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

1. The Review Panel confirms the certificate dated 25 March 2025 by Medical Assessor Alexander Mitchell.

1. The subject motor accident occurred on 9 March 2022 on Richardson Road at Medowie as the claimant was driving to work. It was early in the morning and still dark. After the claimant's vehicle had travelled through a roundabout, the insured vehicle, which had been stationary on the side of the carriageway, pulled out suddenly into the claimant's lane. Despite braking and attempting to steer to the right, the claimant's vehicle collided with the front right-hand corner of the insured vehicle. Airbags in the claimant's vehicle did not activate. The drivers exchanged details. Ambulance and Police did not attend. The claimant's vehicle was drivable, and he continued on to his place of employment.
2. The claimant began to experience soreness in his left shoulder and elbow during the course of the day. He began to experience left leg pain within the next few days. He remained off work for a couple of days and attended his general practitioner who arranged a CT scan and subsequently a MRI scan. He was referred to a neurosurgeon (Dr Damodaran) who did not recommend surgery.
3. Allianz Insurance Australia Limited (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (Act). The insurer denied liability for statutory benefits after twenty-six (26) weeks on the basis that the claimant's injuries meet the definition of "threshold injury" for the purposes of the Act. That decision was confirmed upon internal review.

1. As there is a dispute between the parties about whether the injury caused by the motor accident is a threshold injury under Schedule 2, cl 2(e) of the Act, the claimant was referred to Medical Assessor Alexander Mitchell for determination of the dispute.
2. Medical Assessor Mitchell certified on 25 March 2025 as follows:

The following injury caused by the motor accident:

is a THRESHOLD INJURY for the purposes of the Act.

Medical Assessor Mitchell concluded that low back pain of an apparent soft tissue nature is a threshold injury.

1. The claimant sought a review of Medical Assessor Neville's certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The claimant relied on the particulars set out in the application and supporting documentation.
2. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act, and cl 34 of Procedural Direction PIC 7 (28 days).
3. The claimant submitted that the Medical Assessor ignored the findings of a CT scan of the lumbosacral spine performed on 14 March 2023 which revealed the claimant had:

(a) annular disc bulges at the L3/L4, L4/L5 and L5/S1 levels; and

(b) bilateral facet arthrosis at the L4/L5 and L5/S1 levels,

which the claimant contends are non-threshold injuries.

1. The claimant also submitted that cl 5.7 of the Guidelines is not determinative of a threshold or non-threshold injury, in that the presence of radiculopathy is only a factor to be considered.
2. The claimant submitted that the annular disc bulges and bilateral facet arthrosis should be found to be non-threshold injuries, which is not dependent upon there being radiculopathy, or not.
3. The claimant's review application was opposed by the insurer on various grounds. Briefly, the insurer submitted that:
   • findings on the scans, being disc bulges and facet arthrosis, do not fall within the definition of a non-soft tissue injury, contrary to the claimant's submission; and
   • Medical Assessor Mitchell found there were no signs of radiculopathy which the claimant did not challenge.
4. President's delegate Tajan Baba issued a Determination of an Application for Review of a Medical Assessment on 3 June 2025 which stated the satisfaction of the President's delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor did not correctly apply the legislation or consider the evidence in making his findings. The President's delegate did not elaborate as to how it was found, or determined, that the Medical Assessor did not correctly apply the legislation or consider the evidence.
5. Accordingly, the review application was accepted and was referred to the Panel, which is to reassess the injury that was referred to Medical Assessor Neville, namely:
   • Lumbar spine - injury to lumbar spine namely lumbar disc lesion with left leg radiculopathy, assessed as: low back pain of an apparent soft tissue nature.
6. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a "minor injury" is known as a "threshold injury" and "minor injuries" are known as "threshold injuries".
2. The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.
3. Any reference in these reasons to "minor injury" is a reference to a "threshold injury" and any reference to the word "minor" referring to the injury alleged to have occurred in the accident is a reference to "threshold".
4. A threshold injury is defined in s 1.6 of the Act and includes a "soft tissue injury" or "psychological or psychiatric injury that is not a recognised psychiatric illness".
5. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the Act.
6. Version 9.1 of the Guidelines commenced on 1 April 2023 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 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:

1. comprehensive accurate history, including pre-accident history and pre-existing conditions;
2. a review of all relevant records available at the assessment;
3. a comprehensive description of the injured person's current symptoms;
4. a careful and thorough physical and/or psychological examination;
5. diagnostic tests available at the assessment.

Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

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

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

• The claimant cites the statutory definition of "threshold injury" as prescribed by s 1.6 of the Act.
• The claimant submits that he suffered an injury to the lumbar spine namely lumbar disc lesion with left leg radiculopathy from the accident.
• The claimant relies upon Dr Mastroianni, occupational physician, who opines that the claimant's injuries are non-threshold as there is radiculopathy in the left leg, which is an injury to the nerve, as a result of the subject accident.
• It is submitted for the claimant that "it is clear from the medical evidence that the claimant has sustained non-threshold injuries."

Insurer's Certificate of Determination - internal review

• The decision that your injuries meet the definition of "threshold injury" for the purposes of the Act is affirmed for the following reasons:

(a) Firstly, the diagnostic imaging performed to your lumbar spine did not report a fracture, or a complete or partial rupture of tendons, ligaments, meniscal or cartilage. In this regard, the MRI to your lumbar spine performed on 30 May 2022 reported the following:

"No significant abnormality. No neural compression".

(b) As per the report of Dr Mastroianni, I note that you underwent subsequent imaging in the form of a CT on 14 March 2023 which identified degenerative changes as per the below:

"No disc protrusion or spinal cord stenosis identified at any of the lumbar levels. Apart from some mild early arthropathy of the facet joints at L4/L5, L5/S1 no significant lumbar spondylosis in depreciated. No nerve root impingement identified."

(c) Secondly, while I acknowledge that Dr Mastroianni has provided a diagnosis of "lumbar disc lesion with left leg radiculopathy", having regard to the initial post-accident imaging which did not identify any acute abnormalities, the subsequent imaging which confirmed degenerative changes and your pre-accident complaints of back pain, I am not persuaded that any radiculopathy symptoms are causally related to the subject accident.

(d) In that regard, I consider that you sustained a soft tissue aggravation of pre-existing injuries. Accordingly, I accept that you have sustained a "soft tissue injury" to your lumbar spine which is a threshold injury for the purposes of the Act.

Report by Dr Mastroianni, occupational physician, to the claimant's lawyers

Dr Mastroianni did not review any of the original diagnostic scans. He summarised two X-ray reports as follows:

MRI lumbosacral spine, 30/3/2022, Dr Singh. No major facet joint arthropathy. Comment - no significant abnormality. No neural compression.

CT lumbosacral spine, 14/3/2023, Dr Thkorial. No disc protrusion or spinal canal stenosis identified at any of the lumbar levels. Apart from some mild early arthropathy of the facet joints at L4/L5, L5/S1 no significant lumbar spondylosis is depreciated. No nerve root impingement identified.

After describing his physical examination of the claimant, Dr Mastroianni expressed the following OPINION:

"The claimant has a history of back pain following a motorbike accident in 2014. He states that he had similar symptoms with which he presents now for many years after the motorbike accident, but symptoms resolved following treatment in 2021 when he had injections. He said that he was asymptomatic prior to the subject motor accident and was doing normal duties with no restrictions.

In the subject accident, he reinjured the back and clinically, he has left leg radiculopathy meeting the criteria for radiculopathy as per the Motor Accident Permanent Impairment Guidelines, page 33, paragraph 1.138. There is loss of reflexes, positive nerve root tension signs, weakness localised to a nerve root distribution and sensory loss localised to an appropriate spinal nerve root distribution (L5/S1)."

Dr Mastroianni provides a DIAGNOSIS of lumbar disc lesion with left leg radiculopathy. He says that the prognosis is guarded.

Clinical notes of Dr Prakash Damodaran, neurosurgeon

1. The Panel notes that the claimant failed to comply with the Panel's direction for production of all of the treating doctors' clinical notes for the period of two years prior to the date of the subject accident. The Panel also notes that no material was produced from Dr Mark Coughlan, neurosurgeon, to whom the claimant was referred on 11 May 2021 (ten months before the subject accident). Apparently, the claimant did not attend any consultation with Dr Caughlan. The Panel also notes that no reports have been provided from the treating GP, Dr Roufael nor the treating neurosurgeon, Dr Damodaran.

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

Insurer's submissions in reply to threshold dispute application

The insurer refers to the pre-accident medical records, post-accident and treatment prescribed definition of threshold injury and radiculopathy, in support of the following submissions:

• The diagnostic imaging does not support a non-threshold injury as it was normal. Specifically, there was no fracture or complete or partial rapture of tendons, ligaments, meniscal or cartilage. This was evident from the MRI of 30 May 2022 and the CT of 14 March 2023. There were no signs of nerve root impingement.
• Whilst it is accepted that Dr Mastrianni reported symptoms of radiculopathy when he saw the claimant on 24 October 2024, that cannot be found to be causally related to the subject accident, given the other clinical records available which do not identify any acute abnormalities and on the background of problems since 2014.
• There are many consultations post-accident where the claimant has not made reference to the motor accident. The insurer submitted the weight of the medical opinion, including that of the claimant's GP, Dr Roufael and Dr Damodaran, was that the symptoms the claimant experiences are those he had experienced since the 2014 accident. The claimant was referred to Dr Mark Coughlan, neurosurgeon, as late as 11 May 2021, with the same symptoms as those described by Dr Mastroianni.
• The insurer submits that, on the proper definition and application of the Guidelines, causation has not been made out.
• The insurer notes that the claimant has not provided pre-accident scans and clinical notes. The insurer also notes the claimant has been able to continue work as a boiler maker after the accident although he alleges some restrictions.

1. The report of the Medical Assessors is as follows:

Mr Bruce - Smith attended the medical suites AT PIC on 8 October 2025. He was unaccompanied and drove from the Central Coast to attend.

Mr Bruce - Smith was involved in a motorbike accident in 2014 which resulted in low back pain radiating to the left leg. He was off work for several years after this accident and eventually had a spinal steroid injection which improved his symptoms. In 2021 a flareup of back pain when disc bulges were diagnosed and treated with physiotherapy. He states that he had a good result from this treatment and had no significant low back pain at the time of the accident.

Prior to the accident he had been working full-time as a boilermaker.

On 22 March 2022 he was driving his car when another car failed to give way and hit him at speed in the front left corner. He estimated the speed of impact was 60 km/h. He was able to get out of the car and felt okay with initial soreness in the right elbow which settled. He continued to work as a boilermaker and was given light duties but the pain increased in the lower back.

His GP organised an MRI and referred him to a neurosurgeon Dr Damodaran. At that time, he had low back pain with decreased sensation down the left lateral leg to the big toe. He was on and off work due to flare up with back pain. The neurosurgeon advised against surgery.

Further injuries sustained since the motor accident

In March 2024, at work he sustained a partial amputation of the left thumb. This was reattached with 3 surgical procedures and he states that he may need another intervention.

No radiological studies were available for inspection.

There is variable low back pain which radiates into the left hip region and he gets a shooting pain down the left lateral leg to the big toe. This increases when standing and lasts for about one week at a time. It is also associated with pins and needles and numbness in this region.

He is able to walk and feels he favours the right leg and can stand for 30 minutes at the maximum. He states that he is restricted with house work particularly due to the left thumb injury.

He gets relief with bedrest and can drive okay but needs regular stretch breaks. He mainly lives alone but his mother is residing there at present.

Mr Bruce - Smith takes no analgesics at present and is on sertraline for anxiety and dexamphetamine for ADHD long-term. No manual therapy is being undertaken at present.

No specialist appointments had been arranged except for the left thumb.

Mr Bruce - Smith walked into the room with a slight limp but sat comfortably during the interview except for occasionally standing for relief of back discomfort. He stated he is left-handed. His height was measured at 186 cm and weight of 87 kg.

Mr Bruce - Smith had a slight limp but was able to walk on his toes. When attempting to walk on his heels, he was unsteady on the right. Squatting was 70% of expected range and limited by lumbar stiffness.

On testing range of movement flexion/extension was within normal limits and side bending was 80% of expected range bilaterally with no asymmetry. Straight leg raise was 80° bilaterally with negative sciatic nerve root stretch test.

On neurological examination of the lower limbs, knee and ankle and hamstring reflexes were all normal and equal. No muscle wasting was apparent with the circumference of the lower thighs 42 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 36 cm bilaterally. There was normal power on testing in the lower limbs and in particular flexion of the big toes . On testing for sensation, there was decreased sensation on the left lateral thigh, lateral calf and lateral foot with normal sensation in the soles.

There is documentation that Mr Bruce - Smith had increased low back pain within 2 weeks after the accident with radiation down the left lateral leg recorded by his treating GP and in the certificate of capacity and a referral for an MRI. The Panel accepts that Mr Bruce - Smith sustained an injury to his lumbar spine in the subject accident.

At the time of my examination, the only sign of radiculopathy was decreased sensation mainly over the L5/S1 dermatome. There was no motor or reflex component to this and no positive nerve root tension sign on the left leg. Thus, this is not radiculopathy or, the classification DRE ll which is 5% WPI. The Panel notes that Dr Mastroianni reported signs of radiculopathy on 24 October 2024. These signs except for decreased sensation were not present at the time of the Panel's examination. The Panel does not believe that the radiculopathy noted at that date was caused by the subject accident.

The treating GP had reported 2 days after the accident that Mr Bruce - Smith had pre-existing back pain increasing 2 weeks prior to the accident. The treating neurosurgeon, Dr Damodaran recorded there was no radiculopathy at the time of his examination in September 2023 and no indication for surgery. 10 months prior to the accident, the treating GP had written a referral to Dr Coughlin noting persistent low back pain with decreased sensation over the left L5 dermatome which is the same distribution noted at the time of the Panel's examination. Therefore, the Panel has determined that the decreased sensation over the L5 dermatome was pre-existing.

An MRI of the lumbar spine dated 30 March 2022 reported no significant abnormalities and no neural compression. A CT of the lumbar spine dated 14 March 2023 reported mild posterior annular bulges at L3/4, L4/5 and L5/S1 with no disc protrusion or spinal canal stenosis. No nerve root impingement was identified. These reports are consistent with a threshold injury and the Panel accepts the opinions of the 2 treating radiologists.

Mr Bruce - Smith has had recurrent episodes of back pain starting after an accident in 2014 with some recurrence prior to the accident in 2022.

It is our opinion that the accident-related injury to the lumbar spine is a threshold injury for the purposes of the Act."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4] It is not the role of the Panel to correct error in the decision of the original Medical Assessor.
2. The Panel is not required to choose between competing medical opinions and is required to form its own opinions.[5]
3. The Panel met on 5 August 2025 to consider the following:

(a) the nature of the dispute and the matters in issue;

(b) whether any additional documents are required, and

(c) whether a re-examination is necessary.

1. The Panel reconvened on 29 October 2025 to consider its findings and finalise its determination.
2. The Medical Assessors have explained the basis for their assessments and findings. To the extent that they differ to the views expressed by Dr Mastroianni, the Medical Assessors respectfully disagree, for the reasons stated.

1. For the above reasons, the Panel concluded the certificate issued by Medical Assessor Alexander Mitchell on 25 March 2025 should be confirmed.

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