Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. Revokes the certificate issued by Medical Assessor Kuru dated 12 October 2024.
2. Certifies that the degree of the claimant's permanent impairment resulting from the injuries caused by the motor accident on 6 May 2021 is 25% which is greater than 10%.

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

1. Siad Senno, the claimant, was involved in a motor accident on 6 May 2021. There were five cars involved in the collision. Of relevance to Mr Senno's disputes, one vehicle ran into the rear of the claimant's vehicle which then collided with the rear of the vehicle in front.
2. Mr Senno says he injured his neck, right shoulder and back in the accident. He has made claims under the Motor Accident Injuries Act 2017 (the MAI Act) for both statutory benefits and damages. Both claims were made against QBE Insurance (Australia) Limited (QBE), the third-party insurer of the vehicle that Mr Senno says caused his accident.
3. Three separate medical disputes arose in the claims:

(a) a dispute about treatment namely spinal surgery performed on 28 June 2023;

(b) a dispute about whether Mr Senno's injuries caused by the accident are, or are not, threshold injuries, and

(c) a dispute about the degree of Mr Senno's whole person impairment (WPI).

1. The three disputes were referred to the Personal Injury Commission (the Commission) for medical assessment in two separate proceedings:

(a) M20063/24-01-1 - the treatment and threshold disputes, and

(b) M20862/24-01-1 - the WPI dispute.

1. Mr Senno referred his WPI dispute to the Commission on 5 March 2024 and on 12 October 2024, Medical Assessor Kuru determined that Mr Senno had a WPI of 25% primarily on the basis that the cervical spine surgery was related to the injuries caused by the accident and that this surgery resulted in a significant cervical impairment.
2. The insurer applied for a review of that decision and on 23 January 2025, a delegate of the President of the Commission determined there was reasonable cause to suspect an error in the assessment and on 24 January 2025 this Panel was convened to conduct the Review.

1. On 10 January 2024, Mr Senno referred a dispute about threshold injury and cervical spine surgery to the Commission. On 27 May 2024, Medical Assessor Rapaport determined

Mr Senno's physical injuries were threshold injuries. He also determined the cervical spine surgery did not relate to the injury caused by the accident, and was not reasonable and necessary in the circumstances. 2. The claimant applied for a review of those decisions and on 23 July 2024, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 29 July 2024 the President's delegate convened this Review Panel (the Panel) to conduct this Review along with the treatment and threshold injury Review. 3. The Panel determined that the two Reviews would be heard together due to the common issue about causation of the cervical spine surgery and its relationship to the accident. The reasons in the current matter should be read in conjunction with the separate reasons in the related Review proceedings.

1. On 24 May 2024, Medical Assessor Sidorov diagnosed the claimant with an adjustment disorder and certified the claimant's psychological injury was a threshold injury. The claimant applied for a review of that decision and on 30 July 2024 Ms Baba determined that the Review should be allowed however no Panel has yet been convened.
2. On 9 August 2024, Medical Assessor Mason diagnosed the claimant with an adjustment disorder and because of that he did not assess WPI. An application was lodged in respect of that decision and on 1 October 2024, President's delegate Ms Payne determined that review should proceed. No Panel has yet been convened.
3. On 3 July 2024, Medical Assessor Grainge determined Mr Senno's "sleep disorder injury" was a threshold injury although his reasons suggest he found no actual obstructive sleep apnoea disorder or that it was not caused by the motor accident. The claimant has applied for a review of that decision and on 22 August 2024 Ms Baba determined that the review should proceed.
4. Medical Assessor Gibson determined on 4 October 2024 that Mr Senno's sleep disorder was not caused by the accident and she therefore did not assess the degree of impairment. The Panel understands there is no review lodged in respect of that assessment.

1. Mr Senno's claim and his entitlements to compensation are governed by the provisions of the MAI Act.
2. 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.

Entitlement to damages including damages for non-economic loss

1. A claimant cannot recover any damages if their only injuries are threshold injuries[1].
2. In a claim for lump sum compensation, damages are assessed accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
3. Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[2] 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.
4. If there is a dispute about the degree of the claimant's permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]

1. Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] 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 three, the musculoskeletal chapter of the AMA 4 Guides is relevant.

1. 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 Kuru's, further medical assessments and the review of medical assessments by this Panel[5].
2. Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment "was incorrect in a material respect" (sub-s (1)). If the President, or his delegate is satisfied "there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect", the application is referred to a review panel consisting of a member of the Commission and two medical assessors (sub-ss (2) and (2B). The review is not necessarily confined to the issues raised in the application (or the reply) but is "a new assessment of all the matters with which the medical assessment is concerned" (sub-s 3A).
3. Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

1. Medical Assessor Kuru saw the claimant on 29 August 2024 and issued his certificate on

12 October 2024. He confirms at [2] that he was asked to assess the following injuries:

(a) cervical spine - large central disc protrusion causing mild cord compression, C7 radiculopathy/C6/7 effusion and discectomy;

(b) lumbar spine - aggravation of L5/S1 disc protrusion/modic changes type 2 seen at L5/S1 level/referred pain in the lower extremities/radiculopathy, and

(c) right shoulder - subacromial bursitis, reduced range of motion, referred pain.

1. Medical Assessor Kuru records a history from the claimant that he had no previous problems with his neck, lower back or right shoulder. The claimant described a four-car collision and that he was the fourth car in the series and was struck from behind. He felt immediate right shoulder pain, shock and dizziness. The claimant said the day after the accident he went to hospital complaining of neck and shoulder pain.
2. The claimant reported initial physiotherapy treatment for three to four weeks, consultation with a neurosurgeon and a C5/6 anterior cervical discectomy and fusion in June 2023.
3. The claimant said his current symptoms were pain on the right-hand side of his extending over the right shoulder and pin in the neck radiating to the lower back.
4. The lumbar spine showed restricted but symmetrical range of motion with no muscle guarding or dysmetria. The claimant's right shoulder movements were restricted and identical in both the left and right. There was no dysmetria in the neck, no guarding reported, no neurological symptoms or signs recorded.
5. Medical Assessor Kuru found the claimant was consistent.
6. Medical Assessor noted the claimant's left shoulder range of motion was normal when examined by Dr Conrad. He noted the General Practitioner (GP) records of Dr Awada showed multiple presentations for back pain, neck pain and shoulder pain.
7. Medical Assessor Kuru diagnosed at [18] and [19]:

(a) cervical spine - aggravation of C6/7 degenerative disc protrusion, central canal stenosis resulting in symptomatic myelopathy necessitating surgery.

(b) right shoulder - aggravation of acromioclavicular joint osteoarthritis and subacromial bursitis caused by the accident, and

(c) musculoligamentous lumbar spine injury causing non-specific back pain. Imaging of the lumbar spine has demonstrated no evidence of acute injury or significant structural abnormality of the lumbar spine.

1. Medical Assessor Kuru assessed the claimant as having a 25% WPI due to the spinal fusion noting the myelopathy had resolved. He noted significant right shoulder restriction of motion but a similar finding in the uninjured left shoulder and considered the left shoulder a baseline measurement in accordance with cl 1.51 and found no impairment caused by the accident.
2. He found no evidence of impairment in the lower back.
3. At [24] he explained that while the GP's records evidenced previous presentations with neck and right shoulder pain, he noted that no investigations had been undertaken and there was no evidence on which to make an assessment of pre-existing impairment.

1. The insurer's submissions lodged in respect of Medical Assessor Kuru's decision allege at [9] that he failed to give adequate consideration to the previous determination of the Commission, failed to consider evidence of a pre-existing injury and impairment, failed to apply the correct test for assessment of a pre-existing impairment; failed to disclose his path of reasoning for causation and failed to put inconsistencies to the claimant.
2. The insurer notes at [14] that Medical Assessor Kuru determined the degree of the claimant's impairment based solely on the fusion surgery that the claimant had. While this is consistent with the Guides and the Guidelines, Medical Assessor Rappaport had determined the surgery was not related to the injuries caused by the accident and the insurer says the two reviews should be heard together. The insurer says at [16] that there is a "fundamental [issue] with there being opposite determinations in the threshold injury / treatment dispute matter and current WPI dispute."
3. The insurer says at [17] - [19] that the Assessor has noted the evidence which refers to the pre-existing condition but has not evaluated that evidence. The insurer also submits at [20] - [22] that the Medical Assessor did not address the report of its expert Dr Antoun.
4. The insurer noted at [31] that Medical Assessor had found there was "no basis" for the assessment of a pre-existing impairment because no investigations had been undertaken of the cervical spine. The Insurer says at [34] that the radiology performed after the accident identified degenerative changes in the claimant's cervical spine and these were clearly not acute or accident-related.
5. The insurer takes issue at [40] with the reasons for the causation finding noting it is contained in one sentence and is a "conclusion without reasons" and he "did not outline how he arrived at his conclusion."
6. Finally, at [42] - [48] the insurer cites cl 6.41 and says the Medical Assessor should have brought the inconsistent history to the claimant's attention. The alleged inconsistent history was the claimant's denial of any previous problems with his neck, lower back and right shoulder. The insurer notes the Medical Assessor records "no evidence of inconsistency."

1. The claimant says at [4] the Medical Assessor provided "adequate reasons" and that at [6] there is no reason to refer to each bit of evidence. The claimant submits at [5] that the reports of Professor Ghahreman, Dr Conrad and Dr McKechnie all support a finding that the accident cause the claimant's injury resulting in surgery.
2. The claimant submits at [9] that both Medical Assessor Kuru and Medical Assessor Rapaport diagnosed an "aggravation of chronic degenerative disease of the cervical spine". The claimant says the only difference is whether the aggravation caused or materially contributed to the need for surgery.
3. The claimant submits at [13] there were no complaints of cervical spine symptoms from November 2016 to the date of the accident. The insurer submits at [14] - [15] Dr Antoun (a general practitioner) also found the disc protrusion was made worse by the accident. Medical Assessor Kuru (a specialist) had looked at the radiology and expressed his clinical judgment.
4. The claimant submits at [19] that the claimant was asymptomatic at the time of the accident and had not complained of neck symptoms for the five years before the accident. The claimant submits there is no objective evidence of a symptomatic impairment, and the Medical Assessor has complied with cl 6.31 of the Guidelines.
5. The claimant also submits at [39] that cl 6.40 and 6.41 require inconsistencies between the clinical findings of the medical assessor and information obtained by other means this needs to be put to the claimant. The claimant says at [40] that this only applies to examination findings (and presumably not history) and that the Assessor has a "full history of the claimant's medical history."

1. The Panel met on 11 February 2025 and reported to the parties and noted that neither party in any of the Review proceedings had challenged the Medical Assessor's findings in relation to the shoulder or the lower back and queried whether the Panel could confine the Review to consideration only of the claimant's neck or cervical spine injury.
2. The Panel suggested a telehealth re-examination rather than a face-to-face re-examination and issued directions for responses from the parties.

1. The insurer agreed the primary issue was the cervical spine injury, its diagnosis, causation and apportionment of WPI.

1. The Panel adopts the Review of the Evidence found at paragraphs 56 - 136 of the related Review proceedings and the summary of Medical Assessor Rapaport's assessment and paragraphs 30 - 41.

RE-EXAMINATION FINDINGS - MEDICAL ASSESSOR DIXON

1. The Panel adopts the re-examination findings of Medical Assessor Dixon in paragraphs

1. The Panel adopts the findings of causation of and the diagnoses of shoulder, cervical and lumbar spine injuries as contained in paragraphs 178 - 203 in the related Review proceedings.

1. Assessment of the spine requires consideration of Chapter three of AMA 4 Guides and the Motor Accident Guidelines. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 6.111 of the Guidelines).
2. The spine is divided (cl 6.131) into three regions: cervical, thoracic, and lumbar.
3. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.131). If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (6.132)
4. There are five diagnostic related categories, and a number of indicia provided. 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.
5. There are neurological descriptors and differentiators (for example radicular symptoms versus radicular signs) and structural inclusions (for example vertebral fractures) to be considered when determining which of the five diagnostic related categories a claimant's injury falls into.
6. One of the structural differentiators is "multilevel structural compromise" which is, as the name suggests, usually relevant where there is more than one spinal fracture at more than one level of the spine (cl 6.143). However, cl 6.145 provides that:

"Multilevel structural compromise also includes spinal fusion and intervertebral disc replacement."

1. Mr Senno has had a spinal fusion where the sixth cervical vertebra has been fused with the seventh. He has had his spine compromised by the surgery at two levels. This attracts a DRE of either IV or V in accordance with Table 70 at page 108 of the AMA 4 Guides as amended by Table 6.7 of the Guidelines.
2. Clause 6.151 provides that, multilevel vertebral fractures without radiculopathy attract a DRE IV impairment whereas if there is radiculopathy present a DRE category V impairment must be found.
3. Medical Assessor Dixon the definition of radiculopathy in cl 6.138 requires a finding of two or more of the following signs:

(a) loss or asymmetry of reflexes;

(b) positive sciatic nerve root tension signs;

(c) muscle atrophy and or decreased limb circumference;

(d) muscle weakness, and

(e) reproducible sensory loss.

1. The clinical examination of Mr Senno's cervical spine recorded at [164] - [167] of the reasons in the related Review proceedings reveals:

(a) equal reduction of reflexes;

(b) no positive sciatic nerve root tension signs;

(c) no muscle atrophy but decreased limb circumference (which the Medical Assessors note is not clinically significant in a right hand dominate person);

(d) no muscle weakness, and

(e) no sensory loss.

1. The claimant has one sign of radiculopathy (reflexes) in keeping with his myelopathy and surgery. He does not have two signs. Mr Senno is therefore assessed as having a DRE IV for the cervical spine which equates to a 25% WPI in accordance with Table 73 at page 110 of the AMA 4 Guides.
2. While Mr Senno had degenerative changes in his cervical spine and has had cervical symptoms in the past there is no "objective evidence" of a "pre-existing symptomatic permanent impairment" and therefore no grounds for the reduction of the current impairment in accordance with cl 6.31-6.33 of the Guidelines.

1. The claimant's lumbar spine was tender to palpation by Medical Assessor Dixon but there was no spasm or guarding. There were no radicular complaints or signs of radiculopathy recorded. The claimant's lumbar spine impairment is therefore assessed as DRE I which results in an impairment of 0%.
2. The claimant's right shoulder range of motion was restricted but the uninjured left shoulder was as restricted as the injured shoulder. The only clinical finding made by Medical Assessor Dixon at the re-examination was of some slight tenderness over the right shoulder. Shoulder motion testing was not accompanied by pain in the neck or the shoulders.
3. The Panel is not satisfied that there is any ongoing impairment in the right shoulder resulting from the soft tissue seat-belt injury caused by the accident. Any ongoing impairment in both shoulders is more likely to be caused by the claimant's unrelated degenerative shoulder condition (osteoarthritis). There is therefore no assessable impairment as a result of the accident.

1. The Panel's assessment of WPI is 25% made up as follows:

(a) cervical spine DRE IV = 25%

(b) lumbar spine DRE I = 0%

(c) right shoulder no assessable impairment

1. As the Panel has come to the same conclusion as Medical Assessor Kuru in relation to the cervical spine and shoulder but a different conclusion on causation in respect of the lower back injury it follows that his certificate should be revoked, and a fresh certificate issued.

[2] The current maximum as of October 2024 is $654,000.

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