REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 (the Act)

1. The Review Panel revokes the certificate dated 21 May 2025 and issues a new certificate determining that:

(a) the following injuries caused by the motor accident give rise to a permanent impairment of 10% and IS NOT GREATER THAN 10%:

• cervical spine - Endplate fractures in C7, T1 and T2;
• chest - soft tissue injury;
• leg - abrasions on shins, no referred pain, and
• arm - soft tissue injury, no referred pain.

1. On 14 May 2023, Mathew Ahearn (the claimant) was driving to Katoomba on Bells Line of Road. He stopped behind a vehicle making a right turn. His vehicle was struck from behind by the insured vehicle travelling at high speed. It was equipped with bull bars. The insured vehicle pushed the claimant's vehicle into the car in front of it. Airbags were not deployed. The claimant's head hit the steering wheel. His driver's door was jammed. The claimant waited in his car until the fire brigade arrived and cut him out of the vehicle. He was taken to Nepean Hospital.
2. The claimant had a laceration of his left eyelid. He had chest pain and back pain immediately following the accident. At Nepean Hospital, he had CT scan of brain and cervical spine. No fracture was identified. He was discharged the same day.
3. The subsequent scan of his cervical and thoracic spine showed micro-trabecular fractures at C5, C7, T1 and T2 with loss of anterior vertebral height. His treating doctor referred him to

Dr Shanu Gambhir, neurosurgeon, who saw the claimant on 15 June 2023 and diagnosed "Minor anterior compressions fractures in the cervical spine, mainly C5, C7, T1 and T2". He was recommended conservative treatment. He assessed 5% whole person impairment (WPI) for the cervical spine and 0% WPI for each of the other referred injuries. 4. Insurance Australia Limited t/as NRMA (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer accepted liability for the claim but determined that the claimant's physical and psychological whole person impairment (WPI) does not exceed 10%. That decision was confirmed upon internal review.

1. Medical Assessor Michael McGlynn certified on 4 March 2025 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 2% and IS NOT GREATER THAN 10%:

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred by the Personal Injury Commission (Commission) for assessment by Medical Assessor Alexander Woo who certified on

The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:

• cervical spine - Endplate fractures in C7, T1 and T2;
• chest - soft tissue injury;
• leg - abrasions on shin, no referred pain; and
• arm - soft tissue injury, no referred pain.

Medical Assessor Woo found that the initially reported C5 Endplate fracture was not confirmed in the most recent MRI scan. He assessed 5% whole person impairment (WPI) for the cervical spine and 0% WPI for each of the other referred injuries. Medical Assessor Woo made no adjustment for previous or subsequent impairments nor treatment effects.

1. Radiological and medical imaging reports brought to the assessment were described by Medical Assessor Woo as follows:

There is boney oedema in the C5, C7, T1 and T2 vertebral bodies anterosuperiorly in keeping with at least microtrabecular fractures at these sites. Minor associated vertebral body heigh loss at C7, T1 and T2 noted. No pre-vertebral soft tissue oedema. No oedema between the spinus processors.

Mild anterior corneal indentation at C5 from previous flexion injury is shown estimated 2.5mm. there is mild disc height reduction C5/C6. The facet joints are congruent. No bone sclerosis identified at the cervico thoracic junction. No abnormal pre-cervical soft tissue thickening.

There was narrowing of C5/C6 disc space. There was some degree of posterior protrusion of disc material more to the left of the midline. Slight compromise of the canal and left lateral recess. Again, evidence of some slight compression fractures involving the superior Endplates of C7 and T1 and T2. Probable injury to the interspinous ligament at T1.

1. The claimant sought a review of Medical Assessor Woo's certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect.
2. The claimant brought the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
3. The claimant submitted that Medical Assessor Woo failed to provide adequate reasons or the pathway of reasoning to explain his findings that the claimant sustained a DRE category II impairment in the cervical spine, in circumstances where the claimant believes, and has submitted that the Medical Assessor "accepted causation of multi-level structural compromise".
4. The claimant further submitted that, having accepted causation of multi-level structural compromise, the Medical Assessor disregarded cls 6.143 and 6.151(a) of the Guidelines, such that multi-level compromises for two regions in the spine can only be assessed as a Category IV and Category V impairment.
5. In the claimant's submission, had Medical Assessor Woo correctly applied the Guidelines, he should have determined that the claimant has a 25% WPI impairment arising for the spine.
6. The claimant's review application was opposed by the insurer on various grounds. As those submissions were not accepted by the President's delegate, they need not be stated in detail. Briefly, the insurer submitted that:
   • the insurer submits that, when considering the reports of the MRI scans dated

24 May 2023 and 2 August 2023, both reports did not record there was any measurable height loss at the vertebrae of C7, T1 and T2; * the insurer noted that the Medical Assessor did not see fit to measure the height of the vertebrae at C7, T1 and T2 (as did not Dr Gambhir, the treating neurosurgeon) which supported the Medical Assessor's diagnosis of endplate fractures being sustained at the vertebrae C7, T1 and T2 without measurable compression; * the insurer referred to s 6.150 of the Guidelines which stated that one or more endplate fractures in a single spinal region without measurable compression of the vertebral body was to be assessed as a DRE category II; * the insurer noted the Medical Assessor referred to s 6.146 of the Guidelines which state that, if there was multi-level structural compromise or spinal fusion across regions, this is assessed as if it is in one region. The Medical Assessor stated that the endplate fractures were considered to have less than 25% compression at C7, T1 and T2; * the insurer notes the Medical Assessor referred to Table 6.7 of the Guidelines and noted that the claimant's spinal fractures were to be assessed as a DRE category II or 5%. The insurer noted the descriptor for this Category included "Posterior element fracture, healed, stable, no dislocation or radiculopathy". The insurer also noted that s 6.117 of the Guidelines stated that "The Medical Assessor may consider Table 6.7 to establish the appropriate Category for the spine impairment", and * the insurer submits it is evident the Medical Assessor has made his reasons plain within the certificate. The Medical Assessor stated after a review of the imaging reports that the claimant had sustained endplate fractures to C7, T1 and T2. These fractures did not result in radiculopathy being present in either the cervical or thoracic spine. These fractures were sustained at the cervicothoracic spine. As stipulated in s 6.150 of the Guidelines, one or more endplate fractures in a single spinal region, without measurable compression of the vertebral body, could be assessed as a DRE category II. Consequently, the Medical Assessor has provided reasons to indicate why the claimant met a DRE category II as described within Table 6.7 of the Guidelines. 7. President's delegate Melinda Drew issued a Determination of an Application for review of a Medical Assessment on 23 June 2025 which stated the satisfaction of the President's delegate there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be:

(a) the Medical Assessor failed adequate reasons to explain his findings that the claimant sustained a DRE category II Class impairment in the cervical spine. In circumstances where the claimant believes and has submitted that the Medical Assessor "accepted causation of multi-level structural compromise";

(b) the Medical Assessor did not explain why cls 6.143, 6.151(a), Table 6.7 of the Guidelines and Table 70 of AMA 4 did not apply to the present case in the context of a multi-level structural compromise which was clearly accepted by the Medical Assessor on page 9 of his certificate, and

(c) the Medical Assessor has not explained why Table 6.7 was used, nor has there been an adequate pathway of reasoning to explain why "Multi-level structural compromise (Table 70, page 108, AMA 4) referring to those DREs that are in Categories IV and V" was not applicable and why he had formed the opinion that he did.

1. Accordingly, the review application was accepted and was referred to the Panel, which is to reassess the dispute that was referred to Medical Assessor Woo for determination.
2. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel, noting that the Panel may determine the matter solely based upon the written Application (Rule 128(2) of the Rules).

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
3. Rules 127 to 130 of the PIC Rules are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. Causation of injury is addressed in the Guidelines as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 AMA 4 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 AMA 4 Guides as follows:

Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

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

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein 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 is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. Wright J then described the Panel's role in a medical review which is to:

"Consider whether the motor accident did cause or contribute to (the claimant's condition). This requires, not a consideration of material derived as a result of an internet search... but rather a consideration of the material referred to in 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;

(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."

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided". The Panel has come to its own conclusions and has taken its own history.

1. The claimant relied upon the following material which the Panel has considered:

Minor anterior compression fractures in the cervical spine. Mainly C5, C7, T1 and T2 post motor vehicle accident.

Mathew suffers from neck pain post whiplash. He does not have any arm radicular symptoms. His neurological examination is unremarkable. His main issue is neck pain at the moment and I have explained it usually takes about three months to heal.

(Not relevant for the Panel's consideration as it deals with future treatment and return to work)

Report of Andrew Porteous, occupational physician, to the claimant's lawyers

Mr Ahearn sustained fractures in the cervical spine and thoracic spine as well as soft tissue whiplash injury in the cervical spine.

He had musculoskeletal strain injury in the chest and referred pain into the upper and lower limbs with probably soft tissue in those.

He had abrasions on the shin and a laceration above the left eye that required suturing.

He reports initially some anxiety related to the accident.

The diagnosis is endplate fractures in C5, C7, T1 and T2 considered less than 25%.

He had soft tissue sprain injuries of cervical spine and the anterior chest musculoskeletal system, with a laceration above the left eye and abrasions on the shins. He likely had referred pain in both the upper and lower limbs.

Mr Ahearn was well before the accident and recovered fully from his motor vehicle accident in 2017. There is radiology on file that shows the fractures. His current conditions were caused by the subject motor accident as were the other conditions given the information available. There is no evidence of pre-existing pain or restriction or ongoing injuries.

The clinical findings today result in the two vertebral fractures with less than 25% compression most likely on balance would result in a total of over 25% but less than 50%, which would mean that he has got a DRE III impairment according to Table 74. I note that he had two endplate fractures in the cervical spine, but that on the subsequent reports, the C5 one was not mentioned suggesting that there was only compression of the C7 fracture and I believe that these together result in less than a total 25% compression, which would result in a DRE II impairment, which was awarded a 5% WPI according to Table 74.

In the thoracic spine, he also had two vertebral compression fractures and again, although these were less than 25%, together that result in a total of 25% to 50% and would elevate this to a DRE III impairment, for which Table 73 awards a 15% WPI.

There is no other measurable impairment and there is no evidence of radiculopathy.

There is no prior assessments so there is no deductible proportion.

Report of Dr Nicolas Argyle, consultant psychiatrist, to claimant's lawyers

1. The insurer relied upon the following material which the Panel has considered:

In relation to the cervical spine, the insurer submitted as follows:

• Dr Porteous diagnosed the claimant with endplate fractures in C5, C7 considered less than 25%. Dr Porteous outlines there were reports of two cervical spine endplate fractures though subsequent reports only referenced the C7 fracture. Given the treating neurosurgeon, Dr Gambhir has diagnosed the claimant with C5 and C7 minor anterior compression fractures (report 15 June 2023), the insurer submits that the claimant's cervical spine injuries should be assessed as multi-level compromise;
• when assessing multi-level structural compromise as per Table 6.7 of the Guidelines, clause 6.150 of the Guidelines must be considered in relation to measurable compression in endplate fractures. In all the available evidence and radiological reports, there is no indication of measurable vertebral compression values, despite

Dr Porteous indicating less than 25% compression;

• furthermore, there is no documentation provided in Dr Porteous' report outlining his own assessment of the accurate amount of compression, as per cl 6.148 of the Guidelines, and
• accordingly, the insurer submits that the impairment determination of Dr Porteous cannot be relied upon, and the insurer is unable to assesses the DRE Category to determine the WPI of the cervical spine.

1. In relation to the thoracic spine, the insurer submitted as follows:
   • Dr Gambier and Dr Porteous have diagnosed the claimant with minor anterior compression fractures also to T1 and T2. Dr Porteous has calculated the two vertebral compression fractures together would result in a total of 25% - 50% compression and assigned a DRE category III impairment awarding 15% WPI as per Table;
   • the insurer submits that Dr Porteous erred in this calculation given that he has not considered cl 6.132 of the Guidelines in that the highest DRE Category within each region must be chosen (not combined) of the multiple impairments ie. T1 and T2;
   • when assessing multi-level structural comprise as per Table 6.7 of the Guidelines, cl 6.150 of the Guidelines must be considered in relation to measurable compression in endplate fractures. In all the available evidence and radiological reports, there is no indication of measurable vertebral compression values. The insurer notes that there is no documentation provided in Dr Porteous' report outlining his own assessment of the accurate amount of compression as per cl 6.148 of the Guidelines, and
   • accordingly, the insurer submits that the impairment assessment of Dr Porteous cannot be relied upon, and the insurer is unable to assess the DRE Category to determine the WPI of the thoracic spine.

The insurer submits that, based on the available medical evidence, the claimant does not have a degree of impairment of greater than 10% as a result of the physical injuries sustained in the subject accident.

Report by Dr Keith Burton, consultant neurologist, to Dr Karanam

Report by Dr Esperon, stroke and vascular neurologist, to Dr Karanam

1. At the first teleconference held on 21 August 2025, the Medical Assessors considered whether a physical examination of the claimant was required. It seemed to the Medical Assessors that a review on the papers is appropriate in this case because there is no evidence presented of any radiculopathy in the cervical and thoracic spine. Also, the available scans only ever showed endplate fractures in the cervical and lumbar spine. As there is no controversy about that, the Medical Assessors did not think it necessary to review the films and are content to adopt Medical Assessor Woo's findings in relation to the scans. It was decided that Medical Assessor Gorman would conduct an assessment on the papers for the Panel. His findings are as follows:

MRP - Member Gary Patterson; Senior Assessor Drew Dixon; Assessor David Gorman

• Cervical spine - Endplate fractures C5, C7, T11 and T2 with a soft tissue injury
• Chest - Soft tissue injury of the anterior chest
• Leg - Abrasions on shins & referred pain from lower limbs
• Arm - referred pain in bilateral arms

His main continuing symptoms are in the cervical spine. The thoracic and lumbar spine are not symptomatic.

In the cervical spine, no dysmetria and no radiculopathy.

No abnormalities on examination of the upper or lower extremities.

There is bony oedema in the C5, C7, T1 and T2 vertebral bodies anterosuperiorly in keeping with at least microtrabecular fractures at these sites. Minor associated vertebral body height loss at C7, T1 and T2 noted. No prevertebral soft tissue oedema. No oedema between the spinous processes.

Mild anterior corner indentation at C5 from previous flexion injury is shown estimated 2.5mm. There is mild disc height reduction C5/C6. The facet joints are congruent. No bone sclerosis identified at the cervicothoracic junction. No abnormal pre-cervical soft tissue thickening.

There was narrowing of C5-6 disc space. There was some degree of posterior protrusion of disc material more to the left of the midline. Slight compromise of the canal and left lateral recess. Again, evidence of some slight compression fractures involving the superior endplates of C7 and T1 and T2. Probable injury to the interspinous ligament at T1.

There are minor compression fractures at C5, C7, T1 and T2.

If less than 25% are crush fractures are DRE II in Table 6.7 in the NSW Motor Accident Guidelines.

Also in Para 6.150 - end plate fractures within a single spinal region are DRE II.

Thus, he is DRE II in the cervical spine (5% WPI based on Table 73 on page 110 of AMA 4th Edition) and DRE II in the thoracic spine (5% WPI based on Table 74 on page 111 of AMA 4th Edition.

His total impairment is therefore 10% WPI. The Panel adopts Medical Assessor Woo's assessment of 0% WPI for each of the other referred injuries as that is not a matter of controversy between the parties.

To this will be added 2% for his eyelid laceration from Assessor McGlynn - the total will be 12%.

Comments on Assessor Woo's Certificate and submissions

1. Assessor Woo had no basis for choosing between 5% for the cervical and 5% for the thoracic. He reports that the NSW Motor Accident Guidelines at 6.146 state - Multilevel structural compromise or spinal fusion across regions is assessed as if it is in one region. The region giving the highest impairment value must be chosen. This is not correct to apply it to this case - as this is not 'multilevel structural compromise' and it is 'in' two regions, not 'across' two regions. Therefore, both cervical and thoracic need separate assessments.
2. The claimant also submits that this is multi-level structural compromise. However, the NSW Motor Accident Guidelines states that - 6.143 Multilevel structural compromise (Table 70, page 108, AMA4 Guides) refers to those DREs that are in categories IV and V. To be DRE IV, a crush fracture needs to be greater than 50% loss of height. Based on the radiological evidence, the crush fracture is not greater than 50%. This is not therefore multi-level structural compromise.
3. Dr Porteus in a report dated 31 July 2024 for the claimant on page 99 of the claimant's bundle assessed as follows: Cervical spine 5% WPI Fracture C7 less than 25% compression DRE II. The C5 fracture was not confirmed by subsequent scans. Thoracic spine 15% WPI T1 and T2 fractures with less than 25% compression at each level, combined to less than 50% compression. This would elevate to a DRE III impairment. 15% combined with 5% to 19% WPI. Dr Porteus is incorrect to add the compression of the two vertebrae to make them up to greater than 25% and less than 50% equalling DRE III - one can never add the two levels of compression even of adjacent vertebrae."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6]
2. The Panel convened on 21 August 2025 to make a preliminary assessment of the claim, the issues in dispute and the matters for determination.
3. The Panel is not required to choose between medical opinions and is required to form its own opinions.[7] The Panel adopts the findings and opinions of Medical Assessor David Gorman with which Senior Medical Assessor Drew Dixon concurs. The Panel adds the following further reasons.
4. For the reasons stated in the review on the papers, the Panel finds (with respect) that Medical Assessor Woo and Dr Porteous were incorrect in their findings and assessments. The fact is simply that there were endplate fractures in multiple vertebrae in the cervical and thoracic spine. Therefore, DRE category II in both - 5% + 5% = 10% WPI.

1. For the above reasons, the Panel concludes the certificate dated 21 May 2025 should be revoked. The new certificate appears at the commencement of these reasons.

[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.