1. The Review Panel revokes the certificate of Medical Assessor Nigel Menogue dated

19 February 2025 and issues a new certificate as follows:

(a) the Review Panel certifies the following injuries were caused by the motor accident:

(i) cervical spine - soft tissue injury, and

(ii) lumbar spine - L5/S1 discal injury requiring left L5/S1 decompression and residual scarring. No residual lower limb radiculopathy.

(b) The Review Panel finds that the above injuries result in a whole person impairment of 5% which is NOT greater than 10%.

1. Julian Borbidge (the claimant) was involved in a motor accident on 8 July 2022. He was driving his ute in a line of traffic when the vehicle in front stopped suddenly. The claimant was able to stop however he was hit in the rear by a following taxi. The impact caused the tray of his ute to be lifted up, causing the claimant to be pushed forward, smashing his glasses on the windscreen.
2. The claimant says he suffered injuries to his neck and lower back as a result of the motor accident.
3. The claimant made a claim for personal injury benefits with Allianz Australia Insurance Limited (the insurer), the third-party insurer of the vehicle that he says caused the accident.
4. A medical dispute arose about whether the degree of the claimant's whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of WPI, damages for non-economic loss[1] cannot be awarded and the dispute must be referred to a Medical Assessor for determination.
5. On 19 February 2025, Medical Assessor Nigel Menogue found the claimant's injuries to be caused by the motor accident and assessed the WPI at 11%, which is greater than 10%.
6. The insurer lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Menogue's assessment.
7. On 6 May 2025, a delegate of the President (Ms Ratula Gupta) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.

1. Medical Assessor Menogue was referred the following injuries for medical assessment:
   • cervical spine - soft tissue injury and pain and stiffness in the neck;
   • lumbar spine - L5/S1 disc prolapse and left-sided S1 neural compression, and
   • skin scarring - lumbar spine.
2. The Medical Assessor found a causal connection between the motor accident and the above injuries.
3. For the cervical spine, the diagnosis was a soft tissue injury that had since resolved.
4. For the lumbar spine, the claimant told the Medical Assessor that:

"...his back pain developed a few days post-accident. His pain had not developed on 27/7/2022 when he returned to his GP, as indicated in medical reports that I have studied - that was simply the date of the medical assessment."[2]

1. The Medical Assessor then indicated that previous independent medical experts had been "inconsistent when establishing causation" of the back injury. The Medical Assessor was satisfied that the claimant sustained an accident-related left-sided L5/S1 disc protrusion, which had impinged on the left sciatica nerve. The Medical Assessor's examination revealed a positive left-sided sciatic stretch test and reduced power involving the left extensor hallucis longus muscle when compared with the right. The necessary two objective signs for a diagnosis of radiculopathy were therefore found and the claimant's WPI was assessed as 10%.
2. The residual scar from the L5/S1 microdiscectomy was then assessed under the Table for the Evaluation of Minor Skin Impairment (TEMSKI) at 1% WPI.
3. The Medical Assessor also considered whether any deduction was required for pre-existing impairment. It was noted that the medical documentation leading up to the period just before the motor accident identified lower back symptoms. There was a mention of "sciatica".
4. The Medical Assessor was not satisfied that the clinical records showed any of the differentiators (dysmetria, muscle guarding/spasm or neurological signs of deficit) that would indicate the presence of a pre-existing DRE II impairment and therefore require a deduction to be made. The sciatica was found to be based on the claimant's reported history and not the history from the clinician's assessment on the day. It was therefore determined that no apportionment was required.
5. The Medical Assessor concluded that the WPI caused by the motor accident was 11% and was greater than 10%.

1. The insurer provided detailed submissions in the initial reply to the application for medical assessment and in its review application. The insurer highlighted the claimant's pre-accident lower back complaints in the treating documentation. In the post-accident documentation, the insurer says neither the police nor ambulance attended the accident and the claimant did not present to hospital for treatment. It was further noted that the claimant first reported the motor accident to his treating doctor on 9 July 2022 (day after the accident) where there were no lumbar spine complaints. Furthermore, it is submitted that between 9 July 2022 and

27 July 2022, the claimant did not seek medical treatment. 2. The insurer's primary submission however, relates to a GP note entry dated 27 July 2022 where "...it was noted 'mild lower back pain post heavy lifting' (Panel's emphasis). There was no reference to the accident causing the lower back pain". 3. The insurer therefore submits that any lumbar spine disc pathology or lumbar spine injury was not caused by the motor accident. Rather, the disc protrusion (and the subsequent requirement for surgery) was likely caused by the separate lifting event, which was a factor not considered by Medical Assessor Menogue. 4. The claimant did not provide submissions in reply to the insurer's review application. Nor did the claimant provide his bundle of documents when directed by the Panel (see below under heading Review of the Evidence). Upon enquiry by a Commission case officer, the claimant's representative replied on the Commission Portal on 16 June 2025 that it "relies on the original certificate and does not have further documents to lodge".

1. On 13 May 2025, the Panel issued a direction to the parties requesting indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The insurer lodged its bundle which comprised of pages 1-399.
2. As noted above, the claimant did not lodge any documents, stating that it relies on the original certificate of Medical Assessor Menogue.
3. The Panel discussed the documentation at its initial teleconference on 23 June 2025. The material relevant to the determination of the permanent impairment dispute and the issues in dispute are referred to in the Panel re-examination report and the Panel findings below.

1. At the initial teleconference on 23 June 2025, the Panel determined that the claimant be re-examined. This occurred on 29 August 2025 and the joint report of Medical Assessors Barnsley and Lahz is below:

**"**Mr Borbidge attended the PIC Suites punctually having travelled from home in the Sutherland Shire.

He is aged 50, right-handed and lives at home with his wife.

He was a heavy steel fabricator for over 20 years, building (large) movie sets all over the world whilst working in the special effects industry. He spoke of how much he enjoyed his work which he can no longer do due to the injuries from the motor accident.

Prior to the subject motor accident 8 July 2022, he said there had been intermittent mild, low back pain with occasional lower limb radiation, which he would treat with remedial massage and gentle exercise. Symptoms would rapidly resolve and he was able to continue working.

The Panel Medical Assessors asked him about a motor accident (noted in medical records) in 2018. He said he had been driving at La Perouse when a car struck the rear driver's side of his vehicle. He said there were a few niggly issues for which he was medically checked out afterwards. He could not recall if there had been any scans although he was certain that there were no ongoing symptoms from that incident.

The Panel Medical Assessors also raised with him various entries in GP records referring to low back pain requiring chiropractic treatment during 2019, 2020 and 2021. He confirmed that there would sometimes be backache for which he attended a chiropractor as part of a wholistic "preventative" approach.

On specific enquiry, he said the only medical history was thyroid disease for which he was taking Thyroxine.

Immediately prior to the subject 8 July 2022 accident, he said there were no lower back symptoms.

The Panel Medical Assessors then asked Mr Borbidge about the subject accident. At the time, he was the restrained driver of a VW Amarok when a taxi essentially submarined beneath his ute, causing it to lift 45 degrees before being propelled forward in the intersection without frontal impact. The VW undercarriage was later repaired although there was extensive damage to the front of the taxi.

His glasses came off in the collision, and his head either hit the roof or else the windscreen although there was no loss of consciousness.

The VW ute was drivable afterwards and he was able to drive around the corner to exchange details with the taxi driver. Neither police nor ambulance attended, and he subsequently drove home in his own vehicle.

The following day, Mr Borbidge was aware of spinal tightness/soreness along with mild headache for which he saw his GP (9 July 2022). According to the medical records, he reported only neck pain and headache. When asked about this, he said that the neck pain developed first, followed by the low back pain within a few days.

Low back pain in particular progressed over the next few days to weeks becoming severe. He reported that he also developed bilateral buttock pain, soon devolving to left lower limb pain down to the foot, significantly exacerbated by sneezing.

The Panel Medical Assessors asked him about the GP entry dated 27 July 2022 in which it is stated that his partner attended the rooms, as opposed Mr Borbidge. The doctor however refers to Mr Borbidge experiencing low back pain after heavy lifting. The doctor then says he advised the partner that Mr Borbidge should attend for in person review whilst having some Nurofen in the interim.

Mr Borbidge rejected the above account concerning 27 July 2022 and denied that he had done any heavy lifting, particularly given he was suffering from low back pain due to the motor accident. However, he could not explain why the doctor wrote that he had not been in attendance because he thinks he did attend the doctor's rooms on that day.

Subsequently, the GP records indicate that a CT scan of the lumbar spine showed broad based disc bulging along with facet arthritis (but without nerve root compression). Back pain was ongoing and he was referred to physiotherapy (within the GP rooms) on 15 August 2022.

The combined GP and physiotherapy records indicate that by late August 2022, the lower back symptoms had become lateralized to the left side and ipsilateral quadriceps.

On 31 August 2022, the GP writes that he advised Mr Borbidge to avoid heavy lifting. There were no neurological abnormalities and SLR was negative.

On 15 September 2022, the GP notes that symptoms have worsened and there is then left sciatica reaching the back of the knee. By 4 October 2022, lower back pain is reportedly spreading to the left buttock with sharp radiating pains. There is positive left-sided SLR and slump test. The doctor prescribes Lyrica for neuropathic pain.

During October 2022, physiotherapy continues for low back pain and left sciatica.

An MRI of the lumbar spine 18 October 2022 demonstrated a left L5/S1 disc protrusion extending to the lateral recess. With respect to symptoms, he complained of a corked sensation in the left leg.

Records during November 2022 indicate continuing physiotherapy. On

7 November 2022, he was referred to a neurosurgeon Dr Raj Reddy. All the while, he continued working despite symptoms given he really liked his job and did not want to lose it.

Dr Reddy on 21 November 2022 noted left L5/S1 radicular lower limb pain with subtle lower limb weakness. He suggested surgery as the best option for recovery although he would first arrange a steroid injection.

By December 2022, the GP records indicate that Dr Reddy had recommended lumbar spine decompression whilst physiotherapy with home exercise programme continued, albeit with little benefit on lower back and lower limb symptoms.

Mr Borbidge persevered at work throughout early 2023, the GP noting he was very work focussed despite persistent left lower back, groin and buttock pain, with positive L>R slump test.

He did receive a spinal steroid injection following which there was transient symptomatic improvement.

At this stage, low back pain persisted with left leg pain spreading distally, along with numbness, as well as a tendency for catching/stubbing the left-sided toes.

However, due to symptom intensity, by March 2023, he came to left L5/S1 decompression by Dr Reddy, which was unfortunately complicated by a CSF leak requiring reoperation 28 March 2023; with left L4/5 and L5/S1 laminotomy for evacuation of a CSF collection and repair of dural breach.

Mr Borbidge told the Panel Medical Assessors that it took approximately eight weeks for reasonable recovery post-operatively. Fortunately, he received plenty of assistance from his wife at home with ADLS. He received physiotherapy which later devolved to exercise physiology twice weekly.

Surgery served to significantly reduce but not resolve the lower back and left leg pain. Lower limb numbness and weakness also improved.

An MRI of the lumbar spine 18/7/23 showed scar tissue impingement of the left S1 nerve root.

Mr Borbidge said that post-operative physiotherapy and exercise physiology interventions improved lower limb strength.

He was able to resume work to continue suitable duties and it was decided that he should receive retraining to participate in less physically demanding duties. He continued work as best he could.

However, there was some disagreement later on at the workplace with the abovementioned vocational retraining withdrawn so that he had to resume more onerous duties stirring up his back. At the same time, the insurer ceased support for physiotherapy and exercise physiology interventions. This culminated in cessation of work/loss of work in March 2025 about which he remains distressed given the importance of the job to him.

Mr Borbidge has also experienced some neck pain since the accident although the latter has not been such a problem as the lower back. Neck pain is discussed further below.

Ongoing, Mr Borbidge continues physiotherapy although he is no longer receiving exercise physiology interventions. He has a home exercise programme. He takes simple analgesia such as Nurofen Plus or else Celebrex for symptoms.

Since the accident, he and his wife have downsized to an apartment where there is no yard work.

For the home, the insurer is funding some paid assistance with chores.

Mr Borbidge is keen to find physically non-demanding work. To this end, he has been studying real estate, an area he hopes (vocationally) to break into. He has also been studying Mandarin.

There is L>R low back pain spreading posteriorly at the left leg but stopping at the knee. He also experiences left groin pain.

There are no longer any neurological symptoms in the left lower limb.

He complains too of manageable neck pain. He experiences a "digging in" sensation at C7 whilst neck pain also spreads to the upper trapezial regions intermittently.

The neck can feel very tight of a morning and symptoms are ramped up if he has a "physical day".

He does not report any pain or else neurological symptoms in the upper limbs.

Mr Borbidge presented in a straightforward manner and pleasant/cooperative throughout the 90-minute clinical assessment.

There was normal cervical spine posture. Neck movements were full in all planes of motion. There was no dysmetria. There was neither tenderness nor muscle guarding nor were there any non-verifiable radicular complaints.

The left arm (biceps) circumference 10 cm above the lateral epicondyle measured

32 cm and the right 33 cm consistent with right handedness.

The right forearms measured symmetrically at 31 cm 10 cm below the lateral epicondyles.

There was normal upper limb sensation in all areas.

Gait was unremarkable and he could walk on heels and then on toes without ado.

On examination of the lumbar spine there was some flattening of the lordosis. There was a longitudinal, flat surgical scar 4.5 cm length, with just visible suture marks. The scar was distinct in (brawny) colour from surrounding skin. The claimant was aware of the scar and able to localise it. He said it was sometimes itchy. There were no trophic changes, the scar was non adherent and there were no contour defects. The scar would not be visible in ordinary clothing and does not interfere with ADLS.

There was tenderness over the lowermost lumbar spine without spasm or guarding.

Lumbar flexion was 1/2 normal range and extension 1/3 normal range. Left lateral flexion was ½ normal range and right lateral flexion full. There was dysmetria present at the lumbar spine.

Right SLR was negative, with (only) complaints of hamstring tightness.

However, left SLR was positive at 60 degrees inducing tingling sensations at the heel and base of the foot, which were worsened by ankle dorsiflexion.

Careful assessment of lower limb power in multiple positions (standing, lying and sitting) indicated full strength in all muscle groups.

In supine, the assessors found mild "giving way" weakness of left ankle dorsiflexion and left great toe extension although it was difficult to say whether this was neurologically mediated or else due to coincidental complaints of pain. Ankle inversion and eversion in supine were of normal (grade 5/5) strength.

To further assess ankle/foot strength, the medical assessors assessed lower limb strength in different positions, finding he was able to walk symmetrically on his heels and further, whilst standing, he could extend both great toes with equal strength such that the examiner could not overcome them.

Lower limb reflexes inclusive of the ankle jerk (again tested in various positions) were present and symmetrical.

There was no measurable wasting of the calves (36 cm)10 cm below the patella nor was there any measurable wasting of the thighs 10 cm above the patellae (46 cm).

The Panel only found one sign of radiculopathy being a positive left-sided SLR. There were no other findings to confirm the presence of radiculopathy per paragraph 6.38 page 108 of the Guidelines.

Thus, the medical assessors found that there were not the two necessary clinical signs to conclude the presence of a lower limb radiculopathy (paragraph 6.38 page 108 of the Guidelines)."

1. The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (Guidelines).[3]
2. Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.

1. Causation is dealt with at clauses 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in clause 6.7 which states:

"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. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and 5E.

1. The Panel noted the provisions for apportionment of current WPI due to pre-existing injuries or conditions are contained in cls 6.31 and 6.32 of the Guidelines:

"6.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.'"

1. The review of the 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.[4]
2. The evaluation should only consider the impairment as it is at the time of the assessment.[5]
3. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[6]
4. The Panel notes the above joint re-examination report of Medical Assessors Barnsley and Lahz. The Panel reconvened on 8 September 2025 and discussed the re-examination report findings before collectively making the below determinations.

1. The claimant presented in a straightforward manner and the Panel accepts the claimant's given history of evolving lower back and left lower limb symptoms since the subject motor accident.
2. The only inconsistency was the conflicting information between the claimant's history provided versus that given in the GP record 27 July 2022. He was adamant that there had been no heavy lifting causative of low back pain.
3. The Panel considered that this entry should not be accepted as being determinative of the origin of the claimant's lumbar spine injury. It is but a single entry, the details of which could be imprecise, given that it was documented as his partner's account of heavy lifting being the cause of the claimant's low back pain.
4. The account also goes against the claimant's given history that he limited his heavy lifting while on suitable work duties in accordance with his GP's advice. This is consistent with the claimant ceasing his much-loved job when the option of vocational retraining was removed and the claimant could not return to the more onerous physical work tasks.
5. The cervical spine injury is accepted as being causally related to the motor accident as neck pain was mentioned in the GP records and confirmed by Mr Borbidge as being present before the low back pain.
6. The Panel determined the following injuries were caused by the motor accident:
   • cervical spine - soft tissue injury, and
   • lumbar spine - L5/S1 discal injury requiring left L5/S1 decompression and residual scarring. No residual lower limb radiculopathy.

1. Based on clinical findings, the Panel deemed cervicothoracic DRE I or else 0% WPI for the cervical spine. The claimant continues to have symptoms although there were no clinical findings present that would indicate DRE category exceeding DRE I (Table 6.7, page 103 of the Guidelines).

1. Based on clinical findings and the history of lumbar decompression surgery, the Panel deemed lumbosacral DRE II or else 5% WPI (Table 6.7, page 103 of the Guidelines).
2. He has undergone a lumbar spine decompression procedure as opposed a lumbar fusion. Whilst a fusion is accorded DRE IV or else 20% WPI, a spinal decompression procedure is accorded either DRE II 5% WPI (if no two signs of radiculopathy) or else DRE III 10% WPI if there are the two necessary signs to conclude that radiculopathy is present (paragraph 6.138 page 108 of the Guidelines). In this case, there were not the two necessary signs to conclude the presence of lower limb radiculopathy; therefore there is DRE II or else 5% WPI of the lumbar spine (Table 6.7, page 103 of the Guidelines).
3. Whilst the Panel found a positive left lower limb tension test, the very detailed examination did not indicate a second clinical sign to support the presence of lower limb radiculopathy as required by paragraph 6.138, page 108 of the Guidelines.
4. The claimant's ability to extend both great toes with equal strength in standing when examined by the Panel meant that the Panel did not find the reduced power in the left extensor hallucis longus muscle, as found by Medical Assessor Menogue.
5. Therefore, the claimant does not have radiculopathy per the definition/criteria of 6.138 and therefore does not qualify for lumbosacral DRE III. As noted, there is lumbosacral DRE II or else 5% WPI.
6. The Panel deemed 0% WPI for the uncomplicated lumbar spine surgical scar, according to "best fit" per TEMSKI. He is aware of the scar and able to localise it. There is (brawny) discoloration distinct from surrounding skin. There are mild symptoms (itch) not interfering with Activities of Daily Living. There are faintly visible suture marks without adherence or else trophic changes. The scar is not visible in usual clothing. There are no contour defects, adherence or need for treatment.

1. As noted above in the claimant's given history and the Panel Medical Assessor's review of the clinical notes, there was pre-accident evidence of low back complaints in 2019, 2020 and 2021.
2. The Panel however, accepts the claimant's given history that symptoms resolved following conservative treatment (remedial massage and exercise). The documentation also did not provide the necessary detail for any impairment to be calculated in order to make any apportionment for pre-existing lumbar spine injury or condition.

1. The claimant's WPI as a result of the motor accident is 5% which is not greater than 10%. The Panel's findings on impairment to the lumbar spine and the surgical scarring were different to that found by Medical Assessor Menogue.
2. The Panel therefore revokes the certificate of Medical Assessor Menogue dated

19 February 2025. A new certificate is issued at the front of this statement of reasons.

[1] See Division 4.3 of the Motor Accident Injuries Act 2017 (MAI Act).

[2] At paragraph 22, page 14 of Medical Assessor Menogue's Certificate dated 19 February 2025.