Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated

5 April 2025 and certifies that the following injury caused by the accident was a threshold injury: * soft tissue injury to the lumbar spine.

1. On 30 April 2022 Ms Rachel Miles (the claimant) was driving her vehicle approaching a roundabout intending to turn left when her vehicle was hit from behind by the insured vehicle (the accident).
2. Ms Miles has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
3. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay damages to Ms Miles under the MAI Act.
4. Section 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person's only injuries resulting from the motor accident were threshold injuries.

1. The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the threshold injury dispute on 31 October 2022. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(e) of the MAI Act. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
2. The claimant sought assessment of the following injuries:
   • cervical spine - neck injury - whiplash;
   • lumbar spine - lower back injury - disc bulging in lumbar spine and annular fissure at L4/5, symptoms of radiculopathy - right arm weakness and numbness;
   • head - post-concussion syndrome;
   • psychiatric condition - anxiety, depression and post-traumatic stress disorder, and
   • lung - respiratory sleep disorder.
3. On 17 February 2023, Medical Assessor Cameron certified that the accident caused soft tissue injuries to the cervical spine and lumbar spine which are threshold injuries for the purposes of the Act.[1] He did not accept that the subject accident caused a head injury.
4. After Medical Assessor Cameron's Certificate had been issued, the claimant sought to have her right shoulder injuries included in the assessment. The claimant's solicitors then lodged an Application for Further Assessment alleging a deterioration in the lumbar spine injury and requested an assessment of a right shoulder tear.
5. By email dated 13 September 2023 the claimant requested an Internal Review regarding the right shoulder "given it was a misdiagnosis".
6. By letter dated 19 September 2023 the insurer declined to conduct an Internal Review advising it did not have the power to conduct an internal review in relation to liability of a body part.
7. On 3 October 2023 the President's delegate, being satisfied that there was additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment determined that the claimant's Application would be referred for further medical assessment of the following injuries:
   • cervical spine - soft tissue injury;
   • lumbar spine - soft tissue injury;
   • head - post concussion syndrome, and
   • right shoulder - partial thickness tear supraspinatus tendon.
8. In the meantime, the parties received Medical Assessor Hong's certificate dated

18 August 2023. Medical Assessor Hong determined that the claimant sustained a non-threshold psychological injury. Given Medical Assessor Hong's findings the claimant's solicitors discontinued the Application for Further Assessment. 9. The insurer subsequently lodged an Application for Further Assessment in respect of psychological injury. This Application was accepted and on 7 February 2025 Medical Assessor Hong certified that the claimant had sustained a threshold psychological injury as a result of the accident. 10. Having regard to the finding that the psychological injury was a threshold injury the claimant lodged an Application for Further Assessment in respect of the threshold injury dispute in relation to injuries to the right shoulder, lumbar spine and right arm (aggravation of pre-existing radiculopathy). 11. On 10 January 2025, a delegate of the President determined that only the lumbar spine injury would be referred for further assessment. With respect to the right arm and right shoulder, the delegate stated:

"Given these injuries did not form part of the medical disputes referred to the Medical Assessor for the purposes of the previous assessment above, it follows that the injuries cannot be referred again for further assessment under s 7.24 of the MAI Act.

A new application referring these additional injures for the medical assessment is required, should the claimant wish to refer these injuries for medical assessment. The Commission may refer assessment of these injuries and the lumbar spine to the same medical assessor."

1. The insurer submits the right shoulder was not referred for assessment as part of the claimant's original application for assessment of a threshold dispute dated 1 October 2022. The insurer notes the reference to "injury to right arm: aggravation of pre-existing radiculopathy" concerns the cervical spine which was the subject of the original threshold injury dispute.
2. The threshold injury dispute in respect of the right arm and right shoulder was referred to Medical Assessor Ian Cameron who issued a certificate dated 5 April 2025. That certificate is also subject to an application for review to be considered by this Panel.
3. The further dispute as to threshold injury in respect of the lumbar spine was referred to Medical Assessor Ian Cameron who issued a certificate dated 5 April 2025. It is that certificate which is the subject of this review.

1. The Review Panel (Panel) issued a Direction to the parties on 16 June 2025. The insurer was directed to upload to the portal an indexed and paginated bundle of all documents sought to be relied upon in the review by 23 June 2025. On 23 June 2025 in accordance with this Direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 767 (insurer's documents).
2. The claimant was directed to upload to the portal an indexed and paginated bundle of all documents relied upon in the review by 30 June 2025. On 26 June 2025 in accordance with this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 206 (claimant's documents) and a further bundle paginated from pages 1 to 398 (claimant's further documents).
3. On 3 July 2025 the insurer uploaded to the portal a bundle of additional documents paginated from pages 1 to 59 including a bone scan dated 21 July 2022, clinical notes of

A/Prof Sheridan and clinical notes of Dr Darwish (insurer's additional documents).

1. The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented to on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a "minor injury" is known as a "threshold injury" and "minor injuries" are known as "threshold injuries".
2. Any reference in these reasons to "minor injury" is a reference to a "threshold injury".
3. A threshold injury is defined in s 1.6 of the MAI Act and includes a "soft tissue injury" or a "psychological or psychiatric injury that is not a recognised psychiatric illness". Section 1.6(2) of the MAI Act defines a "soft tissue injury" as:

"[A]n 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."

1. Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include "an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)".
2. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.3 of the Guidelines commenced on 6 December 2024 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

"5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.

5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person's current symptoms

(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:

"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

(b) positive sciatic nerve root tension signs

(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.

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."

OTHER MEDICAL CERTIFICATES IN RESPECT OF THE ACCIDENT

Certificate of Medical Assessor Ian Cameron dated 17 February 2023

1. Medical Assessor Cameron issued a certificate dated 17 February 2023 in which he assessed the cervical and lumbar spine injuries as threshold (minor) injuries.[2]
2. He found no neurological abnormalities in either the upper or lower limbs. He found range of movement of both shoulders were consistent with abduction 120º, adduction 30º, flexion 120º, extension 30º, external rotation 70º and internal rotation 80º. He also observed a symmetrically reduced range of movement of the lumbar spine.
3. Medical Assessor Cameron concluded the accident caused an exacerbation of chronic soft tissue problems to the cervical and lumbar spine. He stated:

"There is no evidence of radiculopathy as defined in the Motor Accident Guidelines at present or at any time following the motor vehicle crash. There is no evidence that an annular fissure was caused by the motor vehicle crash. They are common findings in asymptomatic people of Ms Miles age and the mechanism of injury in the motor vehicle crash would not be expected to transmit major force to the lumbar spine."

1. He certified the following injury was not caused by the accident:
   • head - post-concussion syndrome.

Certificate of Medical Assessor Woo (permanent impairment) dated 26 October 2024

1. Medical Assessor Woo issued a certificate dated 26 October 2024 in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 12%:
   • lumbar spine - aggravation of pre-existing disc bulging and deterioration;
   • right shoulder - possible rotator cuff tear, and
   • right arm - aggravation of pre-existing radiculopathy.
2. The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.

Certificate of Medical Assessor Woo (treatment dispute right shoulder) dated

1. Medical Assessor Woo issued a certificate dated 26 October 2024 in which he certified the following treatment and care relates to the injury caused by the accident:
   • cortisone injection to the right shoulder, and
   • arthroscopic surgery to the right shoulder.[3]
2. Medical Assessor Woo certified the cortisone injection to the right shoulder is reasonable and necessary in the circumstances. He certified the arthroscopic surgery to the right shoulder is not reasonable and necessary in the circumstances.
3. The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.

Certificate of Medical Assessor Ian Cameron dated 5 April 2025

1. Medical Assessor Cameron issued a certificate dated 5 April 2025 in which he certified the following injury caused by the accident was not a threshold injury for the purpose of the MAI Act:
   • right shoulder - soft tissue injury.[4]
2. He also certified that the following injuries were not caused by the accident:
   • right arm - aggravation of pre-existing radiculopathy.
3. The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.

ASSESSMENT UNDER REVIEW OF MEDICAL ASSESSOR CAMERON DATED 5 APRIL 2025[5]

1. Medical Assessor Cameron issued a certificate dated 5 April 2025 in which he certified the following injury caused by the accident was not a threshold injury for the purpose of the MAI Act:
   • lumbar spine - soft tissue injury.
2. The following injury was referred for further assessment:
   • lumbar spine.
3. Medical Assessor Cameron reported in 2016 there was a C5/6 fusion by Dr Sheridan and in 2010 there was a C6/7 cervical fusion with persisting radiculopathy.
4. Medical Assessor Cameron reported on 10 November 2023 Dr Sheridan performed an L5/S1 microdiscectomy. This improved the leg pain but there was continuing urinary incontinence. He noted some symptoms in the right lower extremity and some residual numbness in the third, fourth and fifth toes on the right foot.
5. Medical Assessor Cameron reported signs of continuing radiculopathy with a reduced right ankle jerk and restricted straight leg raising on the right side. He thought the increased circumference of the right lower extremity was likely to be related to oedema. He found it plausible that there had been deterioration of the lumbar spine degenerative disease with radiculopathy since his earlier assessment.
6. Medical Assessor Cameron found that the injury to the lumbar spine was not a threshold injury because radiculopathy was present.

1. The insurer lodged an application for review of the medical assessment. On 11 June 2025 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
2. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
3. The review is by way of a new assessment of all matters with which the medical assessment is concerned.
4. On 26 June 2025 the Panel agreed an examination was not necessary where the claimant had recently been examined by Medical Assessors Gorman and Gray on 8 May 2025 in respect of an associated dispute as to permanent impairment.

1. A summary and review of the evidence including relevant radiological investigations relied upon by the parties is set out in Appendix A to this statement of Reasons.

1. The insurer provided submissions dated 24 April 2025.
2. The insurer submits Medical Assessor Cameron failed to provide adequate reasons as to diagnosis and causation.
3. The insurer submits Medical Assessor Cameron found the claimant had soft tissue problems related to her lumbar spine and that those soft tissue problems were exacerbated in the accident.
4. The insurer notes that the Medical Accident Guidelines define radiculopathy as "the impairment caused by dysfunction of a spinal nerve root or nerve roots". However, Medical Assessor Cameron did not refer to any precise level of the lumbar spine or any specific nerve root which had developed into radiculopathy. Whilst the claimant had recently underwent an L5/S1 microdiscectomy the assessor did not state whether the accident-related injury from which the radiculopathy stems is from L5/S1 or elsewhere. Further the assessor referred to a deterioration of lumbar spinal degenerative disease, which is non-specific whilst the Guidelines state radiculopathy must stem from a specific nerve root or nerve roots.
5. In respect of causation the insurer notes Medical Assessor Cameron stated:

"Causation for the injuries listed below is established based on the clinical records provided and the information from the clinical assessment."

1. The insurer notes s 5D of the Civil Liability Act 2022 (CLA) applies to the MAI Act.[7] Section 5D of the CLA relevantly provides:

(i) A determination that negligence caused particular harm comprises the following elements:

(a) That the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) That it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."

1. In Owen v Motor Accidents Authority of NSW Campbell J at [27] stated:

"But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D".[8]

1. Noting s 5D requires a determination of causation on a factual basis consideration of the question of whether the alleged factor did cause or contribute to the injury is required.
2. Further it is submitted in accordance with the second limb of cl 6.6 of the Guidelines it is necessary to address the question of whether the accident did cause the "radiculopathy" in the lumbar spine. It is submitted Medical Assessor Cameron did not address this question.
3. The insurer submits the statement "It is plausible that there has been deterioration of lumbar spinal degenerative disease with radiculopathy since my previous assessment" is suggestive of the fact that the claimant's pre-existing, chronic soft tissue problems have naturally continued to deteriorate. It is submitted the Medical Assessor has not explained how the "radiculopathy" is not causally related to the accident and not to the claimant's widespread and chronic pre-existing issues.
4. In relation to radiculopathy the insurer notes that table 6.8 of the Guidelines provides:

"The most commonly used is the straight leg raising (SLR) test. When performed in the supine position, the hip is flexed with the knee extended. In the sitting position, with the hip flexed 90 degrees, the knee is extended. The test is positive when thigh and/or leg pain along the appropriate dermatomal distribution is reproduced. The degree of elevation at which pain occurs is recorded..."

1. The insurer submits Medical Assessor Cameron failed to apply table 6.8 of the Guidelines in his assessment of whether radiculopathy is present where it is unclear whether the Medical Assessor found a positive straight leg raise on the basis there was pain along the appropriated dermatomal distribution, or whether there was simply back pain present on testing. The Medical Assessor did not specify at which level an injury had occurred and did not record the degree of elevation at which pain occurred as required by the Guidelines.
2. In relation to the ankle jerk the insurer submits that table 6.8 of the Guidelines provides:

"Reflexes may be normal, increased, reduced or absent. For reflex abnormalities to be considered valid, the involved and normal limbs should show marked asymmetry on repeated testing."

1. It is also submitted that the Medical Assessor noted the "right ankle jerk was less than the left ankle jerk" but did not make clear the extent of the asymmetry or whether repeat testing occurred.

1. The claimant provided undated submissions in response to the insurer's application for review.[9]
2. The claimant submits Medical Assessor Cameron provided his opinion as to diagnosis as follows:

"With reference to the lumbar spine the main finding is consistent with residual radiculopathy. There are signs of continuing radiculopathy with a reduced right ankle jerk and restricted straight leg raising on the right side. The increased circumference of the right lower extremity is likely to be related to oedema. It is plausible that there has been deterioration of lumbar spinal degenerative disease with radiculopathy since my previous assessment."

1. In relation to causation the claimant notes Medical Assessor Cameron stated he had regard to the documents provided in the application and reply and the documents relating to the previous application and reply. He stated causation was established on the clinical records provided and the information from his clinical assessment.
2. The claimant submits the Medical Assessor was not required to provide a biomechanical analysis but rather a medical opinion based on the history and symptoms which is what occurred.
3. The claimant disputes Medical Assessor Cameron failed to comply with the Guidelines when undertaking his assessment.
4. The claimant provided supplementary submissions in respect of the further threshold injury dispute.[10]
5. The claimant relies upon the complaints of lower back pain and discomfort referenced in the clinical records of Harrington Park Medical Practice and the MRI dated 28 May 2022 which reported bilateral degenerative facetal arthropathy as the L5/S1 level and the L45 level.
6. The claimant notes in a Certificate of Capacity dated 7 June 2022 Dr El Ayoubi noted:

"whiplash and lumbar back pain/flare up PTSD with anxiety and depressive symptoms."

1. Further it is noted A/Prof Sheridan in a letter dated 20 July 2022 reported the MRI scan showed some disc bulging in the lower back and on 2 June 2023 he reported the repeat MRI scan showed a deteriorating protrusion of the disc at L5/S1 with nerve compression that aligned with the claimant's symptoms. She proceeded to L5/S1 microdiscectomy on

10 November 2023. On 10 November 2023 A/Prof Sheridan reported she had reduced nerve pain to the leg but continued to have incontinence and altered sensation in the lateral right foot. 2. The claimant notes that Medical Assessor Woo found the accident aggravated the claimant's pre-existing lumbar spondylosis, which was asymptomatic.

1. Ms Miles was examined by Medical Assessor David Gorman and Medical Assessor Rhys Gray at the medical suites at the Commission on 8 May 2025 in respect of the associated permanent impairment dispute. She attended unaccompanied.

Pre-accident medical history and relevant personal details

1. Ms Miles is a 52-year-old woman. She is single and has four children aged 13, 15, 26 and 30 years. The youngest two children are at home.
2. Ms Miles is currently working as a counsellor for 30 hours per week. She initially had commenced a teaching degree but did not finish it.
3. Ms Miles worked in administration roles and then in the finance sector as a mortgage broker for 13 years.
4. She completed a Bachelor of Social Science majoring in psychology. She also completed a Diploma of Counselling.
5. In 2010 Ms Miles had a motor vehicle accident where her car was hit from behind. After this she had "burning" pain in the right arm and right side of the face. She trialled Lyrica but it had side effects. Due to her ongoing symptoms Dr Darwish undertook a C6/7 discectomy and fusion on 10 December 2010. It helped somewhat.
6. Ms Miles stated there was no back pain after the 2010 accident.
7. She returned to work in 2014.
8. In 2016 Ms Miles had a second accident where her car was rear-ended. This caused worsening of her neck and right arm pain. This led to her having a C5/6 anterior discectomy and fusion with Dr Sheridan on 15 December 2017. This improved her symptoms although they did remain in the neck and right arm - she said the surgery improved her by "30%".
9. Ms Miles has had osteoarthritis of both hips and had a right total hip replacement on

5 April 2018. The right hip surgery was on a background of having osteomyelitis and requiring multiple surgeries in 1986. 10. Right chondromalacia patella has also been diagnosed. 11. Ms Miles has been diagnosed with ulcerative colitis and has had trials of immunotherapy without success. She now manages this with diet. 12. She has atrophic gastritis and is on vitamin B12 injections. 13. Prior to the accident, Ms Miles was using Panadol Osteo three times a day. Just before the accident, she started using CBD oil (medicinal CBD approved by the Therapeutic Goods Administration).

1. On 30 April 2022, Ms Miles was the driver of a 2012 Jeep Grand Cherokee. She approached a roundabout to go left. She was wearing a seat belt. There were no other occupants. She was hit from behind by a Ford Raptor. Air bags in her vehicle did not deploy. She was not thrown around inside the car.
2. Ms Miles exited her vehicle and took photos of the accident. She exchanged details with the other driver. No ambulance attended the scene.
3. She went on to pick up her son from a sleepover and took him to his soccer game.
4. Ms Miles remembered having heightened anxiety for the rest of the day. Her vehicle was subsequently repaired.

History of symptoms and treatment following the accident

1. Ms Miles consulted her usual GP Dr Ahmed El Ayoubi on 16 May 2022 and gave a history of the accident. Dr El Ayoubi recorded: "She was stopped at a roundabout and hit from behind, not a big hit but enough to trigger symptoms. Has had an increase in nerve pain and increase in headaches and PTSD flare up."
2. Ms Miles lodged an application for personal injury benefits on 16 May 2022. She reported:

"Since the current accident an increase in my symptoms have occurred of nerve pain (particularly of the right arm and right thumb), radiculopathy mainly right leg and right arm, headaches, lower back pain and bilateral elbow pain and increase in bruxism and insomnia."

1. On 20 May 2022, Dr El Ayoubi completed a Certificate of Capacity when he diagnosed "Whiplash and lumbar back pain."
2. In the post-accident AHRR No. 1 dated 24 May 2022 a physiotherapist diagnosed "whiplash" and lumbar pain. Pre-existing cervical and lumbar spine pathology was noted. There was no shoulder complaint at that stage.
3. Ms Miles was reviewed by A/Prof Mark Sheridan for her ongoing neck and back pain and radicular symptoms.
4. Ms Miles underwent an ultrasound of the right shoulder on 6 December 2022 which showed: "Supraspinatus tendinosis with partial-thickness tear - Subacromial bursitis - Early degenerative changes are noted in the AC joint."
5. A/Prof Sheridan suspected that her right arm pain could be related to the right shoulder.
6. Ms Miles reported that after the accident the neck and right arm pain returned to their pre-accident severity, but the low back pain continued and that her right shoulder felt "different".
7. Ms Miles had ongoing low back pain and underwent a L5/S1 microdiscectomy on

11 November 2023 performed by A/Prof Sheridan. Prior to the surgery she had right hip region pain and numbness of the lateral three toes on the right. The surgery was covered by her insurer. 8. Ms Miles was reviewed by Dr Jonathan Herald on 19 April 2023. She was referred for an X-ray and MRI of the right shoulder, which was done on 17 May 2023. Dr Herald reviewed her on 2 June 2023 and noted the MRI findings of both a partial thickness tear with an os acromiale and biceps tendinitis most likely secondary to a SLAP lesion. 9. Dr Herald recommended Ms Miles consider selective injections to determine where most of the pain was coming from and ultimately concluded it may be worth considering a shoulder arthroscopy, subacromial decompression, rotator cuff repair and biceps tenodesis. 10. Ms Miles went on to have this procedure on 10 December 2024 - this was covered by her insurer. She reported that her right shoulder is "better" after the procedure.

Details of any relevant injuries or conditions sustained since the accident

1. On 30 September 2022, Ms Miles underwent a CT guided L5/S1 transforaminal steroid injection. It was recorded that Ms Miles "had mild vasovagal episode after procedure but was proactively managed with short bed rest and reassurance".
2. On 18 October 2022, Ms Miles underwent a CT guided left L5/S1 transforaminal steroid injection. It is following this procedure that the claimant reported falling after alighting from transport that had picked her up from the hospital following the procedure and returned her home. Her leg gave way from under her.
3. Ms Miles reported to the Medical Assessors that she could not recall scans after the fall from the car. However, it is noted she had an MRI cervical spine on 2 November 2022. The clinical history included "Recent fall onto her right arm and shoulder with whiplash effect onto the neck. Ongoing pins and needles in right arm radiculopathy." The scan showed mild degenerative spondylosis of the cervical spine. The cervical spinal cord signal intensity is normal.
4. Ms Miles also had an ultrasound right shoulder on 6 December 2022 which showed supraspinatus tendinosis with partial-thickness tear; subacromial bursitis; early degenerative changes in the AC joint.

1. Ms Miles complains of a constant burning pain in her right shoulder and upper arm. She complains of neck pain and right arm pain, which is like what she had at the time of the accident.
2. Ms Miles complains of lower back pain. She indicates that her lower back pain had improved following surgery, and it is manageable. She has occasional "sciatica pain" in her legs, often after prolonged standing.
3. Ms Miles is now able to carry out household chores such as cooking but must be careful and avoid prolonged standing.
4. Ms Miles has returned to work, 30 hours per week, as a counsellor in a rehabilitation service.

1. She takes Panadol Osteo three times daily with Nurofen as required.
2. She has regular vitamin B12 injections.

1. Ms Miles is 155cm in height and weighs 80kg.
2. She has a normal gait.

1. There was no tenderness in the cervical spine.
2. There was no muscle guarding.
3. Ms Miles had full flexion of the cervical spine, but extension was 1/3 normal. Rotation was 2/3 normal to the right and left. Lateral flexion to the right was 1/3 normal and to the left 2/3 normal. There was dysmetria.
4. There were two anterior scars related to previous fusion surgeries. The scars were well healed and barely visible.
5. There was no wasting in the upper limbs - the circumferences are outlined below:

1. The 2cm difference in circumference of the right forearm can be explained by the claimant's right hand dominant difference.
2. Ms Miles reported a "burning" sensation in the whole right arm with duller sensation over the whole arm, not in any radicular pattern.
3. Reflexes were equal and present.
4. Power was equal and normal on the right and left.

1. There was a 4.5cm scar in keeping with the L5/S1 microdiscectomy. It was well healed.
2. There was no tenderness in the lumbar spine.
3. Range of movement was limited to ½ normal in all planes. There was no dysmetria.
4. Reflexes were normal and symmetrical.
5. Sciatic nerve root tension signs were negative.
6. There was no weakness in the lower limbs. There was a subjective sensory change over the lateral three toes of the right foot.
7. There was no wasting - the right calf circumference was 41.5cm and the left was 41cm.

1. There was burning pain involving the whole right upper limb including over the right shoulder.
2. There was restricted range of movement bilaterally as outlined below. A goniometer was used to assess the range of motion. The ranges were consistent with repetition.

1. Impingement signs were positive on the right side.

1. Ms Miles was cooperative and consistent throughout the medical examination by the Medical Assessors.

1. In Briggs v IAG Limited trading as NRMA Insurance[11] his Honour Justice Wright stated at [35]:

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

6.5 An assessment of the degree of permanent impairment 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 claims assessor) 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."

1. The question is whether the accident could have caused or contributed to the alleged injury having regard to cls 6.6 and 6.7 of the Guidelines or s 5D of the CLA. Section 5D of the CLA provides:

(ii) A determination that negligence caused particular harm comprises the following elements:

(a) That the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) That it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."

1. The accident occurred on 30 April 2022. The Panel notes that in his statement dated

23 June 2022 the insured driver Mr Yakomov denied there was any impact at all between his vehicle and that of the claimant. However, he still followed the claimant around the corner and stopped. 2. In her Application for personal injury benefits dated 16 May 2022 the claimant reported lower back pain and, in her statement, dated 3 June 2022 she said she felt the impact at the back of the car and her body was pushed forward and she moved forward. On

16 May 2022 Dr El Ayoubi reported the claimant's involvement in the accident noting she conceded it was not a big hit, but she alleged it was enough to trigger her symptoms. Whilst there was no complaint about lower back pain at that time the Panel notes on 20 May 2022, three weeks post-accident Dr El Ayoubi reported lumbar spine pain with burning down the right leg. 3. Medical Assessors Gorman and Gray found the claimant to be a credible historian and having regard to the consistency of her complaint the Panel prefers the account of the claimant over that of the insured driver and is satisfied there was an impact between the insured's vehicle and the rear of the claimant's vehicle. The Panel is fortified in this conclusion where the insured driver stopped following the collision, noting if there had been no collision at all he would not, in all likelihood, have stopped. 4. The Panel has considered the competing biomechanical reports of Dr McIntosh and

Mr McDonald. Both Mr McDonald and Dr McIntosh agreed the likely change in velocity of the claimant's vehicle was less than the documented thresholds for the onset of thoraco-lumbar injury in rear end motor accidents. Where there is no suggestion by the claimant of a significant impact the Panel prefers the opinion of Mr McDonald who stated in the absence of any collision event recorded by the Airbag Control Module of the claimant's vehicle the change in speed caused by the collision was around 8kmph or less.

Mr McDonald reported the threshold for lumbar injury is in excess of 20kmph in the absence of a pre-existing condition. However, Ms Miles had a long-standing pre-existing degenerative condition in her lumbar spine and in those circumstances the Panel accepts the impact was sufficient to cause injury to the lumbar spine. 5. Having concluded that the accident could have contributed to the claimant's pre-existing lumbar spine condition the next question is whether it, in fact, did so. 6. The Panel has reviewed the pre-accident medical records. Other than a pre-consultation questionnaire, completed on 18 June 2019 for Mrs Griffiths, chiropractor where the claimant confirmed she suffered from backache, the last recorded complaint relating to the lumbar spine was by Dr Soh on 7 January 2018. In the four years pre-accident the claimant primarily sought treatment for complaints relating to her cervical spine and right hip. 7. Ms Miles had symptoms related to the lumbar spine immediately after the accident. These were reported to her GP less than three weeks after the accident. In the absence of pre-existing complaints pertaining to the lumbar spine in the four years pre-accident and the claimant's reported symptoms shortly after the accident and consistently thereafter the Panel finds the accident did contribute to the claimant's lumbar spine condition. 8. In considering the diagnosis of the claimant's lumbar spine condition the Panel notes the following: * an MRI of the lumbosacral spine performed on 17 May 2010 was reported to have revealed posterior disc bulges at L4/5 and L5/S1; * on 23 January 2021 Dr Darwish reported complaints of lower back pain without radicular symptoms; * on 9 January 2012 Dr Wallace reported persisting pain at the L4/5 spinous processes; * an MRI of the lumbar spine performed on 10 July 2013 revealed degenerative disc disease; * on 7 January 2018 Dr Sor reported the claimant had chronic lower back pain and investigations had revealed a L5/S1 disc prolapse; * an MRI of the lumbar spine performed on 28 May 2022 reported bilateral degenerative facetal arthropathy at both the L5/S1 and L4/5 levels; * the whole-body scan of 21 July 2022 disclosed only mildly active discovertebral arthritis at L5/S1; * after assessing the claimant Medical Assessor Cameron issued a certificate dated 17 February 2023. He found no evidence of radiculopathy and concluded the claimant had sustained an exacerbation of chronic soft tissue problems in the lumbar spine; * an MRI scan of the lumbar spine of 24 April 2023 reported a minor disc bulge at L4/5 and a small broad-based posterior disc protrusion, not causing significant canal stenosis; * on 27 March 2024 Dr Dryson reported he was unable to confirm radiculopathy in the lumbar spine, and * on examination Medical Assessors Gorman and Gray did not identify signs of radiculopathy. 9. Whilst A/Prof Sheridan reported a worsening disc protrusion with nerve compression consistent with the claimant's back and right leg pain sufficient to recommend the claimant undergo an L5/S1 microdiscectomy he did not document two or more signs of radiculopathy in accordance with cl 5.8 of the Guidelines. 10. The Panel has reviewed the certificate of Medical Assessor Cameron having regard to the reasoning in David v Allianz Australia Ltd that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.[12] 11. The Panel finds the certificate of Medical Assessor Cameron to be equivocal, in that Medical Assessor Cameron labelled the injury to the lumbar spine a 'soft tissue injury' (generally considered a threshold injury) and concluded that there had been deterioration of lumbar spinal disease since his earlier assessment. 12. On examination he found the right ankle jerk 'was reduced', and straight leg raising (SLR) on the right was 'less than the left'. 13. There was no reference to repeat exam findings to confirm consistency and extent of the reduced ankle jerk noting that the Guidelines advise: "Reflexes may be normal, increased, reduced or absent. For reflex abnormalities to be considered valid, the involved and normal limbs should show marked asymmetry on repeated testing". 14. Also, there was no comment that the 'reduced' right SLR conformed to the Guides: "The test is positive when thigh and/or leg pain along the appropriate dermatomal distribution is reproduced. The degree of elevation at which pain occurs is recorded". 15. There was also increased circumference of the right lower extremity which he considered was likely to be related to oedema. 16. The Panel noted the claimant underwent an L5/S1 microdiscectomy on 10 November 2023, the surgical effects, for example soft tissue oedema may take a considerable time to resolve; the Panel accepts there may be increasing degenerative change over time but does not accept that the findings of radiculopathy by Medical Assessor Cameron were caused by the accident. The Medical Assessors found no evidence of a right lumbar radiculopathy soon after Medical Assessor Cameron's clinical assessment. 17. In reaching this conclusion the Panel also notes that Medical Assessor Cameron did not report any neurological abnormalities of radiculopathy in his initial certificate dated 18 March 2025 when he concluded the accident had caused an exacerbation of chronic soft tissue problems in the lumbar spine. 18. At no time since the accident has the claimant demonstrated two or more clinical signs of radiculopathy in accordance with the Guidelines. Where the claimant has not been able to establish radiculopathy, the injury sustained by the claimant to the lumbar spine is a soft tissue injury.

1. In accordance with s 1.6 of the MAI Act a soft tissue injury is a threshold injury.
2. The Panel finds the claimant sustained a soft tissue injury to the lumbar spine caused by the accident.

[7] Insurer's documents pages 44 and 52.

[8] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650.

[11] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.

[12] David v Allianz Australia Ltd [2021] NSWPICMP 227 at [84]- [104].