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[2025] NSWCA 91
respondent. Appeal dismissed. The appellant was ordered to pay the first respondent’s costs ([81]).
The Court of Appeal upheld the Review Panel’s decision that the claimant’s accident-related lumbar injury was not a threshold injury. The Panel had found that the accident caused lumbar symptoms and that a medical assessor later detected radiculopathy. Read fairly as a whole, the Panel’s reasons sufficiently explained how those findings led to a non-threshold classification. Its certificate’s description of the injury as “soft tissue” did not invalidate the result, because the statutory and regulatory context made the radiculopathy significant. The Panel also had later evidence correcting Allianz’s understanding about when the claimant first sought treatment. The appeal was dismissed, with Allianz ordered to pay the claimant’s costs.
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2,258 words · generated 07/10/2026
The appeal concerned a statutory medical assessment of injuries claimed after a motor vehicle accident. On 12 June 2020, Zoran Susak was a backseat passenger in a car that was struck from behind. He alleged injuries including to his spine, shoulders and psychological health. The appeal concerned the lumbar spine injury ([19]–[20]).
Susak first sought medical treatment on 16 June 2020, four days after the accident. Allianz’s response of 23 December 2020 disputed whether the lumbar condition was caused by the accident. It relied on imaging said to show age-related degenerative change and on what it understood to be a delay of more than three weeks before the first treatment. Allianz also relied on a report that had not identified radiculopathy at that stage ([21]–[23]).
Dr Herald examined Susak on 9 February 2022. He recorded decreased or absent ankle jerks and altered sensation over the sole of the foot, which he described as features of S1 radiculopathy. He concluded that the lumbar injury was non-threshold, referring to both the clinical findings and an MRI showing an L5/S1 disc prolapse ([25]–[27]).
Allianz sought review of Dr Herald’s certificate. The Review Panel later examined the claimant, considered additional clinical material, and issued its certificate and reasons on 7 February 2024. It accepted that the accident caused lumbar symptoms and relied on Dr Herald’s earlier detection of radiculopathy to classify the lumbar injury as non-threshold, despite the Panel not detecting radiculopathy on its own later examination ([33]–[38]).
The primary judge dismissed Allianz’s application under s 69 of the Supreme Court Act 1970 (NSW). Allianz appealed on four grounds: failure to determine causation, inadequate reasons, inconsistency in describing a soft tissue injury as non-threshold, and failure to address Allianz’s argument based on pre-existing degeneration ([39]–[42]). The Court of Appeal dismissed the appeal and ordered Allianz to pay the first respondent’s costs ([81]).
The Court approached the appeal as a review of the primary judge’s decision, not as a fresh decision about the medical merits. Adamson JA noted that Allianz needed to show legal error in the dismissal of its judicial review application. Under s 69, factual error alone would not suffice ([2], [4], [39]).
On causation, the Court read the Review Panel’s reasons in sequence. The Panel’s “Diagnosis and causation” section found that the claimant’s cervical and lumbar injuries were caused by the accident. Its later “Threshold injury” section considered whether the spinal injuries remained within the threshold category or were taken out of it by radiculopathy ([38], [47]–[49]). The Court therefore rejected the contention that the Panel found radiculopathy but failed to connect it to the accident. It held that the Panel’s reasoning, read as a whole, sufficiently established the causal link ([46]–[50]).
That reading depended on the structure and contents of the reasons. The Panel recorded prior back complaints, the last pre-accident consultation in September 2019, the report of back symptoms after the accident, and Dr Herald’s post-accident findings. Adamson JA described how those steps supported the inference that the post-accident lumbar symptoms and the injury associated with the radiculopathy were caused or contributed to by the accident ([47]–[49]). The Court did not treat each paragraph as an isolated finding.
On reasons, the Court applied the standard stated in Wingfoot Australia Partners Pty Ltd v Kocak: the reasons must explain the decision-maker’s actual path of reasoning sufficiently to allow a court to identify any legal error ([52]). It also relied on principles requiring reasons to be read fairly and as a whole, rather than inspected with a “fine-tooth comb” ([56]–[58]). The Court considered the alleged gap between the causal finding and the later discussion of radiculopathy to be either nonexistent or filled by necessary inference. As Adamson JA explained, causation had already been addressed, so repeating that finding in the later classification section would have been superfluous ([58]).
The certificate’s terminology did not change the result. It described “lumbar spine - soft tissue injury” as an injury caused by the accident that was “not a threshold injury” ([60]). Allianz argued that the description was internally inconsistent. The Court read the certificate alongside reg 4(1) and the reasons. That regulation treats certain spinal nerve-root injuries with neurological signs as soft tissue injuries, but excludes radiculopathy. The Court concluded that the Panel’s reference to soft tissue was explicable in that statutory context and that the non-threshold finding was unambiguous ([63]–[67]).
Finally, the Court considered whether Allianz’s earlier argument about degeneration and delayed treatment had been ignored. It noted two changes in the facts available to the Panel. First, Allianz had proceeded on the understanding that treatment began on 6 July 2020, but later clinical notes showed a consultation on 16 June 2020. Secondly, radiculopathy had not been detected when Allianz made its December 2020 response, but was identified later, including by Dr Herald ([73]–[75]). The Panel’s reasons referred to the prior back condition and the post-accident symptoms; the Court concluded it had substantively dealt with the causation argument ([76]–[80]).
The judgment applies, rather than announces a wholesale change to, the legal framework it describes. The statutory distinction between threshold and non-threshold injuries mattered because a person with only threshold injuries is restricted in access to certain benefits and damages. The Court set out that a claimant with only threshold injuries is not entitled to weekly payments or treatment expenses after 52 weeks, and is not entitled to damages ([6]).
Section 1.6 of the Motor Accident Injuries Act 2017 (NSW) includes soft tissue injuries within the definition of threshold injury. Regulation 4(1) addresses certain spinal nerve-root injuries and distinguishes radiculopathy from other neurological signs. The Guidelines make assessment for radiculopathy essential when deciding whether a neck or spine injury is a soft tissue injury ([7], [9], [16]). The judgment applied that framework to the Panel’s findings; it did not alter the statutory definition.
The decision also applied established principles about administrative reasons. Wingfoot requires reasons to explain the decision-maker’s actual reasoning path sufficiently for legal review. The Court used the contextual-reading principles referred to in Orr, Wu Shan Liang and Zahed, including the proposition that reasons should be read fairly and as a whole ([52], [56]–[58], [64]). The judgment’s practical application is that a decision-maker need not repeat a finding in every later section of its reasons if the logical connection is sufficiently apparent from the reasons as a whole.
On causation, the Court rejected any suggestion that the accident had to be the sole cause of the lumbar injury. Referring to cll 6.6–6.7 of the Guidelines, Adamson JA said that the accident need only contribute to the injury and need not be its sole cause ([17], [79]). The judgment does not purport to replace the Guidelines’ treatment of causation; it applies their stated contribution approach to the submission before it.
The decision also applies the principle that a failure to address a substantial, clearly articulated argument relying on established facts may raise jurisdictional or procedural fairness concerns. It cites Dranichnikov and Hill on that issue ([68], [71]). The Court’s application turns on the evidence available to the Review Panel: Allianz’s argument had been framed on facts that later changed, and the Panel’s own reasons addressed the prior condition and the post-accident symptoms ([73]–[78]).
At [46], Adamson JA concluded that the Panel had determined “as a matter of fact and opinion” that there was a causal link between the accident and the radiculopathy. In plain English, the Court considered the Panel’s decision to contain a causal finding, even though the Panel did not repeat that link in every part of its reasons.
At [47]–[49], the Court explains the reasoning sequence. The claimant had a prior back condition, but the Panel could infer that symptoms had largely resolved before the accident. He then reported lower-back symptoms after the accident. The Panel found the lumbar injury was caused by the accident, accepted Dr Herald’s findings of radiculopathy, and classified the lumbar injury as non-threshold. This is the Court’s explanation of how the Panel’s findings fitted together.
At [58], Adamson JA said: “The ordering of paragraphs is the prerogative of the decision maker.” The plain-English point is that a reviewing court does not require reasons to follow the structure it would itself have chosen. The question is whether the actual reasoning can be understood from the decision read as a whole.
At [63]–[66], the Court addresses the apparently conflicting labels. The certificate used “soft tissue” while also saying “not a threshold injury”. The Court considered the statutory and regulatory context important: radiculopathy was the finding that removed the lumbar injury from the threshold category. The label “soft tissue” did not, in this context, make the certificate unworkable.
At [74]–[75], the Court identifies why Allianz’s earlier factual argument did not map exactly onto the evidence considered by the Panel. The claimant had sought medical advice four days after the accident, not after the three-week delay Allianz had understood. Radiculopathy was also detected after Allianz’s response. In plain English, the Panel was deciding the matter on a fuller and materially different factual record.
At [79], the Court states that the accident need only contribute to the injury and need not be its sole cause. This passage answers the suggestion that a pre-existing degenerative condition prevented the Panel from finding the required causal link.
The decision is most directly relevant to challenges to a statutory medical assessment where the decision-maker’s reasons are said to contain a gap between a general causation finding and a later medical classification. It shows that a court may consider whether the reasons’ headings, sequence and findings make the reasoning path apparent, rather than requiring a particular formula or repetition ([47]–[49], [58]).
It is also relevant where a certificate uses terminology that seems inconsistent when read alone, but its meaning may be clarified by the governing statute, regulation and accompanying reasons. Here, the expression “soft tissue” had to be read with reg 4(1), the radiculopathy finding, and the certificate’s express non-threshold classification ([60]–[66]).
The judgment may be relevant where a party alleges that a review panel ignored an earlier submission, but the material before the panel later changed. The specific changes here were the corrected treatment date and the later detection of radiculopathy ([73]–[76]). The decision does not establish that every changed fact excuses a decision-maker from addressing an argument; the Court relied on the Panel’s reasons and the particular record.
The case also concerns causation where a pre-existing condition is alleged to compete with an accident as an explanation for symptoms. The Court’s stated proposition is that the accident need not be the sole cause, but must contribute to the injury on the approach reflected in the Guidelines ([17], [79]). The judgment does not resolve every possible dispute about how to weigh competing causes or medical evidence.
The judgment is dated 5 May 2025. The supplied judgment contains no discussion of later decisions treating Allianz v Susak, and the material provided does not establish any subsequent application, approval, distinction or rejection. It would therefore be unsupported to describe how later courts have treated this decision.
The judgment itself does discuss earlier authorities. It cites Keen on causation as a factual question ([45]); applies Wingfoot on the required standard of reasons ([52], [58]); and relies on Orr, Wu Shan Liang and Zahed for reading reasons fairly and as a whole ([56]–[57], [64]). It also discusses Yusuf in relation to the alleged gap in the reasons ([54]) and Dranichnikov and Hill in relation to failure to respond to a substantial argument ([68], [71]). Those are the precedent relationships established by the text of this judgment, not evidence about how later courts have treated Susak.
The judgment does not decide how explicit a medical review panel must be where its reasons do not contain the sequence found here. The Court stressed that this Panel had separate sections for diagnosis and causation, then threshold classification, and that those sections logically connected ([48]–[49], [58]). A case with no express causation finding, no clear structure, or competing inferences may require a different assessment.
The decision also does not determine how much analysis is needed when evidence of degeneration is more directly inconsistent with the decision-maker’s causal conclusion. Here, the Panel recorded the pre-accident consultations and the post-accident symptoms, and the Court considered the reasons sufficient ([35], [76], [78]). The judgment does not set out a universal measure of detail for addressing every medical alternative.
Nor does the judgment establish that the presence of radiculopathy at any point will invariably make every spinal injury non-threshold in every factual setting. The Panel adopted the principle in David, and Allianz did not challenge that principle in this appeal ([37]). The Court’s decision proceeded on that basis; it did not examine a challenge to David’s correctness or set out a broader rule beyond the statutory and guideline context described.
Finally, the case does not resolve every interpretive question arising from certificates that use “soft tissue” and “non-threshold” together. The Court found this certificate understandable because reg 4(1), the finding of radiculopathy and the reasons as a whole made the classification clear ([63]–[66]). A certificate lacking those contextual explanations may present a different issue.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91
Hearing dates: 29 April 2025
Decision date: 05 May 2025
Before: Payne JA at [1]
Adamson JA at [2]
Stern JA at [82]
Decision: (1) Dismiss the appeal.
(2) Order the appellant to pay the first respondent’s costs.
Catchwords: ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) did not fall into jurisdictional error, fail to exercise its statutory powers or give adequate reasons
ADMINISTRATIVE LAW — Appeals — judicial review — no failure to address clearly articulated submission in circumstances where there had been significant changes in the facts between the making of the submission and the decision under review
TRAFFIC LAW AND TRANSPORT — traffic law — Motor Accident Injuries Act 2017 (NSW) — meaning of “threshold injury” under s 1.6 — whether claimant’s radiculopathy caused by motor accident — where Medical Assessor found radiculopathy present after motor accident
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5E
Motor Accident Injuries Act 2017 (NSW), ss 1.6, 3.11, 3.28, 4.4, 7.17, 7.20, 7.23, 7.26; Pt 7 Div 7.5, Sch 2 cl 2
Supreme Court Act 1970 (NSW), s 69
Motor Accident Injuries Regulation 2017 (NSW), reg 4(1)
Cases Cited: David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55
Texts Cited: Motor Accident Guidelines (version 9.2), Pts 5, 6
Category: Principal judgment
Parties: Allianz Australia Insurance Limited (Appellant)
Zoran Susak (First Respondent)
Cameron Thompson, Ian Cameron and Mohammed Assem as a Review Panel constituted under s 7.26 of the Motor Accident Injuries Act 2017 (Second Respondent)
President of the Personal Injury Commission of New South Wales (Third Respondent)
Representation: Counsel:
M Allars SC / J Gumbert (Appellant)
M Robinson SC / J Isackson (First Respondent)
Submitting appearance (Second and Third Respondents)
Solicitors:
Moray & Agnew Lawyers (Appellant)
NSW Compensation Lawyers (First Respondent)
Crown Solicitor’s Office (Second and Third Respondents)
File Number(s): 2024/429476
[This headnote is not to be read as part of the judgment]
On 12 June 2020, Zoran Susak (the claimant) was a backseat passenger in a car that was rear-ended. He claimed to have suffered multiple injuries including to his cervical, thoracic and lumbar spine, shoulders and psychological injury. The insurer, Allianz, disputed that any of these injuries were non-threshold injuries.
On 9 February 2022, the claimant was referred for medical assessment, where Dr Herald concluded that the claimant’s lumbar spine injury was caused by the accident and was not a ‘threshold injury’ under the Motor Accident Injuries Act 2017 (NSW) (the Act). Allianz requested a review of Dr Herald’s certificate, arguing that the radiculopathy was the result of a pre-existing degenerative condition. The matter was referred to a review panel.
A Review Panel was convened and the claimant re-examined. The Panel accepted Dr Herald’s earlier findings of radiculopathy and concluded that the lumbar spine injury was caused by the accident and, because of the radiculopathy, constituted a non-threshold injury. Griffiths AJA (the primary judge) dismissed Allianz’s application for judicial review of the Panel’s decision.
Allianz appealed the decision on the four grounds: (i) alleged failure to find causation; (ii) alleged inadequacy of reasons; (iii) alleged inconsistency between reference to ‘soft tissue injury’ and ‘non-threshold injury’; and (iv) alleged failure to respond to a substantial and clearly articulated argument.
The Court held (Adamson JA, Payne JA and Stern JA agreeing), dismissing the appeal:
Ground 1: whether the Review Panel failed to determine causation
(1) The primary judge did not err in concluding that the Review Panel had determined as a matter of fact and opinion that there was a causal link between the accident and the radiculopathy detected on Dr Herald’s examination. Therefore, there was no basis on which the decision could be set aside under s 69 of the Supreme Court Act 1970 (NSW): at [46].
(2) The Review Panel sufficiently outlined a path of reasoning which clarified that the accident caused the radiculopathy. It concluded that the cervical and lumbar injuries were caused by the accident, while the remaining injuries were not: at [47]-[48].
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765, cited.
Ground 2: whether the R**eview Panel failed to provide adequate reasons for its decision
(1) The primary judge did not err in finding that the Review Panel’s reasons were sufficient to meet the standard laid down in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43: at [53].
(2) The path of reasoning was sufficiently revealed by the Review Panel’s reasons, since the finding that radiculopathy was caused by an injury sustained in the accident was necessarily implied: at [58].
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231; Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55, applied.
Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30, cited.
Ground 3: whether the Review Panel erred in certifying a soft tissue injury as a non-threshold injury
(1) The primary judge did not err in finding that there was no error in the Review Panel certifying that the “lumbar spine – soft tissue injury” was “not a threshold injury”. The Review Panel’s wording reflected the terms of reg 4(1) of the Motor Accident Injuries Regulation 2017 (NSW), which characterises “[a]n injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) … as a soft tissue injury”: at [63].
(2) Accordingly, the primary judge was correct that the effect of the Review Panel's finding that the accident had caused radiculopathy was to take the present case out of the category of "soft tissue injury" and into the category of non-threshold injuries: at [63].
(3) It was plain from the Review Panel’s reasons that it appreciated that, if it found radiculopathy causally related to the accident, the injury to the claimant’s lumbar spine was not a threshold injury. To the extent that its description of this injury as “soft tissue” appeared in its certificate, it must be read in context in light not only of the balance of the certificate which contains the finding that the injury is “not a threshold injury” but also of the Review Panel’s reasons as a whole: at [64].
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231, cited.
Ground 4: whether the Review Panel failed to address a substantial argument raised by Allianz
(1) The primary judge did not err in finding that the Review Panel had already addressed the submissions alleged by Allianz to have been omitted: at [80].
(2) There were two significant differences between the facts on which Allianz relied in its response and the facts as found by the Review Panel. First, Allianz’s contention in its response was that the claimant had not sought medical advice or treatment until 6 July 2020 whereas clinical notes produced subsequently established that he had in fact sought medical advice on 16 June 2020. Secondly, on 23 December 2020, radiculopathy associated with S1 had not yet been detected in the claimant, but was detected later, including by Dr Herald on 9 February 2022: at [74].
(3) Because the underlying facts had changed, the Review Panel did not need to deal with the claimant’s alleged delay in seeking medical treatment because the length of the delay was not as Allianz had believed it to be at the time of its response. Second, Allianz did not challenge the principle articulated in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 that the presence of radiculopathy at any time would result in an injury to the lower back qualifying as a non-threshold injury: at [75].
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, applied.
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, cited.
PAYNE JA: I agree with Adamson JA.
ADAMSON JA: The appellant, Allianz Australia Insurance Limited trading as Allianz (Allianz), challenges the dismissal by Griffiths AJA (the primary judge) in the Common Law Division of the Supreme Court (the Court below) of its claim for relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of the decision of the second respondent (the Review Panel), a review panel constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (the Act). The decision of the Review Panel was, relevantly, that Zoran Susak (the claimant) suffered non-threshold injuries to his lumbar spine as a result of a motor accident on 12 June 2020 (the accident), for which Allianz, as the relevant compulsory third party insurer, is liable.
Unless otherwise indicated, all references to legislation in these reasons are references to the Act.
In order to obtain relief under s 69 of the Supreme Court Act, Allianz needed to establish either jurisdictional error or error of law on the face of the record. The record for these purposes includes the reasons of the Review Panel: s 69(4). Relief cannot be granted merely for errors of fact.
The two active parties in these proceedings are the claimant and Allianz. The Review Panel and the third respondent, the President of the Personal Injury Commission of New South Wales (the President of PIC, or the President), have filed submitting appearances.
Part 7 of the Act, entitled “Dispute Resolution”, deals with the resolution of claims made by those injured in motor accidents. A dispute whether a claimant’s injuries are “threshold injuries” or “non-threshold injuries” is a “medical assessment matter” for the purposes of Part 7. The importance of the distinction is that a claimant who has suffered only threshold injuries is not entitled to weekly payments or treatment expenses after 52 weeks (ss 3.11 and 3.28) and is not entitled to damages at all (s 4.4).
Section 1.6 relevantly provides:
1.6 Meaning of “threshold injury”
(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury,
…
(2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
…
(4) The regulations may—
(a) exclude a specified injury from being a threshold injury for the purposes of this Act, or
(b) include a specified injury as a threshold injury for the purposes of this Act.
(5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act.
…
The term “threshold injury” replaced the previous term, “minor injury”, following an amendment to the Act passed in 2022 which took effect on 1 April 2023. As many of the documents relevant to this matter were created prior to 1 April 2023, the expression “minor injury” appears in them. As the definition was not otherwise changed, I will use the term “threshold injury” in these reasons.
Regulation 4(1) of the Motor Accident Injuries Regulation 2017 (NSW) (reg 4(1)) provides:
4 Meaning of “threshold injury”, section 1.6(4) of the Act
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
…
(Emphasis added to indicate the exception which takes what would otherwise be a threshold injury out of that category and into the category of non-threshold injuries.)
Clause 2(e) of Sch 2 provides that “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act” is a “medical assessment matter” for the purposes of Part 7. The dispute between the parties about whether the claimant had suffered any injury to his lumbar spine as a result of the accident and, if so, whether it was a threshold or non-threshold injury was a “medical dispute” within the definition in s 7.17. As such, either party to the dispute could refer it to the President of PIC for assessment under Division 7.5 of Part 7. Pursuant to s 7.20(2), the President is to arrange for the dispute to be dealt with by a medical assessor (in this case, Dr Herald, see below). The medical assessor is to give a certificate as to the matters referred for assessment: s 7.23(1). The certificate sets out the reasons for any finding as to any matter certified in the certificate: s 7.23(7).
A party may apply for a review of a medical assessor’s assessment but only on the grounds that the assessment was incorrect in a material respect: s 7.26(2). If the President or delegate is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, the President is to arrange for the medical assessment to be reviewed by a review panel: s 7.26(5). Such a panel is to be constituted by two medical assessors and a member of PIC who is a member assigned to the Motor Accidents Division: s 7.26(5A).
Section 7.26(6) provides:
The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.
The parties agreed that the Motor Accident Guidelines, version 9.2, which commenced on 10 November 2023, were the applicable version. Part 5 of the Guidelines, entitled “Threshold injury (Soft tissue … injuries)”, was made under s 1.6(5).
Clause 5.3 provides as follows:
General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury … caused by the motor accident.
Soft tissue assessment – injury to a spinal nerve root
5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.
Causation of injury
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 non-medical informed judgement.
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.
Allianz provided a response dated 23 December 2020. As the substance of its response is the subject of ground 4, its terms are significant. In its response, Allianz submitted that the injuries to the claimant’s lumbar spine were not caused by the accident, having regard to the pre-existing degeneration as depicted on radiological scans and the delay in reporting the injuries or seeking medical treatment, which Allianz alleged was a period of three weeks.
At the time it made this submission, Allianz was under the mistaken apprehension that the claimant had not sought medical treatment for injuries sustained in the accident until 6 July 2020. Further clinical notes were produced which showed that the claimant had first sought medical treatment for injuries sustained in the accident on 16 June 2020, four days after the accident.
Also in its response dated 23 December 2020, Allianz submitted further that full clinical notes, pre-and post-accident, ought be obtained before an assessment of causation could be made. It continued:
6. Otherwise, the insurer makes the following submissions with respect to each of the injuries referred for assessment:
…
Low back
11. The insurer notes the claimant has been referred for MRI of the lumbar spine, which showed degenerative change in the form of disc desiccation. It is submitted the pathology revealed on the imaging is secondary to age related change in the lumbar spine.
12. The insurer submits the bone scan conducted on 2 October 2020 by Dr Brittain supports the submission the changes revealed on the MRI are degenerative in nature and in this regard, notes a finding of mild disco-vertebral degenerative arthritis at L5/S1 level of the lumbar spine .
13. Further, it is noted Dr Giblin noted there were no symptoms of radiculopathy and accordingly, it is submitted the claimant does not meet the criteria for radiculopathy under clause 5.8 of the Motor Accident Guidelines.
14. In the absence of radiculopathy or a complete or partial rupture of tendons, ligaments, menisci or cartilage, it is submitted the claimant sustained a soft tissue injury to the lumbar spine, which would result in a minor injury finding.
On examination of his lumbar spine he has stiffness of his lumbar spine with paravertebral muscle spasm. He has tenderness in the mid spinal region. He has lateral flexion of about 25% of range to just below his hips and forward flexion to about 25% of range to mid thigh level. He has limited if any extension. He has a positive straight leg raise. He walks with an unsteady and somewhat high stepping gait. He is unable to walk on his toes but can walk on his heels. Neurological examination reveals features of an S1 radiculopathy with decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure. The rest of his neurology appears intact.
(Emphasis added.)
The above definition in Section 1.6 of a minor [threshold] injury has been noted. However given the clinical examination features of S1 radiculopathy as well as MRI scan findings of an L5/S1 disc prolapse caused by the subject accident, [the claimant’s] injury to his lumbar spine is a non-minor [non-threshold] injury.
Allianz sought a review of the Medical Assessor’s certificate, in part on the basis that it had substantial documentary evidence that, at the time of the accident, the claimant had a pre-existing back condition which had caused him to seek medical treatment. It also alleged that Dr Herald’s reasons were insufficient, including because he had failed to address Allianz’s submissions (in its response of 23 December 2020). It sought a referral to a review panel on the basis that Dr Herald’s certificate was “incorrect in a material respect.”
On 28 April 2022, a delegate of the President, determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and that the review application was accepted and would be referred to a review panel.
On 1 July 2022, the Review Panel directed the claimant to attend for an examination on 12 September 2022, which was to be conducted by Medical Assessor Professor Ian Cameron, who was a member of the Review Panel. The Review Panel also directed the claimant to serve on Allianz and upload to the portal (accessed by the Review Panel) clinical records of all general practitioner and other treatment providers who had treated him from 1 July 2017 to date and all reports of imaging from radiological investigations undergone by the claimant in that period.
Allianz provided documentary evidence of the claimant’s pre-existing back condition to the Review Panel and continued to rely on its response dated 23 December 2020, in which it submitted that the claimant’s back condition could not be attributed to the accident, having regard to the history. Reports of the claimant’s treating doctors, such as Dr Giblin’s report of 1 February 2021 referred to above, were also provided.
The Review Panel certifies that the following injury caused by the accident is not a threshold injury:
(a) lumbar spine - soft tissue injury.
Mr Susak said that his initial symptom was neck pain. He saw a local general practitioner. He said he then developed low back pain in the few days after the accident.
Mr Susak confirmed that he consulted Dr Tomasevic on 6 July 2020. The clinical records from Dr Tomasevic on that day note that there was a previous consultation with another general practitioner on 15 June 2020 who recorded at the time of his assessment that Mr Susak had headache, pain in the neck and pain in the lower back.
He did not record other pain.
Mr Susak said that symptoms persisted.
Mr Susak was referred to Dr Giblin who, in February 2021, recommended surgery in the form of an urgent L5/S1 microdiscectomy, which the insurer declined.
Mr Susak said that he had about 100 sessions of physiotherapy. He said that they did not provide lasting relief of his pain.
Mr Susak estimated that he had 20 to 30 treatments from a psychologist.
Mr Susak said that he had been unable to return to work. Mr Susak said that he had previously been taking strong pain relievers but had been able to cease them .
Mr Susak specifically denies that there were pre-existing problems from his lumbar spine. However, the general practitioner records of Dr El Ayoubi show three consultations in September 2019 with “mechanical low back pain”. The notes for the last consultation on 20 September 2019 stated that the back pain was improving slowly. The next consultation is following the subject motor accident and occurred on 16 June 2020. Neck stiffness was noted as well as “slight discomfort to left lower back”.
The diagnosis recorded was “whiplash injury”. There were no further consultations related to the motor accident.
Lumbar spine
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints present. Straight leg raising was equivocally positive on both sides.
There was full range of motion in the lower extremities, although Mr Susak was slow to move due to pain.
Circumferences of the lower extremities were right 40 cm, left 38 cm. The reason for the increased circumference of the right leg appeared to be oedema of that leg.
There was no reflex abnormality in the lower extremity.
Mr Susak said there was an area of numbness approximately 2 cm x 2 cm in the sole in the right heel area.
Mr Susak walked slowly with an abnormal gait. He walked with a stiff right lower extremity.
The interpretation at the time of re-examination was that Mr Susak has continuing low back pain with radicular symptoms but there are no current clinical signs consistent with radiculopathy.
Under the heading, “FINDINGS”, the Review Panel expressly accepted, at paragraph 100 of its reasons, that it adopted the reasoning in David v Allianz Australia Ltd [2021] NSWPICMP 227 (David) at [84]-[104] “that radiculopathy can be present at any time to establish a threshold injury for the purposes of the [Act].” Ms Allars SC, who appeared with Ms Gumbert for Allianz, confirmed that Allianz did not seek to challenge the principle in David.
The Review Panel addressed the questions of diagnosis and causation as follows:
Diagnosis and causation
103. The Panel is satisfied that the claimant sustained soft tissue injuries to his cervical and lumbar spine in the motor accident on 12 June 2020. He had symptoms related to these body regions soon after the accident as documented in the treating records of his general practitioner and continues to have symptoms in these body regions.
104. However, the Panel is not satisfied that the accident was the cause of a disc injury at the claimant’s thoracic spine or rotator cuff tears to his right and left shoulders. …
…
Threshold injury
Cervical spine
107 This area was affected by soft tissue injury, but not an injury to the nerves or a complete or partial rupture of tendons, menisci or cartilage. The Panel is not satisfied that at least two of the clinical signs of radiculopathy specified in cl 5.8 of the Guidelines were found on examination of the claimant at any time following the accident. The injury to the cervical spine is a threshold injury.
Lumbar spine
108. Neurological examination of the claimant by Medical Assessor Herald on 9 February 2022 revealed “features of an S1 radiculopathy with decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure” . This constitutes radiculopathy because two of the clinical signs specified in cl 5.8 were found on examination:
(a) loss or asymmetry of reflexes, and
(b) reproducible sensory loss that is anatomically localised to an appropriate nerve root distribution.
109. Although the Panel did not detect radiculopathy during its examination of the claimant’s lumbar spine, the Panel has taken into consideration the findings of Medical Assessor Herald, who identified two clinical signs of radiculopathy during his examination of the lumbar spine in February 2022, and after the claimant injured his lumbar spine in the accident on 12 June 2020, and has concluded that the claimant’s lumbar spine injury does not meet the classification for a threshold injury. Applying the principle in David, the injury to the claimant’s lumbar spine is not a threshold injury because radiculopathy was present at the time of Medical Assessor Herald’s examination following that injury.
In effect, Allianz sought to re-agitate the same arguments in this Court as had been put and rejected by the primary judge. As this Court is a court of error, Allianz must persuade this Court that the primary judge was in error in dismissing the summons. For this reason, the grounds will be addressed by reference to his Honour’s reasons.
Allianz challenged the Review Panel’s decision before the primary judge on four grounds:
alleged error in determining factual causation:
(a) by failing to make findings about all aspects of the referred injury; (b) by inferring causation from the presence of radiculopathy on examination by Dr Herald; and (c) by failing to apply cll 6.5-6.7 of the Guidelines and s 5D of the Civil Liability Act 2002 (NSW);
(a) why the claimant’s radiculopathy was caused by the accident, in circumstances where there were pre-existing lower back complaints; (b) how a soft tissue injury can constitute a threshold injury; (c) how the finding that the accident caused a soft tissue injury to the lumbar spine led to a finding that the accident caused the radiculopathy;
alleged error in finding that a soft tissue injury constituted a non-threshold injury; and
alleged failure to address Allianz’s substantial and clearly articulated argument that any lumbar spine injury was the consequence of a pre-accident complaint which was reflected in pathology indicating long-term degenerative change.
The grounds in the amended notice of appeal reflected these challenges as follows:
1 . The primary judge erred in holding that the Second Respondent determined according to law the question of whether the injury to the lumbar spine with the presence of radiculopathy was caused by the motor accident (Primary Judgment [75], [801).
2 The primary judge erred in holding that the Second Respondent provided adequate reasons as required by s 7.23(7) of the Motor Accident Injuries Act 2017 (NSW) (Primary Judgment [75], [87]).
3 The primary judge erred in concluding that the certification by the Second Respondent in the Certificate that “lumbar spine - soft tissue injury .... [was an] injury caused by the accident [and] is not a threshold injury” was not an error of law on the face of the record (Primary Judgment [91 ], [93]).
4 The primary judge erred in concluding that the Second Respondent addressed and responded to the Appellant’s substantial and clearly articulated argument, seriously advanced, that in light of the First Respondent’s pre-existing degenerative disc disease the required causal relationship between the motor accident and the injury to the lumbar spine with the presence of radiculopathy was not established (Primary Judgment (98]).
Allianz’s challenge to the Review Panel’s decision on ground 1 was that the finding that the lumbar spine injury involved radiculopathy did not include an anterior finding that the radiculopathy was caused by the accident.
On the question of causation, the primary judge found that:
the Review Panel’s reasons were sufficient to indicate that it appreciated that causation was an issue, particularly in light of the pre-existing back complaints which were the subject of the material relied on by Allianz and its submissions ([75]);
it was implicit in the Review Panel’s reasons that the pre-existing back complaints had resolved during the nine month gap between his general practitioner noting that his back pain was “improving slowly” and the next consultation which occurred after the accident ([75](4)); and
the Review Panel accepted Dr Herald’s and Dr Cameron’s findings on examination and the link made by Dr Herald that the accident caused the radiculopathy suffered by the claimant, in part because the finding of radiculopathy was relatively proximate to the accident ([75](6) and (8));
Further, the primary judge considered causation, as long as there was some evidence to establish it, to be a question of fact “and quintessentially so”, referring to Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [44] (Leeming JA, Basten JA and Simpson AJA agreeing).
In my view, there is no reason to doubt the correctness of the primary judge’s conclusion that the Review Panel had determined as a matter of fact and opinion that there was a causal link between the accident and the radiculopathy detected on Dr Herald’s examination and that, as such, there was no basis on which the decision could be set aside under s 69 of the Supreme Court Act.
The Review Panel’s path of reasoning on the question whether the accident caused the radiculopathy was as follows:
the claimant suffered a pre-existing back condition prior to the accident for which he sought medical treatment;
the symptoms from the claimant’s pre-existing back condition had largely resolved prior to the accident, as can be inferred from the circumstance that the last consultation relating to the pre-existing back condition was on 20 September 2019 at which he reported that the back pain was improving slowly;
the claimant complained of back pain after the accident, which he attributed to the impact sustained in the accident, when he first consulted a medical practitioner after the accident on 16 June 2020 and complained of “slight discomfort to left lower back”;
the lower back symptoms complained of and experienced by the claimant after the accident were caused by the accident (paragraph 103 of the reasons);
The summary of the primary judge’s reasons given above applies to the causal connection between the radiculopathy and the accident.
At [83], the primary judge referred to the seminal passage from Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ) concerning the standard by which reasons by a medical panel (in that case constituted under the Accident Compensation Act 1983 (Vic)) should be assessed, as follows:
The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that 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. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
(Emphasis added by the primary judge.)
The primary judge found that the Review Panel’s reasons were sufficient to meet the standard laid down in Wingfoot. His Honour found that the Review Panel’s reasons setting out its path of reasoning were “succinct, but adequately revealed”.
Ms Allars submitted that there was a “gap” in the Review Panel’s reasons because, although it found that the claimant injured his lower back in the accident, it did not expressly find that the radiculopathy in S1 was caused by the accident. She submitted that the Review Panel had failed to meet the standard required in Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [68]-[69] and that the Review Panel had not expressed its causation finding as applying to the radiculopathy detected by Dr Herald, which it addressed in the context of the categorisation of the lumbar spine injury as threshold or non-threshold. She submitted that the failure to link radiculopathy in terms to the accident deprived Allianz of identifying “with certainty what reasons [the Review Panel] had for reaching its conclusion”: Yusuf at [69].
Ms Allars referred the Court to several decisions where Yusuf had been applied in different contexts. It is not necessary to address these decisions as each turned on its own facts.
The relevant principles were summarised by Bell P in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77]:
These principles include the following:
(i) Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ);
(ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Politis v Commissioner of Taxation (1988) 20 ATR 108 at 111; [1988] FCA 739 at [14];
(iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] (Kirby J); Wu Shan Liang at 291; Bisley at 251;
(iv) the reasons recorded ought not to be inspected with a fine-tooth comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291;
(v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal’s thoughts or verbal slips: Pozzolanic at 287; Wu Shan Liang at 272 and 291.
The question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a “beneficial construction” to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged.
I discern no error in the primary judge’s conclusion. I consider that the path of reasoning which I have set out above is sufficiently revealed by the Review Panel’s reasons. Indeed, I am not convinced that there was such a “gap” as alleged. The Review Panel dealt with causation before turning to the issue whether the injury to the lumbar spine was a threshold injury. Radiculopathy was relevant to the latter question, causation already having been found. It would have been superfluous for the Review Panel to repeat its finding that the symptoms experienced by the claimant which related to his lumbar spine had been caused by the accident. The ordering of paragraphs is the prerogative of the decision maker. A court reviewing such reasons ought not impose its own view of how it would have composed reasons for the same decision. But in this case, as explained above, I consider that the headings indicated the logical progression of the path of reasoning taken by the Review Panel.
For these reasons, I am not persuaded that ground 2 has been made out.
The Review Panel certifies that the following injury caused by the accident is not a threshold injury:
(a) lumbar spine - soft tissue injury.
Ms Allars submitted that the certification of the “lumbar spine – soft tissue injury” as “not a threshold injury” was inconsistent, “very problematic” and “not workable” since a soft tissue injury was, by definition, not a threshold injury.
The primary judge said of present relevance:
91 … The Certificate and reasons of the Review Panel need to be read together and as a whole. The Review Panel’s certification that “lumbar spine – soft tissue injury” is an injury caused by the accident and is not a threshold injury needs to be read in the context of the Review Panel’s analysis of the relationship between radiculopathy and non-threshold injuries. Where post-accident radiculopathy arising from the lumbar spine injury has been diagnosed and accepted by the Review Panel, as is the case here, the injury is not a threshold injury.
92 The terminology used by the Review Panel in the Certificate should not be read in isolation from the Review Panel’s statement of reasons and the significance it attached to the fact that Dr Herald had previously identified two clinical signs of radiculopathy during his examination of the claimant’s lumbar spine in February 2022 (see the reasons at [109]).
93 Ideally there should have been an express reference to radiculopathy in par 3(a) of the Certificate and in [105(b)] of the statement of reasons, but when the Certificate and reasons are read together it is plain that Dr Herald’s findings of radiculopathy were adopted by the Review Panel so as to remove the lumbar spine – soft tissue injury from the definition of “threshold injury”.
The primary judge considered that the Review Panel’s wording was explicable, having regard to the terms of reg 4(1), which include “[a]n injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) … as a soft tissue injury.” His Honour found that the effect of the Review Panel’s finding that the accident had caused radiculopathy was to take the present case out of the category of “soft tissue injury” and into the category of non-threshold injuries.
I am not persuaded of any error in the primary judge’s construction of the certificate in light of the Review Panel’s reasons. It is plain from the Review Panel’s reasons that it appreciated that, if it found radiculopathy causally related to the accident, the injury to the claimant’s lumbar spine was not a threshold injury. To the extent that its description of this injury as “soft tissue” appeared in its certificate, it must be read in context in light not only of the balance of the certificate which contains the finding that the injury is “not a threshold injury” but also of the Review Panel’s reasons as a whole. His Honour’s recitation of the relevant authorities, including Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] (Bell P, Ward JA agreeing) shows that his Honour correctly approached the assessment of the Review Panel’s reasons.
Even if the terms of the certificate are construed without regard to the reasons, it is tolerably plain that the Review Panel has certified that the injury to the claimant’s lumbar spine is a non-threshold injury. When the terms of the certificate are read in the context of the definition in reg 4(1), the only reasonably available inference is that the Review Panel is satisfied that the injury to the claimant’s lumbar spine, which would otherwise be a soft tissue injury, qualifies as a non-threshold injury because of radiculopathy, that being the only finding which, because of the exception in the definition, has that effect.
I reject Ms Allars’ submission that the wording of the certificate is materially problematic or unworkable. The finding that the injury to the claimant’s lumbar spine is a non-threshold injury is unambiguous and the reference to “soft tissue” is, as the primary judge found, explicable in light of the wording of reg 4(1).
For these reasons, I am not persuaded that ground 3 has been made out.
In support of ground 4, Allianz relies on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (Dranichnikov) in which Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker ‘[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts’ was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25].
At [95], the primary judge listed the submissions which Allianz alleged had not been addressed by the Review Panel, as follows:
(a) The scans conducted post-accident show degenerative arthritis in the L5/S1 level of the lumbar spine, which are age related changes (Review Panel’s reasons at [61] – [62]).
(b) Assessor Herald did not explain why he found that the L5/S1 disc prolapse and S1 radiculopathy were causally related to the accident, on the background of imaging that showed that the pathology was degenerative (at [72] – [75]).
(c) Assessor Herald had not considered the insurer’s substantial and clearly articulated argument (at [80] – [81]).
The primary judge said that, for the reasons his Honour had already given, these submissions had, in substance, been addressed by the Review Panel.
In Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, Basten JA (Payne JA and Simpson AJA agreeing) referred to Dranichnikov and said at [26]:
There is no doubt that a failure to address “a substantial, clearly articulated argument relying on established facts” may constitute procedural unfairness [citing Dranichnikov at [24]]. However, it was necessary for the appellant to identify each element of this proposition and to show that the argument was not addressed.
Ms Allars identified the relevant submission made by Allianz which she alleged had not been addressed by the Review Panel as its submission dated 23 December 2020 made in response to the claimant’s claim (summarised above).
The first difficulty for Allianz in establishing that the Review Panel failed to deal with “a substantial, clearly articulated argument relying on established facts” was that there were two significant differences between the facts on which Allianz relied in its response and the facts as found by the Review Panel.
First, Allianz’s contention in its response (based on the limited records to which it had access at the time of its response) was that the claimant had not sought medical advice or treatment until 6 July 2020 (over three weeks after the accident) whereas clinical notes produced subsequently established that he had in fact sought medical advice on 16 June 2020 (four days after the accident). Secondly, on 23 December 2020, radiculopathy associated with S1 had not yet been detected in the claimant, but was detected later, including by Dr Herald on 9 February 2022.
Because the underlying facts had changed, the Review Panel did not need to deal with the claimant’s alleged delay in seeking medical treatment because the length of the delay was not as Allianz had believed it to be at the time of its response. Second, on the basis of David, the presence of radiculopathy at any time would result in an injury to the lower back qualifying as a non-threshold injury. Dr Herald’s finding of radiculopathy post-dated Allianz’s response.
Once these two integers were removed from Allianz’s response, all that was left was the proposition that the radiculopathy could have been caused by the claimant’s degenerative back condition and that there was a question whether it was caused by the accident. However, this was dealt with by the Review Panel when it recorded that the claimant had not sought medical treatment between September 2019 and June 2020 and that he had sought such treatment in June 2020 because he was experiencing symptoms relating to his neck and back arising from the accident.
To the extent to which a challenge to the claimant’s credit can be discerned in Allianz’s response, Ms Allars eschewed it and confirmed, in oral submissions in this Court, that “no argument has been put about lack of credit of the claimant”.
The Act provides for a medical dispute such as the one which arose in the present case to be determined by way of an assessment by a medical assessor or, on review, a review panel. A review panel is largely comprised of medical practitioners: its function is neither arbitral nor adjudicative; its role is neither to choose between competing arguments nor opine on other opinions on medical questions. Nor is its role to test the credibility of a claimant which it has decided, as part of its functions, to re-examine (following an initial examination by a medical assessor). It is obliged to come to its own opinion and explain its actual path of reasoning in its statement of reasons: at [47]. Further, the Review Panel did not have to address Allianz’s submission in terms in order to deal with it in a substantive way. Its reasons (and the path of its reasoning as set out above) were sufficient to indicate that it had regard to the claimant’s pre-existing degenerative back condition but considered that the back symptoms which the claimant experienced and reported post-accident, including the radiculopathy which Dr Herald detected on examination, had been caused (or contributed to) by the accident.
For the reasons given above, I propose the following orders:
Dismiss the appeal.
Order the appellant to pay the first respondent’s costs.
STERN JA: I agree with Adamson JA.
**********
appeal book references deleted
Allianz Australia Insurance Limited trading as Allianz
Susak [2025] NSWCA 91
(2003) 77 ALJR 1088
(2021) 399 ALR 765
(1996) 185 CLR 259
(2001) 206 CLR 323
(2019) 100 NSWLR 578
(2013) 252 CLR 480
(2003) 77 ALJR 1165
Appeal dismissed. The appellant was ordered to pay the first respondent’s costs ([81]).
in his examination of the claimant on 9 February 2022, Dr Herald noted two features of S1 radiculopathy: decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure (which corresponded with paragraphs (a) and (e) in cl 5.8 of the Guidelines) (paragraph 108 of its reasons);
the radiculopathy was caused by compression of the S1 nerve by reason of the disc bulge at L5/S1 which was caused (or contributed to) by the accident (necessarily implied by (4) and (5) above); and
because the radiculopathy detected by Dr Herald post-accident qualified for the definition in cl 5.8 of the Guidelines, the back injury which the claimant sustained in the accident was a non-threshold injury (paragraph 108 of its reasons).
The structure of the Review Panel’s reasons also illuminates the path of reasoning. Under the heading “Diagnosis and causation” (which was related to paragraphs 103-106), the Review Panel addressed whether the claimed injuries were caused by the accident. It concluded that the cervical and lumbar injuries were caused by the accident, while the remaining injuries were not.
Under the heading “Threshold injury” (which related to paragraphs 107-109), the Review Panel went on to address the question whether the soft tissue injuries to the claimant’s cervical and lumbar spine (which it had already found were caused by the accident) were taken out of that category by reference to the Guidelines and reg 4(1) and therefore classified as non-threshold injuries. They concluded that, because radiculopathy associated with S1 had been found by Dr Herald, the injury to the lumbar spine was a non-threshold injury, but because the test for radiculopathy in the Guidelines was not satisfied for the cervical spine injury, the injury to the cervical spine remained a soft tissue, and therefore a threshold, injury.
For these reasons I am not persuaded that ground 1 has been made out.
I understood Ms Allars to submit that the Review Panel needed to find that the accident was the sole cause of the claimant’s lumbar spine injury if it were to find that it was a non-threshold injury. If this was the submission, I reject it. The principles of causation in cl 6.6 of the Guidelines indicate that, as at common law, the accident need only contribute to the injury and need not be its sole cause.
I discern no error in, and agree with, the primary judge’s conclusion that the Review Panel’s reasons indicate that it adequately dealt with Allianz’s submissions. For these reasons, ground 4 has not been made out.