Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. Confirms the certificate issued by Medical Assessor Mohammed Assem dated

7 November 2024. 2. Determines that the following injury caused by the motor accident: * lumbar spine - L5/S1 disc extrusion

is NOT a threshold injury for the purposes of the Motor Accident Injuries Act 2017.

1. Mr Meilak (the claimant) was involved in a motor accident on 2 June 2023. He was the driver of his car and was stationary when he was hit from the rear. He says he suffered injury as a result of the motor accident.
2. The claimant made a claim for statutory benefits with Allianz, the third-party insurer of the vehicle that he says caused the motor accident.
3. A medical dispute arose about whether the claimant's injury caused by the motor accident was a threshold injury. The medical dispute was referred to the Personal Injury Commission (Commission) for medical assessment.
4. On 7 November 2024, Medical Assessor Mohammed Assem issued a certificate of assessment that found the claimant's injury caused by the motor accident to be not a threshold injury.
5. The insurer lodged an application with the Commission seeking review of the Medical Assessor's decision. The application was allowed by the President's delegate (Ms Ratula Gupta) and this Review Panel (Panel) was convened to conduct the review.[1]

1. Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
2. For injured persons who have "threshold injuries", they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.
3. For physical injuries, a threshold injury is defined as a "soft tissue injury".[2]
4. A "soft tissue injury" is defined as:

"An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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."[3]

1. A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[4]
2. The Motor Accident Guidelines (the Guidelines)[5] defines radiculopathy as:

"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

(c) muscle atrophy and/or decreased limb circumference

(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."[6]

1. 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.[7]
2. Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.

1. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes.[8]
2. Clauses 6.6 and 6.7 state:

"6.6 Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1. The alleged factor could have caused or contributed to the 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."

1. Medical Assessor Assem was referred the following injuries for assessment:
   • cervical spine;
   • thoracic spine;
   • lumbar spine;
   • left shoulder, and
   • right shoulder.
2. With respect to the lumbar spine, the Medical Assessor noted a previous history of lower back complaints. The claimant had undergone a CT scan on 30 November 2020 and an

X-ray on 26 July 2022 for back pain radiating to his right leg. Radiological imaging however, did not reveal any disc herniations or bulges at L5/S1 nor was there any nerve root compression. The claimant indicated that he only received physiotherapy treatment once or twice in the past year for his lower back symptoms and this was after a long day of work. The claimant therefore claimed that he was asymptomatic at the time of the subject motor accident (2 June 2023). 3. Following the motor accident, an MRI scan of the lumbar spine dated 23 June 2023 showed an L5/S1 disc extrusion with left S1 nerve root impingement. 4. The Medical Assessor considered this was not a threshold injury because:

"...a disc extrusion, indicating that the nucleus pulposus had been pushed through the outer annulus fibrosis and expends the usual boundary of the disc, the annulus fibrosis is stretched or compromised which does not qualify as a threshold injury under the Act."

1. On clinical examination, the Medical Assessor also diagnosed lumbar radiculopathy, with the presence of atrophy of the left calf and positive nerve root tension signs.
2. The other injuries were found to be accident-related soft tissue only and therefore threshold injuries.

1. Both parties provided two sets of submissions - the submissions with respect to the original medical assessment before Medical Assessor Assem and the submissions with respect to the review proceedings.

1. In its review submissions, the insurer submits that the Medical Assessor did not provide any explanation as to why he believed the disc extrusion that was noted in the MRI was caused by the motor accident. In addition, the insurer says a substantial argument was made with respect to the low-speed mechanism of the accident which could not have been capable of causing any significant injury. It is submitted the Medical Assessor did not engage with this argument.
2. The insurer also argues that while the Medical Assessor suggests that the claimant met the diagnostic criteria for radiculopathy, he does not provide any reasons as to why he believes the radiculopathy is related to the motor accident.
3. The insurer further takes issue with the Medical Assessor's finding of radiculopathy stating that the Medical Assessor does not specify whether the pain radiating down the legs was "along the appropriate dermatomal distribution", as required by Table 6.8 of the Guidelines.

1. The insurer notes that the prior imaging taken of the lumbar spine, being X-rays and CTs "...were not appropriate forms of imaging that would have been capable of identifying the L5/S1 disc extrusion, and only an MRI would be able to provide a precise assessment of the discs".
2. It is submitted that the prior X-rays and CTs identified lumbosacral facet joint osteoarthritis and spondylosis which correlates with the claimant's longstanding complaints of lower back pain for at least three years before the motor accident.

1. Reference is also made to the report of Professor Anderson who opined that the "whiplash" movement in the subject accident was not capable of causing any injury to the lumbar spine.

1. The claimant says the Medical Assessor's reasoning is perfectly clear. The claimant had a CT in July 2022, which did not show disc herniation and nerve impingement. The June 2023 MRI, taken immediately after the accident did. The claimant also says the insurer does not point to any other significant matter that could have caused the significant pathology.
2. The claimant further states that the Medical Assessor understood the nature of the straight leg raise test and was not required to detail his determination in the way suggested by the insurer. It is submitted that the Medical Assessor also noted that both Dr Singh and Dr Deshpande found radiculopathy, with Dr Singh specifically indicating "excruciatingly positive" straight leg raising on the left. The claimant also says Dr Nair, in a report of 30 August 2023, also found "straight leg raising was positive on the left".
3. In this regard, the claimant submits that the claimant is not required to prove the existence of radiculopathy on the date of the examination, but only that there was radiculopathy at some time following the motor accident.

1. The claimant submits that the marked differences in the various radiology scans from before the motor accident to after the motor accident show that the claimant sustained the following injuries (as relevant to the issues in the present assessment):

(a) large L5/S1 left-sided paracentral disc extrusion with inferior extension of disc and significant left lateral recess stenosis, with possible impingement of the left descending S1 nerve root, and

(b) lumbar axial pain with left leg radiculopathy.

1. On 10 February 2025, the Panel issued a Direction requiring submissions on whether there is agreement that the only issue to be determined in the review proceedings is whether the claimant's lumbar spine injury is causally related to the motor accident and whether it is a threshold injury.[9]
2. In written responses on the Portal, both parties agreed that the only issue to be determined was causation of the lumbar spine injury and whether it is a threshold injury. The Panel commends the parties for narrowing the issues in dispute which enabled the review proceedings to be dealt with more expeditiously.

1. Also contained in the above Direction was the requirement for the parties to lodge indexed and paginated bundles of the information they relied upon. Both parties duly responded with the insurer's bundle and the claimant's bundle comprising of pages 1-189 and 1-200 respectively.
2. The Panel also directed the insurer to provide the claimant's pre-accident general practitioner (GP) records for the period 2020 until 2 June 2023 (date of the motor accident). The insurer responded by providing the complete clinical records of Emerald Hills Medical Centre.
3. The Panel has read all the material provided by the parties in the bundles and the additional clinical records. The material relevant to the issues in dispute are summarised below.

Clinical records of Emerald Hills Medical Centre

1. Dr Wedad Salem, GP, entry dated 28 November 2020 - lower back pain. Said back pain been there on and off for years. Gets flared up every now and then. Radiates to right leg, but no leg weakness. Examination: lower back tenderness, pain with lumbar flexion, SLR +ve in right.
2. Dr Bushra Waheed, GP, entry dated 2 December 2020 - gone over CT. Advised fine. Ongoing pain. CT was fine and no back pain red flags.
3. Dr Bushra Waheed, GP, entry dated 26 July 2022 - acute chronic back pain with associated sciatic pain with XR demonstrating OA of the SI joint. Investigations show mild sclerotic change on both side of SI joints. In keeping with OA change.
4. Dr Bushra Waheed, GP, entry dated 16 October 2022 - patient states can't work full time as back pain worsens after 20 hours of work. Is doing physiotherapy.
5. Dr Bushra Waheed, GP, entry dated 23 April 2023 - patient advised not to do heavy lifting. Pain has improved completely in back as per patient. Required to go back now at work.
6. Dr Bushra Waheed, GP, entry dated 7 June 2023 - claimant reported ongoing back, neck and left shoulder pain as a result of a motor accident on the Hume Highway on 2 June 2023. Claimant referred for CT scans on his cervical and thoracic spine on the same day.

1. Dr Bhisham Singh, orthopaedic surgeon, report dated 19 July 2023 - on examination, straight leg raise test was "excruciatingly positive on the left side, and imaging does reveal an MRI scan... that he has an extruding disc herniation at L5-S1 with significant encroachment upon the lateral recess".
2. Professor Robert Anderson, biomechanical expert, report dated 16 January 2024 - conducted an assessment that insured's speed at the time of the crash was 50kmph and that the claimant's vehicle would have undergone a change in velocity of no more than 15kmph. Concluded that the crash was a minor rear-end collision and it was unlikely the mechanism of the collision would explain an injury to the lumbar spine.
3. Colour photographs - shows damage to the three vehicles in the accident pile up. The claimant's vehicle, a blue Toyota Corolla hatch, shows significant damage to the rear body and entire boot panel.

1. CT lumbar spine dated 30 November 2020 - conclusions: no posterior disc herniation or posterior disc bulge from L1 to S1. No compression of the neural structures from L1 to S1.
2. X-ray lumbar spine, SI joints and coccyx dated 26 July 2022 - history of degenerative spondylosis, lower back pain. Findings: alignment of the lumbar spine is satisfactory. Bones and discs are well preserved. No fracture or spondylolisthesis.
3. X-ray lumbar spine dated 5 June 2023 - intervertebral disc height is mildly reduced to L5/S1. Otherwise, normal study.
4. MRI Lumbar spine dated 23 June 2023 - large L5/S1 left-sided paracentral and subarticular disc extrusion with inferior extension of disc and significant left lateral recess stenosis, with possible impingement on the left descending S1 nerve root.

1. The Panel determined that the claimant be re-examined by Medical Assessor Moloney on

6 May 2025. The re-examination report is as follows:

Mr Meilak attended the medical suites at PIC on 7 May 2025. He was accompanied by his wife.

Mr Meilak stated that he was working full-time as a courier driver at the time of the accident. Prior to this job he had been working as a truck driver. He states that he is married and lives with his wife.

There were previous episodes of low back pain which he states occurred after working a long day but responded to manual therapy and had been investigated with scans. No surgical procedures had been contemplated before the accident.

Mr Meilak was the driver of his car and was stationary when hit from the rear. He was wearing a seatbelt at the time but airbags were not deployed. He states that the dash mat on his car hit him in the face. He felt shocked at the time and was helped out by passers-by. The ambulance attended the scene of the accident and noted that Mr Meilak was pale and in shock with high blood pressure which he has a history of. He chose not to go to hospital and his wife collected him and took him to his local GP.

History of symptoms and treatment following the motor accident

His GP recorded pain in the neck and left shoulder with discomfort at the back of the head. He was prescribed analgesics and sent for scans. Mr Meilak stated that he develops low back pain a few days after the accident which was associated with pain and numbness down the posterior left leg including the calf. He was treated by the physiotherapist to his left shoulder and spine. The physiotherapist also noted restricted movement in the right shoulder which was investigated with an ultrasound.

Mr Meilak was referred to Dr Nair, spinal surgeon due to radicular symptoms in the left leg. Initially Dr Nair suggests conservative treatment but also offered lumbar spine injections and surgery. He was referred to Dr Singh, spinal surgeon for a 2nd opinion who gave him the same advice.

He was referred to a pain specialist, Dr Deshpande who prescribed various medications and recommended pain management program. Apparently, Mr Meilak has consulted another pain specialist but he is unsure of his name.

There has been persistent, variable neck pain since the accident with occasional migraines and he states dizziness with tinnitus started at the time of the accident. He was referred to Dr Williams, an ENT specialist for the dizziness. Mr Meilak states that the left shoulder is more symptomatic than the right but, in his opinion, he had right shoulder pain from the onset.

There have been no further accidents or injuries sustained since the motor accident.

His main pain is in the lower back region with radiation down the posterior left leg to the level of the toes associated with pins and needles. He gets frequent headaches and a migraine every 2 weeks. The tinnitus is constant but he notices it more at night in bed. Dizziness was aggravated with bending. Today, Mr Meilak states that his neck and shoulders are asymptomatic.

He states that there have been significant weight gain since the accident and he is only able to mow a small portion of his yard. He walks about 15 minutes due to increased pain and prolonged sitting causes numbness down the leg. He is able to drive short distances.

At present, Mr Meilak takes Nurofen +2 a day, Efexor 37.5 mg at night, Panadeine Forte one every 2nd day and allergy medications. He uses the CPAP at night.

Mr Meilak consults his physiotherapist on a weekly basis who treats his lower back, neck and shoulders. He has a follow-up with his psychologist and Dr Williams the ENT specialist. He consults his GP when necessary.

Mr Meilak walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was measured at 171 cm and weight of 125 kg.

On testing range of movement, flexion/extension was 80% of expected range, side bending and rotation were 70% of expected range with no asymmetry. On palpation there was tenderness over both trapezius muscles but no guarding or spasm was noted in the cervical musculature. There was also tenderness on palpation of the lower cervical spines.

On neurological examination the upper limbs, reflexes were of low amplitude but equal with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the upper arms 33 cm in the right and 32.5 cm on the left (10 cm above the olecranon process) and in the upper forearms 28 cm bilaterally (5 cm below the olecranon process).

Mr Meilak walked with a normal gait and was able to stand on his heels and toes. Squatting was limited to 60% of expected range due to low back pain. On testing range of movement, flexion/extension was 50% of expected range with side bending also 50% of expected range with no asymmetry as was rotation. On palpation there was no guarding or spasm noted in the lumbar musculature and straight leg raise was 50° bilaterally when lying limited by hamstring tightness. When seated straight leg was 80° bilaterally with negative sciatic nerve root tension signs.

On neurological examination of the lower limbs, reflexes were of low amplitude but equal with normal power. No muscle wasting was noted with the circumference of the lower thighs 50 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 43 cm bilaterally. On testing for sensation there was a global decrease in sensation in the entire left leg which was not dermatomal.

On palpation of the thoracic spine no guarding or spasm noted in the thoracic musculature. On testing range of movement flexion/extension was 80% of expected range and side bending and rotation were 60% of expected range with no asymmetry. There were no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.

On inspection of the shoulders no muscle wasting was apparent and on passive movement no crepitus was detected but pain restricted movement on the left after 110° of abduction. Impingement tests were negative. Active movements were measured using a goniometer and repeated. Mr Meilak stated that when attempting active movement of the shoulders on the left, he fell pain in the left trapezius muscle.

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.[10]
2. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[11]
3. The Panel refers to the above re-examination report of Medical Assessor Moloney and adopts the findings in their entirety. The Panel reconvened on 19 May 2025 and discussed the re-examination report findings before collectively making the below determinations.

1. While the issue in dispute concerned causation of injury to the lumbar spine and whether it is a threshold injury, the Panel confirmed from its above examination findings that the other accident-related injuries are soft tissue injuries and are therefore threshold injuries.
2. In relation to the lumbar spine, the Panel noted that the claimant's treating GP recorded ongoing back pain following the motor accident in an entry dated 7 June 2023. As this documented finding was within a week of the motor accident, the Panel accepts that the lumbar spine was injured in the motor accident.
3. The treating GP then referred the claimant for an MRI of the lumbar spine three weeks after the motor accident. The MRI dated 23 June 2023 reported an L5/S1 disc protrusion with some pressure on the left S1 nerve root. This would classify is a non-threshold injury as there was no evidence of any disc herniation prior to the accident despite recurrent low back pain.
4. The Panel then considered the insurer's submission that the prior imaging of the lumbar spine comprised of X-rays and CT scans and "were not appropriate forms of imaging that would have been capable of identifying the L5/S1 disc extrusion, and [that] only an MRI would be able to provide a precise assessment of the discs".
5. While the Panel was in general agreement that an MRI is a stronger diagnostic tool for evaluating the extent of disc extrusions, a CT scan can also detect disc extrusions, particularly if they are large. Given that the MRI showed a large L5/S1 disc extrusion, the Panel was of the view that it was more likely than not that such an extrusion would be visible in the CT scan, had it been present before the motor accident.
6. Another factor going against the insurer's argument is that while there was a positive straight leg raise test recorded in the clinical notes some two and a half years before the motor accident, the test was also found to be positive by a number or examiners post-accident, including Dr Singh, Dr Deshpande, Dr Nair, Medical Assessor Assem and Panel Assessor Moloney. Especially noteworthy was the finding of Dr Singh who stated that the test was "excruciatingly positive on the left side". The Panel was of the view that the post-accident clinical findings support its view that the disc extrusion was caused by the motor accident as opposed to being due to any constitutional or degenerative process.
7. The Panel then considered the opinion of biomechanical expert, Professor Robert Anderson. While the Panel accepted that Professor Anderson's opinion is supported by his qualifications, theory and case studies, such an opinion is outweighed by the documented contemporaneous complaints of actual lumbar spine complaints, supported by radiological evidence of distinct pathology and complaints which persisted from the date of the motor accident to the Panel examination.
8. The Panel concurs with Medical Assessor Assem's view that a disc extrusion can be described as "...the nucleus pulposus had been pushed through the outer annulus fibrosis and expends the usual boundary of the disc, the annulus fibrosis is stretched or compromised which does not qualify as a threshold injury under the Act."
9. It therefore follows that the claimant's lumbar spine injury was caused by the motor accident and is not a threshold injury.

1. The following injuries were caused by the motor accident:
   • lumbar spine - L5/S1 disc extrusion;
   • cervical spine - soft tissue injury;
   • thoracic spine - soft tissue injury;
   • right shoulder - soft tissue injury, and
   • left shoulder - soft tissue injury.

1. The Panel considers the lumbar spine L5/S1 disc extrusion to fall outside the definition of a soft tissue injury as defined in s 1.6 of the MAI Act.
2. The lumbar spine injury is therefore not a threshold injury.
3. The certificate issued by Medical Assessor Mohammed Assem dated 7 November 2024 is confirmed.

[4] Section 4(1) of the Motor Accident Injuries Regulation 2017.

[5] For motor accidents that occurred from 6 December 2024, the applicable version of the Guidelines is version 9.3.

[8] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].

[9] Pursuant to s 7.25 "Agreement between parties as to matters in dispute - further assessments and reviews" of the MAI Act.