1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[8] In Raina v CIC Allianz Insurance Ltd[9] 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."

1. Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
2. Clause 6.7 of the Guidelines provides:

"There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible."

1. The Medical Assessor assessed permanent impairment at 5% based on the C2 fracture.
2. The reason of causation of injuries provided by the Medical Assessor were:

"In the motor vehicle crash on 12 June 2021 Ms Searle sustained a fracture of C2 and a metacarpal fracture at the right hand.

There is no C6 fracture documented in the information provided.

Ms Searle did not sustain a significant traumatic brain injury in the subject motor vehicle crash. There is no medically verified abnormality in Glasgow Coma Score due to brain injury, no post traumatic amnesia and no brain imaging abnormality consistent with traumatic brain injury.

The records do not support that there was a significant traumatic brain injury in the motor vehicle crash in 2014. Ms Searle did sustain significant injuries in that crash. There are complex subsequent psychiatric issues. There is also opioid dependency."

1. In respect of the assessment of the C2 fracture, the Medical Assessor stated:

"C2 is an atypical vertebra. Ms Searle has had a fracture of the dens of C2 which has healed with slight displacement. The dens is a part of the vertebral body of C2. It is mentioned in one report that the dens fracture extended into an articular process of C2 which is a 'posterior element'. However, that is not mentioned in the imaging reports contemporaneous with the motor vehicle crash and there is no evidence that component of the articular process fracture is displaced. Therefore, the evaluation of permanent impairment is with reference to section 3.3h page 104 AMA4. The relevant statements are with reference to DRE II 5% WPI. There has been a vertebral body fracture with less than 25% compression and the posterior element fracture has healed 'without loss of structural integrity or radiculopathy'. There is no evidence that the spinal canal is disrupted."

1. The Medical Assessor concluded that there was no loss of range of motion associated with the fifth metacarpal fracture of the right hand.

1. The Panel convened following the provision of bundles by the parties.
2. On 16 December 2025 the Panel the issued the following direction:

"The Panel notes that it may be able to assess the review on the papers.

In respect of the assessment of the cervical spine, we require access to the cervical spine CT scan dated 13 June 2021 (Lismore Base Hospital) and the MRI scan of the cervical spine dated 21 December 2021 (Beachside Radiology). Access to the radiology is required to determine the issue of whether there is any 'spinal canal displacement' (see AMA 4, Table 70, page 108) or 'spinal canal deformity' (see Table 6.7 of the Guidelines). The claimant may need to either request a link from the organisations and/or request a USB copy of the electronic imaging.

The Panel is otherwise of the view that we can assess the purported brain injury on the papers based on the extensive hospital records.

With respect to the fracture of the fifth metacarpal the parties are to advise whether we can accept the clinical findings of the Medical Assessor given the absence of asserted error of assessment of that body part.

The parties are to advise whether they consent to this course by close of business, 22 December 2025. We accept that it may take the claimant longer than this period to obtain the electronic imaging referenced above."

1. The parties advised the Panel that they accepted the course suggested in the direction. The claimant advised that they were taking steps to obtain the scans. These scans were provided and they have been viewed by the Medical Assessors on the Panel.

1. The parties filed bundle of documents for the Panel's consideration.

1. The claimant suffered significant injuries in a motor accident in September 2014. The injuries included a brain injury, C5 fracture, broken right arm, broken pelvis and psychological injury.[10]
2. Dr Neil Cleaver, orthopaedic surgeon, was qualified by the claimant for the 2014 motor accident and provided a report dated 30 December 2018.[11] The doctor noted significant reduced range of motion in the cervical spine and C5 fracture assessable as DRE Category II. Other assessments were made for the significant orthopaedic injuries suffered in the 2014 motor accident.
3. Dr Synnott, psychiatrist, provided a report dated 30 April 2019 assessing significant loss of function caused by the psychiatric condition.[12]
4. Dr Peter Rawling, neuropsychologist provided a report dated 11 February 2019.[13] He concluded that any loss of consciousness in the original accident was "momentary" and it was unlikely that there was a head injury "of any significance".

"C/T single vehicle rollover. O/A police and other emergency services on scene. Vehicle on roof. 3 pts outside vehicle. Pts triage and prioritised until further ambulance services on scene. Pt Natasha laying supine on side of road. Pt states she was rear seat passenger, Pt unable to recall events., recalls leaving from Lismore... O/E pt alert, not orientated to time place and location. Pt amnesic to events, PEARL. Pt complaining of central neck pain. ... Pt presented with minor contusions to forehead and bleeding from mouth."

1. The police report records the insured vehicle left the roadway for unknown reasons, collided with an embankment before becoming airborne and landing on the roof in the middle of the road.[15] All passengers exited the vehicle with "minor injuries".
2. The Lismore Hospital records note the history of presenting complaint as:[16]

- reportedly high speed MVA- roll-over down embankment

Complaining of right shoulder, upper vertebral + right ankle pain

- noted blood to face and mouth - mildly drowsy (GCS 14)"

1. The clinical notes at 2.50 am on 13 June 2021 record:[17]

"Pt stable and settled. GCS 14 - eyes open to voice."

1. There is also a reference to GCS14/15 PEARL 3 mm sluggish"[18] and AWAPTAS commenced.[19]
2. The principal diagnosis was close fracture of neck of fifth metacarpal, opiate misuse and Type III fracture of dens.
3. The CT scan of the head dated 13 June 2021 showed no acute intracranial haemorrhage and no skull fracture.[20] The right ankle and right elbow X-rays were normal.[21]
4. The CT scan of the cervical spine dated 13 June 2021 showed a fracture of the dens with overlap of fracture fragment measuring 3 mm and a fracture involving the right pedicle of C2 extending to the articular process.[22] Dr Wittram concluded that there was a displaced fracture of C2.
5. The progress notes on 13 June 2021 at 8.00 am recoded "stable HD and GCS 15 on arrival".[23]
6. Hospital progress notes record the following:[24]

Patient difficult to rouse ATOR; Nodding off during review

Unable to recall events from incident; unable to recall date or location, oriented to year

NS noting concern re: finding of white poweders [sic] in patient possession [sic]

NS noting confrontation between patient and current partner"

1. The clinical notes, potentially at 7.22 am on 13 June 2021 record:[25]

1. On 13 June 2021 the clinical notes refer to a history of drug abuse and recent methamphetamine use.[26]
2. On 14 June 2021 the nurse noted the claimant's handbag included two bottles of clonazepam, two wafers of suboxone and a plastic bag with what appeared to be LSD tablets and a used pipe for smoking meth.[27]
3. An X-ray of the right hand dated 16 June 2021 showed s comminuted fracture extending through the fifth metacarpal diaphysis.[28]
4. On admission to the Queensland Hospital the claimant was noted to be "mildly drowsy - GCS 14".[29]
5. The X-ray of the cervical spine dated 17 June 2021 showed horizontal fracture of the odontoid base with retropulsion of the distal fragment by 3 mm unchanged relative to the MRI scan.[30]
6. The Discharge summary from Princess Alexandra Hospital dated 24 June 2021 C2 odontoid type 2 fracture and right fifth metacarpal fracture.[31] The final report, when the claimant was discharged at 3.00 pm noted the claimant "alert and oriented GCS 15".[32]
7. The undated claim form states that the claimant was a back seat passenger, has little if any memory of the accident and remembers lying on the road. The claimant stated that she suffered a broken neck at C2 and C6, broken right hand, various lacerations and further brain injury.[33]
8. On admission to Princess Alexandra Hospital the claimant was noted to be "rousable but can't stay awake" and "sometimes doesn't reply back".[34]
9. On 16 June 2021 the Registrar noted:[35]

Unclear on duration and last use of Targin & Lyrica

Patient confirmed doses 40/20 mg BD Targin and 300 mg BD Lyrica

Also some suboxone use as per pharmacist admission history"

1. On 24 June 2021 the occupational therapist completed the ACE-III with an aggregate score of 68/100. The following was noted:[36]

"OT impression Natasha's occupational performance on ward very much exceeds her scores on formal assessment. Pt demonstrates appropriate day-to-day recall for recent events, appears organised at her bedside, independently completes her cares and can discuss her discharge plan to Amanda's in appropriate detail."

1. The final report for the addiction medicine nurse dated 24 June 2021 noted the following:[37]

"The acute withdrawal symptoms from Methamphetamine can be both physical, mental and behavioural these can last for a few days or a few weeks but the physical symptoms are over within a 12-72 hour period depending on the length of time a person been using.

This level of sedation is not common with methamphetamine withdrawal, her opioid use maybe more opportunistic rather than daily and the combination of sedatives more likely the reasons for sedation level."

1. The MRI scan dated 22 December 2021 showed a cortical deformity at C2 consistent with an old fracture and a minor C5/6 grade 1 spondylolisthesis.[38]
2. An X-ray of the cervical spine dated 22 February 2023 showed mild degenerative disc disease including a 3 mm opacity adjacent to the inferior endplate of the C5 vertebral body.[39]
3. The GP records in 2023 noted opioid dependency and need to reduce medication.[40]

Claimant's statement dated 9 February 2024[41]

1. The claimant stated that she did not remember the accident and was taken to Lismore Hospital and then onto Brisbane. The statement otherwise discusses reasons for the delay in making a claim.

1. Dr Murray Hyde Page was qualified by the claimant and provided a report dated

24 June 2024. The doctor opined that the motor accident caused a displaced C2 fracture involving the dens, and a right fifth metacarpal fracture which healed uneventfully except for some ulnar deviation of the fifth finger. The doctor noted that the claimant suffered a head and brain injury which was outside his area of expertise. 2. Dr Hyde Page assessed no loss of impairment due to the minor ulnar deviation of the little finger. In respect of the C2 fracture, the doctor diagnosed a posterior element fracture with some spinal canal deformity including the dens and pedicle which had healed and was now stable. This was assessed as DRE Category III (15% WPI).

1. Medical Assessor Mason found that the motor accident caused an exacerbation of post-traumatic stress disorder and assessment impairment of the psychological injury at 7%.[42]

Claimant's submissions dated 29 October 2025[43]

1. These submissions were filed seeking leave to review of the medical assessment.
2. With respect to the assessment of brain injury, the claimant referred to the clinical records from Lismore Base Hospital which show:
   • patient amnesic to events and mildly drowsy (GCS 14) (pg 273);
   • unable to recall events from incident, unable to recall date of location, oriented to year (pg 287);
   • GCS 14 - eyes open to speech (pg 295), and
   • Fluctuant GCS - amnesic to events. GCS 14/15. PEARL 3, sluggish (pg 307).
3. The claimant referred to the obvious head injury with blood found in the face and mouth and the cervical spine fracture submitting, in light of the clinical records that a concussion had occurred. He submitted that the Medical Assessor erred in concluding that there was no verifiable abnormality ion the Glascow Coma Scale.
4. The claimant submitted that the Medical Assessor erred in the assessment of the cervical spine referring to the MRI of the spine dated 15 June 2021 and the CT scan of the cervical spine dated 13 June 2021. These scans showed contemporaneous evidence of an extension into the posterior element and were inconsistent with the Medical Assessor's findings.
5. The claimant referred to the opinion of Dr Murray Hyde Page dated 24 June 2024 which concluded that there posterior fracture at C2 with canal deformity.
6. The claimant referred to AMA4 at page 104 and submitted that this evidence satisfied DRE Category III.

Claimant's submissions dated 5 June 2024[44]

1. These submissions were lodged with the original medical assessment. The claimant noted the significant hospitalisation for the serious injuries sustained in the motor accident.

Insurer's submissions dated 12 May 2025[45]

1. The insurer referred to the prior 2014 motor accident which included a head injury and fractured cervical spine at C5.
2. The insurer noted criminal charges following an incident in December 2017 and that understood the claimant was found not guilty "on mental health grounds".
3. Cognitive difficulties were noted by Dr Todman (neurologist) and Mr Rawling who administered neuropsychological testing. It submitted that there was:[46]

"[A] relevant body of evidence relating to physical and psychiatric permanent impairment predating the subject accident which ... should be borne in mind when considering whether the subject accident has caused any additional degree of impairment."

1. The insurer referred to injuries and condition between the earlier motor accident and the subject motor accident including reference to opioid dependence in 2018.
2. It is unnecessary to repeat the submissions pertaining to the psychiatric injury.
3. The insurer referred to the opinion of Dr Murray Hyde Page who assessed the C2 injury as DRE category III based on posterior element fracture with some spinal canal deformity including into the dens and pedicle.
4. The insurer challenged the assessment based on the absence of radiculopathy. It submitted that Table 6.7 applies and the claimant was properly assessed as DRE Category II.
5. The insurer submitted that the claimant had a "long history of neck pain and stiffness." It noted the findings of Dr Cleaver in December 2018 of loss of range of motion around C5 and C6 and submitted that "the claimant's neck pain and restrictions were well entrenched at the time of his assessment" and "it would be necessary to make some attribution of WPI from the persisting effects of the 2014 accident".
6. The insurer submitted that there was no assessable impairment due to the finger fracture and submitted that it should not be included in the assessment of the degree of permanent impairment.

Insurer's submissions dated 26 September 2025[47]

1. These submissions opposed leave to review the medical assessment.
2. The insurer submitted the Medical assessor's reasons were a "paraphrase of clause 6.164 of the Guidelines". It submitted that there was no initial post injury GCS, or a medically verified period of post-traumatic amnesia or of any brain imaging abnormality.
3. The insurer submitted there were "many reasons" why a GCS may fall particularly in the context of the administration of medication to manage orthopaedic injuries.
4. The insurer referred to Table 6.7 of AMA 4 and submitted that posterior element fracture, healed, stable, with no dislocation or radiculopathy is properly classified as DRE category II. It noted that a proper evaluation required examination of the radiology after the fracture had healed.
5. The insurer submitted that the Medical Assessor considered the MRI scan dated

21 December 2021 reportedly showing cortical deformity of the C2 body without evidence of marrow oedema and his comment that there was no evidence of displacement of the articular fracture was correct.

Insurer's submissions dated 7 November 2025[48]

1. These submissions repeated in part the earlier submissions opposing the application to review.

1. The review is by way of new assessment of all matters with which the medical assessment is concerned.[49] The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[50]
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[51] and Insurance Australia Ltd v Marsh.[52]

Construction of relevant Guidelines and assessment of C2 fracture

1. We accept that the claimant's cervical spine injury must be assessed under Table 6.7. We reject the insurer's submissions on the construction of Table 6.7 of the Guidelines for the following reasons.
2. The two criteria for assessment of DRE Category II where there is a fracture are:
   • posterior element fracture, healed, stable, no dislocation or radiculopathy, and
   • transverse or spinous process fracture with displacement of fragment, healed, stable.
3. A posterior element fracture "with canal deformity or radiculopathy, stable, healed" is assessed as DRE Category III.
4. The difference between the two assessments is classifying whether the fracture is "posterior" or "transverse or spinous". Where the fracture is a "posterior element fracture" and there is "canal deformity" then the assessment is DRE Category III.
5. However, a transverse or spinous fracture with displacement is classified as DRE Category II. This is confirmed by cl 6.149 of the Guidelines because the displacement of a transverse or spinous process cannot disrupt the spinal canal.
6. The C2 vertebra is an atypical vertebra as it does not have the usual anatomical configuration of C3 and below. It does not matter for assessment purposes whether the fracture is posterior or anterior due to the atypical anatomy specific to the vertebra. The dens, also referred to as the peg, is effectively the "body" of the C2 vertebra. A type 3 fracture involves the dens which also extends to the adjacent facet joints at C1/2. The dens is at the front articulating with the anterior arch of the atlas (C1), though the fracture involving the dens, extends laterally to the C1/2 facet joints so technically a type 3 dens fracture is one starting at the front which extends sideways to the facet joints. Accordingly, the fracture is a posterior element fracture. However, the determining factor is whether there is a "step" into the spinal canal residual from the comminuted dens fracture with reported acute retropulsion which means there will be a spinal canal deformity.
7. The determination of the whole person impairment rating for spinal injuries requires the application of Table 6.7 of the Guidelines and clause 6.125. Clause 6.125 of the Guidelines provides:

"To determine the correct diagnosis-related estimates (DRE) category, the medical assessor may start with Table 6.7 in these Guidelines, and use this table in conjunction with the DRE descriptors (pages 102-107, AMA4 Guides), as clarified by the definitions in Table 6.8 (above), with the following amendments to pages 102-107 of the AMA4 Guides."

1. There is no dispute that the claimant has suffered a fracture of C2 in the subject accident. The determination of the correct DRE classification is dependent upon associated features outlined in Table 6.7 and qualified by the DRE descriptors in the Guidelines referenced above.
2. These differentiators are specifically:

(a) the degree of any compression of a vertebral body;

(b) the stability of the fracture;

(c) whether the fracture has healed;

(d) whether there is radiculopathy;

(e) the involvement or otherwise of the posterior elements of the vertebra, and

1. The available imaging, including the plain X-rays of 22 February 2023, do not show any compression fracture of the C2 vertebral body that could be considered in excess of 25%. This differentiator therefore does not apply.
2. There is no evidence in the reviewed documentation that the fracture is unstable or has not healed.
3. For radiculopathy to be present, two or more of the following features need to be present:
   • loss or asymmetry of reflexes;
   • positive sciatic nerve root tension signs;
   • muscle atrophy and/or decreased limb circumference;
   • muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
   • reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
4. The relevant nerve root in this case would be C2. It serves no assessable muscle strength; any innervated muscles are unable to be assessed for wasting using the prescribed limb measurements or assessments of atrophy. This level subserves no assessable reflex, and its compression or compromise does not cause any change in sciatic nerve-root tension signs. The only assessable component of C2 radiculopathy is a loss of sensation. Even if this were present, the requirement for two or more prescribed signs of radiculopathy cannot be met at C2. Therefore, for the purposes of the application of the Guidelines, there are no two signs of C2 radiculopathy.
5. The remaining differentiators are the involvement of posterior elements other than the transverse or spinous processes, and the presence or absence of any resulting spinal canal deformity.
6. The Medical Assessors on the Panel have reviewed the CT scans of the cervical scan taken on 13 June 2021. These confirm the fracture of the odontoid peg. On the sagittal views there is a clear step at the base of the fractured odontoid. There is loss of the smooth curve on the anterior and posterior vertebral lines and the spino-laminar line between C1 and C2. These lines are used to confirm the normal alignment of the individual components of the spinal canal. They should be smooth curves. There is therefore disruption of the spinal canal which is a structural inclusion for DRE cervical category III.
7. The MRI scan images of 21 December 2021 have been provided in PDF form. The PDF format was not an ideal means of viewing the bony components of the spinal canal.
8. Although not reported in the report, the lateral view of the X-ray dated 22 February 2023 shows persistent deformity of the spinal canal at C2.
9. Accordingly, given the confirmed presence of disruption of the spinal canal from viewing the radiology, we are satisfied that the claimant has a present deformity of the spinal canal caused by the C2 fracture.
10. Our conclusion is different from the original Medical Assessor. This is because the Medical Assessors on the Panel, with relevant expertise, have viewed the actual scans and seen the spinal canal deformity. This conclusion obviously differs from the conclusion reached by the original Medical Assessor that "there is no evidence that component of the articular process fracture is displaced".
11. We conclude that the claimant has sustained a fracture of the C2 peg with posterior element involvement and spinal canal deformity. This is consistent with the structural inclusions defining DRE category III of the cervicothoracic spine and results in a 15% whole person impairment.

1. The Panel noted the ambulance report referring to the call made at 11.30pm on 12 June 2021 due to rollover motor accident. At 11.59pm, GCS is recorded as 15/15 although the report also notes that although the claimant was alert but was not oriented to time and place. The claimant had been asleep when the accident occurred, and at the time of ambulance arrival, was lying on the road. She had been a rear seat passenger and unable to recall the events of the accident. The officers noted a minor contusion to the forehead and egress of blood from her mouth. There was an unrecordable blood pressure, she was cold, pale and clammy and oxygen saturation was reduced to 88%.
2. Given the initial lack of orientation to time and place, the panel accepts that GCS was reduced to 14/15 at least temporarily, although the reduced level of consciousness was occurring in the context of haemodynamic instability with unrecordable blood pressure and reduced oxygen saturation (normal is 95% and above).
3. However, with appropriate intravenous fluid/oxygen resuscitation, by time of arrival at Lismore Hospital in the early morning hours of 13 June 2021, GCS was 15/15. On admission, it was noted that the claimant had been taking long-term Clonazepam, Targin, Lyrica and Endone. The background of injuries from the previous motor accident 2014 was noted inclusive of chronic pain from multiple physical injuries and (reportedly) traumatic brain injury.
4. The admission notes on 13 June 2021 refer to the radiological finding of Type 3 dens fracture with extension to the right-sided lamina. At 2.39am on 13 June 2021 there was reference to the single vehicle accident in which she had been a rear seat passenger. She complained of pain. There were multiple abrasions to the head. There was dry blood in her mouth, and it was suspected that the claimant had bitten her tongue. GCS was fluctuating and she was amnesic to events. GCS was 14 with PERLA (pupils equal and reactive to light). There was a complex history of a motor accident in 2014 with brain injury, chronic pain, epilepsy, post-traumatic stress disorder, depression, suicidal ideation, forensic history and opioid dependency.
5. On 13 June 2021 at 2.50 am, GCS was 14/15 (eyes opening to voice). AWPTAS (Abbreviated Westmead PTA monitoring) was commenced. GCS was described as "fluctuating". She was amnesic to events whilst by this stage haemodynamically stable.
6. At 3.27 am on 13 June 2021, she passed the AWPTAS, giving a PTA duration of approximately four hours noting the initial ambulance notification re the accident occurred at 11.30pm on 12 June 2021.
7. On 13 June 2021 at 4.58 am, she was on intravenous fluids whilst having an indwelling catheter.
8. On 13 June 2021 at 6.56 am, there was pain in the right hand, neck and foot.
9. On 13 June 2021 at 7.22 am, SBP (systolic blood pressure) was 100 with GCS 14/15 with eyes were opening to speech.
10. On 13 June 2021 at 7.57 am, GCS was recorded as 15/15.
11. Arrangements were being made for transfer to PAH (Princess Alexandra Hospital) for potential application of Halo brace in view of C2 fracture. On 13 June 2021 8.48 pm, she was described as alert and oriented.
12. On 14 June 2021 at 11.58 pm the claimant was looking for a phone charger when Suboxone of uncertain origin was discovered in her possession. Further, it was noted that her daughter on 13 June 2021 had revealed her mother's recent methamphetamine use to hospital staff.
13. On 14 June 2021 at 1.28 pm, the claimant was noted to be often asleep on shift.
14. On 14 June 2021 at 2.10 pm, the claimant was noted to be upset due to neck and back pain as well as very recent house fire. This motor accident was also bringing back memories of the earlier (2014) motor accident in which her partner was killed. At 4.31 pm the claimant was described as alert and oriented but emotional when awake.
15. At 2.42 am on 15 June 2021, the claimant was drowsy but rousable being oriented to time and place and able to follow commands. At 3.57 am the claimant was drowsy though easy to rouse.
16. On 15 June 2021 at 8.00 am, the records note that the claimant was difficult to rouse and nodding off. She was unable to recall the events of the accident, and unable to state either date or location. She was oriented to the year. GCS was recorded as 13/15 (E3V4M6). Further, it was noted she had been arguing with her partner, and a white powder of uncertain nature was found in her handbag. An urgent Drug and Alcohol Service review was requested.
17. On 15 June 2021 at 10.09 am, the claimant was described as drowsy albeit alert and oriented. Targin was withheld. She was tending to sleep through meals. At 2.45 pm, the claimant was noted to be a poor historian with no regular pharmacy. The nursing staff had withheld Targin given she was difficult to rouse. It was reported that she had been previously stockpiling medications due to transportation issues, and there had sometimes been periods of going without medications. She had consulted many doctors previously re substance use disorder. Suboxone was found in her possession although there was no record of her inclusion in an opioid treatment programme. Thus, the source of the Suboxone was unclear. It was once again noted that her usual medications included Clonazepam, Mirtazapine, Oxycodone and Lyrica.
18. On 15 June 2021 at 3.51 pm the claimant was described as alert and oriented. At 4.35 pm she was drowsy at times although alert when engaged.
19. The Lismore Hospital discharge summary on 15 June 2021 referred to illegal substance use associated with drowsiness and mood lability. There was an ambiguous opioid dispensing history noted, and she was set for transfer to Princess Alexandra Hospital. At the time of discharge, there was mild drowsiness with GCS of 14/15. It was further noted there had earlier been hypotension SBP of 75, increasing to 100 with IV normal saline. CT brain made no traumatic findings. CT cervical spine confirmed displaced dens fracture with overlapping fragments and involvement of the right pedicle.
20. When collected from Lismore ED for transfer to PAH, it was noted that the claimant could not keep her eyes open GCS 13-14. Reduced GCS was deemed due to multiple sedative medications.
21. The claimant remained drowsy ("very sedated") on admission to PAH on 16 June 2021 and it was stated in records that her drug history would require exploration. She had been taking Lyrica, Targin and possibly Suboxone before the motor accident. It was noted that given she was from NSW that interstate information regarding medication use was hard to obtain. The drowsiness was ascribed to methamphetamine withdrawal. It was recommended that she should use Tramal and NSAIDS whilst avoiding long-acting opioids.
22. On 16 June 2021 12.48am the GCS was 14/15. At 1.24am, the claimant was rousable with GCS of 13/15. She was struggling to remain awake although she was rousable. She was in transit from Lismore Hospital to PAH in Brisbane. At 1.39am the claimant was easily rousable. On 16 June 2021 at 3.06am, the claimant told the staff they should leave her alone and she did not want to wake up.
23. The occupational therapist on 16 June 2021 at 10.08am noted that the claimant was too sleepy for any discussion. It was noted there had been previous home safety concerns. She had no accommodation due to a house fire at her home in Drake several days beforehand. It was reported that her partner had her car keys and possibly been living in her car.
24. Clonazepam was withheld on 16 June 2021 due to sedation. An addiction medicine review was undertaken referring to methamphetamine withdrawal and combination of sedative medication as the cause of the observed drowsiness. It was noted she had been taking long-term Targin 40/20 bd, Pregabalin 300 mg bd and Clonazepam 2 mg tds. There had likely been opportunistic opioid usage with self-medication. It was further noted she had used ice on the night of the motor accident. There was likely drug withdrawal.
25. On 17 June 2021, the claimant undertook a very detailed interview with the social worker. However, later the same day the claimant was drowsy whilst having 10 mg prn doses of Endone. She was not compliant with recommended spinal precautions. The claimant was removing her collar despite advice to wear this full time. Tapentadol was thought more helpful for pain. There was discussion as to whether she should maintain the collar or else undergo halo application. Following X-ray, it was decided to fit her with an Aspen collar.
26. Due to ongoing confusion, the orthopaedic team suggested further PTA assessment (although she had passed the AWPTAS four hours post-accident whilst still at Lismore Hospital).
27. On 18 June 2021, GCS was 15 with confusion "resolving". Medications were being withheld due to sedation. The claimant was asking nursing staff if they "hated" her and expressing interested in opioid replacement via Suboxone.
28. It was noted that she had been quarrelling with her partner regarding the location of her car. She needed light assistance to mobilize and observed to display reduced balance on turning.
29. On 19 June 2021 the claimant was alert and oriented whilst complaining of pain. However, she was mobilizing around well. She was described as "confused at times" as well as being unsteady on her feet. Comments are also made in records regarding drowsiness and confusion at times. She was reluctant to answer questions, difficult to engage and required full assistance with ADLS. She was not on any pain medications.
30. On 21 June 2021, an argument occurred between the claimant and her partner which was followed the same day by a fall although there were no neurological abnormalities noted on clinical examination. It was said that she had never been on opioid replacement therapy and wished to continue Lyrica and Targin.
31. The pharmacist on 21 June 2021 researched the medication/dispensing history. The PAH social worker sought to review the claimant on 22 June 2021 although she would not rouse. An addiction nurse also came to see the claimant though again she could not be roused for a conversation.
32. It was noted that the claimant planned to stay with a friend on the Gold Coast after discharge.
33. On 22 June 2021 at 1.00pm the claimant was alert and oriented when the physiotherapist was seeing her. The claimant wanted to use a walking stick. Further, it was noted that she was unsteady on her feet and using a single point stick. Records indicate that hospital staff were concerned about the claimant's risk of falls.
34. On 22 June 2021, passive suicidal ideation was noted and a referral made to liaison psychiatry service. The claimant also requested that her solicitor speak with the social worker regarding issues of spine and mental health.
35. An addiction medicine review occurred on 22 June 2021 noting there was no clinical indication for the claimant to be taking opioid replacement such as Suboxone. She would continue on Targin and Lyrica.
36. On 23 June 2021 at 3.21am the claimant was experiencing flashbacks regarding "bad situations" in her life. On 23 June 2021, the claimant asked many questions regarding her pain medication regime. She wanted alternative medications trialled. The pain service was involved in her care. She also sought to know if she were incapacitated by more than 10% because her lawyer wished to have this information. Due to financial concerns, she required social work review. She also sought a shower chair and expressed the desire for discharge to a friend's home at the Gold Coast. She also requested to smoke outside to "clear" her head.
37. At PAH the claimant returned a markedly abnormal score on ACER 68/100 on 24 June 2021 although the treating occupational therapist noted that observations of her (satisfactory) functional performance on the ward were not consistent with such a low score. The claimant was notably independent with personal care and able to discuss the proposed discharge to a friend's home in detail.
38. The occupational therapist further noted that since a motor accident in 2014 reportedly causing a traumatic brain injury, there had been significant behavioural disturbance with poor impulse control, irrational behaviour, drug use and periods of incarceration. The claimant had tenuous relationships with her mother and siblings at best due to unwise lifestyle choices. There was a long history of abusive relationships with men, according to her mother with whom a phone discussion was held.
39. On 24 June 2021, the occupational therapist (OT) noted that the claimant was independent with ADLs and able to converse appropriately. She was in good spirits and demonstrating good attention. There was appropriate day-to-day recall of events. The OT findings were consistent with recent entries made by nursing staff. She also recalled having previously seen the same OT previously. The claimant was also receiving good support from her friend Amanda.
40. When seen, the OT noted that the claimant was fixated on the need for medications.
41. On 24 June 2021, it was noted that the claimant was being discharged from Princess Alexandra Hospital to the care of a friend.
42. Records on 25 June 2021 indicate there were no concerns about the claimant during a ward round. Guidance from the Pain Service was sought regarding her pain medication regime for discharge.
43. The Princess Alexandra Hospital discharge summary on 24 and 25 June 2021 noted the claimant's long-term use of Targin 40 mg twice daily, as well as long-standing use of Pregabalin (Lyrica) and Clonazepam. The claimant had used "ice" on the day of the accident and there had also been daily Cannabis usage. There was history of domestic abuse from multiple previous partners. There had been difficulties with obtaining scripts during the pandemic and there had been illicit drug use. The claimant was discharged to the care of a friend at the Gold Coast.
44. The claimant presented to GCUH on 2 July 2021 by ambulance for mental health review. Her friend was worried that she had been taking excessive quantities of opioid medication. The ambulance report noted that she appeared drug affected.
45. The above hospital medical records indicate that the claimant at most suffered a mild traumatic brain injury, with evidence of reduced GCS at the scene 14/15 with reported confusion. Of note, however, the available information in the subsequent records indicates that the reduced level of consciousness and mild confusion in the claimant at the scene was multifactorial due to the combined effects of haemodynamic instability (unrecordable blood pressure, low oxygen levels and illicit substance usage).
46. Records indicate that the claimant had taken the illegal drug "ice" on the day of the motor accident. The claimant had a long, well-documented history of substance abuse and at the time of the motor accident was also prescribed a significant and long-standing dose of Targin (80 mg daily) along with Pregabalin (Lyrica) 600 mg daily and Clonazepam 6 mg daily.
47. Notwithstanding the above, the claimant passed the abbreviated post-traumatic amnesia (AWPTAS) assessment just four hours after the subject 2021 motor accident. A CT brain undertaken at Lismore Hospital demonstrated no traumatic findings.
48. The claimant on the basis of reduced GCS and medically verified duration of PTA (four hours) meets the criteria for traumatic brain injury set out in paragraph 6.164 page 113 of the Guidelines.
49. The GCS of 14-15 on admission, the absence of traumatic findings on the brain scan and the PTA duration of just four hours are all consistent with the occurrence of a mild traumatic brain injury, the effects of which, would have resolved by three months after the subject accident.
50. The effects of a mild traumatic brain injury with the abovementioned GCS, PTA and brain imaging parameters generally resolve within three months and cannot and did not give rise to permanent impairment of cognition and behaviour.
51. We note that the medical records of Lismore Hospital and Princess Alexandra Hospital (taking in the period 12 June 2021-24 June 2021) indicate fluctuating levels of confusion and consciousness as well as unsteadiness of gait. During this period, Suboxone and a "white powder" of uncertain nature were found in the claimant's possession. Subsequent review by the Drug and Alcohol Service concluded claimant's drowsiness/fluctuating level of consciousness was due to combination of various sedative medications as well as medication withdrawal (specifically from methamphetamine). Of note, it was established that the claimant had taken ice on the day of the 2021 motor accident.
52. The medical records cited above overwhelmingly indicate that the claimant's ongoing confusion and fluctuating level of consciousness were not due to traumatic brain injury having such mild PTA/GCS/brain imaging parameters as described above, but due to the combined effects of illicit drug use, methamphetamine withdrawal and prescribed pain and other medication in hospital for painful injuries due to the 2021 motor accident.
53. We determine that the mild traumatic brain injury caused by the motor accident has resolved. Given the traumatic brain injury has resolved, there is no requirement to assess WPI for that body part.

1. In accordance with the parties' acceptance of our direction, we adopt the examination findings of Medical Assessor Cameron from the original assessment.
2. The findings of Medical Assessor Cameron show there is no loss of motion from the metacarpal fracture. Further, an uncomplicated fracture should not result in loss of movement.
3. This body part has no assessable impairment.

1. We are satisfied that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because the condition is well stabilised, the claimant does not require further surgery and treatment in the foreseeable future. There will be no change greater than 3% impairment over the next year and there has been a sufficient period since the motor accident where the cervical spine fracture condition has medically stabilised.

1. The insurer submitted that there should be a deduction based on the pre-existing cervical spine condition pursuant to cl 6.31 of the Guidelines. It referred to the opinion of Dr Cleaver and the previous C5 fracture sustained in 2014.
2. Clause 6.33 provides:

"Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident."

"Where a pre-existing spinal condition, or spinal surgery, is unrelated to the injury from the relevant motor accident, the medical assessor should rely on clause 6.33."

1. The previous C5 fracture sustained in 2014 has nothing to do with the C2 fracture sustained in the motor accident as they are at distinct levels where it is medically impossible for the healed C5 fracture to somehow contribute to the C2 fracture. The C5 fracture is unrelated and not relevant to the C2 fracture caused by the motor accident.
2. The insurer's submission on deduction is rejected.

1. The Panel concludes that the degree of permanent impairment of the claimant that has resulted from the injuries caused by the motor accident is 15%. The original medical assessment certificate is revoked. A new medical assessment certificate is attached at the commencement of these Reasons.

[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.

[5] Section 7.26(5) of the MAI Act; claimant's bundle, page 303.

[8] See s 3B(2) of the Civil Liability Act 2002.

[9] [2021] NSWSC 13 (Raina) at [65].

[51] [2021] NSWCA 287 at [40], [41] and [45].

[52] [2022] NSWCA 31 at [11], [21], [64].