Review Panel: Principal Member John Harris, Dr Geoffrey Stubbs and Dr Shane Maloney

Important takeaways:

• Radiculopathy does not need to be present at the time of the Assessment.  It is sufficient that radiculopathy is confirmed as per Section 5.8 of the Guidelines at any time following the accident.
• Annular tears will not be attributed to an accident merely because there is no history of back pain or pre-existing pathology.

Facts

In David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227, the subject motor vehicle accident, an intersection collision, occurred on 15 November 2019. The Claimant did not have a history of back complaints. At the time he was assessed by the Review Panel he was 43 years old. They noted he previously worked as a courier driver.

The Review Panel were tasked with determining whether the Claimant’s lumbar spine injury was a minor injury as defined by Section 1.6 of the Motor Accident Injuries Act 2017 (‘the MAI Act’).

The Claimant alleged that it was not a minor injury and relied upon an MRI scan undertaken in January 2020 which demonstrated a paracentral annular fissure at L5/S1 - and a further MRI scan undertaken in December 2020 which demonstrated annular tears at L4/5 and L5/S1.

The Insurer submitted that these findings were incidental and degenerative in nature. They also submitted that there was no evidence of radiculopathy and, as such, the Claimant’s injury was a “minor” injury.

The Review Panel Decision

The Review Panel ultimately found that a partial thickness sided tear of the triangular fibrocartilage in the left wrist sustained due to steering wheel kick back was a non-minor injury. However, their comments with respect to annular tears and radiculopathy are particularly interesting.

Radiculopathy

After conducting an examination of the Claimant, the Review Panel were not satisfied that radiculopathy was present as required by Clause 5.8 of the Motor Accident Guidelines (‘the Guidelines’).

Relevantly clause 5.8 of the Guidelines defines radiculopathy as “the impairment caused by dysfunction of a spinal nerve root or nerve roots”. However, for radiculopathy to be present two or more of the following clinical signs must be found on examination:

• 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/or
• reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. 

Significantly, the Review Panel observed that it was not necessary that radiculopathy be present at the time of Assessment, and that it was sufficient if radiculopathy was confirmed at any time following the subject accident.

In coming to this conclusion, the Review Panel noted, among other things, that:

• Although the degree of permanent impairment was determined as at the date of Assessment per Clause 6.21 of the Guidelines, there was no similar provision with respect to determination of minor injury; 
• Symptoms of radiculopathy could fluctuate over time as the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. 
• Clause 5.5 of the Guidelines does not require that the assessment be undertaken by a Medical Assessor at first instance or, on review, by the Panel. Instead, it suggests that the assessment can be undertaken by a treating doctor. 

At paragraph 104, the Panel concluded that a finding of radiculopathy was satisfied:

“if the radiculopathy is present at any time, although to constitute radiculopathy, at least two clinical signs must be established as specified by clause 5.8.”

The Panel reviewed the medical records and were not satisfied that there had been a finding of radiculopathy following the accident. Although the Claimant’s treating Neurosurgeon, Dr Darwish had referred to decreased sensation over the left leg and foot and a positive nerve root tension sign, the Panel did not accept that his findings satisfied at least two of the criteria in clause 5.8 of the Guidelines.

In addition, they noted that the MRI referred to a disc protrusion on the right side, but the Claimant had left sided symptoms. 

Annular Tears

This decision is also useful in respect of the way in which the Panel addressed the presence of annular tears on radiological scans. 

Ultimately the Panel was not satisfied that the annular tears or fissures, as described in the radiological reports, were caused by the subject accident. They concluded that the scan evidence was consistent with degenerate disc pathology which was aggravated by the subject accident and such aggravation was a minor injury for the purposes of the Act.

At paragraph 126 the Panel observed that: 

“The fact that Mr David suffered back pain does not mean that it was due to any annular tear or fissure. The fact that he had no back pain prior to the accident does not mean that there were no annular tears because they are often asymptomatic. The low back pain is more likely attributable to soft tissue injury to the low back involving an aggravation of degenerative changes.”

The panel also expressed their agreement with clause 6.121 of the Guidelines which provides:

While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis.......To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. 

If you have a query relating to any of the information in this case note, or would like to speak with someone in Holman Webb’s Insurance Group in relation to a matter of your own, please don’t hesitate to get in touch with Partner Stephanie Davis today.