor Accident Compensation Regulation 2020 (the Regulation).
11.	The resolution of disputes under the MAC Act is governed both by the provisions of the MAC Act and the provisions of the Personal Injury Commission Act 2020 and the Personal Injury Commission Rules 2021 (the Rules).
Damages
12.	Damages for non-economic loss are provided for in Part 5.3 of the MAC Act and are regulated. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134 and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
13.	If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a medical assessor for determination. Section 58(1)(d) of the MAC Act provides the Commission with power to determine disputes about WPI.
Damages and permanent impairment assessment 
14.	Permanent impairment must be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines) which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
15.	The AMA4 Guides and the Guidelines provide a standard framework and method of analysis for medical assessors to assess the impairment to any organ or system of the human body.
16.	There are 15 chapters in the AMA4 Guides applying to 11 organs or body symptoms. In the context of Ms Witt’s complaints of injury, the following are relevant:
(i)	chapter 3 – the musculoskeletal system.
CAUSATION
Guidelines 
17.	In undertaking an assessment of causation in the claimant’s case, the Review Panel must consider any pre-existing or subsequent conditions to the particular parts of his body which were injured in the accident. 
18.	With respect to causation, the Motor Accident Injuries Act 2017 (MAI Guidelines) provide:
“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 the Personal Injury Commission) in considering such issues. 
6.6 	Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 
1. 	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
2. 	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’ This, therefore, involves a medical decision and a nonmedical informed judgement.
6.7 	There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
19.	Section 5D of the Civil Liability Act 2002 (CLA) provides: 
“(1) 	A determination that negligence caused particular harm comprises the following elements—
(a) 	that the negligence was a necessary condition of the occurrence of the harm (factual causation), and 
(b) 	that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability). 
(2) 	In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 
(3) 	If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) 	the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and 
(b) 	any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. 
(4)	 For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
20.	The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes: 
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
21.	Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]: 
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.” 
22.	The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
23.	In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]: 
 “This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from: 
(1) 	a comprehensive, accurate history, including pre-accident history and pre-existing conditions; 
(2) 	a review of all relevant records available at the assessment; 
(3) 	a comprehensive description of the injured person’s current symptoms; 
(4) 	a careful and thorough physical examination; and 
(5) 	diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination. 
76. 	In Mr Briggs’s case that would include, without attempting to be exhaustive: 
(1) 	Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain; 
(2) 	the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and 
(3) 	Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident. 
77. 	In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
Method of assessment
24.	The Guidelines provide a methodology for the evaluation of impairment which cl 1.18 explains must be done in three stages as follows:
“1.18.1 a review and evaluation of all the available evidence including:
•	medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)
•	medico-legal reports
•	diagnostic findings
•	other relevant evidence
1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and
1.18.3 the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.”
25.	The assessment of the claimant’s permanent impairment is therefore not just limited to the findings made by the Medical Assessors at the medical examination. The assessment takes into account all of the material that has been put before the Review Panels by both parties, the information provided by Ms Witt at his medical examination and the clinical findings at that examination and the clinical judgment of the medical assessors on their respective Review Panels and the input from the member on the Review Panels.
Assessment of Medical Assessor Oates 
History taken
26.	The claimant told Medical Assessor Oates that she has had no previous problems with the neck, thoracic or lumbar spine. In 2014, she had a left knee arthroscopy for partial meniscectomy as a result of playing sports, including hockey and netball, for many years and had a good result. 
27.	Her general health was good, and she usually was on no regular medications. She had worked for the Department of Human Services, now Services Australia, since 2009 and is still employed there. She initially worked full-time but following the motor accident, from 2018 she dropped back to 32 hours per week in demand forecasting, as she was not able to sit long enough to do full-time work. 
28.	She usually attended a gymnasium five or six times a week to do a variety of exercises. She did all the housework, and her husband did the yard work. There are two sons aged 15 and 11, and her husband works full-time. 
29.	She was independent with personal care, a social drinker of alcohol and a non-smoker.
The first motor vehicle accident
30.	The claimant told Medical Assessor Oates that she had had two motor vehicle accidents. 
31.	The first accident was on 29 July 2016 when she was the driver of a four-wheel drive without passengers. She was wearing her seatbelt. She was travelling slowly through a roundabout and stopped suddenly when a pedestrian ran out onto the road in front of her. She was rear-ended by a Toyota Hilux which pushed her car forward about one metre. She didn’t hit any other vehicle. No airbags deployed. Her seat back remained upright, and she didn’t recall hitting her head on the headrest. She recalls no impact injury and was not knocked out. Police were called but did not attend. The car was still driveable. It was repaired but she doesn’t know the cost. She called her husband who came to the accident scene, not far from their house, and drove her home. She rested and then he drove her to Shoalhaven Hospital Emergency Department, where she was complaining of a burning sensation at the back of the neck, in between the shoulder blades. She had X-ray and CT scan. There was no fracture, and she was treated with morphine injection and analgesics, and told to follow-up with her general practitioner (GP), Dr Chalissery. She saw him at Albion Park on 1 August 2016 and within a couple of days of that she developed central low back pain. She was put off work for one week and was due to return to work part-time on 8 August 2016, but the second accident intervened.
The second motor vehicle accident
32.	The claimant had a second motor vehicle accident on 5 August 2016, when she was the front seat passenger in the family four-wheel drive, that is the same vehicle which was involved in the first accident. It was driven by her husband through a roundabout when the vehicle was t- boned at the passenger side at the corner by a smaller four-wheel drive at low speed. That vehicle was entering the roundabout when the driver has alleged to have pressed the accelerator instead of the brake. 
33.	The vehicle was pushed sideways but did not come into contact with anything else. The claimant was wearing a seatbelt. Airbags were not deployed. 
34.	The claimant told Medical Assessor Oates that she felt instantaneous burning in the neck and the interscapular area. Her husband drove her to the police station and then to the emergency department of Shellharbour Hospital where she stated that she had worsening cervical pain. She was given intravenous morphine and sent home after a diagnostic X- ray of the cervical spine, with Nurofen and Panadeine forte. 
History of Symptoms and Treatment 
35.	The claimant told Medical Assessor Oates that she saw her GP on 8 August 2016 and was also referred for physiotherapy for her neck, thoracic and lumbar spines. 
36.	The claimant returned to work part-time on 26 August 2016. She said that although her shoulder girdle had improved with physiotherapy by October 2016, her low back pain was gradually worsening over following weeks to months since the accident. 
37.	The claimant told Medical Assessor Oates that by 6 October 2016, she had full range of movement of the neck and shoulders. She had an exacerbation of her neck pain in January 2017 but without any new incident. She had an MRI on 18 January 2017 which was within normal limits. 
38.	The claimant had developed symptoms of tingling in the right ulnar side of the elbow, down to the little and ring fingers but the results of a nerve conduction study on 19 April 2017 was within normal limits. 
39.	The claimant told Medical Assessor Oates that she was referred to Professor Jaeger, a neurosurgeon, regarding he right upper limb symptoms. Investigations ordered by Professor Jaeger, an EMG scan he ordered was normal, as was an MRI scan of the brachial plexus done on 2 January 2018. 
40.	An ultrasound of the shoulder showed mild subdeltoid bursitis. 
41.	The claimant complained of gradually worsening back pain radiating through the right buttock and down the posterior right upper extremity to the foot. An MRI of the lumbar spine on 4 February 2020 showed minor degenerative changes. A bone scan was normal. 
42.	Medical Assessor Oates noted that the claimant had a discogram which was strongly positive on injection at L5/S1 disc on 21 April 2020.
43.	The claimant had an epidural injection at L5/S1 on 15 May 2020 with good relief of low back pain and right leg symptoms for four or five weeks. 
44.	The claimant was reviewed by Dr Cherukuri who performed an L4/5 bilateral laminotomy and foraminotomy and posterior fusion for an L4/5 annular tear on MRI scan. The surgery done on 7 April 2021 helped her back. 
Clinical examination 
45.	Medical Assessor Oates examined the claimant’s spine. The cervical spine gave no evidence of dysmetria, radicular complaints or muscle guarding. Neurological examination was normal, and the range of movement was within normal limits. 
46.	The thoracic spine was also normal. 
47.	On examination of the lumbosacral spine, there was some dysmetria, there were no non-verifiable radicular complaints, nor any muscle guarding. 
48.	There was a well healed scar of 55mm in the lower lumbar area. 
49.	Medical Assessor Oates diagnosed a soft tissue injury to the cervical spine, thoracic and lumbar spines with disc disruption at L4/5 and L5/S2. 
50.	The diagnosis was based on the results of imaging and the contemporaneous medical evidence. 
Causation and reasons
51.	Medical Assessor Oates opined that the accident of 25 July 2016 was a cause of soft tissue injury to the cervical spine, thoracic and lumbar spines because those areas were mentioned in the first medical certificate and the first GP visit. The claimant had attended Shellharbour Hospital after the first accident but there was no available documentation, but there was documentation available after the second accident of 5 August 2016. 
52.	On close questioning by Medical Assessor Oates, the claimant told him that the second accident did cause her immediate exacerbation of the cervical and thoracic spine but not of the lumbar spine area which progressively worsened gradually over time since the first accident. 
53.	Medical Assessor Oates assessed Diagnostic Related Estimate (DRE) IV with respect to the lumbar spine, giving rise to WPI of 20% due to the first accident. 
Insurers submissions of 12 April 2023 
54.	The insurer’s solicitor provided submissions in respect of the WPI dispute, which the Review Panel summarises by reference to paragraph number:
[4.1] 	Causation 
(a) 	Medical Assessor Oates notes at paragraph 23 ‘Diagnosis and reasons’ that the claimant’s diagnosis was soft tissue injury to the cervical, thoracic and lumbar spines with disc disruption at L4/5 and L5/S1’. He noted at paragraph 24 ‘Causation and reasons’ the reason for his diagnosis. However, there is no explanation as to how the claimant’s surgery was causally related to the injuries diagnosed that arose from the subject accident.
(b) 	At paragraph 10 ‘History of symptoms and treatment following the motor accident’, Medical Assessor Oates details the claimant’s treating history from her first GP review on 8 August 2016 until her surgery on 7 April 2021. Medical Assessor Oates noted that by October 2016 the claimant had full range of movement in her neck and shoulders. She had an exacerbation of her neck pain in January 2017 with no new incident, and an MRI scan on 18 January 2017 which was within normal limits. 
(c) 	There was a further exacerbation of neck pain and stiffness and interscapular pain in July 2019 with no apparent cause. It was then noted that “during this time, the back was gradually worsening with pain radiating through the right buttock and down the posterior right extremity to the foot”. The claimant underwent an MRI of her lumbar spine on 4 February 2020 showing minor degenerative changes. 
(d) 	Medical Assessor Oates did not address the lack of symptoms and treatment from the date of the accident in July 2016 to 2019 and did not address how the surgery could be found to be causally related to the subject accident. There is no mention in Medical Assessor Oates’ certificate at all how the surgery was related, reasonable or necessary as a result of the claimant’s injuries arising out of either accident. 
(e) 	The first mention of the link between the claimant’s lumbar spine soft tissue injuries and the claimant’s surgery is made at paragraph 29 in the Permanent Impairment Table. The claimant was assessed with 20% WPI as per AMA4 Guides, Chapter 3, Table 72, page 110; and DRE IV. There is no explanation for this. 
(f) 	The insurer submits that the Medical Assessor has not provided a path of reasoning as to how the claimant’s lumbar spine soft tissue injury sustained in the subject accident resulted in a need for surgery, and has not addressed causation.
(g) 	Causation of injury 
The insurer refers to clause 1.5 of the Motor Accident Permanent Impairment Guidelines (the guidelines):
[1.5] an assessment of the degree of permanent impairment is a medical assessment matter under s 58 (1)(d) of the MAC 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. 
Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 
1. 	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
2. 	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
(h) 	The insurer refers to clause 1.7 of the Motor Accident Permanent Impairment Guidelines (the guidelines):
[1.7] 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.
(i) 	The Medical Assessor does not refer to the guidelines and it is unclear whether he considered them as part of his determination. The insurer submits that that the Medical Assessor has failed to correctly determine causation in accordance with the guidelines.
[4.2] 	Reasoning 
(a) 	Medical Assessor Oates did not provide sufficient reasoning or description of his findings. The insurer refers to the AMA4 Guidelines as follows: 
1122 The Medical Assessor must include in the report a description of how the impairment rating was calculated, with reference to the relevant tables and/or figures used. 
(b) 	Medical Assessor Oates referred to the tables however did not provide a description. 
(c) 	The insurer submits that Medical Assessor Oates has not provided a clear path of reasoning and has not sufficiently evaluated the claimant’s impairment arising from an injury caused by the accident, and that the Medical Assessor has not complied with the Motor Accident Permanent Impairment Guidelines (the guidelines). 
(d) 	The insurer submits that the Medical Assessor did not expose his reasoning process and set out the reasons as to why he reached that conclusion and relies upon the decision of Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480. 
(e) 	The insurer submits that in the circumstances the Medical Assessor did not expose his reasoning process in relation to the lumbar spine assessment of whole person impairment and submits that the Medical Assessment Certificate is incorrect in a material respect.
[4.3] 	Apportionment 
(a) 	Medical Assessor Oates notes throughout his certificate, for example at paragraphs 9 and 24, that there were two accidents. However Medical Assessor Oates has failed to attribute the claimant’s injuries, symptoms, treatment, and impairment to each of the accidents. 
(b) 	The insurer refers to clause 1.34 of the Motor Accident Permanent Impairment Guidelines (the guidelines): 
“[1.34] The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
(c) 	The insurer also refers to the principle established in GIO General Limited v Smith & Ors (2011) NSWSC 802; Insurance Australia Limited trading as NRMA Insurance Limited v Smith and Ors [2011] NSWSC 802 that a Medical Assessor must separately assess the permanent impairment caused by each accident, as at the date of the medical assessment, and issue certificates accordingly. 
(d) 	The insurer submits that the Medical Assessor did not attempt to undertake any apportionment of the claimant’s injuries in his assessment of the claimant, and has therefore failed to comply with the Motor Accident Permanent Impairment Guidelines (the guidelines). 
[4.4] 	Evidence 
(a) 	The insurer submits that Medical Assessor Oates did not undertake a complete review and evaluation of all the available evidence. 
(b) 	At paragraph 10, page 4, Medical Assessor Oates details the claimant’s history of symptoms and treatment following the motor accident. He undertook a ‘Review of Documentation’ on page 7, at paragraph 21 ‘Summary of relevant documentation’ and paragraph 22 ‘Summary of relevant radiological and medical imaging and other investigation’. 
(c) 	Medical Assessor Oates did not address any of the claimant or the insurer’s medico-legal evidence. The issue of apportionment had also been addressed by Medical Assessment Service (MAS) Assessor Rosenthal, Dr Parmegiani, Dr Oldtree-Clark and Dr Wallace. Medical Assessor Oates does not refer to any of these. 
(d) 	The insurer refers to ‘Evaluation of Impairment’ at clauses 1.17 and 1.18 of the Motor Accident Permanent Impairment Guidelines (the guidelines) which provides the following: 
“1.17 	The medical assessor must evaluate the available evidence and be satisfied that any impairment: 
1.17.1 is an impairment arising from an injury caused by the accident, and 1.17.2 is an impairment as defined in clause 1.9 (above). 
1.18 An assessment of the degree of permanent impairment involves three stages: 
1.18.1 a review and evaluation of all the available evidence including:
•	medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports) medico-legal reports diagnostic findings other relevant evidence.” 
(e) 	The Medical Assessor does not refer to the guidelines and it is unclear whether he considered them as part of his determination. The insurer submits, that if the Medical Assessor had considered the guidelines in respect to the need to address all the evidence, he would have taken into account the assessments made by the other medico-legal and Medical Assessors in terms of apportionment and applied the apportionment to this matter.
[5] 	Conclusion 
5.1 	The insurer submits that the Certificate of Medical Assessor Oates dated 10 March 2023 is incorrect in a material respect. 
5.2 	The Medical Assessor has not provided a clear path of reasoning. The insurer refers to the decision of AAI Limited v Fitzpatrick [2015] NSWSC 1108. His Honour Schmidt J held at [29] to [30]:
“In forming his or his opinions on the dispute, the assessor must thus take into account what any clinical examination he or she conducts reveals, as well as the opinions of other medical practitioners, including those expressed in earlier certificates, by treating doctors and those who have expressed medico-legal opinions. Account must also be taken of diagnostic findings and other available notes and reports including those from allied health professionals. The conclusions expressed in the certificate issued must then be explained by the assessor in the accompanying statement of the reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved.” 
5.3 	The insurer also refers to the decision of Kerr v Insurance Australia Limited [2019] NSW SC 133, her Honour stated that an Medical Assessor’S  statement of reasons must explain the actual path of reasoning by which the a Medical Assessor arrived at his opinion. Her Honour stated that the Medical Assessor must engage in issues which were raised as substantial or clearly articulated arguments in the application, and conversely need not address these, if not raised in the application. Further, the High Court held in Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 the statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Further, where a controversy exists, the assessor is required to grapple with it and provide a proper analysis of the issues and the explanation for his findings; rather than merely outline the evidence of complaint and then state a conclusion, Dogon v Redmond [2010] NSWSC 1329. 
5.4 	The insurer also submits that the Medical Assessor failed to consider apportionment and refers to the decision in GIO General Limited v Smith and Ors; Insurance Australia Limited trading as NRMA Insurance Limited v Smith and Ors [2011] NSWSC 802. 
5.5 	The insurer submits that Medical Assessor Oates’ assessment of the claimant’s lumbar spine is incorrect in a material respect. The insurer submits that the Medical Assessor has failed to demonstrate a clear path of reasoning in his determination as to his assessment of permanent impairment and the matter should be referred to a review panel.
Claimants’ submissions in Reply of 3 May 2023 
55.	The claimant provided reply submissions on 3 May 2023, which are summarised by the Review Panel by reference to paragraph number:
[3] 	The claimant says that there is no merit to any of the alleged errors such that the application should be dismissed.
[5] 	The Medical Assessor clearly sets out his findings on causation.
[8] 	The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible which is precisely what Medical Assessor Oates concluded.
[10] 	The claimant submits that the Medical Assessor has not erred in his findings. It is clear that the assessment of WPI in relation to the claimant’s lumbar spine relates to the first accident which occurred on 29 July 2016.
[12] 	It is not necessary for the Medical Assessor to refer to every piece of evidence before them and say why it is accepted or rejected, see for example at [60] and [66], including the cases cited, in Insurance Australia Group Ltd t/as NRMA Insurance v Motor Accidents Authority of NSW [2013] NSWSC 318 per Harrison AsJ and at [34] in Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322 per Brereton JA and the cases cited there.
[15] 	In providing the certificate, Medical Assessor Oates was required to explain his actual path of reasoning but that does not require verbose or lengthy reasons, with the extent of reason to be provided dependant on the circumstances, at [35] and [36] in Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322 per Brereton JA.
[16] 	Indeed, the reasons need not be lengthy and a single sentence may suffice, see Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [4] to [9] per Leeming JA.
[17] 	The impairment assessment of the claimant’s WPI is to be as at the date of the assessment.
[18] 	When the totality of the certificate is read, it is plain that Medical Assessor Oates acknowledged the totality of the material provided to him and in an economical fashion, as he was permitted to do, reasoned through the history and contemporaneous material, considered the objective pathology and conducted an assessment before arriving at his conclusions regarding injury and WPI assessment. That is precisely the approach mandated by clause 1.18 of the Guidelines, reiterating the Medical Assessor was to form their own opinion at the time of assessment. 
[19] 	Finally, the claimant submits that if there is any doubt about that, then the appropriate recourse is not for the matter to be referred to a review panel but instead, the matter be referred back to Medical Assessor Oates and a replacement certificate issued. That process is plainly the preferred approach as detailed in Procedural Direction PIC6 – Medical Assessments, which provides:
 “65. 	Rule 112 of the PIC Rules provides for a matter to be referred back to a medical assessor or medical review panel for the assessor or review panel to correct an incomplete certificate. 
66. 	A certificate is incomplete when it does not comply with the requirements of section 61 of the 1999 Act or section 7.23(7) of the 2017 Act.
 67. 	If a medical assessor or review panel provides an incomplete certificate, the Commission may refer the matter back to the medical assessor or review panel to ensure it complies. 
68. 	Either party may request that the matter be referred back to the medical assessor or review panel due to an incomplete certificate by making an application, in writing, to the PIC. 
69. 	Examples of incomplete certificates include, but are not limited to, where:
(a) 	disputes and/or injuries are not referred to; 
(b) 	submitted documentation is not referred to, and 
(c) 	a certificate or parts of the certificate are omitted.”
[20] 	Reading the certificate as a whole and in that sequential manner makes it plain how the conclusions were arrived at by Medical Assessor Oates. To put it succinctly, Medical Assessor Oates noted the contemporaneous material/history, confirmed the ongoing symptoms resulting from the accident, looked at the objective pathology and then conducted an assessment, all of which informed his opinion.
[22] 	Medical Assessor Oates has provided his path of reasoning when assessing the claimant’s WPI. 
[23] 	Medical Assessor Oates has not misapplied the AMA4 Guides.
[25] 	The claimant submits that the Medical Assessor has clearly undertaken his assessment in accordance with the Motor Accident Permanent Impairment Guidelines (the guidelines) and the AMA 4 Guides. 
[26] 	The claimant submits: 
(a)	Using his clinical expertise and judgment, Medical Assessor Oates has properly determined that the claimant’s condition has stabilised on the day of the assessment. 
(b)	He has fulfilled his function as the independent Medical Assessor tasked with determining this dispute between the parties. 
(c)	It was entirely open to Medical Assessor Oates to make the findings that he did on the day of the assessment based on the claimant’s symptoms, the application of the AMA Guides and on his own clinical judgment.
Personal Injury Claim form 
56.	In her Personal Injury Claim form, in respect of the accident of 29 July 2016, in [22], the claimant has described a soft tissue injury to her lumbar spine. A medical certificate dated 1 August 2016 referred to “soreness - soft tissue - lower back” as well as referring to other issues. Dr Sanjay Chalissery referred to the first injury of 29 July 2016. 
57.	The Personal Injury Claim form and Medical Certificate in respect of the accident of 5 August 2016, Dr Chalissery diagnosed interscapular pain and soft tissue soreness of the back and in his diagram, he indicates the right shoulder in the scapular area and the low back. 
Medical Certificate by Dr Sanjay Chalissery 20 September 2016
58.	Dr Chalissery referred to the two motor traffic accidents. He took histories of the claimant getting better but showing issues with her right shoulder, the wrist, and her back. 
Clinical notes of John Callaghan, physiotherapist
59.	The claimant was referred to Mr Callaghan. The notes say she first presented on 9 August 2016 with moderate to severe neck pain and stiffness which commenced following the first accident and worsened after the second. The pain was extending down between her shoulder blades to her right arm. Additionally, she complained of low back pain, particularly left sided lower lumbar pain. Her lumbar flexion was limited to mid-thigh with worsening stretching like pain into the lower left lumbar but no radicular symptoms. He felt her lower back pain was largely related to muscle spasm. He noted that he had treated her for the last two weeks and that her lumbar spine movements had returned to normal. 
60.	Dr Cherukuri reported to her GP on 6 May 2020, that the claimant had had a discogram which was strongly positive at L5/S1 with an injection of 1 ml vial at L4/5 where the degenerative changes are more. The claimant had seen Dr Reid, a rheumatologist, who had excluded a rheumatological condition as a cause of the back pain. 
61.	Associate Professor George Larcos reported on the Whole-Body Bone Scan with Pelvis and Lumbar Spect on 20 February 2020, who commented that on the bone scan there was no evidence of metabolically active lumbar spine discovertebral or facet joint arthropathy, or sacroiliitis. There were mild arthritic changes present, but they were in the shoulders. 
Report of Dr Alistair Reid, rheumatologist, of 3 March 2020 
62.	Dr Reid examined the claimant on 3 March 2020 and provided a report on the same day. 
“Kristie has had lower back pain for 12 months. This radiates to her buttocks. It wakes her at 3 AM and she has significant early morning stiffness. Pain is better with exercise and worse with rest.
There is no iritis or inflammatory bowel disease. There is no dactylitis or nail changes. There is no enthesitis. As mentioned above non-steroidal inflammatory drugs have been helpful in the past. 
On examination today there is tender right shoulder and tenderness at both sacroiliac joints. There is a very small patch of what might be psoriasis on the scalp. Kristie is 95kg and 1.72 m tall. This gives her BMI of 32.1.
MRI of lumbar spine reported as showing only mild degenerative changes but the sacroiliac joints were not imaged. X-ray of sacroiliac joints was not reported when it was done with x-ray of the thoracolumbar spine
Implication today is that Kristie may have ankylosing spondylitis. She is also obese. To investigate the ankylosing spondylitis I have asked her to have MRI and x-ray of the sacroiliac joints as well as inflammatory bloods. I have asked her to trial Naproxen 1000 mg slow release daily and will review her with the results of the above investigations”.
Report of Dr Eugene Gehr, orthopaedic surgeon, of 17 March 2021 
63.	Dr E Gehr, an orthopaedic surgeon, provided a medico-legal report on 17 March 2021 to the claimant’s solicitor. 
64.	Dr Gehr refers to the MRI of the lumbar spine of 9 March 2021, which reports a paracentral annular tear at L4/5 without disc extrusion. He reports of his examination of the lumbar spine that lumbar flexion was reduced by 50%, lateral flexion by 50% and right lateral flexion by 25%. dysmetria was present. 
65.	Dr Gehr noted in his summary and conclusions the history that the claimant had an onset of lumbar spine pain in early 2018. He diagnosed a lumbar spine discogenic injury with a guarding and dysmetria. 
66.	With respect to the claimant’s lumbar spine, Dr Gehr opines that the claimant remains significantly symptomatic. 
Report of Dr Ian Davidson, rehabilitation specialist, of 1 July 2020 
67.	Dr Davidson saw the claimant on the referral of the GP and reported back on 1 July 2020 that the claimant was experiencing problems with persisting neck and shoulder pain, and more recently low back and leg pain. The claimant felt her problem started when she had the two motor vehicle accidents in close succession in 2016. At Shellharbour Hospital, she was told that she had soft tissue injury and was given Endone. 
68.	She has been seeing a chiropractor for the last two years, she feels that chiropractic was most helpful for her headaches btu she is also getting pain in the middle of her back for which she finds the chiropractic helpful but not as much as for her neck pain. She felt that her back pain had become more intrusive in the preceding few months but not initially a problem but now was the primary concern. 
Clinical notes of Bai Med Physiotherapy and Sports Injury clinic
69.	A note of the claimant’s attendance at this clinic is on page 107: 
“Mrs Witt first presented to our Wollongong Clinic on 9.8.16. She reported moderate to severe neck pain and stiffness… throat stiffness... following the first accident and worse… after the second… additionally there was lower back pain (particularly left sided lower lumbar) but no referral to her lower limbs.” 
70.	However, on 29 August 2016, the physiotherapist Mr Callaghan recorded that the claimant’s range of movements of the lumbar spine had returned to normal. 
71.	In a progress report of 2 March 2017, to the claimant’s solicitor, the physiotherapist Mr Callaghan noted that thoracic and lumbar movements were generally uncomfortable however not limited. By the time of the report, the claimant had full active movement of the cervical, thoracic, and lumbar spine. 
Clinical notes of Nowra Chiropractic Centre 
72.	On 28 September 2018 – chest complaint, shoulder, lower back, neck. The diagram adjacent to additional information, indicates the location of the back pain in the low back and the box against L4 and L5 is ticked. 
Certificate of Dr Thomas Rozenthal of 22 November 2017
73.	Dr Rozenthal examined the claimant for a Medical Assessment Service for a treatment dispute.
74.	Dr Rozenthal certified on 22 November 2017
“…the first accident in my opinion did cause a soft tissue injury to the neck, soft tissue injury to the interscapular region and a soft tissue injury to her lower back. The second accident aggravated those injuries…”
75.	Medical assessor Rozenthal took a history of the claimant’s symptoms after the second accident of 5 August 2016: 
“…after this accident she developed burning pain in the back and aggravated severely the pain in the back of her neck”. 
Statement of the claimant of 15 February 2019 
76.	The claimant says in respect of her second accident of 5 August 2016:
“[25] 	This was worse than the first accident. I felt immediate pain in the back of my neck and right shoulder. 
[37] 	I now also feel sharp pain in my lower back. It is exacerbated by sitting at my desk for any period of time.” 
77.	In a second statement of 9 March 2020, the claimant reports: 
“[30] 	It has been over three years since the accident. The pain in my lower back has persisted. It has flared up since the beginning of January 2020. An MRI of my lumbar spine of 4 February 2020, revealed minor disc bulges and facet arthropathy. An MRI of my lumbosacral spine of 21 February 2020, revealed minor interval disc space narrowing at L5-S1 and gentle dextroscoliosis of my lumbar spine. The recent flare up of my back pain has gotten to a point where I am struggling to sleep. I am often woken up by severe pain”. 
The Review Panel’s examination of the claimant of 4 October 2023 
78.	A review panel of Medical Assessors Dixon and Assem examined the claimant on 4 October 2023, and the results of the examination are set out below. 
History 
79.	The claimant reported she was rear ended on a roundabout while driving her four-wheel drive without any passengers on 29 July 2016. 
80.	The claimant stated that a pedestrian ran in front of her vehicle, and she stopped suddenly, and was rear ended by a Toyota Hilux which pushed her car forward one metre but did not impact any other vehicle. 
81.	The claimant recalled she was wearing a seatbelt and had no head injury nor loss of consciousness. Her car was still driveable, it was later repaired. 
82.	The claimant presented to Shoalhaven Hospital emergency departmentg and complained of pain in the back of her neck and interscapular thoracic pain. An X- ray and CT scan showed no bony injury, and she had a follow up with GP Dr Chalissery on 1 August 2016. 
83.	The claimant reported to the Commission’s Medical Assessor that within a couple of days following the accident, she had central low back pain and was put off work for a week with a planned return to part-time work on 8 August 2016. 
84.	On 5 August 2016, there was an intervening event, a second motor vehicle accident, in which she was a front seat passenger in a four-wheel drive driven by her husband who was t- boned on the left back corner, when going through a roundabout at a low speed. The claimant reports the vehicle had entered the roundabout when the driver pressed the accelerator instead of the brake. 
85.	The claimant reports that with this shunting by the other vehicle, there was a low back strain even though she had her seatbelt on, and she had seen the car and apparently braced and felt burning in the neck and intrascapular region. 
86.	The claimant presented to Shellharbour emergency department where she required analgesia. 
87.	The claimant reported she had chiropractic treatment for her neck but also subsequently included her back which involved the lumbar segment. 
88.	She had chiropractic treatment for two years which gave her temporary benefit with adjustments in her neck and back. She noted that physiotherapy did not give sustained benefit and then did exercise physiotherapy in the gym for eight or nine sessions. 
89.	The claimant reports she required ongoing analgesia for the pain in her neck and right shoulder and interscapular thoracic pain, which has now settled. She had persisting pain in her lower back. 
90.	The claimant was reviewed by a neurosurgeon, Dr Cherukuri, who arranged for a discogram on 21 April 2020, which was positive at the L4/5 and L5/S1 discs. She received an epidural injection at this level on 15 May 2020 which provided temporary relief for four to five weeks but her low ack pain and right sciatica recurred. 
91.	The claimant saw a rehab specialist, Dr Davidson in Wollongong and had further spinal injections and also a series of injections into the left sacroiliac join and then the right sacroiliac joint and bilaterally at the L4/5 and L5/S1 facet joints. 
92.	She then had radiofrequency blocks but there was no sustained benefit and further L4 and L5 medial branch blocks were similar in outcome. 
93.	The claimant did not proceed with further radiofrequency and when she saw Dr Cherukuri, he noted axial back pain but did not feel there was radicular complaint at that stage but proceeded with L4/5 bilateral decompression laminotomy and foraminotomy and posterior fusion because of the positive discogram. He did advise the claimant she may need the L5/S1 level fusion in the future because of the positive discogram result at that level as well. 
94.	The Review Panel noted the lumbar surgery was done on 7 April 2021 at Wollongong Private Hospital and the claimant reported it helped her back and she reports no sciatica at present. 
Examination 
95.	The claimant’s neck, shoulder and thoracic pain appear to have settled but she has ongoing low back pain with discogenic pain with a positive discogram and eventually had L4/5 discectomy and fusion. 
96.	The Review Panel considered the gap between the motor vehicle accident and the onset of lower back pain but noted that the claimant stated that she discussed it at length with the chiropractor who she had seen for two years after the subject accident. 
97.	The Review Panel felt that it was necessary to obtain the chiropractic notes from Nowra Chiropractic Centre regarding this claimant’s treatment so as to permit the Review Panel to better consider the gap between the motor vehicle accident and the development of low back pain. 

Review Panel’s reasoning 
On 29 July 2016, first accident 
98.	The claimant experienced immediate discomfort characterized by a burning sensation in her neck and interscapular area. Subsequent medical evaluation highlighted central low back pain, with a Medical Certificate dated 1 August 2016, specifically noting "soreness - soft tissue - lower back." This initial documentation was evidence that the lumbar spine was affected early on, albeit overshadowed by the more pronounced neck and shoulder symptoms.
On 5 August 2016, second accident 
99.	A second collision exacerbated the claimant’s symptoms, leading to intensified pain in previously affected areas. Treatment at Shell Harbour emergency department focused on spinal pain, indicating a worsening condition but without explicit mention of new lumbar spine injuries. 
The Personal Injury Claim form and medical certificate in respect of the accident of 5 August 2016
100.	Dr Chalissery diagnosed interscapular pain and soft tissue soreness of the back and in his diagram, he indicated right shoulder in the scapular area and the low back.
101.	The claimant first presented to Bai Med Physiotherapy and Sports Injury Clinic on 9 August 2016, reporting moderate to severe neck pain and stiffness, as well as lower back pain (particularly left-sided lower lumbar) but no referral to her lower limbs. The treatment was predominately for symptoms involving her neck and upper back. Despite a lack of new incidents, the claimant experienced an exacerbation of neck pain in January 2017, with MRI and nerve conduction studies showing normal results.
102.	Physiotherapy treatment was ceased by the insurer in February 2017. Mr. Callaghan's final report in March 2017 indicated discomfort but normal movements in the claimant’s lumbar spine. Subsequent treatment with Mr Jaffrey, (exercise physiologist), from March to September 2017, continued to emphasize upper body issues without significant mention of lumbar spine, suggesting that her lower back complaints might have resolved or were less prominent due to her other injuries. According to her statement however, her back symptoms were still present. 
103.	On 28 September 2018, she commenced chiropractic treatment and was documented to have symptoms involving her hip, shoulder, lower back and neck. Her back symptoms were reported to be worse before her period. On 5 October 2018, there was no lower back pain, but her lower back symptoms were noted again on 24 October 2018. After that time, there continued to be ongoing symptoms involving her back and sacroiliac joint that appear to have progressively increased in intensity. 
Panel’s conclusion
104.	The initial soft tissue injury to the lumbar spine noted immediately after the first accident and acknowledged in medical certificates indicates a direct impact from the collision. However, the progression of symptoms and the focus of treatment indicate that her neck and shoulder injuries initially overshadowed her lower back complaints. Sometimes symptoms related to spinal injuries, especially in the lumbar region can progress or become more apparent over time. 
105.	The delay in significant lower back complaints probably indicate a gradual progression of an underlying condition that was overshadowed by the more immediate and acute symptoms of neck and shoulder pain. 
106.	In addition, the commencement of chiropractic treatment in September 2018 probably involved a more detailed assessment of the lumbar spine, identifying issues that were not previously the focus of treatment or fully symptomatic.
107.	In result, the Review Panel determines that it should affirm the certificate of Medical Assessor Oates.