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

1. The Panel revokes the certificate dated 8 October 2024 and issues a new certificate determining that:

(a) The following injury caused by the motor accident:

• cervical spine - soft tissue injury,

is a THRESHOLD INJURY for the purposes of the Act.

(b) The following injury caused by the motor accident:

• right elbow - soft tissue injury,

is a THRESHOLD INJURY for the purposes of the Act.

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

1. The Panel revokes the certificate dated 8 October 2024 and issues a new certificate determining that:

(a) The following injury caused by the motor accident:

• cervical spine - soft tissue injury,

is a THRESHOLD INJURY for the purposes of the Act.

(b) The following injury caused by the motor accident:

• right elbow - soft tissue injury,

is a THRESHOLD INJURY for the purposes of the Act.

1. The claimant was involved in a motor vehicle accident on 17 March 2020. The accident occurred on Holbeche Road at the intersection with Doonside Road in Arndell Park. The claimant was driving west intending to turn left from Holbeche Road onto Doonside Road. While that intersection is controlled by traffic lights, there is a separate left turn lane which permits a left turn at any time, with care.
2. The claimant was driving a Ford Transit single-cab utility vehicle. He had just delivered some air-conditioning parts to a client. His wife was in the passenger seat. The claimant was sitting on a cushion, and so was positioned quite high in his seat. As there was no backseat, there was a wall behind the driver's seat with a glass panel at the top, behind his head. Both the claimant and his wife were wearing seatbelts.
3. The claimant's vehicle was stationary in the left turn lane. His left hand was on the steering wheel. His right elbow was resting on the windowsill. The claimant was looking over his right shoulder for oncoming traffic on Doonside Road. As he was doing so, he suddenly felt a jolting bang, in the rear. There was no warning and he heard no screeching of brakes before the impact. His vehicle was pushed several metres forward by the impact from the insured vehicle which was a 4.5 tonne tarre weight Isuzu rigid truck.
4. The claimant remembers the back of his head striking the rear glass panel. His right elbow was impacted by the windowsill frame. He immediately felt pain in his neck, between his shoulder blades and in his left arm and back. He was in a state of shock after the accident. The other driver was apologetic and said he did not see the claimant's vehicle.
5. Ambulance and Police Officers were not called to the scene. The claimant was able to drive home. The claimant says the rear-end of his vehicle suffered minor damage and did not require repair. He also says there was considerable damage to the Hino truck.
6. The claimant did not attend hospital because of the COVID-19 situation. He consulted his treating general practitioner (GP) the next day. He was referred for physiotherapy and chiropractic treatment sessions for injuries to his neck, lower back, right elbow and right little finger. Imaging studies of his cervical spine, right elbow, lumbar spine and right hand were performed. The claimant was referred to a sports physician, Dr Grace Bryant for treatment of the injuries to his left elbow and right hand. The claimant returned to work on restricted light duties approximately three months after his accident. By then he was self-employed as a Director of his own company in air-conditioning (manufacturing).
7. QBE (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer denied liability for payment of statutory benefits beyond 26 weeks as it regarded the injury caused by the accident as a soft-tissue threshold injury for the purpose of the Act. That decision was confirmed upon internal review. The insurer also denied that the claimant's accident-related injuries give rise to a degree of whole person impairment greater than the 10% threshold.

1. As there is a dispute between the parties about whether the injury is a threshold injury under Schedule 2, cl 2(e) of the Act, the claimant was referred to Medical Assessor Ian Cameron for assessment.
2. Medical Assessor Cameron certified on 8 October 2024 as follows:

The following injury caused by the motor accident:

is a THRESHOLD INJURY for the purposes of the Act.

The following injury caused by the motor accident:

• right elbow - soft tissue injury including tendon tear

is not a THRESHOLD INJURY for the purposes of the Act.

1. Medical Assessor Yu Tang Shen certified on 25 October 2024 as follows:

The following injury caused by the motor accident:

is not a THRESHOLD INJURY for the purposes of the Act.

The President's delegate was satisfied there is reasonable cause to suspect that Medical Assessor Yu Tang Shen's medical assessment was incorrect in a material respect. The insurer's review application was accepted. That psychiatric injury will be referred to another Review Panel for reassessment.

1. The insurer sought a review of Medical Assessor Cameron's certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relies on the particulars set out in the application and supporting documentation.
2. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
3. The insurer submits there is a reasonable cause to suspect that Medical Assessor Cameron's assessment is incorrect in a material respect for the following reasons:

(a) failure to engage with evidence, and

(b) failure to identify inconsistencies/provide adequate reasons.

Error 1 - Failure to engage with evidence

1. The insurer submits that the Medical Assessor failed to engage with the evidence and submissions provided by the parties with respect to the right elbow injury. The insurer notes that, on page 6 of his Certificate, the Medical Assessor formed the view that the claimant sustained a right elbow tendon tear in the subject accident and that there was a "plausible mechanism" for such an injury to occur.
2. To the contrary, the insurer relied upon a report dated 10 July 2023, by Dr McIntosh, biomechanical engineer. Dr McIntosh estimated a velocity of 2 to 10kmph in the subject accident and considered the forces involved were inconsistent with an "intermediate high-grade tear in the right elbow". The insurer notes that the claimant relied upon a report dated

22 October 2023 by Mr Johnston, biomechanical engineer, who expressed a different view with respect to the velocity of the accident, but did not make any specific comment on the consistency of the right elbow injury. 3. The insurer submitted that the Medical Assessor failed to engage with any of that mechanical engineering expert evidence. The insurer further submits that it is entirely unclear what view, if any, the Medical Assessor took of the biomechanical engineer opinions, or the analysis of the forces involved in the subject accident. The insurer submits that the Medical Assessor did not properly engage with the evidence provided by the parties, or the parties' submissions, on this issue. 4. The insurer submits that Medical Assessor Cameron's reasons are silent as to how consideration was given to the engineers' reports or the parties' submissions on the issue of the causation of the right elbow injury. The insurer notes that, on page 6 of his certificate, the Medical Assessor stated that causation of the right elbow injury was "established based on the available clinical records and the information provided by (the claimant) (insurer's emphasis) without reference to the biomechanical engineering reports. 5. The insurer notes there was no reference to right elbow symptoms in the claimant's initial GP attendance, the initial Certificate of Capacity, or the Application for Personal Injury Benefits. The insurer submits that the Medical Assessor does not appear to have engaged with the insurer's submissions, or the clinical records, with respect to the right elbow injury.

Error 2 - Failure to identify inconsistencies/provide adequate reasons

1. The insurer submits that the Medical Assessor does not appear to have identified the delayed reporting of right elbow symptoms to the claimant's treatment providers, in the post-accident period, in circumstances where the claimant otherwise reported to the Medical Assessor that he developed "immediate" right elbow symptoms following the subject accident. The insurer notes that the Medical Assessor did not comment on the delayed reporting of the right elbow injury which, so the insurer submits, should have been put to the claimant for explanation.
2. Further to the above submissions, the insurer submitted that the Medical Assessor did not provide sufficient reasons with respect to his right elbow causation determination, particularly in circumstances where both parties have provided expert biomechanical engineering reports and submissions on the issue. The insurer says that the Medical Assessor made only passing reference to the report of Dr McIntosh and no reference at all to the report of Mr Johnston.
3. The insurer also submits the Medical Assessor formed the view that there was a "plausible mechanism" for a right elbow tendon injury to have been sustained, but there is no explanation for this comment, nor any pathway of reasons as to how the Medical Assessor reached that opinion.
4. The insurer's review application was opposed by the claimant on various grounds. It is not necessary to summarise the claimant's submissions in detail as they were not accepted by the President's delegate. Briefly, the claimant submitted as follows:

"1. The MRI performed only one month after the accident disclosed an intermediate/high-grade tear involving the common extensor tendon. There was no history of pre-accident symptoms in the right elbow. The tear identified on the MRI scan was consistent with the mechanism described by the claimant to Medical Assessor Cameron:

'He said that he was resting his right arm on the door frame with the window wound down. He said that the impact jolted his right elbow and there was an impact with the window with the right hand. He said he had pain immediately in his left elbow and right hand.'

1. As a tendon tear is a partial rapture of a tendon, this is a non-threshold injury. Ordinarily, this would seem the most straight-forward case of a non-threshold injury.
2. The controversy arises because of the insurer's reliance upon the report of Dr McIntosh, a biomechanical engineer, which is without probative value because Dr McIntosh's opinion were based upon a factual assumption he was not asked to make by the insurer, namely, that the insured driver was travelling at 10 km/h or less. That assumption was not independently verified by Dr McIntosh.
3. In this case, there is no evidence to support the factual assumption adopted by

Dr McIntosh that the injured driver was travelling at 10 km/h or less. 4. That is to be contrasted with the position of the claimant's biomechanical engineer, Mr Johnston, who examined the claimant's vehicle, conducted his own analysis and concluded that the insured driver was travelling at a speed in excess of 10 km/h. That evidence is uncontroverted and must be accepted. The contrary opinion of Dr McIntosh will not assist the Review Panel in the claimant's submission. 5. The claimant cites the dicta of Harrison As J in AAI Limited t/as GIO -v- Zaroual [2020] NSWSC 1563 to the effect that biomechanical evidence is of little assistance and minimal probative value in a medical assessment which 'calls for a medical opinion, not the opinion of a biomechanical and mechanical engineer.' 6. The claimant also relies on his primary submissions that he suffered the following non-threshold injuries in addition: * cervical radiculopathy, and * causation or aggravation of C4/C5 and C6/C7 disc protrusions,

The claimant relies upon the evidence of Dr Dias that objective cervical radiculopathy was diagnosed in accordance with the requirements of the Guidelines on 21 March 2023 to support the submission that the claimant cannot be found to have suffered only minor injuries in the accident."

1. President's delegate Rachael Britliff issued a Determination of an Application for Review of a Medical Assessment on 11 December 2024 which stated the satisfaction of the President's delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be as follows:

"The insurer relied on information in a biomechanical report prepared by

Dr Andrew McIntosh and gave reasons for disagreeing with a biomechanical report prepared by Mr Johnston upon which the claimant relied. The submissions formed a substantive part of the insurer's reply. Medical Assessor Cameron acknowledged Dr McIntosh's report but did not comment on it. In his findings on causation of the claimant's elbow injury, Medical Assessor Cameron determined that the mechanism of injury was plausible, but did not address the controversy over the severity of the accident. Medical Assessor Cameron may have been required to address the insurer's substantive submissions regarding the question about whether the speed at which the accident occurred could have resulted in the non-threshold condition in the claimant's elbow."

1. Accordingly, the review application was accepted and was referred to the Panel which is to re-assess all of the injuries referred to Medical Assessor Cameron, unless the parties otherwise agree.

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. Causation of injury is addressed in the Guidelines as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

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

1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.

This, therefore, involves a medical decision and non-medical informed judgment.

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. See Briggs v IAG Limited t/as NRMA Limited.[4] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):

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

1. Wright J then described the Panel's role in a medical review which is to:

"Consider whether the motor accident did cause or contribute to (the claimant's condition). This requires, not a consideration of material derived as a result of an internet search... but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

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

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

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

(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

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

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

All annexures to Medical Assessment Application (excluding above submissions)

1. The claimant provided statements dated 28 September 2023 and 16 November 2023 which the Panel has considered:

1. Report of Dr Uthum Dias, occupational physician, to the claimant's lawyers.

Dr Dias records the claimant said he did not have any previous injuries or known pre-existing conditions affecting his neck, lower back, shoulders, elbows or hands prior to the subject accident. The claimant said that, prior to the subject accident, he was pain free and asymptomatic in all of the abovementioned areas. He led a fit and healthy active lifestyle.

Dr Dias records that the claimant continued to suffer from debilitating symptoms of pain, stiffness and discomfort affecting his neck, lower back, shoulders and right middle finger on a continual basis over the three years since the subject accident.

Dr Dias records that the claimant's symptoms of neck pain were associated with persisting radicular symptoms radiating down his left upper limb to his left hand on a consistent basis over the course of the past three years. The claimant informed Dr Dias that his right elbow condition slowly resolved over the past three years. His right elbow is currently pain-free and asymptomatic.

Dr Dias refers to the various treatments that the claimant has received since the accident from practitioners in various specialties. Dr Dias recorded that the claimant was not undergoing any specialist medical treatment, for his accident-related injuries, at the time of his assessment.

Dr Dias described his physical examination of the claimant's cervical spine, thoracic spine, lumbar spine, shoulders, left elbow and right hand, including neurological examination of the upper and lower limbs.

Under the heading DIAGNOSIS, Dr Dias states as follows:

• He has sustained a persistent aggravation of previously asymptomatic degenerative cervical spondylosis, with an associated persisting left C7 radiculopathy and associated loss of range of movement of both shoulders, secondary to an acute musculoligamentous strain with an associated C6/C7 disc protrusion (Whiplash Associated Disorder Level III).
• His loss of range of movement of his right and left shoulders does not, in my opinion, reflect in a pathology in his right and left shoulder regions, but rather reflects referred pain from his cervical spine condition.
• He has sustained a persistent aggravation of previously asymptomatic degenerative lumbar spondylosis, secondary to an acute musculoligamentous strain.
• He suffers from chronic right middle finger MCP joint pain and discomfort, secondary to an acute ligamentous strain.
• He sustained an acute right elbow osteochondral impaction injury to the capitellum, with an associated partial thickness common extensor tendon tear, as a result of the subject accident.

Dr Dias says that the claimant's right elbow injury has resolved. He says that the claimant's prognosis is relatively poor. He opines as to the claimant's fitness for work and future treatment needs which are not relevant for the Panel's consideration.

Dr Dias assesses 15% whole person impairment (WPI) for the cervicothoracic spine, 5% WPI for the lumbosacral spine, 6% WPI for the right shoulder, 7% WPI for the left shoulder and 0% WPI for the right middle finger, giving a total WPI of 30%, using the Combined Values Chart.

1. Report dated 15 February 2022 by Dr Charles New, orthopaedic and spinal surgeon, to the claimant's lawyers.

Under the heading PAIN DIABILITY ASSESSMENT, Dr New states as follows:

"He has debilitating pain in his cervical, thoracic and lumbar spine as well as bilateral radicular pain. The left arm is worse than the right. He has radicular pain into the C6/C7 nerve root distribution in his left hand. He describes the pain as an aching, stabbing pain with pins and needles, exacerbated by changing positions, sneezing, prolonged sitting, lifting and bending."

Under the heading EXAMINATION, Dr New records as follows:

Cervical spine - formal examination shows painful movement of his cervical spine in flexion, extension, lateral bending and rotation limited by pain, with a loss of approximately 25% of his normal range of movement.

He has tenderness over his cervical spine at the cervicothoracic junction.

Upper limb examination notes reflex is normal, no clonus, negative Hoffman's sign. He has no demonstrable weakness in his upper limbs

Shoulder - he has a near full range of movement in his shoulder in flexion 130°, extension 30°, abduction, adduction, external and internal rotation limited by approximately 25% because of pain in both shoulders.

Lumbar spine - He has pain over the full extent of the lumbar spine and minor decrease in range of movement of his lumbar spine with loss of approximately 20% of range of movement. He has a normal neurological examination of his lower limbs with the exception of absent left ankle jerk. He has a negative clonus. It is noted that he has a normal right ankle jerk.

He has no loss of sensation in either upper or lower limb.

The patient was compliant and cooperative throughout the taking of the history and examination. There was no suggestion of over-reaction or exaggeration.

Under the heading RADIOLOGY, Dr New reports as follows:

No evidence of recent fractures. The SPECT CT scan shows moderate osteoblastic reaction in the L5/S1 region, particularly on the left hand side at L1/L2. There are minor facet joint changes in L2/L3, L3/L4 and L4/L5 as well as L5/S1. There is increased uptake in C3/C4, C4/C5, C5/C6 and C6/C7.

No evidence of acute fracture. Minor degenerative changes in the first MCP joint and first CMC joint.

Moderate tendinosis. Cartilaginous irregularity over the capitellum. Chronic osteochondral injury stable.

Loss of normal cervical lordosis. Cervical spondylosis with anterior osteophytosis at C3/C4 and C4/C5. Lateral canal stenosis. No evidence of myelomalacia although decreased in AP diameter space available for the cord at C4/C5.

Loss of some of his normal lumbar lordosis. Multiple disc bulges from L1 to the sacrum. Dehydration of discs consistent with his age. Lateral curvature of his spine noted not consistent with scoliosis.

Dr New opines that the claimant's current presentation and the motor accident are connected. He noted that the claimant's Transit van was drivable and that there was no traffic report by the Fire, Police or Ambulance.

Dr New says the claimant's long-term prognosis is poor with his chronic presentation after a number of years. Dr New states that he was unable to replicate the findings of Dr Teychenné and had read the report by Adjunct Professor Robin Fitzsimons. He recommends a non-Medico-legal assessment of spinal cord function with an independent neurologist.

Dr New assesses 5% WPI for the lumbar spine, 14% WPI for the cervical spine and 12% WPI for the upper limbs, giving a Combined Table Value of 28% WPI.

1. Report dated 10 December 2020 by Dr David Yee, hand and wrist surgeon, to Dr Victor Koleda.

Dr Yee reports that the claimant is being treated for a tear of his lateral epicondyle. Dr Yee says that MRI examination shows there is chondral wear at the index and middle finger metacarpal heads with underlying subchondral bone oedema. Plain X-rays are normal. Ultrasound shows a sprain at the collateral ligament but no complete tear. Dr Yee does not recommend surgery.

1. Reports of various dates by Dr Paul Teychenné, neurologist, to Dr Koleda and the insurer.

Dr Teychenné disagree with the diagnosis of a soft tissue injury and says that the claimant has "classic evidence of an incomplete cervical cord lesion". Dr Teychenné says that few medical practitioners have the necessary expertise and experience to diagnose incomplete spinal chord lesions. Dr Teychenné says the clinical findings were consistent with involvement of the C4 to T1 spinal segments, Dr Teychenné opines that the claimant "may have some evidence of left C6 nerve root involvement, but the major clinical picture is that of an incomplete central cervical chord lesion which has caused quite a marked problem with balance and to some extent affected his gait as well as proximal weakness in the upper limbs".

Dr Teychenné reports repeated EMG muscle sampling to assess spinal cord and peripheral nerve function. He describes the findings of MRI scans of the cervical spine. Dr Teychenné concludes by stating as follows:

'A MRI scan of the cervical spine had shown central spinal stenosis at C4/C5 and C6/C7. This indicated that Mr Ruiz-Diaz was at risk of sustaining an incomplete central cervical chord lesion in the presence of pre-existing central spinal stenosis as a result of a whiplash injury to the neck. It was apparent that he has significant functional deficits in regard to balance and gait as well as strength in using arms above his hands. He would develop tingling down the arms and weakness in the arms when attempting to use his arms above his head. He had sustained spinal shock at the time of the injury resulting in a jelly-like sensation and weakness in the arms and legs.'

If Dr Teychenné provided an assessment of WPI, it has not been put into evidence.

1. Reported dated 17 June 2022 by Professor Brian Owler, neurosurgeon, to Dr Kevin Ng.

"He had significant pain following the subject accident and after three days, was able to see his GP. He was started on a course of physiotherapy and subsequently was also under the care of Dr Paul Teychenné (neurologist)...... He had an MRI scan of the cervical and lumbar spine. His injuries included neck pain with radiation to both shoulders. He had radicular pain which travelled into his left upper limb with paraesthesia and electrical shock-like pain. It seemed to involve the middle and index fingers as well as the thumb. He had an injury to his right elbow and also right hand. He had a number of injections including a PRP injection for his right elbow. He also underwent several cortisone injections in his neck and lower back without much success.

He was undergoing physiotherapy but that has now been reduced. His current symptoms are neck pain with radiation towards both scapula. There is also radiation into the left arm which goes down towards the thumb and index finger... he has pain across the lower back which is equal on both sides and there is no sciatica or lower limb radicular symptoms."

Dr Owler opines that the claimant would benefit from review by a pain management specialist. He does not envisage any surgical intervention.

1. Attendance records of Dr Koleda, general practitioner.
2. Clinical records of Dr Bryant, sports physician.
3. Clinical notes of S & P Family Medical Practice.
4. Clinical notes of South Terrace Health Centre

The clinical notes are not summarised as, contrary to the Panel's direction, the parties did not indicate which entries are said to be relevant to the matters in issue.

Cervical cord has normal signal and configuration. No cord injury/lesion. Background mild multilevel cervical spondylosis with more focal mild to moderate uncovertebral spurring at the mid-cervical levels. Several potential sites of cervical nerve root impingements.

CONCLUSION: Intermediate/high-grade tear involving the common extensor origin, on a background of moderate tendinosis. Altered subchondral marrow signal along the capitellum with mild overlaying cartilage irregularity and mild boney stress response. Appearances suggest chronic osteochondral injury without unstable features. No effusion or synovitis within the elbow joint is associated. No intra-articular body.

Report dated 17 February 2021 by Grant Johnston, biomechanical engineer, to the claimant's lawyers.

Mr Johnston refers to photographs of the damage sustained by the claimant's vehicle in the subject accident. Based upon the physical characteristics of both vehicles and the actual damage, he rejects the insurer's contention that the impact speed was only 10 km/h or thereabouts. Based upon that evidence and his own technical analysis, Mr Johnston opines that a minimum speed of around 20 km/h to be more consistent with the presence of some damage to both vehicles.

Mr Johnston comments on the findings and opinions of Dr McIntosh, biomechanical engineer, who was qualified by the insurer. Mr Johnston concludes as follows:

• In my opinion Dr McIntosh's conclusions are not valid because the underpinning assumption of no more than a 10 km/h impact speed is not consistent with the physical evidence.
• He has also not considered the difference in the forces experienced by an occupant and the nature of the different occupant protection devices in a traditional type passenger sedan compared to a truck versus truck impact in terms of applying the biomechanical research into injury tolerances."

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

Insurer's review application submissions (threshold injury - physical)

In her more recent report, Dr Fitzsimons notes that the orthopaedic conditions in the claimant's left elbow and right hand resolved following treatment by Dr Grace Bryant. Dr Fitzsimons queries why the claimant's neck/back/shoulder pain was not a focus of clinical attention in the months leading up to the treatment by Dr Bryant. Dr Fitzsimons gives the following diagnosis:

As to the cervical spine, Dr Fitzsimons says as follows:

"I agree that it is plausible (and probable) that the accident caused symptomatic aggravation (including onset of radicular symptoms) of the C6/C7 disc protrusion, assuming it was pre-existing. That is a common observation".

Dr Fitzsimons thinks such aggravation will persist for a variable period of time and sometimes be subject to periodic recurrence. She disagrees with the view expressed by Dr McIntosh (biomechanical engineer) that the symptomatic aggravation of the claimant's pre-existing (degenerative) condition would be for a closed period of short duration.

Dr Fitzsimons also disagrees with Dr McIntosh that "the nature of the alleged shoulder condition(s) is unknown" and that there was no apparent "mechanism" for the shoulder injury in the accident. Dr Fitzsimons agrees with Dr McIntosh that shoulder impairment can be related to a neck injury, referencing Nguyen which, according to Dr Fitzsimons, has not been considered or determined by the claimant's treating doctors.

As to the lumbar spine, Dr Fitzsimons says "radiology does not provide evidence for likely incapacitating pain. His leg symptoms are in any case not radicular, and the radiology gives no indication of significant nerve root impairment.

Dr Fitzsimons opines there may well be a non-organic component to the claimant's presentation which could be appropriately addressed by a pain management specialist.

Dr Fitzsimons says that the claimant does not satisfy two criteria which would be necessary to diagnose radiculopathy (paragraph 6.138 of the Guidelines) as only one criterion (triceps reflex absent - previous asymmetry) is present. Dr Fitzsimons assesses 5% WPI for the cervical spine.

Report of Dr Murray Hyde-Page, consultant orthopaedic surgeon, to the insurer's lawyers

Under the heading Diagnosis, Dr Hyde-Page says as follows:

"He has suffered an injury to his cervical spine where he has aggravated underlaying cervical spondylosis and developed C6 radicular symptoms without radiculopathy.

In his lumbar spine, he has suffered a soft tissue injury and some mild aggravation to underlying lumbar spondylosis.

Apparently, he did suffer some injury to his left elbow and right hand, but on today's assessment these were completely normal. It would appear that he suffered soft tissue injuries.

Dr Hyde-Page anticipates that the claimant will have minimal ongoing symptoms affecting his cervical and lumbar spine. He finds that the claimant has whole person impairment related to his cervical spine, lumbar spine and shoulders. He finds 5% WPI (with radicular symptoms but no radiculopathy) in the cervical spine. He finds that one-tenth of that impairment is pre-existing. Dr Hyde-Page finds 0% WPI in the lumbar spine with stiffness only. Based upon reduction of forward flexion and abduction, Dr Hyde-Page finds 1% WPI in each shoulder, giving a combined 7% WPI.

Report of Dr Andrew McIntosh, biomechanical engineer, to the insurer's lawyers

Dr McIntosh proceeds upon the following assumptions:

1. No property damage claims were lodged with respect to either vehicle following the subject accident.
2. It is the evidence of the insured driver that he was travelling no faster than 10 km/h at the time of the impact.
3. It is the evidence of the insured driver that the impact was small and that his front bumper struck the back of the claimant's vehicle causing minor damage.
4. The insured driver did not take any photographs of the vehicles.
5. It is the evidence of the insured driver that he undertook repairs to the insured vehicle himself, as he is a mechanic, involving "bending the bull bar back into place" and "buffing/painting the scratches from the front of his vehicle".

Dr McIntosh was provided with the claimant's colour photographs depicting the damage sustained by both vehicles.

Dr McIntosh notes that, whilst he was instructed to assume an impact speed of 10 km/h, other documents (medical) reports speed from 20 km/h to 30 km/h.

Dr McIntosh reviews all of the available medical evidence provided by both parties. He reviews the physical characteristics of both vehicles and the damage depicted in the colour photographs. Dr McIntosh opines the visible damage and vehicle drivability are consistent with a closing speed of approximately 10 km/h, as per the assumption. He cites at length historical biomechanical analysis of the causation and prevention of whiplash associated disorders involving cervical spine injury and thoracolumbar spine injury.

"99. The claimant's alleged physical injuries in total are not consistent with what I consider to be the likely biomechanical forces in the accident and the mechanism of the collision.

1. The following physical injuries alleged by the claimant ARE CONSISTENT with the forces involved in the subject accident and the mechanism of the collision:
   1. cervical spine (neck) - whiplash associated disorder/soft tissue injury/aggravation of the pre-existing degenerative condition.
2. The following physical injuries alleged by the claimant ARE NOT CONSISTENT with the forces involved in the subject accident and the mechanism of the collision:
   1. head;
   2. neck with disc impingement at C4/C5 and C6/C7 impinging the nerve roots at C5 and C7;
   3. incomplete spinal cord lesion;
   4. both shoulders;
   5. left arm;
   6. capitellum fracture of the let elbow;
   7. lower back;
   8. right elbow (Intermediate/high-grade partial tear to the common extensor origin at the right elbow);
   9. right hand/wrist (Chondral wear to the second and third metatarsal heads at the right hand); and
   10. right middle finger."

Dr McIntosh opines there was no mechanism for a muscle/tendon tear in the right elbow.

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

• Elbow - right elbow osteochondral impaction injury to the capitellum with high-grade tendon tear at the right elbow
• Cervical spine - causation or aggravation/ worsening of C4/5 and C6/7 disc protrusions; cervical radiculopathy; persistent aggravation of previously asymptomatic degenerative cervical spondylosis and associated loss of range of movement of both shoulders secondary to an acute musculoligamentous strain with an associated C6/C7 disc protrusion

Mr Ruiz-Diaz attended the PIC Medical Suites for in person medical examination by Medical Assessor Assem. Medical Assessor Oates attended the re-examination via MS Teams.

Pre-accident medical history and relevant personal details

Mr Ruiz-Diaz, hereafter referred to as the claimant, stated that he is right-handed and lives in a home with his wife, who is not working, and an 18-year-old son. A 23-year-old son has recently returned home.

The claimant came from Uruguay at the age of 20 months.

Before the accident he played over 45s club soccer and social squash with friends.

He was self-employed, manufacturing air-conditioning fittings. This also involved management.

He recalled an accident at work where a piece of wood fell on one leg 15 - 20 years ago, but could not remember any details. He made a full recovery. He had not had any previous motor accidents or CTP claims.

The Medical Assessors asked him about a GP record from Dr Koleda in 2013, referring to an olecranon bursa of an elbow with drainage of the bursa, but he could not recall this.

He could not recall any previous problems with the neck, back or upper extremities.

On 20/3/2020, the claimant said he was the driver of a Ford transit single cab tabletop utility with his wife as front seat passenger. They were wearing seatbelts. He was stationary waiting in a slip lane to turn left and had his head turned to the right to check for oncoming traffic, when his car was rear-ended by a 4.5-tonne tare weight Isuzu pantechnicon truck.

The claimant did not know the truck was coming and heard no screech of brakes, and states that his Ford transit utility was pushed forward several metres, but did not hit anything in front. The bull bar on the Isuzu truck was pushed in by the impact. The tray of the utility that he was driving was pushed forward towards the cab and he subsequently straightened this using a forklift. The Ute was still driveable. It was subsequently written off.

At the impact he recalls his head being flung back towards the back screen of the cabin and immediate pain in the left side of the neck towards the shoulder blade and tingling down both arms. At the time of impact, he was resting his right elbow on the sill of the open driver's door window and his middle finger was pushed forcibly forward into the surroundings of the window. When he got out of the truck, his legs felt like jelly.

He told me he jarred the right elbow and later developed pain, swelling and bruising in this part.

History of symptoms and treatment following the motor accident

He saw a GP, Dr Salib, on 21/3/2020. There were reports of neck and back and left arm pain with pins and needles.

Inconsistency - The Medical Assessors asked the claimant why there was no record of the right elbow if this had been painful and swollen, and the claimant was not able to explain this and suggested that Dr Salib be asked about this.

The GP referred him to a chiropractor at South Terrace Health Centre whom he saw on 2/4/2020. The pictogram indicates symptoms in the neck, down the shoulder blades and upper arms bilaterally at the right elbow and through the thoracic and lumbar spine, and into the left buttock. Complaints of stiff neck, shoulder and back, tingling down left side of back and down back of left thigh, pain and stiffness in lower back and back as a whole, and right elbow very painful with loss of strength are recorded.

AHRR from the chiropractor dated 2/4/2020 diagnosed neck whiplash WAD3, right elbow severe pain and swelling requires MRI, thoracic sprain strain Grade 2, headaches, low back pain/ discs/ left leg sciatica requires MRI.

He next saw the GP on 6/4/2020 and the record refers to low back pain, left back pain, left paraesthesia of upper limb, and right elbow pain, and that he would start physiotherapy tomorrow. He was treated with analgesics and anti-inflammatory medication.

Some of the GP consultations were conducted by telephone because of the COVID lockdown orders and the claimant did mention to the Medical Assessors that it was difficult for him to access GPs and treatment providers during this period.

MRI scan of right elbow on 17/4/2020 showed an intermediate to high-grade partial tear involving the common extensor origin along the proximal and superficial fibres on a background of moderate tendinosis. No associated fracture or bone stress response was demonstrated and no retraction of tendon fibres demonstrated. The musculotendinous junction and muscle belly of the extensor compartment showed normal signal. There was altered subchondral signal along the capitellum with linear low signal and mild marrow oedema. Early Grade 2 cartilage irregularity present without unstable cartilage flap, with the appearances suggestive of chronic osteochondral injury.

On 23/4/2020, Dr Salib referred the claimant to Dr Grace Bryant, sports physician, Sydney University for management of right elbow injury. The claimant saw Dr Bryant on 29/4/2020 with a history recorded that in the accident he struck his right elbow on the door and had right lateral elbow pain that was not improving, and also a whiplash-style injury to the cervical spine and lower back, both of which were improving.

He found attendance at the chiropractor was helpful for the cervical and lumbar regions, but he had ongoing marked pain in the right elbow, bruising about the lateral elbow with restriction movement and swelling. By the time Dr Bryant saw him, the swelling and bruising had reduced or resolved, but he had pain in the lateral elbow when opening jars, turning on taps, lifting objects and gripping actions.

On examination, elbow flexion was reduced at the end of range with tenderness over the lateral epicondyle and common extensor origin, with pain on resisted forearm extensor aggravation especially extensor carpi radialis brevis. Platelet-rich plasma injection to the right elbow was suggested and also use of a tennis elbow guard.

He underwent the first two of a course of three injections and at review on 4/6/2020, Dr Bryant noted that as the pain using his right forearm extensors reduced following the injections, he was aware that the pain he was experiencing about the right third metacarpophalangeal joint of the hand had persisted with localised swelling in the region. He was referred for x-ray and ultrasound with provisional diagnosis of sprain of the third MCP joint.

Injection was administered to the third MCP joint radial capsule and on subsequent examination, the swelling around that joint had resolved, as had tenderness on palpation around the radial side of the joint. He had a third PRP injection to the right elbow.

He underwent a CT-guided left C5 nerve root injection on referral from Dr Salib, the GP, on 6/8/2020 and a CT-guided left C7 transforaminal block cortisone injection on 10/8/2020.

A bone scan with SPECT/CT on 17/8/2020 showed no scan evidence to suggest recent or acute fractures in the spine or the remainder of the skeleton. There is moderate arthritis in both AC joints, mild to moderate arthritis in the wrists, small joints of hands and mild arthritis in both hip joints. Both elbow joints appear unremarkable. The remainder of the skeletal appears unremarkable, apart from some mild intervertebral arthritic change at C3/C4, C4/C5, C5/C6 and C6/C7 levels.

At review with Dr Bryant on 17/11/2020, the right traumatic lateral elbow epicondylopathy had essentially resolved and cervical spine and lower back whiplash-style injuries had both improved, with probable sprain of the right third metacarpophalangeal joint persisting.

The claimant was referred to Dr David Yee, hand surgeon, whom he saw on 10/12/2020. He noted a swollen third right MCP joint with pain on stressing the ulnar collateral ligament and close to full flexion. He suggested a cortisone injection under ultrasound control to the MCP joint of the middle finger itself and suspected the previous cortisone injection had been in the collateral ligament area.

After the accident, the claimant had been off work for about four months because of neck, low back and right elbow pain, and thereafter had remained on restricted duties doing mainly clerical and administrative tasks, and the number of clients that he serviced with his air-conditioning business had reduced.

The claimant noted that he had become dissatisfied with Dr Salib and had changed to Dr Koleda, whom he had attended previously, as from August 2020.

He was referred to Dr Teychenné and had a nerve conduction study but no recommendations for treatment were made. He speculated this was because Dr Teychenné was waiting for instructions from the solicitor.

He also saw Professor Owler, neurosurgeon, in June 2022 who ordered an update bone scan and MRI scan, and said there was no indication for surgery on the neck or back.

The bone scan of 8/7/2022 raised the suspicion of arthropathies in the acromioclavicular joints, left greater than right, and in the right wrist and left ankle region. There was no significant increased uptake in the right elbow or in the shoulder joints, with a mild heterogenous pattern of tracer distribution in the spine, with SPECT of cervical spine showing increased uptake, most marked in the C4/C5 endplate interface region and the right C7/T1 facet joint, with SPECT of the lumbar spine showing increased uptake in bilateral L4/L5 facet joints, the L5/S1 endplate interface region, and left lateral L1/L2 osteophyte.

MRI cervical spine on 8/7/2022 showed background mild multi-level cervical spondylosis with mild to moderate uncovertebral spurring at the mid-cervical levels with several potential sites of cervical nerve root impingements, including severe stenosis of left neural exit foramen at C4/C5, almost certainly impinging on the exiting left C5 nerve root, with mild right neural exit foraminal stenosis which may be irritating the exiting right C5 nerve root, moderate C5/6 stenoses of neural exit foramina bilaterally, likely impinging on the exiting C6 nerve root bilaterally, and moderate stenosis of left neural exit foramen and severe stenosis of right neural exit foramen suspicious for impingement of the exiting C7 nerve roots bilaterally.

Details of any relevant injuries or conditions sustained since the motor accident

His right elbow has improved and is comfortable at rest, but he does get a zap of pain and discomfort in the lateral elbow if he attempts lifting with the outstretched right arm. His worst problem is low back pain which is present every day and can reach 10/10 in severity. He can't stand up straight and this affects his ability to lift and push and pull things. He feels insecure when putting the back under load and trying to carry loads in his arms. He is even nervous carrying his 3kg chihuahua pup.

He also has pain in the left side of the neck radiating towards the shoulder blade and tingling intermittently down the left arm towards the forearm and hand. He has some disturbed sleep.

Dr Koleda retired about four years ago and he changed GP to Dr Kevin Nguyen at Medical Family Practice, Norwest.

He has Lyrica one in the morning, Voltaren three times a day, and Tramadol as required about every second day, along with regular Panadol. He is having no other treatment.

He has not had any psychological treatment since the accident, but has had examination by medicolegal psychiatrists.

The claimant gave his height as 187cm and weight as 105kg.

He sat comfortably whilst relating the history and transferred freely out of a chair and on and off the examination couch.

There was symmetrical reduction in range of movement to about two-thirds of normal in flexion and extension, and also in lateral flexion, with rotation being three-quarters of normal bilaterally.

There was tenderness at C5/6 centrally and into the upper trapezii bilaterally, but no guarding.

Forearm girth; right 31cm, left 30cm consistent with stated right-hand dominance.

Sensation to light touch and pin prick was normal in both upper extremities, and power was normal in both upper extremities, including intrinsic muscles of the hands, and there was no wasting of the hands seen. Reflexes in the right upper extremity and left biceps jerk were brisk and symmetrical. The reflexes of left supinator jerk and left triceps jerk were of decreased amplitude.

A Spurling manoeuvre caused complaint of trapezial pain bilaterally on a combination neck extension and lateral flexion, but there were no complaints of radicular pain, thus a negative nerve compression test.

There was no swelling or deformity. There was mild tenderness over the lateral aspect. There was a full range of movement in flexion extension, pronation and supination. Provocative tests for lateral epicondylitis in the right elbow were mildly positive, not acute.

Screening movements of the right and left shoulders were within normal limits.

As mentioned above, the claimant was asked about the lack of early reporting by the GP regarding the right elbow condition, which was allegedly painful and swollen, and he was not able to explain this.

When he did see a chiropractor on 2/4/2020, the right elbow problem was noted and thereafter the GP made reference to this injury as well.

• Cervical spine - soft tissue injury (redefined)
• Right elbow - contusive soft tissue injury, with transient lateral epicondylar irritation (redefined)

The cervical spine injury is redefined as soft tissue injury and based on evidence in the file with early recording in the contemporaneous medical record of cervical spine complaints with referred symptoms to the left upper extremity, the Panel considered that the accident was a cause of this injury.

The Panel notes the presence of potential on MRI scan for multi-level bilateral cervical nerve root irritation, which was reported symptomatically, however there were not two or more signs of radiculopathy (the only sign present being asymmetry of reflexes) to enable a diagnosis of cervical radiculopathy to be made.

The Panel redefined the injury to the right elbow as contusive soft tissue injury. There was no evidence of fracture. The osteochondral changes at the capitellum and the common extensor tendon tear seen on MRI scan are, more likely than not, long-standing structural entities which are causally related to the nature and conditions of his heavy work as an air-conditioning equipment fabricator, working with sheet metal.

MRI scan and bone scans showed no evidence of avulsive bony injury at the right elbow associated with the extensor tendon tear.

In the medical experience of the Panel Medical Assessors, a common extensor tendon tear is caused by either repetitive micro trauma of dorsiflexion of the wrist against resistance, or sudden acute forceful hyper flexion of wrist whilst elbow is extended as when playing a hard backhand return at tennis.

The only contemporaneous medical evidence of the type of trauma to the elbow reported in the accident was that of Dr Bryant stating the claimant reported striking the lateral right elbow against the car door.

In this case several GP visits early on after the accident documented various soft tissue injuries but not right elbow, until 2.4.20, more than two weeks post-accident, when it was documented by a chiropractor who recommended an MRI scan.

If the accident had caused an acute traumatic tendon tear it would have resulted in immediate pain and swelling localised to the lateral elbow and would have been clearly obvious to both patient and medical attendant.

Whilst a direct blow to the lateral elbow which was alleged to have occurred in the accident could exacerbate symptoms in the region of the tendon tear it is not the mechanism by which an acute traumatic tendon tear would occur, as referred to above. Nor would such a mechanism of injury aggravate a pre-existing tear, because the torn section of tendon had not been placed under mechanical stress, by sudden forceful stretching or physical load.

The Panel therefore is not persuaded that the accident could have caused or did cause or aggravate a tear of the right elbow common extensor tendon in this claimant.

Having considered the available evidence, examined the claimant and considered the mechanism of the injury occurring in the accident against the mechanism involved in the production of an elbow common extensor tendon tear, the Medical Assessors diagnosed this injury as a contusive soft tissue injury with an incidental finding on imaging conducted several weeks after the accident of a tear of common extensor tendon.

This is a soft tissue injury. There was no evidence on investigation of partial or complete rupture of tendon, ligament, meniscus or cartilage, and no evidence on clinical examination of radiculopathy.

Therefore, the cervical spine injury is a threshold injury.

There was a contusive soft tissue injury to the lateral right elbow. The common extensor

tendon tear was found not to have been caused or aggravated by the accident. The MRI scan taken one month after the accident does not show features indicative of an acute traumatic tendon injury such as oedema or inflammatory changes. There is no bone stress response and there is normal signal in the musculotendinous junction and adjacent proximal extensor muscle bellies. The tear at the common extensor tendon origin is**,** on the balance of

probabilities**,** an incidental finding consistent with a pre-existing condition rather than a post-traumatic condition. Therefore, the right elbow injury is classified as a threshold injury.

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Panel adopts the examination findings and reasons of Medical Assessor Assem with which Medical Assessor Oates agrees.
2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[7]
3. As regards the competing biomechanical engineering evidence, the Panel accepts that it is a matter of common sense that the nature and speed of the impact may affect the extent of the injuries sustained. See per Principal Member John Harris in Allianz v Sarofim.[8] Whist biomechanical engineering experts may purport to express opinions as to causation of injuries, in the circumstances of the subject accident, the issue of causation of injury ultimately is a matter for the Medical Assessors.[9] Having regard the totality of the medical evidence, the Panel was not greatly assisted by the evidence of either Mr Johnston or Dr McIntosh, in the circumstances of this case. Having regard to the conclusions which the Panel otherwise formed, it was not necessary for the Panel to resolve the contest between the two competing biomechanical engineering experts.
4. The Medical Assessors have explained the basis for their assessments and findings. To the extent that they differ to the views expressed by Medical Assessor Cameron, and the parties' independent medical experts, the Medical Assessors respectfully disagree. The Medical Assessors agree with Professor Owler that no two signs of radiculopathy have been present at any time since the motor accident.
5. The Panel finds, as a matter of medical determination and as a matter of factual non-medical determination, that the motor accident did not cause a tendon tear to the claimant's right elbow. As stated in the final paragraph of the examination report, the intermediate/high-grade tear involving the common extensor origin, described in the report of the MRI right elbow performed on 17 April 2020, was an incidental finding, in the Medical Assessors' opinion.

1. For the above reasons, the Panel concludes the certificate issued by Medical Assessor Ian Cameron on 8 October 2024 should be revoked. The new Certificate appears at the commencement of these reasons.

[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

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

[8] Allianz Australia Insurance Limited v Sarofim [2024] NSWPICMA 346.

[9] Motor Accidents Authority of NSW v Mills [2010] NSWCA 82.