Issued under Division 7.5 of the Motor Accident Injuries Act 2017 (the Act)

1. Revokes the certificate of Medical Assessor Assem dated 22 April 2024.
2. Certifies that the claimant's lumbar spine injury caused by the accident is not a threshold injury for the purposes of the Act.
3. Certifies that the degree of the claimant's whole person impairment resulting from the injuries caused by the accident is 11% which is greater than 10%.

A statement setting out the Review Panel's reasons for the assessment is included with this certificate.

1. James Cahill was involved in a motor accident on 9 July 2020. He was driving his car, stationary at traffic lights in Glebe when he was rear-ended by another car.
2. The claimant says he injured his back, neck, right leg, right arm and right shoulder in the accident and made a claim for statutory benefits against Insurance Australia Limited t/as NRMA Insurance (NRMA), the third-party insurer of the vehicle that he says caused his accident. NRMA accepted the claim and has paid Mr Cahill some statutory benefits. As it is now five years since the accident, the Lifetime Care and Support Authority of NSW (the Authority) is, by operation of s 3.2(3) the "relevant insurer" liable to pay Mr Cahill his statutory benefits.
3. Mr Cahill also made a claim for damages. This claim has been made against NRMA on the basis that Mr Cahill says it was the fault of the NRMA insured driver that caused the accident and his injuries and losses resulting from those injuries. Mr Cahill seeks damages for non-economic loss against NRMA. The Review Panel (Panel) understands NRMA has admitted liability for that claim but disputes the claimant's entitlement to non-economic loss damages.
4. Two medical disputes have arisen in respect of the claims:

(a) a dispute about whether Mr Cahill's injuries are threshold injuries, and

(b) a dispute about the degree of the claimant's whole person impairment (WPI) resulting from his injuries.

1. The claimant referred the dispute about WPI to the Personal Injury Commission (the Commission) on 23 December 2022.[1] The insurer referred the threshold injury dispute to the Commission on 31 August 2023[2].
2. Because of the common issue of diagnosis and causation of injury, both disputes were referred to the same medical assessor at the same time. On 22 April 2024, Medical Assessor Assem determined none of the claimant's alleged injuries were caused by the accident and that no assessment of threshold injury or WPI was therefore required.
3. The claimant lodged a single application with the Commission seeking a review of the Medical Assessor's decisions in respect of both proceedings, the threshold injury dispute and the WPI dispute.
4. On 25 June 2024, Ms Gupta, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review to proceed. The Review Panel in those proceedings determined that the claimant had a non-threshold lumbar spine injury and a WPI of 5%.[3] The insurer sought judicial review of that decision and was successful, with the proceedings remitted to the Commission to be allocated to a differently constituted Review Panel.[4]
5. On 31 July 2025, the President's delegate convened the current Panel to conduct the Review.

1. Mr Cahill's claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
2. Entitlement to statutory benefits does not require an injured person to establish fault, and therefore almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act. There are however some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that if the only injuries sustained by the injured person are "threshold" injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident (for injuries before 1 April 2023).
3. If an injured person can establish fault in respect of the accident (or if their accident is a no fault accident under Part 5) they can make a claim for damages. Damages can be recovered for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss. There are also provisions restricting and limiting the amount of compensation available in damages claims. One of these is that non-economic loss damages are limited to a maximum amount in accordance with s 4.13[5] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident. Another is that a person cannot recover any damages at all if their only injuries caused by the accident are threshold injuries.
4. A person injured in a car accident may have both physical injuries and psychological injuries. A person only needs one injury (physical or psychological) to be a non-threshold injury in order to establish the right to ongoing statutory benefits (for all injuries) and they can recover damages for loss and damage resulting from all injuries, not just the non-threshold ones.

1. A threshold injury is defined in s 1.6(1) of the MAI Act as a "soft tissue injury". Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:

"[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." [emphasis added]

1. If a person injured in a car accident sustains soft tissue injuries only, then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) highlighted in 14 above, (that is injury to nerves or complete or partial rupture of certain tissue), the injured person's statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act and they cannot recover damages.
2. Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that "an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)" is a threshold injury.
3. Clause 5.8 of the Motor Accident Guidelines defines radiculopathy, identifies five signs of radiculopathy, two of which must be found on clinical examination in order for a finding of radiculopathy to be made and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:

"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".

1. In summary, if a person injured in a car accident sustains a spinal nerve injury this must be a threshold injury unless the particular nerve injury manifests in two of the five signs of radiculopathy.

1. Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[6] which are largely based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
2. Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.

1. If there is a dispute about whether an injured person's injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[7] Disputes about WPI are also declared a medical assessment matter which may be referred to the Commission for assessment.[8]
2. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Assem's, further medical assessments and the Review of medical assessments by this Panel.[9]

1. Medical Assessor Assem examined the claimant on 17 October 2023 and issued a certificate on 18 October 2023 which was revised on 18 April 2024 and again on 22 April 2024.
2. The Medical Assessor confirms at [2][10] that h/she was asked to assess the following injuries:

(a) lumbar spine injury;

(b) cervical spine injury;

(c) right leg injury;

(d) right arm injury - right upper arm extending from right shoulder to right thumb, and

(e) right shoulder injury - including brachialgia.

1. The Medical Assessor takes the following history from the claimant:

(a) he is 42 and right-handed with a pre-existing condition of relapsing remitting multiple sclerosis (RRMS) which included symptoms of right-hand numbness from August 2018 and optic neuritis from June 2019;

(b) there was an admission in February 2020 to Royal Prince Alfred Hospital (RPAH) with RRMS symptoms including clumsiness of the right hand;

(c) there were no previous complaints of neck or pain problems;

(d) he was a sales manager for a real estate group;

(e) the accident occurred when the claimant was stopped at traffic lights and his vehicle was rear-ended by another vehicle with a "strong thud";

(f) Medical Assessor Assem showed the claimant the photographs and the history from the insured which the claimant could not reconcile but said he had never had back or neck pain before the accident;

(g) after the accident his neck was tender and the lower back with "weird sensations" in his right leg, dizziness and headache and as he was driving home, he decided to go to RPAH where he was put in a neck brace and referred for imaging;

(h) the claimant developed right shoulder and right leg radicular symptoms which he said he did not have before the accident;

(i) he saw Dr Lim, had an MRI which showed a disc bulge at L4/5 with some contact of the L5 nerve root on both sides and an L5/S1 disc bulge with mild central canal narrowing and foraminal stenosis contacting the S1 nerve root;

(j) he saw Professor Hardy, had physiotherapy and medication for neuropathic pain;

(k) in late 2020 the claimant had a guided L5 nerve root injection that provided temporary relief for a few hours only;

(l) the claimant saw Dr Brennan who suggested decompression surgery which the claimant declined, and

(m) the claimant has had no significant improvement, and physiotherapy provides only temporary relief.

1. The claimant reported continuing symptoms from his RRMS, constant neck discomfort with headaches and pain radiating to the right shoulder. There was tenderness or numbness in the right hand and he was not sure whether this was related to his RRMS or not and he felt his right arm was weaker. His lower back was tender intermittently and he had intermittent numbness in his right foot.
2. When examining the claimant's cervical spine, Medical Assessor Assem found a reduction of movement in the spine but no muscle guarding or spasm and no neurological signs in the upper limbs.
3. When examining the lumbar spine there no muscle guarding or spasm and some restriction of movement. There was no loss or reduction in reflexes, power and tone were normal, there was no positive nerve root tension sign and while there was some reduced sensation it did not follow a dermatomal pattern.
4. After the examination, Medical Assessor Assem made the following comment on consistency at section [18] of his decision:

"Upon thorough review of all medical evidence and expert biomechanical reports, I have concluded that it is highly unlikely Mr Cahil sustained any physical injuries from this accident. His current symptoms align more closely with a pre-existing condition of relapsing-remitting multiple sclerosis which has previously manifested [in] similar neurological symptoms in both his right uppr and lower extremities."

1. After reviewing some of the evidence, Medical Assessor Assem at [21] says:

"The photographic evidence of Mr Cahill's vehicle, along with the account provided by Ms Ryan, strongy suggests that the collision was of low speed and resulted in minimal damage. The damage is described as a minor mark on the bumper bar, likely caused by a screw from the other vehicle's number plate. Upon closely examining the magnified images, I concur with this assessment. Given the negligible extent of the damage, it is highly improbabe that the collision transmitted sufficient force to cause any significant physical injuries or permanent impairment to Mr Cahill."

1. The Medical Assessor found none of the alleged injuries were caused by the accident and therefore determined there was no need to assess whether the injuries were threshold injuries or whether they resulted in any permanent impairment.

1. The Panel has been provided with various submissions made by both parties.[11]

Submissions to the delegate in support of the Review

1. After setting out the procedural history the claimant summarises at [33] his issues with the Medical Assessor's decision.
2. The claimant says:

(a) The Medical Assessor has failed to disclose his path of reasoning [34]-[40];

(b) fails to engage with the claimant's submissions for example the possibility that a minor accident could lead to injury and the temporal connection [41]-[46];

(c) the Medical Assessor did not engage with the submission about the MRI and the L5 pathology [47]-[51];

(d) the Medical Assessor did not engage with the report of Associate Professor Hardy who is the treating practitioner and "best placed" to provide an opinion having treated the claimant before and after the accident [52]-[56];

(e) the insurer had, in an internal review dated 4 December 2020 accepted Dr Dixon's opinion of a lumbar spine injury [57]-[59];

(f) Dr McIntosh's report is based on a statistical analysis of injury in the community and not the circumstances of this particular claimant [60]-[64];

(g) the Medical Assessor did not reference in any detail the claimant's threshold injury submissions [65]-[75];

(h) the Medical Assessor did not engage with the history from the claimant that he had no symptoms in his neck or back before this accident and made complaints within 10 minutes of the accident [76]-[85];

(i) the Medical Assessor has not considered whether the accident caused an exacerbation of a pre-existing asymptomatic condition [86]-[91];

(j) the Medical Assessor has applied the wrong test of causation [92]-[104];

(k) the Medical Assessor has concluded that it was highly improbable for injury to have occurred and therefore found there was no injury at all which is the wrong test [105]-[109];

(l) the claimant provided a statement taking issue with the assessment and references its duration and that the Medical Assessor failed to correctly assess the claimant's ankle reflexes [110]-[112];[13]

(m) the medical assessment was not carried out in accordance with the Guidelines (although the claimant gives no further explanation of what the issue was) [113]-[115];

(n) the Medical Assessor did not mention the claimant's additional submissions dated 22 February 2024 [116]-[123];

(o) the Medical Assessor took three attempts before he submitted a complete certificate and his failure to understand what he was required to do "gives rise to further reason to suspect" that the assessment is erroneous [124]-[136], and

(p) there were several "incomprehensible sentences" which the Medical Assessor failed to correct when alerted to them [137]-[143].

1. The claimant asserts that the medical assessment is flawed and must be corrected and requests a fresh re-examination.

The claimant's further submissions in respect of the review

1. The claimant lodged submissions in response to this Panel's initial directions and submits:

(a) all of the injuries originally referred for assessment remain in dispute and are required to be assessed [3]-[4];

(b) in terms of the lumbar spine injury and the threshold injury dispute the claimant had referred the question of radiculopathy for assessment but wishes to extend the dispute to the question of whether there is a tear in the lumbar disc cartilage (being the issue that led to the judicial review proceedings) [5]-[8];

(c) the claimant relies on the MRIs dated 21 July 2020 and 11 October 2021 and the disc bulges at L4/5 and L5/S1 identified in the more recent MRI [10]-[11];

(d) the Panel should view the imaging itself [12];

(e) the test of causation of injury is that of Briggs v IAG trading as NRMA Insurance,[14] and

(f) the Panel must consider whether radiculopathy has been present at any time since the accident and relies on David v Allianz Australia Limited.[15]

The claimant's original submissions to the Medical Assessor

1. The original submissions with the application for medical assessment of the WPI dispute note:

(a) the insurer originally admitted the claimant had a non-minor injury in a notice dated 4 December 2020;

(b) the RPAH notes recorded the claimant was a "high risk individual" due to his multiple sclerosis (MS);

(c) Associate Professor Hardy said on 14 August 2020 that there were no new MS symptoms after the accident and that the L5 radiculopathy was triggered by the accident;

(d) Dr Dixon assessed WPI at 18% and determined the claimant had a WPI of 10% for the lumbar spine injury;

(e) on internal review the insurer accepted the claimant had sustained a lumbar spine injury in the accident, and

(f) the insurer has misunderstood and misapplied "the Nguyen principle"[16] and says it does not matter whether impairment arises from referred pain or actual radiculopathy, if a body part is impaired the impairment must be included.

1. The claimant's submissions in response to the insurer's threshold injury submissions argued:

(a) one of the photographs shows a "significant indentation" in the "prestige vehicle" and that damage to a motor vehicle does not correlate with injuries within that motor vehicle;

(b) each case must be considered on its own facts and generalisations and statistics cannot be used to determine whether an injury occurred or not;

(c) the claimant refers extensively to a Queensland case;

(d) the question to be asked and answered is whether the claimant was injured as a consequence of the accident. The claimant submits he is a credible person and his post-accident behaviour is consistent with him having been injured;

(e) Dr McIntosh's opinion that the accident was not capable of causing injury to the claimant is wrong because he cannot state that with absolute certainty;

(f) there is a temporal relationship between accident and injury evidenced by the claimant's attendance at hospital on the day;

(g) he had a pre-existing condition degenerative which was asymptomatic and rendered it more likely that the claimant would be injured;

(h) the MRI reveals disc pathology and nerve root impingement;

(i) Dr Keller's first report acknowledged the speed of the accident was at the lower end of the spectrum yet he found there was an injury, he changed his opinion based on the flawed report of Dr McIntosh;

(j) Mr Mellick's evidence is inconsistent with Dr McIntosh who considered the accident did produce muscular and ligamentous symptoms;

(k) the insurer has conceded injuries to the neck and right shoulder in the internal review decision of 7 December 2022;

(l) Associate Professor Hardy, Dr Van Gelder and Dr Brennan have all found a right lumbar radiculopathy which required decompression surgery, and

(m) Dr Dixon has assessed significant degree of impairment and a 10% impairment for the lumbar spine injury.

1. The claimant provided further submissions in support of the WPI dispute dated 27 September 2023 which restate many of the other submissions from the threshold injury dispute.

Submissions responding to the application for Review

1. The insurer responds to the claimant's submissions stating that the Medical Assessor did expose his path of reasoning and did engage with the claimant's submissions.
2. The insurer also submits:

(a) in respect of the lumbar spine and MRI pathology, all this establishes is that there is a correlation between the accident and the pathology but does not imply causation of the pathology;

(b) in terms of Associate Professor Hardy, the insurer says he may not be "best placed" to express an opinion because he may not be aware of the speed and force of the impact and has not had the benefit of the relevant material such as the photographs of the claimant's vehicle or the report of Dr McIntosh. The insurer noted the hospital records have a history of the accident occurring at approximately 50kmph. If that is what the claimant told his practitioners, then that may affect the reliability of their evidence;

(c) the insurer's internal review decision accepted an injury to the neck and right shoulder but has never accepted any injury or impairment to the lower back;

(d) the Medical Assessor did correctly approach the report of Dr McIntosh and having found injury was unlikely and improbable then went on to make the finding that the accident did not cause an injury. The onus of proof lies with the claimant to prove injury did occur and not that it was possible for an injury to occur;

(e) the claimant has not provided evidence from any expert who has considered the photographs of the claimant's vehicle and the report of Dr McIntosh;

(f) in terms of the claimant's MS, the insurer says the Medical Assessor did not have to find an alternative cause of the claimant's alleged injuries but that he expressed the view the symptoms now complained of are more aligned with his pre-existing condition, and

(g) the insurer says the test of causation is whether the accident could have caused injury and whether it did in fact cause injury.

1. The insurer lodged further submissions on 12 September 2025 and says:

(a) the insurer agrees to expand the scope of the threshold injury dispute to include whether there has been a tear to the disc cartilage in the lumbar spine [4];

(b) that the claimant relies on Associate Professor Hardy's report of 4 April 2025 and says he has not commented on causation, has not seen the photographs of the damage or the collision report and his opinion is only relevant to the question about the nature of the injuries [5]-[7];

(c) the insurer notes Dr Stanford's opinion should also be limited to the nature of the injuries and not causation unless he has had the photographs and the report of Dr McIntosh [8]-[9];

(d) the test of causation is whether the accident could have caused the tear to the disc and / or radiculopathy and whether it did cause the tear to the disc and / or radiculopathy and also cites Briggs and says there was no force that would have been capable of causing the tear to the disc and / or the radiculopathy [10]-[12];

(e) the accident does not need to be the sole cause but must be a more than negligible cause and that the forces at play in this accident would have been negligible and no more than those experienced in everyday life [13];

(f) the insurer acknowledges that in Briggs causation does not require scientific certainty but rather satisfaction on the balance of probabilities [14];

(g) the insurer submits the pathology found on the MRI is an incidental finding and not caused by the accident [15]-[17], and

(h) the injury that is threshold or not threshold must be caused or contributed to by the accident requires the causing or worsening (extension) of a tear rather than rendering symptomatic. The insurer cites cl 6.121 in support [18]-[22].

The insurer's original submissions with the Medical Assessor

1. The insurer's original submissions filed with the threshold injury dispute:

(a) submit the photographs and the repair quote indicate minimal damage and that this is entirely inconsistent with any injury being sustained or any significant injuries being sustained;

(b) refers to the evidence of its insured driver which is also consistent it says with a minimal impact and minimal damage;

(c) refers to pre-accident records from his general practitioner (GP) which notes on 13 March 2014 the claimant complained on lower back pain on the left side after wrestling;

(d) refers to the 2018 diagnosis of MS and that on 13 January 2020 he had no new symptoms;

(e) the RPAH attendance in February 2020 indicated there were some new symptoms and an April 2020 MRI showed new lesions;

(f) the insurer submitted the pre-existing condition was relevant;

(g) after the accident the insurer noted that the claimant went to hospital and the GP the next day and on 24 July 2020 the claimant is reported to have told his GP his neck tenderness had resolved. Dr Hardy expressed puzzlement over the cause of the claimant's neck pain on 14 August 2020, and

(h) Dr Brennan was doubtful about some of the symptoms which did not fit with nerve root compression.

1. Further submissions in respect of the Review were lodged with a report from Dr Krishnan dated 30 July 2024;

(a) the insurer refers to the claimant's statement where he said before the accident he had experienced intermittent paraesthesia in the right and left hand, intermittent fatigue and loss of vision. The insurer also refers to the claimant history of attending hospital in February 2020 and saying his symptoms resolved and that by April he was tolerating his medication well;

(b) the insurer submits that the note in the RPAH notes that indicate the claimant symptoms had resolved is a reference to the increase in symptoms associated with the increase in medication;

(c) the insurer relies on a report from Dr Krishana dated 28 April 2020 who referred to "heaviness in his right eye", "blurred vision to the present day" and "he has also experienced paraesthesia in his hands and feet which have been present for over a year, feels that his symptoms are continuing", and

(d) the insurer points to an MRI from April which shows new lesions including a brainstem lesion.

1. On 20 August 2025 the Panel issued directions to the parties. The Panel noted that before the current Panel was convened:

(a) on 15 July 2024, the claimant lodged a bundle of documents spread over 503 pages, and

(b) on 30 July 2024, the insurer lodged a bundle comprising 589 pages of documents.

1. The Panel also notes additional documents were uploaded including:

(a) submissions from the claimant regarding the report of Dr Krishnan uploaded on or about 20 August 2024;

(b) submissions from Kemp Lawyers on 13 November 2024 (plus two documents on 11 November 2024), and

(c) documents from NRMA lodged on 19 November 2024 including I-Med radiology and North Shore Radiology reports and discs.

1. The Panel advised the parties it was not asking for duplicate bundles of the bundles already filed but requested a small bundle of the additional documents with the submissions filed since the original bundles were filed.

1. The Panel met on 15 September 2025 and reported to the parties the next day. The Panel noted:

(a) the two disputes to be assessed (threshold injury and WPI);

(b) the five injuries to be assessed (lumbar spine, cervical spine, right leg, right arm and right shoulder), and

(c) that in relation to the lumbar spine there was an issue about possible injury to a spinal nerve or nerve root manifesting in radiculopathy and whether there was the complete or partial rupture of lumbar spine tissue in particular disc bulges at L4/5 and L5/S1.

1. The Panel also noted the involvement of Lifetime Care and Support Authority of NSW (Lifetime Care) due to the lapse of more than five years since the accident.
2. The Panel queried whether the claimant intended to have an expert or treating specialist comment on causation.
3. The Panel determined both Medical Assessors should examine the claimant on 14 November 2025 at 9.30am and Mr Cahill was directed to attend.
4. The parties were invited to respond to any of the matters raised in the report.

1. On 1 October 2025 the insurer applied to admit into evidence a report from Dr Korber dated 27 September 2025. The Panel invited the claimant to respond to the application by 10 October 2025 and requested the claimant advise if he intended obtaining a report in response. The Panel received no further communication from the claimant and on 13 October 2025 decided to admit the report of Dr Korber into evidence pursuant to rules 67C(3) of the Personal Injury Commission Rules 2021 and the parties were advised.
2. The claimant's solicitors then wrote to the Panel on 15 October 2025 advising that their client would consent to the report from Dr Korber being admitted if the insurer consented to the claimant serving an opinion in reply. The Panel advised the claimant that the report of Dr Korber had already been admitted into evidence but that as a matter of procedural fairness the claimant could obtain a report if he wished. The Panel requested the claimant advise when that report would be available noting that the re-examination may need to be rescheduled to accommodate this. A response was requested to that message by 20 October 2025. The claimant responded on 21 October 2025 advising enquiries were being made concerning an expert and that in addition the claimant intended to rely on a further report from Dr Dixon.
3. The Panel chased up a response from the claimant and on 7 November 2025 was advised that a report from Dr Dixon had been obtained and served on the insurer and that a timeframe for the other report (an expert radiological report) was not known. On 10 November 2025 the claimant advised the Panel that he was still waiting for the expert's report. On 13 November 2025 the report from Dr Dixon was uploaded to the portal.

1. On 18 November 2025 the insurer lodged an Application to Admit Additional Documents which included submissions in relation to the report of Dr Dixon and copies of the letters of instruction to Dr Dixon. Also attached was an article from The Spine Journal entitled "Lumbar Disc Nomenclature: version 2.0." These documents had been served on the claimant.
2. The insurer's submissions lodged on 18 November 2025 in response to the report of Dr Dixon and the article from The Spine Journal say at [8]:

(a) Dr Dixon has misstated the previous Panel's conclusion - they found one (not two) signs of radiculopathy and therefore a threshold spinal nerve root injury;

(b) Dr Dixon misstated the binding nature of that decision noting that it had been set aside by the Courts;

(c) Dr Dixon had the report of Dr McIntosh, and

(d) Dr Dixon has not actively engaged with the controversy in the current proceedings as to causation.

1. The insurer refers at [9] to the overall definition of threshold injury in s 1.6 as a soft tissue injury and notes the two exceptions contained therein:

(a) an injury to nerves - while nerves are a tissue that is soft (as opposed to hard) such an injury is said to be an exception and is not a threshold injury, and

(b) the complete or partial rupture of tendons, ligaments, menisci or cartilage - these four types of tissue mentioned are tissues that are soft but, if they are completely or partially ruptured they are an exception and are not a threshold injury.

1. The insurer then refers to cl 4 of the MAI Regulations and says at [9(e)] that:

"The Guidelines do not provide that 'radiculopathy' renders an injury to fall outside the meaning of threshold injury; rather the 'non' threshold injury is an injury to a spinal nerve root if it manifests in radiculopathy."

1. In terms of the article provided the insurer submits at [12] that it says, "annular fissures ... are present in nearly all degenerated discs." The insurer submits at [13] that an annular fissure is not the "complete or partial rupture" of tissue in terms of something traumatically torn or broken apart.
2. The insurer emphasises that causation must be proved and that the claimant bears the onus of proof and notes at [14] that the claimant has not presented any expert evidence to address whether the accident could have caused the injuries or any of the insurer's evidence.
3. The insurer submits at [15] that if a pre-existing degenerative condition has been rendered symptomatic, that is not enough to establish a non-threshold injury.

1. On 13 January 2025 the claimant lodged final submissions addressing the insurer's 18 November 2025 submissions and the article from The Spine Journal.
2. At [2] the claimant notes this was the same article referred to by Associate Justice Harrison in Briggs v IAG Limited t/as NRMA Insurance[17] as a study that "presents as a text written for the purpose of clarifying spinal terminology." The claimant submits at [3] that the distinction between fissures and tears is one of terminology only.
3. The claimant submits at [4] that a fissure is a rupture or tear and is an exception to the definition of soft tissue injury in s 1.6 of the MAI Act and quotes from the decision of Momand v Allianz Australia Insurance Limited.[18] The claimant submits at [5] that a "disc protrusion / tear / fissure of an annular disc is by definition a non-threshold injury" if causation is found.
4. The claimant cites at [7] the comments of Justice Wright in Robson v QBE Insurance (Australia) Limited[19] concerning the difference between subjects in a study or survey and the individual claimant being assessed.
5. The claimant then lists at [9] further studies that may be relevant.
6. The claimant's final submission cites Wingfoot Australia Partners Pty Limited v Kocak[20] and says:

"... that the function of a Review Panel is to form its own opinion on the medical question referred, not to adjudicate between the competing positions of the parties. It is open to the Review Panel, on the basis of the evidence before it, to make its own decision as to whether any injury to lumbar disc cartilage was caused by the accident."

1. The re-examination scheduled for 17 November 2025 did not occur due to one of the Medical Assessors becoming unavailable.
2. On 17 December 2025 the parties were formally advised of the new re-examination date (16 January 2026) and directions were issued to the parties.
3. To avoid doubt, the Panel had decided that all of the additional documents and submissions lodged by both parties were to be admitted into evidence pursuant to rule 67C(3) and (4) of the Personal Injury Commission Rules 2021.
4. The claimant attended the re-examination with both Medical Assessors but did not bring his radiology. The radiological images were later provided by the insurer and reviewed.
5. The Panel met on 28 January 2026 to discuss the re-examination findings and the radiology and in order to finalise these reasons.

1. The claimant completed an application for personal injury benefits on 4 August 2020.[21] He described the accident and said, he has had:

"pain to neck and right shoulder; pain to lower back, and pain and loss of feeling to right leg - shooting pains in right leg, pins and needles and numbness."

1. The claimant denied any previous motor accident claims and ticked the box indicating he was not "suffering an illness or injury affecting the same or similar parts of [his] body at the time of the accident."

1. The police did not attend the scene of the accident (neither did any other emergency service). The police report[22] was created on 24 July 2020 by Probationary Constable Hook of Leichhardt Police Station. The report really adds little to the Panel's understanding of the matter noting that the accident was reported because the claimant says, "he is now getting medical treatment for injuries." No pre-crash speed is recorded for the insured vehicle, but it was noted that there was no damage to that vehicle. The claimant's car was said to have sustained rear end damage.
2. The insurer retained investigators[23] who obtained a statement from Ms Ryan, the insured driver. The interview took place on 2 December 2022 by phone. Ms Ryan says:

(a) she was interviewed by the police on 21 August 2020;

(b) she had turned into Ross Street, Glebe and was slowing down;

(c) it was peak hour and there was a lot of traffic so she could not go very fast;

(d) the claimant was stationary at the lights, and she was behind him about the turn into Bridge Road;

(e) as she was about to stop, her shoe got caught and her foot slipped and by accident, she "bunny hopped" and "touched the back of his bumper bar" she described it at first as a "bang" and then as a "tap";

(f) they both drove around the corner and stopped, and she described the claimant's actions as "jumped out in a panic";

(g) the claimant asked about her welfare and when she got out of the car "he was all anxious and panicked";

(h) she could not see much damage but saw that the screw from her number plate had indented the bumper bar so she took a photo of it, they exchanged details and they both drove off;

(i) her car was not damaged;

(j) he did not take any pictures, and

(k) the police took no action against her

1. A photograph taken on the day of the accident by Ms Ryan shows the rear of a black or dark Grey BMW. There is a lot of reflection and while the Panel cannot see any deformation of the bumper or rear panels it is impossible to tell if there is any other damage. In the insurer's bundle (page 4) there is a close up of the bumper bar showing what appears to be a small circular impression or dent.
2. The insurer relies on a report from Dr McIntosh dated 20 February 2025.[24] Dr McIntosh has a PhD and specialises in biomechanics and ergonomics / human factors.
3. Dr McIntosh says at [35] that the measure of the severity of a crash is a change in velocity and say at [39] that the minimal damage shown on the photograph of the claimant's car indicates a change in velocity of less than 6kmph. He says at [40] "it is improbable that the closing speed was 50 km/h" because the insured's airbags did not deploy and the damage to the vehicle would have been more extensive at that speed.
4. He then deals with the dynamics involved for persons in car accidents and says at [47] that in a rear end collision, the occupant will initially remain at rest when the vehicle is impacted but then there is likely to be a forward movement but that a correctly adjusted seatbelt will limit forward motion. Dr McInotsh documents a number of studies into whiplash and quotes from two studies about the likelihood of neck injury:

"Muser et al. wrote in a research paper in 2000 on neck injury in rear-end impacts:

'Most experts today agree that the threshold level below which, in a normal case (i.e. no prior damage to the cervical spine, normal seating position, age below 55 years), injuries to the cervical spine are deemed improbable, lies between a [change in velocity] of 10 and 15 km/h for the struck car.'

Howard et al. wrote in a 1999 review of whiplash associated disorders arising from low speed rear end collisions:

"... there are no objective, experimentally-based scientific data to support the concept that the low-velocity 'whiplash' response is capable of producing any injuries beyond those to the cervical musculature; where low velocity equates to a [change in velocity] ≤ 12'."

1. In terms of the lumbar spine, he notes at [71] and [72] that the thoracolumbar spine is harder to injure as it is protected and stabilised by the rib cage and the design of the car seat wish cushions any forces. After citing the relevant studies, he says at [81] that "the research strongly supports the view that thoracolumbar injury to vehicle occupants restrained by seat belts in low speed rear-end collision is highly improbable."
2. He expressed the view at [85] that the accident was not capable of causing injury due to the magnitude of the biomechanical forces being low due to the severity (or lack thereof) of the accident. He says the claimant's alleged injuries are inconsistent with the likely biomechanical forces in the accident.
3. NRMA has provided documents from the claimant's property damage claim suggesting the cost of repairing the damage to the bumper of his BMW was $1,203.71. Photographs of the car have been provided showing the front and both sides. There are close up photographs but it is unclear exactly what they show or what part of the car they show other than it appears the car is rather dusty.
4. At page 233 of the bundle there are documents relating to another claim for a different BMW. This shows the front of a BMW vehicle with the whole of the right front having come away from the body. This material suggests the claimant may have been involved in another accident and the date of that loss was said to be 19 December 2018.

1. The claimant provided a statement dated June 2023.
2. He details his employment history in real estate and says he had commenced negotiations to buy into the real estate agency business that he worked for [3]-[4]. He says before the accident he was "fit and healthy" and had many sporting and recreational pursuits [6]-[7].
3. Mr Cahill says that in 2019 he was diagnosed with MS, his medication was reviewed in January 2020, and he attended hospital in February 2020 with symptoms including muscle aches, pins and needles in his fingers, chest tightness and symptoms in his right leg. He says he was advised this was due to the change in his medication and his medication was altered again. He said on 20 February 2020 the symptoms had resolved [8]-[10].
4. Mr Cahill says his diagnosis and his symptoms caused him worry but that his MS was "stable and well managed" before the accident. He said he continued to live an active life and work and look after himself and undertake domestic duties [11]-[13].
5. The claimant refers to the accident but not in great detail at [14] and says that he experienced "immediate pain in my neck, right shoulder, lower back and right leg. My head was also pounding". He said he had radiating pain in his neck and right shoulder immediately afterwards and paraesthesia in his right shoulder and right leg [15].
6. Mr Cahill says after exchanging details he drove to RPAH and that he was discharged at about midnight and advised to see his doctor. He saw Dr Lim his "usual GP" on 10 July 2020 and was given the day off work [17].
7. While the claimant said he hoped his symptoms would improve he says they have got worse over time [19].
8. The claimant documents at [20]-[29] his treatment noting that the steroid injection for his lower back in July 2021 provided limited benefit and did not resolve his symptoms [23] and that Dr Brennan and Dr De Gelder, neurosurgeons have recommended surgery but he does not wish to have it due to his age and the nature of the surgery.
9. The claimant says that his neck and right shoulder symptoms and his headaches remain but are intermittent and not as bad as his back [30]. He makes it clear at [31] that the occasional pins and needles and paraesthesia he had in his hands before the accident was intermittent and had settled before the accident and what he experiences now is different.
10. The remainder of the statement addresses the claimant's mental health issues and things he used to do but cannot do since the accident and other matters more relevant to the assessment of his claim as opposed to the medical dispute.
11. The claimant's wife Amanda also gave a statement in June 2023. She said before the accident his MS had "little impact" on his ability to work or on his day-to-day activities [10] and that after the accident he has "regularly complained that the accident caused him to injure his neck, right shoulder, back and right leg in the accident." The remainder of her statement concerns matters relevant to the impact of the accident on her husband's ability to function which will be of assistance in assessing the claimant's damages but does not greatly assist the Panel.
12. Nicole and Mark Tooth's statements are also primarily aimed at the claimant's claim for economic loss, but also address, the "before and after" picture. For example, Mr Tooth says the claimant winces in pain, and he has observed Mr Cahill's difficulty getting in and out of a car. Ms Tooth says the claimant limps around the office appearing to be in considerable pain.
13. Neither Mr or Ms Tooth indicate in their statements that they have knowledge or awareness of the claimant's MS diagnosis.

1. The insurer has provided copies of the two letters written by the claimant's solicitor to Dr Dixon. The insurer has not made any submissions as to the relevance of these letters to the matters in dispute.
2. The insurer has provided a copy of an article from The Spine Journal entitled "Lumbar disc nomenclature: version 2.0 Recommendations of the combined task forces of the North American Spine Society, the American society of Spine Radiology and the American Society of Neuroradiology."[25] This article is basically a recommendation for lumbar disc terminology that is standardised and can be used accurately and consistently for clinicians to describe disc disorders. The article is based on a review of literature since an original article was published in 2001.
3. The article suggests the phrase "annular fissure" be adopted instead of "tear" for degenerative changes in discs due to the separation of annular fibres. Herniation (protrusion or extrusion) is suggested for the displacement of disc material outside the intervertebral disc space and is different to bulging which the authors suggest is "an observation of the contour of the outer disc and is not a specific diagnosis".

1. Associate Professor Hardy wrote to the claimant's doctor on 22 November 2019. At that stage the claimant's symptoms related to the right eye however the claimant referred to six weeks of symptoms reported to his GP in August 2018 including numbness in the right hand that settled and slight numbness in the fourth and fifth fingers in the right hand over the previous few days.
2. Associate Professor Hardy suspected RRMS and requested a number of tests including an MRI of the spine. This revealed lesions at C2 and C5, a thoracic spine issue at T1/2 but no lumbar spine lesions or features were reported.
3. On 16 December 2019 Professor Hardy wrote again to the claimant's doctor diagnosing the RRMS. There were no new symptoms although he reported a "little bit of insomnia and anxiety" after taking the prednisone. The claimant also reported fatigue and brain fog and imperfect short-term memory and clumsiness.
4. On 13 January 2020 the claimant had no further neurological symptoms but "good and bad days with memory problems, fatigue and a significant exacerbation in his anxiety since his diagnosis." The claimant referred to right and left hand numbness. The former was considered to be RRMS related but the latter consistent with carpal tunnel syndrome. Medication was started.
5. The notes from the admission to RPAH on 20 February 2020 include a neurological review and general neurological assessment.[26] The claimant reported "intermittent episodes of paraesthesia and reduced sensation affecting hands and feet". A comprehensive history was taken including recent changes in medication. The claimant reported "clumsiness" in his right hand for three hours which resolved, further muscle aches and hyperaesthesia of the skin and "transient weakness of right leg" and difficulty swallowing. There is then a note:

"Currently feels back to normal - all symptoms have resolved. No longer has hyperasthesia, muscle aches and pains, weakness of R leg or clumsiness of R hand Has ongoing decreased visual acuity in R eye compared to left but this has been stable since diagnosis late last year. Also has subjective sensory loss and feeling of tightness in right hand and forearm, but this has also been stable since diagnosis of MS."

1. On examination, there was no loss of power in any of the claimant's limbs (5 out of 5), no loss of reflexes in the lower limb, some reduction in sensation to light touch and pain (although it was reported elsewhere as NAD which means no abnormalities detected) but no other abnormalities on testing. The impression noted was "likely side effects secondary to increased dose of dimethyl fumarate, possibly exacerbated by anxiety."
2. On 20 April 2020 Associate Professor Hardy noted the claimant's symptoms that led to the February 2020 admission to RPAH including "tingling and myalgia" but no new neurological symptoms and settling of the hand paraesthesia. There were ongoing fluctuating visual issues and fatigue.
3. Professor Krishnan wrote to the claimant's GP on 28 April 2020.[27] He has a history of the claimant experiencing neurological symptoms since June 2019. He says these began with visual issues in his right eye and eye symptoms and that the blurriness has continued.
4. Professor Krishnan also records:

"He has also experienced paraesthesia in his hands and feet which have been present for over a year. Feels that his symptoms are continuing."

1. The letter provides advice with regards to medication relevant to his MS.
2. The RPAH notes from the day of the car accident have a history of:

(a) driver in stationary car, rear ended at low speed;

(b) had right leg on brake pedal and may have had leg pushed forward during impact;

(c) head flung forwards but no head strike;

(d) had some central neck pain post impact and some lower back pain and right leg paraesthesia;

(e) walked to hospital a few hours later due to concerns re symptoms;

(f) mild pain in neck central and paraspinal mostly central, and

(g) lower back pain initially had some radiation down "R LL (posterior thigh and posterior calf, no pain in foot) R LL paraesthesia improving". The Panel notes that "R LL" is an abbreviation for right lower limb.

1. He was not sure how fast the other vehicle was going but estimates the speed was at 50kmph. Airbags were not deployed and his windshield not shattered. There was said to be some damage to rear of the claimant's vehicle. He described the claimant as a "high risk individual [with] previous spinal and brain lesions." While there was paraesthesia and altered sensation to the right leg this was noted to be "not following specific dermatomal pattern". There was tenderness reported at C6-C7; T1-T2 and L4 - L5.[28]
2. Radiology was undertaken by the hospital and a CT scan of the claimant's lumbar spine on 9 July 2020 notes "shallow disc bulges at L4/5 and L5/S1 causing minor canal stenosis."[29]
3. In a progress note[30] it was recorded "Mobilised after incident without issue. While driving back home had increased pain in c-spine and in lumbar spine and "'strange sensation' to right leg". On the next page it is noted in the right lower limb:

"Reporting NEW paraesthesia in L3/L4 and decreased sensation globally on the right limb, almost unable to feel light touch on Right great toe. Able to SLR."

1. Power in the right lower limb was 4 out of 5 from the hip to the toe whereas the left was

5 out of 5. Tone in both was said to be normal. 2. The claimant attended Dr Lim the day after the accident. The doctor records an acute whiplash of the neck, lower back tenderness with right sided "radiculopathy". On 15 July 2020 the claimant reported persisting neck tenderness on the right side and "radiculopathy" in the right lower limb. Radiology was requested. On 24 July 2020 the claimant complained of shooting pains down his right leg and on 28 July 2020 he was referred for physiotherapy. 3. Mr Cahill saw Associate Professor Hardy on 14 August 2020 reporting the car accident, the immediate onset of neck and lower back pain including a shooting pain down the right leg. 4. On examination, Associate Professor Hardy records:

(a) tone in the lower limbs was normal and there was no clonus;

(b) power in the left leg was normal but power in the right was difficult to assess due to pain but "there appeared to be mild weakness of 4/5 in ankle dorsiflexion";

(c) reflexes were brisk at the knees and ankles, and plantar reflexes were down going (normal), and

(d) sensation was reduced over the sole of the right foot, lateral dorsum of the right foot, lateral calf and lateral thigh.

1. He says there were no significant signs of radiculopathy but "suspected" an L5 radiculopathy "triggered by the MVA". He expressed concern about the neck due to no clear pathology on the MRI "and his sensory loss covers multiple dermatomes." He thought the demyelinating lesions could be the cause, but the claimant was "certain the numbness is new."
2. Associate Professor Hardy wrote to Dr Lim on 18 September 2020[31] and most of this report concerns medication. The claimant was experiencing right lower limb radicular pain, but there is no reference to any signs of radiculopathy reported.
3. On 10 January 2021 Associate Professor Hardy noted no definite symptoms to suggest an MS relapse but that over Christmas the claimant had a recurrence off numbness in his hand where he had previously been numb, he felt a little clumsier in the hand and his left eye may have had some vision issues.
4. On 28 May 2021 the claimant's main symptom was fatigue, but he thought after changing to natalizumab his optic neuritis and episodic tingling and numbness have improved. The claimant was still experiencing radiculopathic pain.
5. On 13 September 2021, Associate Professor Hardy referred the claimant to Dr Brennan and he also wrote to Dr Lim.[32] He reports that the claimant's RRMS was stable with no neurological symptoms albeit with the same symptoms of left-hand numbness which the Professor thought might be carpal tunnel.
6. Dr Brennan saw the claimant on 4 November 2021 and wrote to Associate Professor Hardy.[33] He has a history that since the car accident "in a slightly evolving way he has been left with pain that has gradually declared itself as a possible right L5 claudicant radiculopathy."
7. Dr Brennan reviewed the MRI scans and despite some concerns considered the diagnosis was of an L5 nerve compression and a posterior decompression might relieve some of the symptoms. As this was a telehealth appointment, no clinical examination could be undertaken to assess reflexes, muscle atrophy, loss of sensation or power.
8. Associate Professor Hardy wrote to Dr Lim on 10 January 2022[34] reporting a history of "vertigo, fatigue and a feeling of loss of strength in the hands which meant he had difficulty doing up shirt buttons or picking up a pan." This resolved within 24 hours.
9. On 20 June 2022 Associate Professor Hardy records[35] that the claimant's main MS related problem was a tendency to fatigue "he is often so exhausted by the end of the day that he feels nauseous." The claimant reported right neck pain and right leg sciatica and was finding it hard to exercise due to flare ups of his sciatica. Associate Professor Hardy undertook a clinical examination which suggests no signs of radiculopathy in the upper limbs other than some slight weakness in the right shoulder although it was difficult to determine. Similarly in the lower limb pain restricted a proper assessment of power in the right lower limb. Plantar reflexes were reduced and sensation was reduced on the bottom of the right foot and the back of the calf and thigh.
10. Dr James van Gelder wrote a report to Dr Lim dated 13 September 2022.[36] He had a history of right lumbar radicular symptoms since a car accident. He had a history of the MS. The claimant described "painful needle like pains in his right leg" which wakes him at night. If he stands for too long, he gets pain as do a number of mechanical active factors. Mr Cahill said he was dragging his right leg.
11. On examination there was no focal weakness and minor back tenderness with aggravation of sciatic symptoms on extension and rotation.
12. Dr Van Gelder only appears to have had the October 2021 MRI. He recommended surgery if "he has persistent and unmanageable symptoms."
13. Associate Professor Hardy saw the claimant again on 4 April 2025 for the first time since February 2024. The claimant had no new symptoms but continued MS-related fatigue. The claimant was struggling with right leg radicular pain. He reviewed more recent radiology from 2 April 2025 suggesting there was a disc bulge at L4/5 with possible irritation of the right L5 nerve root and at L5/S1 with potential effect on both S1 nerve roots particularly on the left.
14. The claimant was referred by Associate Professor Hardy to Dr Standford, orthopaedic surgeon on 13 May 2025 who had a history of a rear end motor accident and complaints of pain in the buttock radiating mainly down the lateral thigh to the knee and calf. He had been offered decompression surgery but declined.
15. On examination there was normal gait and negative Trendelenburg signs on both sides (normal) and relevant to the current proceedings:

(a) no muscle wasting in the lower limbs;

(b) subtle weakness of right ankle dorsiflexion when heel walking, global weakness of right toe extension and ankle eversion;

(c) a globally less sensitive right lower limb, and

(d) a positive right sciatic nerve test at 40 degrees with buttock, thigh and calf pain.

1. His diagnosis was of a right sided L5 nerve root compression and that surgical decompression could give relief. He notes mild pathology "with likely compression of the L5 nerve root" on the recent MRI but that the 2021 MRI shows compression at L5.

1. Dr Dixon provided a report to the claimant's solicitor dated 2 May 2022. He has a history of pain in the neck with right shoulder brachalgia (pain in the shoulder due to a related neck injury but not due to a shoulder injury) and low back pain with right sided sciatica. Dr Dixon has no history of the speed of the insured vehicle or the damage to the vehicles.
2. Dr Dixon does have a history of the claimants RRMS.
3. On examination Dr Dixon noted the presence of brachalgia and trapezial muscle pain and spasm, neck pain and radicular complaints, lower back pain with intermittent right sciatica and sensory changes. In the neck the left triceps jerk reflex was decreased but all other reflexes were normal and there were no other neurological signs (including no objective sensory loss) found.
4. In the lower back the clinical findings were:

(a) positive signs on straight leg raise but an equivocal sciatic nerve root stretch test;

(b) sensation was altered on the lateral right leg;

(c) there was weakness in the right leg and right toe, and

(d) reflexes were present although the right medial hamstring reflex was difficult to elicit.

1. There is no reference to any lower limb muscle atrophy or reduced limb circumference.
2. Dr Dixon reviewed the MRI from 21 July 2020 saying it was "largely unchanged ... from the previous examination on 9 December 2019." He refers to a "slight disc bulge" at L4/5 contacting the L5 nerve roots more so on the right causing mild nerve compression and an L5/S1 disc bulge causing mild central canal narrowing and contact of the S1 nerve root with no compression. He noted the 11 October 2021 findings which showed a mild bulge at L4/5 and broad-based bulge at L5/S1 with some contact on the right L5 nerve root and potential for irritation of the S1 nerve roots.
3. Dr Dixon diagnosed:

(a) a whiplash injury with radicular complaints and paraesthesia;

(b) occipital neuralgia with headaches;

(c) low back strain with a right L5 radiculopathy;

(d) post traumatic stiffness of the right shoulder due to trapezial pain (Nguyen), and

(e) insomnia due to neck and back pain

1. Dr Dixon suggested that if the L5 radiculopathy worsened the claimant would be a candidate for surgery. Dr Dixon suggests the claimant's RRMS is in remission.
2. Dr Dixon assessed WPI at 18% as follows:

(a) neck - 0%;

(b) occipital neuralgia with headaches - 5%;

(c) right shoulder 4% due to restriction of movement, and

(d) lower back 10% due to radiculopathy.

1. Dr Keller, occupational physician provided a report to the insurer dated 7 December 2022. He has a history of the immediate onset of pain in the neck, back and a headache. He also has a history of no prior injuries affecting the neck or back and that while he may have had RRMS this only affected his left fingers, right hand and right eye. Dr Keller expressed the view that the accident could have exacerbated degenerative change in the lumbar spine but not the neck or right upper limb.
2. After receipt of Dr McIntosh's report, Dr Keller wrote to the insurer on 9 May 2023 saying, "no diagnosis of physical injuries caused by the accident is possible."
3. Dr Mellick, neurologist provided a report to the insurer dated 27 April 2023. Dr Mellick has a history of an immediate awareness of neck and back symptoms with a splitting headache.
4. Dr Mellick was of the view that the accident had produced "muscular and ligamentous symptoms not inducing any deeply sited intracranial or spinal pathology." He noted symptoms "in keeping with a diagnosis of Multiple Sclerosis."
5. The insurer obtained a report from Dr Korber dated 27 September 2025. He says he received three MRI examinations of the spine. The one dated 16 December 2019 did not include the lumbar spine, the 21 July 2020 MRI and the 11 October 2021 both of which included the lumbar spine.
6. Dr Korber says the L4/5 disc is desiccated "in keeping with early degeneration" and that "there is a left-sided annular fissure at foraminal level" and at L5/S1 there was a posterocentral annular fissure and the L5/S1 disc is also degenerated. He says between the two studies there is no change on the left sided annular fissure at L4/5 but the annular fissure at the L5/S1 level has increased in size.
7. Dr Korber says "there is no abnormality in the lumbar spine to explain" the right sided sciatica. The left sided fissure at L4/5 could be symptomatic, but it has not significantly altered between the two scans and is old. Further he notes "there are no acute features to be seen in the lumbar spine in the MRI of 21 July 2020".
8. Dr Dixon provided a supplementary report dated 28 October 2025. Dr Dixon says that the 21 July 2020 shows "annular tears at L4/5 and L5/S1" and that this imaging, and the imaging of 11 October 2021 are both studies undertaken after the motor accident.
9. Dr Dixon refers to the certificate of the previous Panel suggesting that Panel had found Diagnosis-Related Estimate (DRE) II and one sign of radiculopathy "making it a non-threshold injury". He suggested this was "binding."
10. Dr Dixon says Dr Standford's report of 13 May 2025 confirms "moderate right L4/5 lateral recess narrowing with likely compression of the right L5 nerve root" which is consistent with the MRI from 2021.

RE-EXAMINATION FINDINGS - MEDICAL ASSESSORS LAHZ AND MOLONEY

1. Mr Cahill attended the medical assessment on 16 January 2025 punctually. He is now aged 45 and right-handed. He has been a real estate agent for over 20 years, 16 of which have been with a company at Glebe. He has been married for 15 years, has two children aged 8 and 5, and the family lives in Ashbury.

1. Mr Cahill confirmed the diagnosis of MS in 2019, with presenting symptoms of tingling fingertips and blurred vision during a cricket game. Following investigations and confirmation of the diagnosis, he received various medications, initially a tablet which did not work and then later Tysabri injections which he reported were effective. However, he had to cease Tysabri during the pandemic due to concerns about the pandemic and immunosuppression. He was then commenced on Kesimpta injections monthly, self-administered which he reported were also effective, remaining so to present date.
2. He said the tingling sensations in his fingers were rectified with steroid therapy.
3. He has not consulted his neurologist (Professor Hardy) for over a year given the stability of his disease.
4. Whereas in the past, he has had episodes of optic neuritis affecting vision and (mostly) upper limb paraesthesia, he says he has no neurological issues presently from his MS and the main ongoing symptom is fatigue. He only vaguely recalled his hospital attendance in February 2020, suggesting there had then been some medication issues with possible anxiety and panic attacks. He did not recall reporting lower limb symptoms at that time or his attendance on Dr Krishnan two months later and does not recall any abnormal sensation in his hands and feet.
5. He is aware that scans have shown demyelinating abnormalities in the brain and spinal cord (due to MS).
6. Mr Cahill told the Medical Assessors he was in good health before the 2020 motor accident. He was a keen sportsman, playing golf and cricket whilst also jogging three to four times per week. He did not recall any history of low back, neck or else shoulder pain. It was drawn to his attention there had been some short-lived back pain after wrestling in 2014 of which he reasonably had no memory given the lapse of time. He said that immediately before the subject motor accident he was not experiencing any musculoskeletal issues.
7. We asked him about a motor accident in December 2018, noted in the documentation. He said he had been driving an X1 BMW and on the way home, when he stopped at a pedestrian crossing due to a pedestrian walking across the road. He had been intending to turn left when a semitrailer in the lane on his right started turning left, and that vehicle collided with the roof of his vehicle, dragging it along, causing significant damage to his vehicle. Mr Cahill said that he sustained no physical injuries in that incident.
8. Mr Cahill is a non-smoker. He did however and somewhat reluctantly tell us that his alcohol intake has significantly increased since the 2020 motor accident, causing him concern. He can consume up to a bottle of wine per day which he knows is hazardous for his health.

1. Mr Cahill confirmed his involvement in the accident on 9 July 2020. At the time, he was driving a BMW and was stationary at lights, when his vehicle was hit from behind. He told us he had been looking directly ahead and was unaware of the approaching vehicle. The impact was sudden. On specific enquiry, he told us he has no idea about the speed of the at-fault car (notwithstanding the comment in hospital records and histories given by him elsewhere suggesting 50kmph). He said no part of his body struck any part of the cabin interior although he recalled that his mobile phone dislodged from its cradle as a result the impact.
2. Mr Cahill said he exited the vehicle, checked on the wellbeing of the other driver and they then drove around the corner to get off the road. Details were exchanged and they both left the scene in their respective vehicles. Police and ambulance did not attend the scene and the minor damage to the rear bumper of Mr Cahill's vehicle was repaired.
3. Mr Cahill said that he was shocked immediately after the accident and when driving home from the accident scene, he felt unwell due to right-sided neck pain, pain at the "top" of the right shoulder and lower back pain associated with "weird" sensations emanating from the right buttock and spreading to the lateral thigh, stopping around the knee level. He became concerned and then decided to take himself to the hospital (RPAH).
4. Mr Cahill spent several hours at the hospital having been placed in a neck brace. He underwent scans (of which body parts he was unsure) and after review by a neurologist he was then discharged for follow up with his GP.

1. He took a few days off work given it was a busy period, and he had auctions, a couple of days later which he had to attend. He mentioned that he is a "commission only" agent and that if he is not at work and another agent takes "the phone call" that work is lost to him.
2. Mr Cahill could not recall exactly when he first consulted his GP (Dr Lim) although records indicate attendance was on the following day (10 July 2020) at which stage he told the doctor of neck and low back pain with radiation respectively to the right upper and lower limbs.
3. He had difficulty providing a history of specialists seen, investigations done and treatment recommended due to the lapse of time. Consequently, the Medical Assessors drew to his attention relevant sections of the medical records providing this information. By 15 July 2020, the doctor was organising spinal MRI scans and on 28 July 2020, the doctor also referred him to the physiotherapist. Mr Cahill told the Medical Assessors that he attended over 100 physiotherapy sessions over a two to three year period, initially once and then twice weekly. He also received remedial/sports massage treatment. Physiotherapy comprising exercise, stretches, massage and needling did not provide any sustained benefits, only temporary symptomatic relief. He has not received any physiotherapy for at least 12 months.
4. In August 2020, Mr Cahill consulted his treating (MS) neurologist Professor Hardy. At the time, there was ongoing and worsening low back pain with symptom radiation to the right buttock, lateral thigh and foot (mainly the top of the foot). He does not have a clear recollection of Professor Hardy's advice although says he was told that the back, neck, right upper limb and left lower limb pain were not MS-related; rather these symptoms which developed from the time of the motor accident were due to trauma from the accident in the neurologist's opinion.
5. Spinal scans, according to Mr Cahill showed an "issue" at L4/5 although he was unsure of the terminology, whether there were a disc bulge, hernia or tear.
6. On 19 July 2021, approximately one year after the motor accident, records indicate he was experiencing 8/10 intensity right lower limb radicular pain for which he received a lumbar nerve root injection which he said was unhelpful. Neck and right arm pain were also problematic although the lower back and right lower limb were worse.
7. Mr Cahill said he had consulted several spinal surgeons including Dr Brennan (by telehealth), Dr Van-Gelder and Dr Stanford all of whom he said could "see" the problem on the lumbar spine scans. The doctors suggested surgery, albeit according to Mr Cahill, with "interesting statistics" Dr Brennan reportedly suggesting a 25% chance of improvement versus 75% risk of being no better and possibly worse off.
8. Given his youth and fact of being a father to young children, Mr Cahill decided not to undergo any lumbar spine surgery, being very worried about what could go wrong. He mentioned too that his wife had worked in a health-related industry, being strongly opposed to his submitting to spinal surgery. He said he might reconsider spinal surgery in a few years once his children were older.

1. Lower back and neck symptoms with symptomatic right-sided lower/upper limbs have continued. Mr Cahill feels in particular that the lower back and right leg symptoms have worsened with time. He told us that he is more troubled by low back pain than right lower limb symptoms.
2. Mr Cahill reports struggling with daily activities such as carrying his small children. It can be difficult for him to get in and out of the car and then negotiate multiple flights of stairs whilst conducting "open homes". He has also stopped jogging and is not playing golf and cricket due to back and right leg pain.
3. Mr Cahill admitted during the re-examination to having anxiety. He said his lower back and right leg symptoms are constantly on his mind. He can sometimes be in a positive frame of mind on first getting up in the morning only to find symptoms soon come against him whilst going about daily activities.
4. Mr Cahill did attend some personal training sessions for three months, comprising light weights and stretching. He said the exercise programme did improve his mental health although in the end he ceased formal training at a gym, because he could continue with this at home.
5. Mr Cahill takes only Paracetamol and nonsteroidal anti-inflammatory drugs (NSAIDs) (Naprosyn) for pain, finding Paracetamol better than the NSAID.

1. Mr Cahill complains of frequent right-sided neck pain 7-8/10 intensity spreading to the right occipital region, trapezius and suprascapular region. Sometimes, there has been pain directly overlying the right biceps as well as tingling sensations in the right trapezius.
2. He experiences numbness in the right hand, which is more likely to occur when neck pain is more severe. He was unsure of which fingers were specifically involved by numbness, except to say that the thumb is the one most affected.
3. He has not noticed right upper limb weakness and does not drop items from his hands.
4. He has also noticed that he can consistently look more easily towards the right than the left.
5. Due to neck pain, he is unable to lie prone, tending to sleep on his side with a pillow between his legs.

1. There are no symptoms at the right shoulder (joint) convexity. There are symptoms from the neck into the shoulder girdle, mostly the trapezius.

1. At the lower back, there is frequent sharp/stabbing pain spreading to the right buttock, right lateral thigh, lateral calf and top of the foot. He often experiences electrical feelings centred about the right knee.
2. As noted above, he is more worried by low back pain than by right leg pain.
3. There has not been any bowel, bladder or sexual dysfunction.
4. He can walk about 1km over level ground although if there are inclines, then back and right leg pain limits him. He can manage a treadmill on the level although again he struggles once there is any incline.
5. Stairs are difficult, as noted above. If he has to attend three to five open homes in a day, that is challenging for him.
6. He can sit for a reasonably lengthy period especially if he slouches forward giving him symptomatic relief.
7. His wife completes most household chores, given that he still works five to six days per week. Until recently, his father (who lives locally) had been helping with lawn mowing but this has ceased due to his father's ill health. Mr Cahill does school pick-ups and drop-offs depending on his wife's work schedule as his work hours are more flexible than hers. He said he has taken considerable time off work due to the combined effects of back pain and attendance at physiotherapy appointments.
8. He takes care with any bending and lifting to avoid painful exacerbations. He has to be cautious when lifting signage at house/unit inspections.
9. He still drives (a large VW Tiguan) with a higher centre of gravity making entry and exit easier compared with much lower vehicles.
10. He is not presently spending time on any hobbies. He spends most of his time working or else with his young family. He employs a cleaner and occasionally, he pays for some yard work. The family does online shopping for the most part.

1. On examination, he was pleasant and cooperative although he displayed an anxious countenance.
2. Mr Cahill is slightly built standing 175cm and weighing 55.5kg.
3. Gait was antalgic favouring the right leg.
4. He was able to tiptoe and then walk on heels although with repetitive heel stands there was sagging of the right foot due to fatigability/mild weakness of the ankle dorsiflexors.
5. He could perform a semi-squat.

1. There was no focal tenderness at the cervical spine.
2. There was normal cervical spine posture with movement recorded as follows:

(a) flexion and extension were normal;

(b) there was consistent reduction of left-sided neck lateral flexion by half and by two thirds on the right, and

(c) rotation to the left was also reduced by half and by two thirds on the right.

1. There was no neck muscle guarding or spasm although tightness was present in both trapezial muscles.
2. In the upper limbs:

(a) there was normal upper limb sensation in the left upper limb and in the right some subjective (and not objective) reduction of sensation about the right thenar eminence (thumb) not involving the forearm;

(b) there was no wasting of the arms (25cm) at corresponding points above the elbow and also no clinically significant measurable wasting of the forearms (22cm on the right and 21.5cm on the left noting the claimant is right hand dominant;

(c) all upper limb reflexes were present, brisk and symmetrical, and

(d) there was mild generalised and global right upper limb weakness which was not in a myotomal distribution.

1. There was no wasting about the shoulder girdles.
2. Active shoulder motion was measured with a goniometer and consistent, on three repetitions. On the right, the main limitation for right upper limb elevation was discomfort localised to the right side of the neck and ipsilateral trapezius. There was no evidence of right shoulder impingement.
3. Left shoulder movements were full.

1. There was normal lumbar spine contour with mild lordosis. There was, no focal lumbar tenderness and no muscle guarding or spasm.
2. Range of motion in the lumbar spine was measured and recorded as follows:

(a) flexion and extension at the lumbar spine were 2/3 normal range, and

(b) lateral flexion was full to either side.

(a) there was no measurable wasting of the thighs 10cm above patella (34cm) nor calves 31cm at maximal mid girth;

(b) all lower limb reflexes were present and symmetrical including knee, ankle and hamstring jerks;

(c) lower limb strength was normal aside from mild but definite weakness involving the right ankle dorsiflexors (with repetitive movements) and right great toe extension (grade 4/5);

(d) there was reduced sensation to both light touch and pinprick testing affecting the right lateral thigh and there was global loss of sensation involving all areas below the right knee. These losses of sensation were not in a dermatomal distribution nor in any anatomical or organic pattern. There was normal sensation over the left lower limb for pinprick and light touch, and

(e) the left straight leg raise (SLR) in the supine position was 70 degrees associated with complaints of hamstring tightness. Right SLR (in supine) was 60 degrees and came with complaint of right buttock pain but no more distal symptoms even with superadded passive ankle dorsiflexion. In a seated position (slump test), both legs could be brought to the horizontal (equivalent to 90 degrees) with again no (radicular) symptoms induced in the right lower limb below the knee. In summary lower limb neural stretch tests were bilaterally negative.

1. Mr Cahill was pleasant and co-operative throughout the re-examination. He gave a good history although the effluxion of time has meant he is unsure of some of the finer details of his post-accident treatment.
2. We were satisfied that he was applying the maximum amount of effort and the best range of motion was recorded.

1. In a medical assessment matter referred to a Review Panel under Schedule 2(2)(e) of the MAI Act, the Review Panel is required to determine "whether the injury caused by the motor accident is a threshold injury".
2. In a medical assessment matter referred to a Review Panel under Schedule 2(2)(a) of the MAI Act concerning "the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident."
3. In both matters, the first determination the Review Panel has to make then is what were the injuries caused by the accident. Both parties have provided extensive submissions about causation.
4. The claimant referred the following injuries for assessment:

(a) lumbar spine injury;

(b) cervical spine injury;

(c) right leg injury;

(d) right arm injury - right upper arm extending from right shoulder to right thumb, and

(e) right shoulder injury - including brachialgia.

1. The insurer has submitted that Mr Cahill did not sustain any injury at all in the accident.

1. In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804, (Kinchela). Justice Walton set aside the decision of a Medical Review Panel in a "minor injury" dispute and a question of causation in respect of an amputated toe. While decided on an issue of procedural fairness, in relation to causation, at [40], his Honour said:

"The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function."

1. The relevant Guidelines referred to by Justice Walton were the Motor Accident Guidelines, a single volume of 9 Parts governing all aspects of the motor accident scheme including premium determination, treatment and care, permanent impairment and threshold injury.
2. While Part 5 of the Guidelines addresses the assessment of whether an injury is a threshold injury, there is no definition of, or guidance for the assessment of "causation" in determining what injury (threshold or non-threshold) was caused by the accident. There are provisions concerning causation in Part 6 of the Guidelines[37] which is concerned with the assessment of permanent impairment.
3. Justice Wright in the later decision of Briggs v IAG Limited t/as NRMA Insurance[38] said:

"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[39] injuries."

1. Clauses 6.5-6.7 recognise the difficulty in assessing causation but requires consideration of two questions:

(a) could the accident have caused or materially contributed to the alleged injury which is a medical determination, and

(b) did the accident cause or materially contribute to the alleged injury which is a non-medical factual determination.

Could the accident have caused or contributed to injury?

1. The insurer relies on the statement from its insured Ms Ryan, the photographs of the two vehicles and the report of Dr McIntosh and says the accident was minor, there was minimal damage to the two vehicles and the forces involved could not have caused the alleged injuries.
2. The claimant said he felt a "thud" and that his mobile phone dislodged from his cradle.
3. Dr McIntosh disputes the accident occurred at 50kmph and Mr Cahill conceded at the re-examination he has no idea how fast the insured was driving. Ms Ryan's statement is not clear about whether she was stopped and "bunny hopped" or whether she was slowing down when she "bunny hopped" and hit the back of Mr Cahill's car. Dr McIntosh cites studies concerning the statistical possibility or probability of injuries occurring after a rear end collision. The quote from the study by Muser and others was of "normal" circumstances including persons with no previous damage to the cervical spine. There is nothing in the other studies suggesting that persons with previous neck injuries or conditions were involved in the experiments that have led to the reported data. Similarly with the lumbar spine experiments and studies of which there are few.
4. Mr Cahill has RRMS. He has lesions on his spinal cord and brain. He does not have a normal spine and while Dr McIntosh considered the claimant's pre-existing MS is "unlikely to be a contributing factor", he has not said that contribution from MS to injury is impossible. The Medical Assessors note Dr McIntosh has a non-medical PhD and not medical qualifications.
5. It is the clinical judgment of the Medical Assessors that the claimant's spine was vulnerable due to the pre-existing MS and his spinal cord lesions and that injury could have occurred to his cervical spine and lower back as a result of what appears to be a relatively minor rear end collision. Further, a disc injury can occur with small/trivial movements such as bending or twisting, especially if the disc is already weakened and degenerate. It is the clinical experience of the Medical Assessors that even a simple sneeze can cause a disc injury. Strong forces are not necessary.

Did the accident cause or contribute to injury?

1. The Panel is not satisfied the claimant sustained a right leg injury in the accident. Mr Cahill confirmed that no part of his body collided with any part of his car, and the contemporaneous records indicate he got out of the car without any obvious lower limb problems. While the Panel accepts Mr Cahill may have experienced symptoms such as pain in his legs, the medical evidence does not establish a specific or frank injury occurred to his legs.
2. Similarly, the Panel is not satisfied the claimant sustained a right arm or shoulder injury. Mr Cahill's own history was that his right arm and right shoulder did not hit any part of the inside of his car. The claimant was able to exchange details and drive away without difficulty and he did not record any injury to his arm or shoulder to the hospital personnel. He may have experienced symptoms such as pain in his upper limbs, but the medical evidence does not establish a specific or frank right arm or shoulder injury occurred.
3. In relation to the spine injury, the claimant had pre-existing RRMS. He attended hospital on 20 February 2020 and saw his treating neurologist on 20 April 2020. He saw Dr Krishnan on 28 April 2020 who records a history of paraesthesia in the hands and feet for over a year but does not record a history of neck or back pain. The GP notes do not indicate an increase in symptoms after April 2020 or any variation of the claimant's condition. Mr Cahill told the Medical Assessors that at the time of the accident he had RRMS symptoms which were minimal and the earlier symptoms had been relieved by a change in his medication. Apart from 2014, the pre-accident GP records do not disclose any previous lumbar spine or cervical spine injury. The Medical Assessors questioned the claimant about his previous motor accident (in 2018) and neither the records nor the claimant's own history indicates any spinal injury was sustained in that accident.
4. The claimant has consistently reported the onset of symptoms as he drove away after the accident. Bearing in mind his somewhat anxious nature (evident at the re-examination) and his panicked behaviour (reported by the insured) after the accident, the Medical Assessors are of the view that Mr Cahill may not have noticed symptoms immediately after the collision. But after experiencing these symptoms he attended hospital and hospital records indicate contemporaneous symptoms of neck pain, lower back pain and right leg symptoms (which appear to be related to the lumbar spine). The claimant attended on his GP the day after the accident and Associate Professor Hardy five weeks later.
5. The Panel is satisfied that the claimant sustained an injury in the region of his lumbar spine and cervical spine.

1. There is no evidence before the Panel to suggest the claimant sustained a bony injury to any part of his cervical spine.
2. The Medical Assessors are therefore of the clinical opinion that the claimant has sustained an injury to the soft tissues of the cervical spine. The results at re-examination were not convincing of a nerve injury. Further explanation of the type and nature of the injury will be dealt with below

1. There is no evidence before the Panel to suggest the claimant sustained a bony injury to any part of his lumbar spine.
2. The Medical Assessors are therefore of the clinical opinion that the claimant has sustained an injury to the soft tissues of the lumbar spine and at least one spinal nerve injury. Further details as to the nature and type of injury will be provided below.

ARE THE CLAIMANT'S INJURIES THRESHOLD INJURIES?

1. As was stated in [14] - [18] above, s 1.6(1) of the MAI Act provides that a threshold injury is a soft tissue injury and there is a definition of "soft tissue injury" in s 1.6(2). There are two exceptions which render a soft tissue injury a non-threshold injury:

(a) the complete or partial rupture of certain soft tissues namely, tendons, ligaments, menisci or cartilage, and

(b) an injury to nerves but because of the cl 4 of the Regulation, a spinal nerve or nerve root injury is a threshold injury unless the injury manifests in two signs of radiculopathy and in accordance with cl 5.8 of the Guidelines.

1. In David v Allianz Australia Insurance Ltd[40], at [84]-[105] a Review Panel considered the issue of "whether an injury is not a minor injury if radiculopathy is present at any time following injury." At [98] the Medical Review panel in that case observed:

"Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and returns because the injured disc is exacerbated by innocuous activities."

1. The Panel in David held at [104] that if it is established (by way of an assessment that complies with cl 5.5 of the Guidelines) there are at least two clinical signs of radiculopathy (as set out in cl 5.8) present at any time, the injured person falls outside the definition of 'minor injury'.

1. The claimant had pre-existing RRMS related lesions at the C2 and C5 level of his cervical spine. The CT scan done in hospital on the day of the accident revealed no bony or other abnormality. None of the claimant's subsequent cervical spine imaging have reported the complete or partial rupture of any of the soft tissues in the claimant's cervical spine.
2. The clinical re-examination by Medical Assessors Lahz and Moloney confirmed the presence of dysmetria with Mr Cahill having greater ease for looking left than right. There were also right sided subjective (but not objective) non-verifiable radicular symptoms in a C6 distribution involving the thumb. These findings indicate the possible presence of a C6 nerve irritation or impingement injury, but they were not convincing.
3. The clinical re-examination did not reveal any of the four possible signs of radiculopathy.[41] A review of the medical records and reports does not reveal at any time since the accident that the claimant has satisfied the criteria required for a finding of "radiculopathy" within the meaning of the Guidelines.
4. The claimant's cervical spine injury therefore is a threshold, injury.

1. The CT scan performed on the day of the accident revealed "shallow disc bulges at L4/5 and L5/S1 causing minor canal stenosis." Dr Korber has provided expert radiological opinion about the presence of tears versus fissures but has not commented on the disc bulges.
2. The insurer has provided an article which calls for consistent terminology of radiological findings in relation to spinal discs. The Medical Assessors note that a disc is made up of two parts, an inner jelly like nucleus pulposis and an annulus fibrosis which is a tough ligamentous or fibrous outer ring. It is the Medical Assessors' view that a reference to a disc protrusion or herniation is where part of the nucleus protrudes, extrudes or herniates through a rupture (partial or whole) of the annulus which, if caused by the accident would be a non-threshold injury.
3. Whether the annulus is ruptured by trauma or by the drying out of the disc and the development of fissures is an issue that has occupied the parties in these proceedings and resulted in detailed submissions. It is the Medical Assessors' view that a disc bulge does not indicate a protrusion, extrusion or herniation of the nucleus pulposis of the disc and does not constitute the whole or partial rupture of the ligamentous annulus fibrosis. Therefore, the disc bulges seen on the radiology from the day of the accident, if caused by the accident, do not constitute a non-threshold injury.
4. Dr Korber found no acute traumatic features on the lumbar MRI of 21 July 2020. The radiology has been provided to the Panel and considered. The Panel agrees with Dr Korber that there does not appear to be any evidence of trauma in the post-accident MRI.
5. The Panel is not therefore satisfied that any of the claimant's lumbar discs were partially or wholly ruptured in the accident.

Nerve root injury manifesting in radiculopathy

1. The clinical re-examination by Medical Assessors Lahz and Moloney confirmed the presence of non-verifiable radicular symptoms (shooting pain in the right leg) but only one sign of radiculopathy - the loss of power in a right-sided L5 myotomal pattern. These findings indicate the presence of a right sided L5 nerve root injury.
2. As clause 5.8 of the Guidelines requires there to be two signs to be present for a diagnosis of radiculopathy, the claimant does not currently satisfy the criteria for a finding of radiculopathy.
3. In accordance with the David case, the Panel must consider the symptoms recorded since the date of the accident to determine if, at any time since the accident, the claimant has had two or more signs of radiculopathy which would indicate the claimant has a non-threshold injury.
4. On the day of the accident the claimant complained to hospital personnel of lower back pain and right leg symptoms, including radiating pain and paraesthesia which improved and was not in a dermatomal pattern. Power was measured and all of the measurement indicated weakness (4 out of 5) on the right, whereas the left was normal. There is no other sign reported or recorded in these notes.
5. The claimant told his GP about radiating pain and his GP refers in the notes to "radiculopathy". The Panel notes that radiating pain is not one of the five signs of lumbar radiculopathy according to the Guidelines but that in clinical practice, doctors will treat radiating pain as a symptom of radiculopathy. Dr Lim's diagnosis of radiculopathy alone does not satisfy the Panel.
6. Associate Professor Hardy on 14 August 2020 found there appeared to be mild weakness but could not confirm it, and he also records loss of sensation. He "suspected" an L5 radiculopathy but was not definite about it.
7. Dr Brennan diagnosed a nerve root compression but did not physically examine the claimant (his examination was by telehealth).
8. Dr Van Gelder records the claimant's non-verifiable radicular symptoms of pain in the right leg and while he refers to the claimant dragging his right leg he notes no weakness at his examination.
9. Dr Dixon in May 2022, found an equivocal sciatic nerve root stretch test, altered sensation on the outside of the leg, weakness in the right leg and right toe and difficulty with the hamstring reflex. This suggests three of the five signs were present at that time but the limited detail in his report concerns the Panel.
10. Dr Stanford on 13 May 2025 found weakness (albeit subtle) of right ankle dorsiflexion and global weakness of right toe extension and ankle eversion (all of which are consistent with weakness due to L5 nerve root injury) and a positive right sciatic nerve root tension sign at 40 degrees which provoked buttock, thigh and calf pain.
11. The Panel is satisfied that the examination by Dr Stanford complies with the requirements of cl 5.6 of the Guidelines in that he has a history of the accident and the claimant's MS. He is a treating specialist so has had a referral and the radiology. He has described the claimant's symptoms and examined him. He has recorded his findings.
12. The Panel is satisfied on the basis of Dr Standford's findings that the claimant had at 13 May 2025 an L5 radiculopathy within the definition of cl 4 of the Regulation and in accordance with the Guidelines.
13. The Medical Assessors note that Mr Cahill has consistently reported back pain and symptoms in his right leg since the first attendance at hospital which demonstrates there was a nerve root injury at the L5 level caused by the accident. The symptoms from that injury have fluctuated from time to time as inflammation occurs and subsides. The Medical Assessors are satisfied on the balance of probabilities that the claimant's current symptoms and those reported to Dr Standford are related to the injuries caused by the accident.
14. The Panel is satisfied that the claimant has a non-threshold lumbar spine injury.

1. Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. The Guidelines permit only the DRE method of assessment (cl 6.111).
2. The spine is divided (cl 6.131) into three regions:

(a) cervical;

(b) thoracic, and

(c) lumbar.

1. If injury to the spine is alleged, then each of the injured regions is assessed and the percentage impairments combined to obtain a total spinal impairment (cl 6.131). If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (cl 6.132).
2. There are five diagnostic related categories, and a number of indicia to guide the assessment. Clause 6.125 provides that the starting point is Table 6.7 and the DRE descriptors from pages 102-107 of the AMA 4 Guides as amended by the clause.
3. There are neurological differentiators (for example radicular symptoms vs radicular signs) and structural inclusions (for example vertebral fractures) to be considered.
4. The first category is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
5. A finding of a DRE II impairment requires:

(a) pain with guarding, or

(b) non-uniform range of motion - dysmetria, or

(c) non-verifiable radicular complaints defined in Table 6.8 as:

(i) symptoms (shooting pain, burning sensation, tingling), and

(i) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

1. DRE III requires radiculopathy which is defined in cl 6.138 in similar terms to cl 5.8 with the same five criteria.
2. Permanent impairment is assessed at the time of the re-examination, that is based on the claimant's current presentation (see cl 6.21 of the Guidelines).

What is the claimant's cervical spine impairment?

1. Based on the Medical Assessor's clinical findings, the criteria are met for DRE II, 5% WPI due to the consistent presence of dysmetria (asymmetric restricted range of motion) with greater ease for looking right than left and the right sided C6 non-verifiable radicular symptoms involving the thumb.
2. With no signs of radiculopathy the claimant does not qualify for a DRE III impairment.

What is the claimant's lumbar spine impairment?

1. Based on the clinical findings of the Medical Assessors at the re-examination, the claimant does not satisfy the criteria for a DRE III impairment, given that only one clinical sign of radiculopathy namely reduction in power was present (the grade four out of five ankle/great toe extensor weakness).
2. There are however right lower limb non-verifiable radicular complaints in an L5 distribution (radiating and shooting pain), satisfying the DRE II criterion resulting in a 5% lumbosacral WPI.

1. In accordance with the decision of the Court in Nguyen, if there is an impairment to another body part such as the shoulders resulting from an injury to the neck, then, that impairment must be assessed, and its value included in the determination of the claimant's total WPI.
2. The Medical Assessors found at their re-examination that there was a restriction of motion in the right shoulder which was consistently present on repetition. As has been determined above, the Panel was not satisfied that the claimant sustained a frank or specific injury to his right shoulder in the accident. At the re-examination the claimant experienced pain on elevation in the right side of his neck and ipsilateral trapezius which meant he could not, on three repetitions achieve a normal range of abduction or flexion. It is the clinical judgment of the Medical Assessors that this impairment of motion is related to the claimant's cervical spine injury.
3. The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are several methods of assessment provided:

(a) amputation (part 3.1b);

(b) sensory loss of the digits (part 3.1c);

(c) abnormal range of motion (part 3.1d);

(d) peripheral nerve disorders (part 3.1k);

(e) vascular disorders (part 3.1l), and

(f) other disorders (part 3.1m).

1. In Mr Cahill's case, the Panel's view is that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d. The abnormal range of motion requires the measurement of the following units of motion:

(a) flexion and extension;

(b) abduction and adduction, and

(c) internal and external rotation.

1. Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA 4 Guides.
2. In accordance with Figure 38 on page 43 of the AMA 4 Guides, the loss of 10 degrees flexion (170 degrees) attracts a 1% UEI. Figure 41 at page 44 indicates the loss of 20 degrees abduction also attracts a 1% UEI.
3. The total of 2% UEI is converted to a WPI of 1% in accordance with Table 3 at page 20 of AMA 4 Guides.

Should the WPI be adjusted for any pre-existing condition?

1. Clauses 6.31 - 6.33 provides for the adjustment of the final WPI figure for an impairment in the same region that existed before the motor accident. There must be objective evidence of a pre-existing symptomatic permanent impairment and the value of that must then be calculated and deducted from the current impairment to arrive at the WPI caused by the accident.
2. The regions of Mr Cahill's body affected by the accident-related injuries are the cervical spine (soft tissue and possible C6 nerve irritation or impingement injury) and the lumbar spine (L5 nerve root injury).
3. The claimant had pre-existing RRMS which is a neurological condition which causes unpredictable flare-ups (relapses) of symptoms followed by periods of partial or complete recovery (remission). Mr Cahill's MS-related symptoms before the accident primarily included an episode of optic neuritis and fatigue.

1. The MS related lesions in the claimant's spine have, following MRI scans, been consistently reported by Associate Professor Hardy as occurring at C2 and C5. Associate Professor Hardy records some pre-accident numbness of both hands, the right more than the left. The records (in particular the report of November 2019) suggested the left sided symptoms (involving the ring and little finger) may have been caused by dysfunction in the ulnar nerve (not a cervical nerve).
2. The Panel has made a finding of DRE II (5% WPI) impairment based on a soft tissue injury causing dysmetria, not on the basis of a nerve or nerve root injury causing neurological symptoms. The Panel notes that at the February 2020 attendance at RPAH, range of cervical motion was tested and there was no dysmetria recorded.
3. What was recorded by RPAH in February 2020 was an absent right-sided brachioradialis reflex and a subjective reduction of sensation to light touch in the hand and forearm but not in a specific dermatomal distribution[42]. However at the time of discharge, it was recorded that Mr Cahill's symptoms had resolved. Associate Professor Hardy records on 20 April 2020 that the paraesthesia had settled.
4. On the documentation to hand and the history from the claimant, the Medical Assessors are of the view that any pre-accident cervical spine MS related symptoms would have been assessed as not permanent, or at best DRE I and 0%.

1. The claimant had some previous back problems in 2014 but no enduring symptoms. The claimant had a whole of spine MRI in December 2019, in the context of the neurologist looking for the degree of MS activity, rather than for investigating any lower back or leg symptoms. That MRI reported on the two cervical lesions referred to above and an issue at T1/2. No lumbar spine lesions were reported.
2. The claimant was examined at RPAH in February 2020 with reports of lower limb paraesthesia and right lower limb weakness, but these were transient and reported before discharge as having resolved. The Panel notes that the claimant's lower limb power was symmetrical at the hips, knees and ankles, no gait abnormalities were noted, reflexes were intact and sensation was normal in the lower limbs[43].
3. The Medical Assessors are of the view that the claimant would not have been assessed as having any permanent lower limb or lumbar spine impairment at the time of the accident on the basis of the February 2020 admission.
4. The Panel notes the history recorded by Dr Krishnan in April 2020 (see paragraph 110). This doctor is not the claimant's usual doctor and he records paraesthesia in the hands and feet for a year. While there is certainly a suggestion of loss of sensation in the hands for that length of time, there has not been a 12 months history of symptoms in the lower limb in the records of Associate Professor Hardy or elsewhere.
5. While Mr Cahill's RRMS is a permanent condition which may result in impairment during flare ups from time to time, there is no objective evidence in the records that the claimant's pre-existing RRMS was resulting in a symptomatic impairment in the cervical or lumbar spine regions at the time of the accident. There will therefore be no deduction for any pre-existing impairment.

1. The claimant has a non-threshold lumbar spine injury.
2. The claimant has a WPI of 11% made up of:

(a) cervical spine - DRE II = 5%;

(b) lumbar spine - DRE II = 5%, and

(c) right shoulder - loss of motion 1%.

1. As the Panel has come to a different conclusion to Medical Assessor Assem on the question of the threshold injury dispute, it follows that his certificate must be revoked and a fresh certificate dealing with that matter must be issued. As Medical Assessor Assem did not assess WPI (due to his finding on the threshold injury issue) the Panel will include the WPI assessment in the certificate.

[2] Proceedings numbered M20768/23-01-1.

[3] Cahill v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 875.

[4] Insurance Australia Ltd trading as NRMA Insurance v Cahill [2025] NSWSC 828.

[5] The current maximum as of October 2025 is $691,000.

[6] Section 7.21. The current version of the Guidelines is Version 9.3.

[7] Schedule 2, clause 2(e) in the MAI Act.

[8] Schedule 2, clause 2(a) in the MAI Act.

[9] Sections 7.20, 7.24 and 7.26 of the MAI Act.

[10] The numbers in square brackets are a reference to the section number in the Medical Assessor's reasons.

[11] The claimant provided submissions concerning the incomplete certificates which the Panel does not propose to review in these reasons.

[12] The numbers in square brackets are a reference to the paragraph number in the submissions.

[13] The statement is at page 22 of the claimant's bundle.

[14] [2022] SC 372 (Briggs).

[15] [2021] NSWPICMP 227 (David).

[16] A reference to Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351.

[17] [2020] NSWSC 1318.

[18] [2023] NSWSC 1014.

[19] [2020] NSWSC 1558.

[20] [2013] HCA 43.

[23] Their two reports are at page 133 and 141 of the insurer's bundle and the claimant's signed statement is at page 165.

[25] Published in 2014 and written by David F. Fardon, MD; Alan L. Williams, MD; Edward J. Dohring, MD; F. Reed Murtagh, MD; Stephen L. Gabriel Rothman, MD and Gordon K. Sze, MD.

[26] Page 266 - 270 of the review bundle or pages 479-483 of the 589 pages.

[28] See pages marked 277 and 278 of the insurer's bundle which are actually at 490 and 491 of the complete bundle of documents.

[29] At the pages marked 280 and 281 (pages 493 and 494).

[31] Page 329 of the claimant's bundle.

[32] Page 303 of the claimant's bundle.

[33] Page 296 of the claimant's bundle.

[34] Page 293 of the claimant's bundle.

[36] Page 237 of the claimant's bundle.

[38] [2022] NSWSC 372 at [35].

[39] The terminology in the legislation was at the time Briggs was decided that of "minor" injury. The term since 1 April 2023 is that of "threshold" injury.

[40] 2021 NSWPICMP 227 (David).

[41] The fifth, positive sciatic nerve root tension signs can only apply to lumbar radiculopathy because of the reference to the sciatic nerve.