Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. The Medical Review Panel revokes the certificate of Medical Assessor Mohammed Assem dated 26 February 2025 and substitutes the determination that the following injuries were caused by the motor vehicle accident and are threshold injuries for the purposes of the Act:
   • fibromyalgia, and
   • mild wedge compression of T11 and T10 showing (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."

1. In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:

"The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

6.5 An assessment of the degree of permanent impairment was 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 was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

6.6 Causation was 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 was necessary to verify both of the following:

• [8] The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
• [9] The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination."

This, therefore, involves a medical decision and a non-medical informed judgement.

6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes'."

1. Medical Assessor Assem was assigned the further assessment of threshold injury and assessed Ms Zreika on 25 February 2025 and produced his certificate the next day.
2. The disputed injury referred to Medical Assessor Assem for assessment:
   • whether the injury to the "Thoracic spine - Compression fracture, fibromyalgia caused by the motor accident" was a threshold injury for the purposes of the MAI Act.
3. Medical Assessor Assem determined that the fibromyalgia caused by the accident was a threshold injury for the purposes of the MAI Act.
4. Further, Medical Assessor Assem determined that the mild wedge compression fractures of T10 and T11 showing less than 20% reduced height was not a threshold injury for the purposes of the MAI Act.
5. At [3]-[4] of his certificate, Medical Assessor Assem referred to the submissions made by the parties. As to Ms Zreika's submissions, she developed a compression fracture of the thoracic vertebra and fibromyalgia as a consequence of the injuries sustained in the accident. As to the insurer's submissions, it submitted that the fibromyalgia is based on the general practitioner's (GP) clinical notes and is not a confirmed diagnosis, and in any event, does not qualify as a non-threshold injury. The insurer also refers to causation issues. The insurer further disputes the fracture of the thoracic spine was caused by the accident. It continues that there was no reference in the Application for Personal Injury Benefits or in the Medical Certificate nor was there notation of thoracic spine pain in the Ryde Hospital notes.
6. Medical Assessor Assem set out a pre-accident history and relevant personal details at [8] of his certificate, noting that Ms Zreika was a 34-year-old woman who resided with her husband and parents in Chester Hill. At the time of her accident, she was employed as a disability support worker, though she was unable to recall the name of the company. She was about to commence a TAFE course for a certification related to her employment. As to past medical history, Ms Zreika has a history of diabetes mellitus, for which she was previously on insulin and oral medication. Following a gastric sleeve operation in September 2017, her diabetes resolved, and she was no longer on medication. She denied any previous musculoskeletal injuries, back pain, or spinal conditions prior to the motor vehicle accident. She had no history of osteoporosis, low bone density, or vitamin D deficiency. Prior to the accident, she had been increasing her physical activity stating that "everything was going well until the accident."
7. The Medical Assessor then set out the history of the accident at [9], noting that on

11 December 2017, Ms Zreika was the sole occupant of a BMW sedan traveling at 30-50 kmph along West Parade, West Ryde, when a vehicle from her left failed to yield and entered her path, resulting in a collision. She was wearing her seatbelt, and the airbags deployed upon impact. She was shaken and in shock but remained conscious throughout. Police attended the scene, and her vehicle was deemed undrivable, requiring towing and later written off. 8. At [10], Medical Assessor Assem took a history of symptoms and treatment following the accident, recording that an ambulance attended the scene and noted complaints of pain to left hand, both thighs and lower back. There was numbness over lateral three digits of the left hand and toes bilaterally and her legs felt weak. She was transported to Ryde Hospital via ambulance. According to the hospital records, she initially reported pain in her neck, left wrist, and right thigh. A CT scan of the cervical spine was normal. While waiting in the emergency department, she began experiencing pain in her left lower back, which she reported to the treating medical staff. When asked why thoracic pain was not reported at the hospital, Ms Zreika stated that she does not recall the specific details from that time, given the shock and trauma of the accident, and that she pointed to the area of pain at the time, which was the lower thoracic and lumbar region. She explained that, given the stress of the accident, she may not have been fully aware of or able to articulate the pain in her upper back. Three days after discharge, Ms Zreika attended her GP, Dr Ahmed Ali, who documented: * "Whiplash injury"; * "Speed was 30-40 km/h", and * "Lower back pain, chest and rib pain, shoulder pain". 9. Thoracic spine pain was not explicitly documented at this stage, although the GP recorded chest and rib pain, which could be associated with an upper back injury. However, no physical examination of the thoracic spine was conducted at this time. She consulted

Dr Tashnim Harun on 11 January 2018 and noted to have ongoing back pain radiating down her left leg. On palpation, there was tenderness in the lower thoracic spine, lumbosacral spine, and sacroiliac joints. X-ray and CT scan (21 September 2018) reported mild wedge compression fractures of T10 and T11 with less than 20% vertebral height loss. No documented signs of posterior vertebral body involvement or retropulsion. There was no evidence of osteoporosis or pre-existing degenerative Scheuerman's disease. On

12 December 2017, she completed an application for personal injury benefits, listing injuries to her neck, back, and chest. She also reported difficulty breathing. A Certificate of Capacity completed by Dr Vuong on 27 December 2017 referred to: * whiplash injury to her neck; * mechanical back pain; * chest wall injury, and * soft tissue injury to her left wrist. 10. She received physiotherapy treatment without any long-term benefit. She also consulted a psychologist for secondary depressive symptoms. She believes that her condition has continued to worsen. An independent radiological review by Dr Korber disputed the presence of a compression fracture, stating that there was no evidence of a true compression fracture. Dr Korber concluded that the changes observed were more consistent with developmental vertebral wedging rather than a traumatic fracture. On reviewing her clinical records, the first consultation regarding the development of fibromyalgia was with Dr El Mohsen on

28 May 2019. At that time, she was complaining of neck pain spreading across her shoulders, lower back pain radiating to her buttocks and legs, fatigue, sleep disturbances, paraesthesia, and swollen joints (without objective swelling). She also reported memory disturbances, regular headaches, and light headedness. She was referred to Dr Manohar, rehabilitation physician, for management of severe chronic pain after the motor vehicle accident but the appointment was not approved by the insurer as they considered that any soft tissue injury from the motor vehicle accident should have resolved. 11. At [12]-[13], Medical Assessor Assem recorded current symptoms and treatment, noting that Ms Zreika believed that her condition is continuing to worsen. She had widespread pain entire cervical spine, thoracic spine and lumbar spine. Although her parents and husband were supportive, she found everything difficult. There was an associated restriction in thoracolumbar movements. The injury to her chest wall has subsided. However, she had anxiety and depressive symptoms. She struggled to get out of bed every day due to widespread pain involving every part of her body. There was tingling and numbness involving her hands and feet. She has headaches, fatigue, loss of memory and loss of concentration. She takes Zoloft regularly. She takes Panadeine Forte occasionally. Physiotherapy treatment was ceased during her pregnancy. 12. The Medical Assessor proceeded to undertake a clinical examination at [14]-[15] of his certificate which the Panel reproduces below:

Ms Zreika had a depressed affect, was teary and appeared to be in some discomfort. She ambulated with a slow cautious gait. Her movements were slow and purposeful. Her height was 163cm and she weighed 85kg. She was informed at the time of the examination not to engage in any manoeuvre beyond what she could tolerate which may cause harm or injury. Thoracic Spine (Thoracolumbar) She had widespread tenderness involving every part of her body. There was increased tension over the upper trapezii but no guarding or spasm. On examining her thoracolumbar spine, there was tenderness throughout the spinous process of the upper and lower thoracic vertebra. It was difficult to determine whether it was more marked at the T10/11 level given her widespread symptoms. In forward flexion she was able to above her knees. Extension could not be performed. Lateral flexion and rotation were symmetrically reduced to less than one quarter of normal range with pain reported. Pain was reported with simulated rotation and gentle axial compression (modified with pressure on shoulders) She had difficulty climbing on and off the examination couch. Straight leg raising in a supine position was barely above the examination couch. Neurological examination of the lower extremities was normal with normal symmetrical reflexes. Power was globally reduced. Sensation was reduced over her toes. Neural tension signs were negative.

Ms Zreika's physical presentation was consistent with her reported symptoms, with no overt inconsistencies observed. However, she demonstrates a heightened perception of pain and disability, likely influenced by underlying psychological factors and fibromyalgia. Some Waddell's signs were positive, suggesting a component of central sensitization or non-organic pain amplification.

1. At [16]-[17], Medical Assessor Assem sets out a summary of the documentation and radiological imaging that he relied on during his assessment of Ms Zreika. This is reproduced below by the Panel:

"● On 11/12/17, the GP recorded: 'driving at 30-40km/h in sedan on way to work; struck by another car which had turned into passenger side; airbags deployed; denies LOC but unable to recall events in detail; c/o pain to L hand, both thighs, and lower back; numbness over lateral 3 digits left hand and numbness of toes bilaterally; denies C-spine tenderness; feels 'weak' in legs. Examination: Chest - Left and Right lateral Chest wall pain; Back: nil Thoracic or Lumbar Spine tenderness; Abdomen: soft; nil guarding; rigidity; bruising; diffusely tender worst in epigastrium; nil rebound tenderness. X-ray and CT scan of the cervical spine was normal. Philadelphia collar was removed.'

• A Certificate of Capacity/Certificate of Fitness dated 27 December 2017 referred to the motor accident causing whiplash Neck injury, mechanical Back pain, Chest wall injury, and soft tissue injury of Left Wrist. No pre-existing conditions were listed as a pre-existing factor. Subsequent certificates repeated the diagnosis.
• The claim form (CTP Application for personal injury benefits) dated 21/12/17 referred to the motor accident causing injury to the cervical spine, lumbar spine, and left wrist. The patient stated that she was suffering from Severe neck pain with restriction of movement and referred pain into head and both arms, Left wrist soreness and restriction of movement, Back pain, stiffness, chest bruising, and difficulty breathing at the time of the motor accident.
• An Allied health recovery request by Dr. Ahmed Ali dated 15/12/2017 diagnosed whiplash injury and lower back pain, chest and ribs pain, and shoulder pain. CT scan showed no fractures. Prescribed Nurofen Plus Tablet for pain relief.

● Dr. Philip Vuong, General Practitioner, provided a report dated 27/12/17. Dr Vuong noted the diagnosis of whiplash Neck injury, mechanical Back pain, Chest wall injury, and soft tissue injury of Left Wrist, and recommended pain management and Physiotherapy.

• Dr. Tashnim Harun recorded a surgery consultation on 11/01/2018. Dr Harun noted the patient was involved in an MVA one month ago, hit on the passenger side door by a car driving at 50km/hr, and requested CT scans of the lumbar spine and thoracic spine as well as bilateral wrist x-rays. The patient reported ongoing back pain with radiation down the left leg and was taking Panadine Forte for pain and experiencing tingling and numbness in the left wrist.
• Surgery consultation recorded by Dr. Basel Ayoub on 16/08/2018. The doctor noted 'ongoing back pains since her MVA... getting worse since then doing physiotherapy not helping analgesia.'
• PIC Medical Assessment - Minor Injury (Physical) Certificate by Dr. Ian Cameron dated 6/3/21. Dr. Cameron determined that the injuries to her cervical spine, lumbar spine, and left wrist were threshold injuries caused by the accident.
• PIC Determination of an Application for Review of a Medical Assessment by Ms. Josephine Redmond dated 24/06/21. The document noted the Assessor made no mention of the claimant's thoracic spine in his assessment. The applicant referred to correspondence with the case manager clarifying the injuries and the claimant subsequently sought referral of the whole back for assessment. However, the applicant submits the Assessor has not examined or assessed the claimant's thoracic spine.
• Dr. Farhan Shahzad (Occupational Physician) assessed her on 5 October 2023 He concluded that the claimant had sustained a diagnosable compression fracture of T10 and T11, consistent with the original assessment by Assessor Assem.
• Medical Assessor Assem notes "the thoracic spine X-ray from 11 January 2018 demonstrates anterior vertebral body wedging, most notably at T10 and T11. The wedging is clearly visible in this image. No obvious cortical disruption, step-off, or retropulsion is present, findings that would typically be expected in an acute traumatic compression fracture. Additionally, there is no evidence of posterior vertebral body involvement, which is characteristic of more severe traumatic injuries. In a 27-year-old individual with no prior spinal complaints or documented risk factors, age-related degenerative changes would be highly unusual. While Dr. Korber suggested that the wedging could be developmental rather than post-traumatic, developmental compression fractures are exceedingly rare in this age group and typically occur in the presence of underlying conditions such as Scheuermann's disease. No radiological features of Scheuermann's disease, such as multiple wedge-shaped vertebrae or Schmorl's nodes, were observed. The presence of mild anterior osteophytes raises the possibility of early degenerative changes, but these findings alone are not sufficient to definitively classify the wedging as non-traumatic. Given Ms. Zreika's age, the absence of pre-existing back complaints, and the mechanism of injury, a traumatic origin for the T10/T11 wedging remains plausible, though radiological confirmation of an acute fracture is inconclusive.

● X-ray and CT cervical spine and thoracolumbar spine and x-ray humerus dated 21 September 2018, reported by Jan Masesa.

• Cervical spine findings: Vertebral· heights and alignment is maintained and disc spaces are also within normal limits. There is no wedge ·compression or posterior element fracture. The cervicothoracic and craniovertebral junctions define normally. The prevertebral soft tissues are Intact. C4/5: There is left uncovertebral osteophyte formation causing mild thecal sac indentation and moderate narrowing at the left exit foramina with potential nerve root impingement. At the remaining levels, the central canal and neural foramina appear patent. There is no bony or discogenic encroachment.
• Thoracolumbar spine findings: There is shallow thoracolumbar curvature with the right convexity centred at L1/2. There is no segmental subluxation in the sagittal plane. There is mild wedge compression of T11 and T10 showing (a) failure to consider relevant evidence;

(b) failure to properly consider or understand submissions (misinterpretation and/or inadequate reasoning);

(c) failure to properly consider expert evidence (misinterpretation and/or inadequate reasoning);

(d) errors in outlining diagnoses and inadequate reasoning regarding diagnoses;

(e) errors in causation findings and inadequate explanation, and

(f) failure to apply s 1.6 of the MAI Act and inadequate reasoning on threshold determination.

[11]-[12] On 5 February 2025, delegate Payne accepted the insurer's late documents, including submissions dated 30 June 2020 and 22 November 2022. On 12 February 2025, delegate Ho accepted further insurer-submitted late documents, including AYA Medical Centre records.

[13] Both delegates accepted the material as relevant to the assessment and assisting proper determination.

[14] Page 3 of the Medical Assessor's certificate shows these additional documents were not provided to him. They are not referred to anywhere in his reasons.

[15] In Allianz v Francica [2012] NSWSC 1577, failure to refer to material evidence permits an inference that it was overlooked.

[16] In Najt v Minister for Immigration [2005] FCAFC, the Full Court confirmed a decision-maker cannot be said to have "had regard to" information without demonstrating genuine engagement with it.

[17] The insurer submits the Medical Assessor erred by failing to review or consider the admitted late documents.

[18] The insurer submits the Medical Assessor failed to properly review its submissions, misinterpreted their substance, and provided inadequate reasoning.

[19] There were three key issues regarding the alleged thoracic spine injury:

(a) whether the claimant sustained a compression fracture in addition to vertebral wedging, or only vertebral wedging;

(b) whether the pathology was caused (in whole or part) by the accident, and

(c) whether the pathology was threshold or non-threshold under the Act.

[20]-[21] The insurer submits the Medical Assessor's reasons do not determine issue (a). Instead, the Medical Assessor summarised the insurer's submissions as disputing only whether a "compression fracture" was caused. For example, he wrote:

"the insurer maintains that the radiological findings do not support the presence of a traumatic compression fracture..."

[22]-[23] This misrepresented the insurer's position and indicates a failure to apprehend the issues. In fact, the insurer alleged no fracture, that the only pathology was developmental anterior wedging, and that this wedging was not trauma-related.

[24] The Medical Assessor never addressed the possibility of wedging without fracture, despite this being a central part of the insurer's case.

[25] In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, failure to address a clearly articulated argument amounts to jurisdictional error.

[26] In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, misunderstanding a party's case is equivalent to failing to consider it.

[27]-[29] The insurer submits the Medical Assessor failed to properly consider or understand the expert evidence of Dr Korber. The insurer submits that

Dr Korber's report was central to the dispute. As above, the three key issues were fracture vs wedging, causation, and threshold classification.

• there was no compression fracture, and
• the anterior wedging at T10-T11 was developmental, not traumatic.

"It is important to understand that anterior wedging is not synonymous with compression fracture."

[32]-[33] The insurer submits the Medical Assessor failed to demonstrate any understanding of this distinction. Instead, he rejected the developmental-wedging explanation because "developmental compression fractures are rare".

"developmental compression fractures are exceedingly rare..."

[36] Whether developmental compression fractures are rare is irrelevant when the expert said there was no fracture at all. The Medical Assessor therefore misunderstood the expert's reasoning.

[37]-[38] The Medical Assessor did not address the commonality of developmental wedging or the wedge/fracture distinction, despite both being core issues. Again, Dranichnikov establishes failure to respond to a key argument is reviewable error.

[39] In AAI v Fitzpatrick [2015] NSWSC 1108, a Medical Assessor must acknowledge competing expert views and explain why one is preferred.

[40] In Sadsad [2014] NSWSC 1216; (2014) 67 MVR 601, Hamill J warned against "filling gaps" in a decision-maker's reasoning.

[41]-[44] The insurer submits the Medical Assessor misconstrued or failed to deal with Dr Korber's evidence. His reasoning conflated wedging and compression fracture and dismissed the radiologist's opinion on the wrong basis. Absent contrary radiological evidence, the Medical Assessor was required to give weight to the expert radiologist's interpretation. He did not provide valid reasoning for rejecting that interpretation, contrary to the principles in Fitzpatrick.

[45] The insurer submits the Medical Assessor erred in diagnosis and causation regarding the thoracic spine and fibromyalgia.

• the Medical Assessor diagnosed "mild wedge compression of T10/T11 (a) absence of thoracic spinal tenderness during the acute hospital admission;

(b) the delayed reporting of thoracic pain and identification of tenderness (four weeks after the accident, during January 2018), as symptoms and signs such as tenderness due to thoracic fracture would be immediately apparent post trauma, and

(c) the evolution of the claimant's symptomatic complaints, specifically the lack of symptomatic improvement in parallel with the usual 6-12 week duration of bone healing coupled with increasing pain levels with involvement of a greater number of body sites by pain, with the passage of time. This is not the anticipated natural history of a spinal fracture which as noted would be acutely painful for 6-12 weeks post injury, but with symptoms gradually reducing over time in parallel with bony healing.

1. The Medical Assessors found at most there had been a soft tissue injury of the thoracic spine due to the subject accident, which is a threshold injury. The Medical Assessors found no evidence of fracture nor is there any evidence of ruptured tendon/ligament or else damage to nerves.
2. Regarding the claimed injury of fibromyalgia, the Medical Assessors note that the initial consultation for widespread pain complaint with Dr Mohsen, with suggested diagnosis of fibromyalgia did not occur until many months after the motor accident i.e. on 10 July 2019.
3. The Medical Assessors accept that the claimant developed widespread pain complaints post subject motor vehicle accident and that clinical examination at their (Panel) assessment is consistent with a diagnosis fibromyalgia. Nonetheless, the latter condition is a threshold injury because it is not associated with rupture of ligaments/tendons, fractures nor nerve injury.

1. On its subsequent meeting on 5 September 2025, the Medical Review Panel discussed the reasons of Medical Assessor Lahz as set out above and was in agreement with her opinions and conclusions, namely that neither the wedge compression fracture nor the fibromyalgia were anything other than threshold injuries.
2. The detailed reasons of the Panel are set out in paragraphs [116]-[119] above with which all the Panellists agree.

1. The Medical Review Panel revokes the certificate of Medical Assessor Mohammed Assem dated 26 February 2025 and substitutes the determination that the following injuries were caused by the motor vehicle accident and are threshold injuries for the purposes of the Act:
   • fibromyalgia, and
   • mild wedge compression of T11 and T10 showing <20% reduced height.