This certificate is issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act)

1. The Review Panel revokes Medical Assessor Wijetunga's certificate dated 30 April 2024.
2. The Panel find the motor accident caused the following injuries:
   • lumbar spine - soft tissue injury with radiculopathy;
   • cervical spine - soft tissue injury with radiculopathy, and
   • thoracic spine - soft tissue injury.
3. The cervical spine and lumbar spine injuries are non-threshold injuries under the s 1.6(2) definition of the MAI Act.
4. The thoracic spine injury is a threshold injury under the s 1.6(2) definition of the MAI Act.

1. Mr Dragan Soldo (the claimant) was injured on 11 October 2019 in a motor vehicle accident. He alleges that the accident injured his cervical and lumbar spine among other injuries.
2. The insurer insured the owner and/or driver of the vehicle at fault for liability to pay to the claimant any statutory compensation under the Motor Accident Injuries Act 2017 (the MAI Act).
3. Mr Soldo lodged an application for personal injury benefits to claim statutory benefits under part 3 of the MAI Act for treatment and care benefits under Division 3.4.
4. The insurer issued a Liability Notice - Benefits After 26 Weeks on 16 March 2020 advising that liability for the payment of statutory benefits would cease on 11 April 2020. The insurer based that decision on the claimant having sustained a 'minor injury' under s 1.6 of the MAI Act in the accident.[1]
5. The claimant disputed that view and sought an internal review, which affirmed the earlier decision. The claimant applied to the Personal Injury Commission (Commission) to resolve this dispute following Schedule 2, s 2(e) of the MAI Act.
6. The Commission referred the following injuries to a Medical Assessor to resolve:
   • cervical spine;
   • thoracic spine, and
   • lumbar spine.
7. There was an earlier assessment and eventually Medical Assessor Wijetunga conducted a further medical assessment and produced a certificate dated 30 April 2024. Medical Assessor Wijetunga examined the claimant and assessed radiculopathy signs of the cervical spine being right arm tingling and numbness and muscle weakness.
8. She also decided that the lateral forces described in the accident was severe enough to cause neck and back pain.
9. However, the Medical Assessor found that there was no causal link with the accident and the radicular signs which would have satisfied the radiculopathy definition at cl 6.138 of the Motor Accident Guidelines v 9.2 (Guidelines). This was based on her perceiving there was a two year gap between accident and the first complaints of non-verifiable radicular complaints in the cervical spine.
10. She found that the accident caused soft tissue injuries to the cervical and lumbar spine injuries, and therefore these were threshold injuries for the purposes of the MAI Act.
11. The claimant applied to the Commission's President to refer Medical Assessor Wijetunga's certificate to a Review Panel (this Panel) within 28 days after the parties were issued with the original certificate.
12. On 25 June 2024, the President's delegate after considering the particulars set out in the application referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect.
13. The President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Wijetunga's certificate (the Review).

1. This is set out at Appendix A with reference to the the Motor Accident Guidelines (Guidelines) and authorities on causation.

1. On 20 August 2024, the Panel met via MS Teams.
2. The Panel considered all aspects of the assessment under review.
3. The Panel considered the question of when the claimant had demonstrated radiculopathy in the past in accordance with part 5.3 to 5.7 inclusive of the Guidelines and applying the decision in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227.
4. The Panel also discussed the apparent delay between the neck pain complaints after the accident and diagnoses of cervical radiculopathy 18 months later.
5. The Panel also discussed when the lumbar spine radiculopathy was first demonstrated.
6. The Panel decided to examine the claimant to ask him, among other issues, whether he had symptoms of cervical radiculopathy earlier than the first examination which diagnosed it.
7. Both Medical Assessors undertook to re-examine the claimant on 15 November 2024 at Hornsby, with a Croatian speaking interpreter.
8. The claimant provided the claimant's statement dated 18 September 2024 and submissions in response to the Panel's directions. These documents were accepted as being relevant to resolving the facts in issue.

1. The Panel considered the following documentation:

(a) Dr Oreb's certificates of capacity (three between 28 October and

24 December 2019), statement and clinical notes;

(b) Dr Robertson's report dated 21 November 2019;

(c) Application for personal injury benefits dated 29 November 2019;

(d) liability letter from insurer dated 16 March 2020 an application for review;

(e) insurer's minor injury reply submissions an annexure dated 1 October 2021;

(f) insurer's medical review reply submissions dated 28 October 2022;

(g) Medical Assessor Home's certificate dated 16 September 2022;

(h) claimant's submissions regarding further medical assessment;

(i) claimant's appeal submissions dated 28 May 2024;

(j) President's delegate's decision dated 25 June 2024;

(k) Medical Assessor Wijetunga's further assessment dated 30 April 2024;

(l) Dr Guirgis's reports dated 27 February 2020, 2 June 2020, 7 February 2023,

7 March 2023 and 24 July 2023;

(m) Associate Professor Schwartz's reports dated 25 May 2020 (two) and

21 February 2023;

(n) Dr Rotstein's report 21 February 2023;

(o) insurer's submissions dated 31 May 2023 and 12 December 2023, and

(p) insurer's reply submissions and annexures dated 19 June 2024:

(q) claimant's statement dated 18 September 2024 addressing when the claimant first experienced spinal symptoms.

1. The claimant's solicitors submitted to Medical Assessor Wijetunga that the claimant relied on Dr Guirgis's reports from 2023, Dr Rotstein's MRI cervical spine and lumbar spine reports dated 21 February 2023 and A/Prof Schwartz's report dated 21 February 2023 to establish the claimant's condition satisfied the non-threshold definition.
2. Medical Assessor Home had already assessed the claimant on 13 September 2022, which found that the claimant's injuries were minor. That Medical Assessor had not found the necessary disruption of tissue or signs of radiculopathy required under cl 5.8 of the Motor Accident Guidelines (the Guidelines).
3. The claimant relied on this evidence to establish the claimant's condition had degenerated to establish that he suffered radiculopathy as a result of the accident and it was capable of having a material effect on the outcome of the earlier assessment.
4. Pages four and five of Dr Guirgis's report dated 24 July 2023 confirms he found lumbar spine radiculopathy based on radiation in dermatomal distribution, muscle weakness and blunting of sensation in the nerve root territory. The claimant told the doctor about episodic radiation in the left arm in the C6 distribution and persistent radiation down the right leg and and L5 distribution. He felt this pain at night especially.
5. Dr Guirgis also described at page five of the report right C6/7 radiculopathy and right L5 radiculopathy, based on muscle weakness, radiation, nerve sluggishness and sensation blunting in C6 and right L5 nerve root territory.
6. The claimant also referred to Dr Guirgis reports dated 7 February and 7 March 2023 which referred to loss or asymmetry of reflexes, muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution and reproducible sensory loss that is anatomically localised to an appropriate nerve root distribution, which satisfy the Guidelines definition of radiculopathy.
7. The MRI and A/Prof Schwartz's report dated 21 February 2023 also support a radiculopathy diagnosis. The MRI report dated 21 February 2023 showed moderate right C5/6 from foraminal stenosis due to joint spurring compressing the right C6 nerves. There was an MRI in 2019 that showed "contact" at the exiting right C6 nerve root while the 2023 MRI found "bilateral compression of the exiting C6 nerves".
8. The claimant submits the accident is the only significant injurious event, which could have caused or contributed to the worsening the claimant's condition. It does not have to be a sole cause, just more than negligible.
9. In respect of the lumbar spine the claimant submitted that the MRI dated 21 February 2023 demonstrated at L5 "significant degeneration compared to the claimant's prior MRI of 15 November 2019". It was also at L5/S1 moderate broad-based disc protrusion, with endplate changes and displacement with the exiting bilateral L5 nerve roots. The 2023 MRI showed deterioration at that point.
10. Dr Guirgis' report dated 7 February 2023 commented that those findings caused the claimant's L5 radiculopathy symptoms.
11. There were also desiccation at L2/3, disc protrusion at L3/4.

1. The insurer submits that the claimed injuries are threshold injuries in accordance with the MAI Act.
2. The insurer submits the evidence does not support the claimant sustaining an injury in the accident that would fall outside the definition of a soft tissue injury.
3. The relevant claimant's history was right shoulder injury on 16 May 2005 (ultrasound showed no abnormality); moderate thoracic spine spondylosis with mild osteoporosis and slight anterior wedging of several meant dorsal bodies with reduction in height and kyphosis.
4. Clinical records show the last relevant complaint about lower back pain was on

11 September 2017. The insurer submits these items must be considered in respect of causation. 5. The insurer refers to a lack of complaints about the cervical spine at the hospital as supporting that proposition. It submits it is questionable whether the accident could have contributed materially to the claimant's cervical and lumbar spine spine injury. 6. The hospital records dated 11 October 2019 (R5) reveal the claimant reported upper thoracic and lower back pain several hours after the accident but there was no cervical spine pain complaints. Examination did not reveal any injuries at the claimant's four limbs and the cervical spine was not tender. The thoracic spine was tender in the upper aspect and the lumbar spine was mildly tender at the LS junction but there were nil focal neurological deficits. Lumbar and thoracic spine X-rays did not reveal fractures. The impression was of a soft tissue injury to the back which constitutes a threshold injury under the MAI Act.

1. Mr Soldo was reassessed at Hornsby by Medical Assessors Barnsley and Cameron on

15 November 2024. An accredited Croatian interpreter attended to assist the claimant and the Medical Assessors. 2. The Medical Assessors explained the reasons for the re-examination.

1. Mr Soldo said that he was previously healthy and had worked as a construction carpenter for 25 years.
2. It was brought to Mr Soldo's attention that the general practitioner records showed treatment for back pain before the accident.
3. He said that there had been a problem with the back as a result of a work incident. He said that was about 20 years previously. It was also brought to Mr Soldo's attention that there was an incident in 2017. Mr Soldo said that was a problem with the right shoulder. He was working on scaffolding. Mr Soldo said that it recovered.
4. Mr Soldo said that he did not have musculoskeletal problems immediately before the accident. He said he took Coveram, Minax, Crestor and Cartia for his cardiac condition since approximately 2012.

1. On 11 September 2019, Mr Soldo was driving his Renault Meganne home from work. He was driving in Lidcombe on a three lane road in the left lane. Another vehicle crossed into his lane from the right and side swiped the driver's side of his vehicle.
2. Mr Soldo said that he immediately had back pain for a short time. He also said that there was neck pain which started shortly after the accident. On specific questioning he denied any limb symptoms at that time.
3. Mr Soldo said that he exited the car after several minutes. He then started the car and drove home. At home his wife wanted him to go to hospital.
4. Mr Soldo attended hospital the day after the accident by which time he had developed recurrence of the initial low back and neck pain. He was not admitted to hospital but was investigated and discharged.
5. Mr Soldo said pins and needles started in the legs soon after the accident.
6. The first consultation with the general practitioner was with Dr Oreb for neck and back pain soon after the hospital discharged him. Dr Oreb referred the claimant to orthopaedic surgeon Dr Medhat Girguis.
7. His neck and low back pain persisted. About two to three months after the accident he developed right shoulder pain and pins and needles in the right arm. Mr Soldo stated that there were no symptoms in the left arm.
8. He tried some treatment with physiotherapy, which aggravated the pain.

1. Mr Soldo complains of neck and right shoulder region pain. There is no current pain in limbs except minor pain on the right side.
2. Mr Soldo says that it is hard to sleep due to neck pain (lower cervical spine posteriorly) and right shoulder pain. He also said that standing and sitting are difficult.
3. Current medications include Endone, Meloxicam, Zoloft, Panadeine Forte and others.
4. Mr Soldo is not working and has no income. His wife financially supports him.
5. Dr Oreb is still his general practitioner. The claimant consulted neurologist Dr Raymond Schwartz in early 2020.
6. Mr Soldo is not driving due to the potential side effects of medications.

1. Mr Soldo is right handed, 168cm in height and weighs 87kg.
2. At the lumbar spine there was no guarding or spasm, but tenderness was detected.
3. Lumbar spine movements were flexion 50%, extension 0% and lateral bending was asymmetric - 50% to right and 75% to left.
4. Straight leg raising was to 30 degrees on the right and to 60 degrees on the left with negative sciatic nerve stretch test bilaterally.
5. There was normal muscle power in legs with give-way weakness on the right due to back pain.
6. His lower limb reflexes were intact and symmetrical. There was no dermatomal sensory abnormality, but Mr Soldo reported global subjective sensory change in the right lower limb.
7. The circumferences of the lower extremities were above knee left 54cm and right 53cm; below knee left 40cm and right 40cm.
8. Thoracic spine movements were symmetrical to 50% or normal. There was no spasm or guarding in the thoracic spinal musculature, and no sensory changes over the chest wall.
9. Cervical spine movements were rotation to 50% bilaterally, flexion 50% extension 25%, lateral flexion 50%. There was tenderness reported over the cervical spine posteriorly. Spurling's test was negative . There was no guarding or spasm.
10. No neurological deficit was detected in the upper extremities. In particular, there was normal power in his handgrip, wrist extension and flexion, and elbow flexion and extension. Biceps, triceps, brachioradialis and finger jerks were assessed. There was diffuse, non-dermatomal subjectively altered perception of light touch sensation reported in the right upper extremity.
11. Circumferences of the upper extremities were above elbow left 31.5cm and right 32cm; below elbow left 28cm and right 29cm.
12. There was no shoulder muscle wasting.
13. At the left shoulder range of movement was flexion 160 degrees, extension 60 degrees, abduction 140 degrees, adduction 40 degrees, external rotation 80 degrees, internal rotation 90 degrees.
14. At the right shoulder range of movement was flexion 110 degrees, extension 40 degrees, abduction 100 degrees, adduction 30 degrees, external rotation 70 degrees, internal rotation 60 degrees. These movements were limited by pain.

1. The Panel was satisfied that the Medical Assessors' examination satisfied the Guidelines cl 5.6 because the Medical Assessors obtained a comprehensive accurate history, reviewed all the relevant records, were able to describe the claimant's current symptoms, and performed a careful and thorough examination.
2. The Panel must satisfy itself there is sufficient evidence that would allow the Panel to feel persuaded that the claimant's injuries probably occurred in the accident. This is in line with the authorities referred to in Appendix A.
3. The Panel's Medical Assessors agreed it was medically feasible that the accident mechanism as described was sufficient to cause cervical, thoracic and lumbar spine injuries.
4. The Medical Assessors confirmed the claimant behaved consistently and cooperated with the examination. There were no inconsistencies to put to him about previous assessments or observations and he answered the questions about the insurer's references to his lower back and right shoulder satisfactorily.
5. The re-examination and the claimant's statement established that he was experiencing radicular symptoms soon after the accident. However, during the Panel's re-examination the Medical Assessors did not detect current verifiable radiculopathy signs as defined in the Guidelines.
6. The lumbar spine radicular symptoms started immediately after the accident and the cervical spine radicular symptoms soon after . These symptoms remain constant until two years later when Dr Guirgis found radiculopathy.
7. The Panel was satisfied that the accident caused the claimant to experience at least non verifiable radicular complaints, because these relevant complaints were experienced soon after the accident and they had continued.
8. There were relevant pre-accident degenerative changes evident in scans taken soon after the accident, but the claimant was asymptomatic up to the accident.
9. The Panel considered the insurer's submissions dated 1 October 2021 to the original Medical Assessor at paragraphs 6 and 7, which listed the claimant's musculoskeletal problems before the accidents and questioned the claimant accordingly. Although he had previous complaints arising from work, these had resolved, were not related to his cervical spine, and he had been symptom free for at least a year before this accident.
10. The Panel considered David v Allianz Australia Insurance Ltd, at [84 - 105] where that Panel considered the issue of "whether an injury is not a minor injury if radiculopathy is present at any time following injury."
11. The David's Panel found at [104] that if anexamination which complies with cl 5.5 after the subject accident finds that there are at least two clinical signs of radiculopathy that comply with cl 5.6 of the Guidelines, then the injury falls outside the definition of 'a threshold injury'.
12. The Panel considered Guidelines cl 5.8 and whether two or more clinical signs of radiculopathy were detected together at the same time since the accident during another examination, which complied with cl 5.6.

1. The Panel notes that the claimant relies on disc desiccation at the C6/7 disc, not the C5/6 disc and the radiculopathy is at C6. To the Panel it is an unlikely premise that disc desiccation was caused by the accident in this situation because it is a sign of degeneration rather than traumatic change. The Panel finds that by itself disc desiccation caused by the accident alone would not meet the criteria for a non-threshold injury.
2. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligament, menisci or cartilage.
3. This matched the earlier threshold injury certificates by Medical Assessor Home dated

13 September 2022 and Medical Assessor Wijetunga. 4. However, the available medical records establish that cervical spine radiculopathy, as defined in the Guidelines, has been present during examinations after the subject motor accident. 5. The claimant's work history was physical labour for 25 years before the accident without any neck issues. 6. The claimant told the Panel that he felt neck pain without reference to his limbs soon after accident. A/Prof Schwartz records he was discharged from hospital a day after the accident with a neck collar. The insurer states the hospital discharge summary does not refer to neck pain, but the Panel could not locate that summary in the parties' bundles. 7. However, Mr Soldo included a reference to the neck in his application for personal injury benefits dated 29 November 2019. 8. Neurologist Dr Raymond Schwartz examined the claimant and reported on 25 May 2020 that he accepted the nexus between the accident and the claimant's symptoms which was "accompanied by cervical and lumbar radiculopathies". Further, he predicted the trajectory of the cervical condition when he opined that although the claimant's upper limbs were not presently showing "significant radicular symptoms" in his upper limbs the specialist wanted to treat those parts because he was concerned this could change. 9. The claimant's statement dated 18 September 2024 states one to two months after the accident he experienced stiffness between his neck and shoulders plus numbness with pins and needles in both shoulders and his left arm. There were no intervening events between the accident and when the claimant first experienced radicular symptoms. 10. The relevant examinations for cervical radiculopathy that satisfies the cl 5.8 definition are:

(a) The latest Dr Guirgis' report dated 24 July 2023 stating:

"Clinical examination showed signs of right C6/7 radiculopathy and of right LS radiculopathy. On the right side there was Grade IV weakness in the muscle predominantly innervated by the C6 nerve root namely the wrist extension; the right brachioradialis reflex was sluggish; and there was demonstrable blunting of sensation in the right C6 nerve root territory including the thumb & index finger."

(b) Unlike Medical Assessor Home, Medical Assessor Wijetunga's certificate and reasons dated 30 April 2024 found the claimant's cervical spine had dysmetria reduced flexion, reduced brachioradialis reflex (C5/C)and reduced sensation of the thumb and hypothenar eminence (C6) corresponding to the right thumb.

1. The Panel accepts the nexus between the cervical radiculopathy assessed and the accident because the Panel accepts that the cervical radicular symptoms have been constant since the accident, rather than two years after the accident as Medical Assessor Wijetunga found.
2. The Panel accepted that the neck symptoms were sufficiently contemporaneous to the accident event to establish a nexus, even if the discharge notes did not refer to neck pain.
3. The Panel - based on the entire gamut of the Medical Assessors' skill and experience - also acknowledges that the occurrence of at least two clinical signs of radiculopathy at the same time can vary in each presentation.
4. The Panel finds the cervical spine injury non threshold under the s 1.6(2) MAI Act definition.

1. The claimant has had lumbar spine symptoms since the accident, which has been generally characterised as a soft tissue aggravation of a degenerative condition.
2. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligament, menisci or cartilage.
3. The Panel's examination did not elicit radicular symptoms that would satisfy the s 1.6(2) MAI Act definition for non-threshold injury.
4. The only available medical records that purport to demonstrate a lumber spine radiculopathy, as defined in the Guidelines, is Dr Guirgis' report dated 24 July 2023 after he examined

"Normal lumbar Iordosis lost; restriction in the active range of movements 1/2 flexion/extension, and 2/3 side-flexion & rotation to the right and 1/3 side side-flexion & rotation to the left with guarding on trying to move beyond this range,, and SLR: positive on the right at 50; and possible on the left to 70; tension signs positive on the right side, symptoms and signs of right LS radicular involvement including Grade IV weakness of the right Extensor Hallucis Longus and blunting of sensation in the right L5 territory... Clinical examination of the spine was not much different from my earlier findings. The only significant difference was the demonstration of signs of right L5 radiculopathy. On the right side there was Grade IV weakness of the muscles within the L5 myotome including the extensor hallucis Iongus (big toe extensor) and the extensor digitorum (heel walk). There was blunting of sensation in the right 5 nerve root territory. The reflexes were normal."

1. The Panel finds that this examination was sufficient to establish the claimant has experienced accident related radiculopathy in the lumbar spine because it satisfies the Guidelines definition of a compliant examination.

1. The claimant has had thoracic spine symptoms since the accident, which has been generally accepted as a soft tissue aggravation of a degenerative condition.
2. There is no challenge to Medical Assessor Wijetunga's findings that it is a soft tissue injury. This is a threshold injury.

1. Mr Soldo has established the accident caused him to suffer radiculopathy at C6 and L5 in the lumbar spine, which are non-threshold injuries. The Panel revokes Medical Assessor Wijetunga's certificate dated 30 April 2024 because our examination had a different clinical finding and for the reasons given.
2. All the injuries referred to the Panel for assessment have been assessed and determined as caused by the motor accident.

The Motor Accident Injuries Amendment Bill 2022 amended the MAI Act so that from 1 April 2023 the term "threshold" substitutes for "minor". The terms are interchangeable. This decision will retain the former term when talking about Medical Assessor Woo's decision and the insurer's earlier decision, but the current term will be used when addressing our certificate.

At the time this dispute became apparent s 1.6 of the MAI Act defined a minor injury to include a "soft tissue injury" or a "threshold psychological or psychiatric 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."

Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, clause 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include "an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)" and an acute stress disorder and an adjustment disorder.

Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on

1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

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

5.4 Diagnostic imaging is not considered necessary to assess the threshold injury.

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

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

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

a review of all relevant records available at the assessment

a comprehensive description of the injured person's current symptoms

a careful and thorough physical and/or psychological examination

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

Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.

"In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential."

Radiculopathy is defined in clause 5.8 of the Guidelines as follows:

"Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with 'Part 6 of the Motor Accident Guidelines: Permanent impairment'.

(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(e) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution."

Neurological symptoms that do not meet the assessment criteria for radiculopathy means the injury will be assessed as a threshold injury.

Relevant to assessing evidence of injuries to the nerves, complete or partial rupture of tendons, ligament, menisci or cartilage. In _Momand v Allianz Australia Insurance Lim_ited [2023] NSWSC 1014 at [69] Harrison AsJ stated:

"It is my view that the Assessor misdirected himself when he omitted to consider the entirety of the findings of the MRI scan to the plaintiff's cervical spine, namely, an assessment of the individual disc levels throughout the cervical spine is notable for broad-based disc protrusion at C5/C6. This indents the ventral thecal sac and is not associated with central canal compromise. Had he fully appreciated the report of the MRI scan to the plaintiff's cervical spine, he would have appreciated that there was a disc protrusion at C5/C6 and this indents the ventral sac. The ventral sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material. This injury is not one that falls within the definition of a minor injury. In any event, the assessor did explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, were injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. This ground of review was raised before the delegate."

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 merit reviewer or a Medical Assessor.

Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were threshold or satisfying the threshold as defined under the MAI Act.

The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh.

The Review Panel adopts the reasoning in David v Allianz Australia Ltd that radiculopathy can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.

We also adopt the reasoning in Lynch v AAI Ltd that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.

The rules of evidence do not apply to this Review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.

Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.

However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a threshold injury, it is unclear and unlikely the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment apply to assessing causation in threshold injury disputes. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.

In order to promote consistency and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in clauses 6.6 and 6.7 of the Guidelines.

Part 6 of the Guidelines dealing with permanent impairment states:

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

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

2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

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

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

Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:

(a) loss or asymmetry of reflexes;

(b) positive sciatic nerve root tension signs;

(c) muscle atrophy and/or decreased limb circumference;

(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was "well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D".

Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated "common law principles of causation. "Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.

The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:

"One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:

"70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

'138 Whether the Hospital's negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce's worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

'An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference'.'

71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

'... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.'

Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140]."

These observations were made in the context of a review Panel of three medical experts unlike the present Panel's composition following amendments to the MAC and MAI Acts.

[1] The MAI Act was amended to change this to "threshold".