AAI Limited t/as AAMI v Cox
[2023] NSWPICMP 520
•13 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as AAMI v Cox [2023] NSWPICMP 520 |
| CLAIMANT: | Brittney Cox |
INSURER: | AAI Limited trading as AAMI |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 13 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant sustained injury in a motor vehicle accident on 20 June 2018; claimant sustained injury to cervical spine, thoracic and lumbar spine; dispute as to threshold injury; dispute as to whole person impairment (WPI); Medical Assessor (MA) Wallace assessed the claimant and issued a certificate dated 12 December 2020; he found radiculopathy and certified the lumbar spine was not a threshold injury; the insurer filed an application for further assessment of threshold injury which was referred to MA Cameron; MA Cameron also assessed WPI; MA Cameron did not find radiculopathy but noted MA Wallace had previously determined the lumbar spine was not a threshold injury noting radiculopathy can resolve; MA Cameron assessed 0% WPI for soft tissue injury to cervical and thoracic spine and 5% WPI for injury to lumbar spine; Panel asked to review certificate of MA Cameron; Held – cervical spine and thoracic spine threshold injury; whilst Panel did not find radiculopathy satisfied having regard to reasoning in David v Allianz Australia Ltd that claimant demonstrated two signs of radiculopathy when assessed by MA Wallace and certified lumbar spine as non-threshold injury; Panel assessed 0% WPI for cervical spine and thoracic spine and 5% WPI for lumbar spine; certificate of MA Cameron affirmed. |
| DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 Review Panel Assessment of Threshold Injury and Permanent Impairment The Review Panel affirms the certificate of Medical Assessor Cameron dated 21 December 2022. |
REASONS FOR DECISION
BACKGROUND
On 20 June 2018 Brittney Cox (the claimant) was the front seat passenger in a vehicle hit on the passenger side by another vehicle in a roundabout (the accident). The airbags deployed. Ms Cox was taken by ambulance to John Hunter Hospital. There were concerns about premature labour. Her son was born on 29 July 2018. She reported persisting back pain.
AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to make statutory payments to, for or on behalf of Ms Cox under the Motor Accident injuries Act 2017 (the MAI Act).
Ms Cox lodged an Application for Personal Injury Benefits dated 2 July 2018 which was received by the insurer on 18 July 2018. The claimant asserts she sustained the following injuries:
· tissue damage to collarbone and right breast;
· tail bone and spine damage, and
· abdominal muscle damage and bruising.
On 17 October 2018 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injuries sustained by Ms Cox were minor (threshold) and that her entitlement to statutory benefits would cease from 20 December 2018.
On 6 May 2020 the claimant sought a review and on 2 June 2020 the insurer issued a Certificate of Determination – Internal review affirming the decision.
The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including:
(a) “the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage), and
(b) whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The minor injury dispute was referred to Medical Assessor Wallace. He issued a certificate dated 12 December 2020 in which he certified the claimant had sustained minor (threshold) injuries to her cervical and thoracic spine and a non-minor (non-threshold) injury to her lumbar spine due to an irritative right S1 radiculopathy noted at the time of examination.
On 4 August 2022 the insurer referred the matter for a further medical assessment under s 7.24(2) of the MAI Act. The application for further assessment was accepted and the dispute was referred to Medical Assessor Cameron. He issued a certificate dated 21 December 2022 in which he certified the claimant had sustained minor (threshold) injuries to her cervical and thoracic spine and a non-minor (non-threshold) injury to her lumbar spine.
A further dispute as to permanent impairment was also referred to Medical Assessor Cameron. He assessed a 5% whole person impairment (WPI).
The insurer sought a review of the assessment of Medical Assessor Cameron.
STATUTORY PROVISIONS
Threshold injury
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
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 an injury caused by the motor accident is 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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess 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 Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine Clauses 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 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.
5.8 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
(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
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
Permanent impairment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 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.”
REVIEW PROCEDURE
An application for review of the medical assessment of Medical Assessor Cameron was lodged within 28 days of the date on which the certificate of Medical Assessor Cameron was made available to the parties.
On 6 March 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[3] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The documents relied upon by the insurer were uploaded to the portal and marked AD1, AD2 and AD3. The documents relied upon by the claimant were uploaded to the portal and marked AD4.
On 8 June 2023 the panel agreed a medical examination was required. The Panel noted the insurer had uploaded to the portal the entire clinical records of John Hunter Hospital (marked AD3) paginated from pages 1 to 344 pertaining to the claimant, including records pertaining to her pregnancies and her own birth. The Panel directed the insurer to direct the Panel to any record or page contained in AD3 relevant to the dispute which the insurer wished the Panel to consider.
The insurer uploaded to the portal submissions dated 23 June 2023. The insurer highlighted the following:
a. The claimant made no reports of lumbar spine pain during her admissions on 13 January 2019 (page 20), 7 December 2020 (page 5), 24 March 2020 (page 1) and 11 January 2021 (page 188).
b. The report of Dr Zhen dated 22 December 2020 (page 150) takes a history of “previous MVA with chronic thoracic pain.”
c. Dr Debnath referred the claimant to Dr Richard Ferch, neurosurgeon, on 3 June 2020 (page 170) in respect of prolonged headaches (cystic foci on pituitary and pineal gland). He notes a prior medical history of thoracic pain (soft tissue) on 26 June 2018.
d. The claimant underwent a CT of lumbar spine on 27 May 2020 (page 176) which revealed:
‘L5/S1: The spinal canal and foramina are patent, no neural compromise…. Normal assessment of lumbar spine for age. No focal protrusion or neural compromise…’
e. In respect of the subject accident:
‘Did not hit head, self-extricated, no neck pain. Main complains are L inferior rib pain and sternal pain on breathing. Lower pelvic period-like pain was sharp but is easing….’ (page 246).
‘…now has pain upper L chest. No other pain’ (page 249).
‘Nil injuries found. Muscular pain likely whiplash & from seatbelt’ (page 256).
f. The claimant provided a history on 31 March 2021 (pages 311-312) that it had previously been recommended she underdo an elective caesarean due to subject accident. The insurer highlights that such a history is not borne out in the clinical records of Maitland Hospital (A11, specifically pages 918-961).
CERTIFICATE OF MEDICAL ASSESSOR WALLACE
Medical Assessor Wallace was asked to assess a minor (threshold) injury dispute in relation to the following injuries:
· cervical spine;
· thoracic spine, and
· lumbar spine.
Medical Assessor Wallace issued a certificate dated 12 December 2020 in which he certified the lumbar spine was not a minor injury for the purposes of the MAI Act.[6]
[6] AD1 at p 21.
He reported Ms Cox informed him she had no previous history of injury at her spine.
At the cervical spine Medical Assessor Wallace reported intermittent aching pain radiating to the shoulders, weakness at the upper limbs and a feeling of tightness.
At the lumbar spine he reported constant aching pain and stiffness, intermittent paraesthesia to the knees and weakness at the lower limbs.
On examination of the thoracolumbar spine Medical Assessor Wallace reported:
“Examination of her thoraco-lumbar spine shows no swelling or deformity. She has a range of movement of forward flexion to the toes, extension 20°, left lateral tilt 20°, right lateral 20°, left rotation 80° and right rotation 60°. There is tenderness at the T10/T11 spinous processes. Her gait is normal. She has straight leg raising to 30˚ bilaterally whilst supine but was able to achieve 90° bilaterally whilst sitting.
Neurological examination of her lower limbs shows equal and symmetrical reflex. Her power is intact. There is decreased light touch sensation at the lateral border of the right foot.
Her calf circumference measures 33cm on the right compared to 34cm on the left.”Medical Assessor Wallace concluded Ms Cox had sustained soft tissue injures at the cervical spine and thoracic spine as a result of the accident. He found no evidence of radiculopathy at the upper limbs on clinical examination. He concluded the injuries to the cervical spine and to the thoracic spine were minor (threshold) injuries.
The found the lumbar spinal injury was not a minor (threshold) injury because Ms Cox had evidence of irritative right S1 radiculopathy on clinical examination.
CERTIFICATE UNDER REVIEW
Medical Assessor Cameron issued a certificate dated 21 December 2022.[7]
[7] AD1 at p 13.
He certified the following injuries caused by the accident were minor (threshold) injuries:
· cervical spine – soft tissue injury, and
· thoracic spine – soft tissue injury.
He certified the following injury caused by the accident was not a minor (threshold) injury:
· lumbar spine – soft tissue injury.
Medical Assessor Cameron certified the following injuries were caused by the accident and resulted in a total WPI of 5%.
· cervical spine – soft tissue injury;
· thoracic spine – soft tissue injury, and
· lumbar spine – soft tissue injury
Medical Assessor Cameron reported, other than a fractured wrist at age 12 Ms Cox had no other past significant injuries or health conditions. She reported her son was born by caesarean section because of back problems.
Ms Cox reported she continued to have low back pain, mainly in the lower back but also some upper back pain that occasionally radiates to the ribs or legs. She also reported some shoulder pain and numbness of the right thigh and right foot.
On examination Medical Assessor Cameron reported symmetrically reduced range of motion to 80% normal, no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable complaints present. Nerve tension signs were negative.
He report a full range of motion at both shoulders with pain at extremes of movement. There was a full range of motion of other upper extremity joints and no neurological abnormalities. Circumferences of the upper extremities were equal at 22cm.
At the thoracic spine Medical Assessor Cameron reported a symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable complaints.
In the lumbar spine he reported a reduced range of motion to 70% of normal with extension reduced to 60%, with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints. Nerve tension signs were negative.
Medical Assessor Cameron reported a full range of motion of the lower extremities, and no neurological abnormalities. He reported non-dermatomal sensory symptoms in the right leg. He found the circumference of the lower extremities equal at 35cm.
Medical Assessor Cameron concluded causation was established based on the information provided by Ms Cox and the available clinical records. In relation to threshold injury, he stated:
“Because Dr Wallace had previously determined that there was a non-minor injury this is accepted as evidence of non-minor injury. However, the current findings are not consistent with lumbar radiculopathy. It is well established that radiculopathy can resolve”.
Medical Assessor Cameron assessed a 0% WPI for the soft tissue injury to both the cervical and thoracic spine and 5% WPI for the lumbar spine on the basis she had asymmetric loss of range of motion with reference to the lumbar spine placing her in Diagnosis-Related Estimates (DRE) Lumbosacral Category II.
EVIDENCE BEFORE THE REVIEW PANEL
Ms Cox is now 25 years of age and was 20 at the time of the accident.
Pre-accident treatment records
Clinical notes of Dr Harpaul Singh
On 17 March 2012 Dr Singh, general practitioner (GP) reported “for one week she has been having pain in the lower back”.[8] He diagnosed a strained lumbo sacral spine and recommended Panadol.
[8] AD1 at p 68.
On 12 August 2016 Dr Singh reported “since delivery of her baby she has been having lower back pain, and is painful at night also, and when she walks or sits”. Dr Singh recorded tenderness over the L4 region and full, but painful movement.[9]
[9] AD1 at p 61.
On 26 March 2018 Dr Singh reported pain in the lower back and finding it hard to lie on her back.[10] He reported there was no tenderness in the back and whilst extension was painful the range of movement was normal.
[10] AD1 at p 57.
On 5 April 2018 Dr Singh reported Ms Cox had “been having pain in the back and radiating down the left leg”.[11] He reported pain on moving the lumbar spine, and straight leg raising was 60º on the left. He prescribed Panadeine Forte.
[11] AD1 at p 57.
On 9 May 2018 Dr Singh reported pain in the back and down the legs and in the ankles.[12] He reported there was no local tenderness and movement of the spine was full but was painful at the extremes of motion. He noted straight leg raising was 60º on both sides.
Post-accident treatment records
[12] AD1 at p 56.
John Hunter Hospital
Following the accident on 20 June 2018 Ms Cox was transported to hospital by ambulance where she was admitted until 22 June 2018 to monitor her pregnancy.[13]
[13] AD2 at p 1.
The triage note states:
“…front seat restrained passenger struck by another car at low speed sustaining minor frontal damage to car. Airbags deployed striking pt in chest. C/o pain to same, and lower abdomen. …Also reports mild lower abdominal cramping…”[14]
[14] AD1 at p 294.
The progress/clinical note records:
“- today at 1830hr in passenger seat her car crashed into another T-bone impact
- airbags deployed, ravelling at 60km/hr, wearing seatbelt
- did not hit head, self-extricated, no neck pai
- main complains are L inferior rib pain and sternal pain on breathing
- lower pelvic period-like pain was sharp but is easing on my review”.[15]
[15] AD3 at p 246.
The impression was reported as:
“- trauma call for mechanism 60km/hr pregnant
- rib/sternal contusion
- need to ensure fetal wellbeing”.
Further it was noted “now has pain upper L chest. No other pain”.[16]
[16] AD3 at p 249.
On 21 June 2018 the clinical notes state:
“Tertiary survey complete
nil injury found
muscular pain likely whiplash & from seatbelt”.[17]
[17] AD3 at p 256.
The Trauma Tertiary Assessment Form referred to pain on palpation of the lateral rib, some bruising to the lower right abdomen and some muscular pain to the right shoulder.
The claimant made no report of lumbar spine pain during her admission on 13 January 2019 when she presented with abdominal pain, on 7 December 2020 when she presented with abdominal pain, on 24 March 2020 when she presented with dental problems and on 11 January 2021 when she again presented with abdominal pain.
On 22 December 2020 Dr Zhen sent a report to Dr Danigowda following review of the claimant in the Endocrine Clinic. His recorded a history of “previous MVA with chronic thoracic pain”.[18]
[18] AD 3 at p 150.
Dr Debnath referred the claimant to Dr Richard Ferch, neurosurgeon, on 3 June 2020 in respect of prolonged headaches (cystic foci on pituitary and pineal gland). He noted a prior history of “Mva - thoracic pain (soft tissue)” on 26 June 2018.[19]
[19] AD3 at p 170.
Clinical notes of Dr Harpaul Singh
On 25 June 2018 Dr Singh reported the claimant’s involvement in the accident five days earlier.[20] He reported she had been having abdominal pains that come and go, there was no vaginal bleeding and her breasts felt hard. He also reported she was having pain in the neck.
[20] AD1 at p 56.
On 2 July 2018 Dr Singh reported:
“Since the accident she is having a
1) pain in the base of the cervical spine posteriorly, worse on moving it. There is mild tenderness over the posterior cervical ligaments at the base of the sine at C7 level, and discomfort on moving the cervical spine, felt at that level.
2) She is having pain and tenderness over the sacrum. Tender over the sacrum and the L5 region with pain also on moving it. The range of motion of the cervical and lumbar spine are not restricted.
3) pain and tenderness over the lower end of the right and left rectus abdominis;
4) pain and tenderness over the upper chest wall anteriorly and subcutaneous bruising over the right breast,’
Diagnosis – soft tissue injury of the cervical spine, lumbo sacral spine and upper chest wall, strained rectus abdominis.”[21]
[21] AD1 at p 55.
Dr Singh issued a Certificate of Capacity/Certificate of Fitness dated 2 July 2018 in which he diagnosed a soft tissue injury to the cervical spine, lumbosacral spine, upper chest wall and strained right and left rectus abdominus muscles. He recommended Panadeine Forte and heat packs.
On 25 July 2018 Dr Singh reported the claimant was getting lower back pain and on 10 August 2018 he reported pain in the thoraco lumbar region and over the right costal margin since the accident.[22] He noted tenderness over the thoraco lumbar spine and right costal margin and pain on movement of the lumbar spine. On 27 August 2018 he reported pain and tenderness in the lumbar spine. On 10 September 2018 Dr Singh reported pain at the junction of the cervical, thoracic and lumbar spine. On 2 October 2018 Dr Singh reported pain in the lower back and at the base of the cervical spine. On 24 October 2018 Dr Singh reported pain in the interscapular region and the lower back. On 24 November 2018 Dr Singh reported low back pain and pain at the back of the cervical spine.
[22] AD1 at p 54.
On 25 January 2019 Dr Singh reported pain in the lower back and on 30 January 2019 he created a GP care plan for physiotherapy. On 20 March 2019 Dr Singh reported pain in the upper back. Ms Cox had not had physiotherapy because of child care difficulties. On 22 March 2019 Dr Singh reported pain and tenderness in the thoracic region and the sacral region. On 5 April 2019 Dr Singh reported pain in the back and on 24 April 2019 Dr Singh reported pain in the interscapular region which was worse on flexing the cervical spine. He continued to prescribe Panadeine Forte. On 29 May 2019 Dr Singh reported pain in the upper cervical and the lumbar spine region.
Dr Singh variously continued to report pain the lumbar spine, pain in the interscapular region and pain in the cervical spine region. He continued to prescribe Panadeine Forte.
On 15 August 2019 Dr Singh referred the claimant for X-rays of the cervical and thoracic spine. He prescribed Naprosyn.
On 15 June 2021 Dr Singh reported pain in the lower back radiating to the buttocks on both sides.[23]
[23] AD1 at p 38.
Clinical notes of Mount Hutton Family Practice
At the commencement of the clinical notes is a warning by Dr Debnath “Doctor Shopper 10/06/2020”.
On 15 August 2018 Dr Norman Low reported the claimant’s involvement in the accident although the nominated date was 26 June 2018 and not 20 June 2018.[24] He reported she was complaining of back pain and a painful chest. Dr Low referred Ms Cox for an X-ray of her chest, right ribs and thoracic spine. On 21 August 2018 he reported the X-rays did not show any abnormality.
[24] AD1 at p 355.
Ms Cox attended with varying complaints of back pain and neck pain on 4 September 2018, 17 September 2018, 16 October 2018, 30 October 2018 and 19 November 2018. On 16 January 2019 Dr Low reported Ms Cox hurt her back lifting furniture.[25]
[25] AD1 at p 359.
On 11 March 2019 Dr Low reported constant back pain, on 13 May 2019 he reported back pain was persisting since the accident and on 5 June 2019 Dr Low reported her back was sore from the neck down to the thoracic area since the accident. On 8 July 2019 it was lower back pain was reported on and off since the accident but now bothering her all the time.[26] Ms Cox complained of back pain on 16 August 2019 and 2 December 2019.[27]
[26] AD1 at p 362.
[27] AD1 at p 366.
On 10 June 2020 Ms Cox was referred to Dr Marc Russo of Hunter Pain Clinic for treatment of her chronic back pain.[28]
[28] AD1 at p 447.
Dr Marc Russo, pain medicine physician
Ms Cox consulted Dr Russo by telehealth on 25 August 2020.[29] He reported since the accident “she has had persistent pain really from the neck radiating all the way down to her coccyx which she describes as a burning type pain that is present throughout the entire day. It is worse with physical activity.”
[29] AD1 at p 466.
Dr Russo reported she had trialled Mobic and Naprosyn with no benefits and was currently taking eight Panadeine Forte tablets per day. Dr Russo considered there was a significant component of myofascial pain to explain the widespread nature of her pain.
Imaging
X-ray thoracic spine, 16 August 2018
The report reads “slight scoliosis convex to the right. No compression fracture. Vertebral bodies and pedicles intact. No paraspinal soft tissue abnormality.”[30]
CT cervical spine – 27 May 2020[31]
[30] AD1 at p 449.
[31] AD1 at p 250.
The report concluded there was no stenosis of the canal or foraminal narrowing detected.
CT lumbar spine, 27 May 2020[32]
[32] AD1 at p 250.
The report concluded it was a normal assessment of the lumbar spine for age. No focal protrusion or neural compression. No wedge fracture or aggressive lesion.
Medico-legal reports
Dr John Davis, occupational physician
Dr Davis provided a report dated 16 November 2021.[33]
[33] AD4 at p 18.
He reported Ms Cox was taken by ambulance to John Hunter Hospital suffering with pain in her ribs and mild symptoms throughout her back. He reported the spinal symptoms slowly increased and three days later she consulted her GP who prescribed Panadeine and referred her for physiotherapy. Two weeks after the accident she gave birth to a baby boy. Liability was physio was declined by the insurer, but Ms Cox later attended physio exercise at a local medical centre.
Dr Davis reported continuing pain in the cervical, thoracic and lumbar spinal regions, occipital headaches, “hot” pain in her scapular, radiation into both trapezii and sensations in both lower extremities, more noticeable on the right with paraesthesia in her feet and ankles.
On examination of the cervical spine he found no guarding, spasm or significant tenderness. There was a good range of movement without dysmetria but there was tenderness centrally at C5/6.
In the thoracic spine Dr Davis found tenderness centrally at T5/6 and left sided guarding. Rotation was 40º left and 30º on the right.
Dr Davis found no asymmetry or instability and a full range of movement in the shoulders. He noted normal upper limb reflexes and no abnormal sensory findings. The brachial plexus stretch tests were negative.
In the lumbar spine Dr Davis found normal gait and no pelvic shift or tilt. There was no guarding or spasm. She could raise on her toes and rock on her heels and could squat fully. There was tenderness centrally at L4/5. He recorded the following active range of movement of the lumbar spine:
Plane of movement
Range of movement
Left side flexion
80º
Right side flexion
100º
Extension
50º
Flexion
80º
Dr Davis reported Ms Cox complained of pain when extending from the flexed position. He reported all reflexes were present and symmetrical in her lower limbs and straight leg raising was to 85º bilaterally with negative tension tests.
He recorded the following thigh and calf measurements:
Area
Right
Left
Thighs
51.0 cm
I52.0 cm
Calves
34.0 cm
34.0 cm
Dr Davis noted reduced sensation to pin-wheeling over the lateral right lower limb to extend to the lateral border of the foot. Power and tone were normal.
Dr Davis diagnosed mechanical trauma to the cervical and thoracic spine and injury to the lumbar spine with S1 radiculopathy.
Dr Davis assessed a 5% WPI for injury to the cervical spine, 5% WPI for injury to the thoracic spine and 10% WPI for injury to the lumbar spine, a total WPI of 19%.
Dr Chris Harrington, orthopaedic surgeon
Dr Harrington provided a report dated 6 December 2021.[34]
[34] AD1 at p 485.
When asked about the complaints of lower back pain in March 2018 she said it was probably attributed to pregnancy and the symptoms were only temporary.
Dr Harrington diagnosed a soft tissue injury of the cervical spine, a soft tissue injury of the thoracic spine and a soft tissue injury of the lumbar spine.
He also thought she had symptoms consistent with coccydynia as a result of the difficult birth a month after the accident. He noted there was a history of pain and swelling in her lower back which prevented her from having an epidural to give birth a month after the accident.
Dr Harrington assessed 0% WPI.
He found no evidence of radiculopathy and noted the CT lumbar scan of 27 May 2020 was normal.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 17 January 2023 in support of the application for review and earlier submissions dated 26 July 2022 in support of the application for further assessment.[35] The insurer submits Medical Assessor Cameron failed to consider the pre-accident symptoms in the lumbar spine disclosed in the clinical notes of Dr Singh as follows:
· on 17 March 2012, the claimant complained of pain in her lower back for one week;
· on 12 August 2016, Dr Singh took a history of the claimant having lower back pain since delivery of her baby. The claimant reported pain at night and also when she walked or sat. Examination revealed tenderness over the L4 region. Movements were full but painful;
· on 26 March 2018, the claimant reported pain in the lower back and that she was finding it hard to lie on her back. Extension was said to be painful. The claimant was prescribed Panadeine Forte;
· on 5 April 2018, Dr Singh took a history of pain in the back and radiating down the left leg. There was pain on moving the lumbar spine, with straight leg raising limited to 60 degrees on the left. The claimant was again prescribed Panadeine Forte;
· on 9 May 2018, Dr Singh recorded that the claimant was getting pain in the back and down the legs and in the ankles. Movement of the spine was said to be full but painful at the extremes of motion. SLR was 60 degrees on both sides. The claimant was again prescribed Panadeine Forte, and
· on 30 May 2018, only three weeks prior to the accident, the claimant complained of pain when extending the spine from a flexed position.
[35] AD1 at pp 1 and 9.
The insurer submits this evidence of significant pre-existing lumbar spine symptoms is inconsistent with the history provided to Medical Assessor Cameron of no other past significant injuries.
The insurer relied upon the opinion of Dr Harrington who found the claimant sustained a soft tissue injury to her cervical spine as well as symptoms of coccydynia due to childbirth. He also noted the CT was normal.
The insurer notes that Medical Assessor Cameron did not find lumbar radiculopathy but noting that it is well established that radiculopathy can resolve found a non-threshold injury because Medical Assessor Wallace had previously determined there was a non-threshold injury finding “irritative right S1 radiculopathy”. The insurer submits it was insufficient for Medical Assessor Cameron to simply rely on Medical Assessor Wallace’s assessment and he failed to consider whether the “irritative right S1 radiculopathy” observed by Medical Assessor Wallace was causally related to the accident in light of the significant pre-accident lumbar spine symptoms that were no before Medical Assessor Wallace.
The insurer submits that it is implicit from the definition of radiculopathy in clause 5.8 of the Guidelines that the clinical signs of radiculopathy must be caused by dysfunction of a spinal nerve root. Where the CT scan of the lumbar spine dated 27 May 2020 was reported as normal Medical Assessor Cameron did not consider how the clinical signs observed by Medical Assessor Wallace were caused by dysfunction of a spinal nerve root where the radiology did not reveal any nerve root compression.
Claimant’s submissions
The claimant provided submissions dated 22 August 2022 in response to the insurer’s application for a further assessment.[36]
[36] AD4 at p 4.
The claimant submits whilst the additional relevant evidence relied upon by the insurer references back pain re-dating the accident it falls well short of demonstrating radiculopathy. The claimant notes there is no indication in any of the additional material or in Dr Harrington’s report that the claimant suffered pre-existing radiculopathy.
The claimant provided submissions dated 31 January 2023 in respect of the review application.[37]
[37] AD4 at p 1.
The claimant relies upon the decision in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227. The claimant argues that radiculopathy occurred at some point since the accident having regard to the findings of Medical Assessor Wallace.
The claimant notes that at [104] of David the Review 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.”
Further in coming to that conclusion the claimant submits the review panel in David noted, among 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.”
MEDICAL EXAMINATION
Ms Cox was examined by Medical Assessor Assem at the medical suites at the Commission on 3 October 2023. Medical Assessor Stubbs participated by MS Teams link.
Background
Ms Cox was involved in a motor vehicle accident as a front seat passenger in a small sedan that was T-boned on the passenger side. The airbags deployed. She was then heavily pregnant with her third child. She was transferred by ambulance to the John Hunter Hospital and remained in the obstetrics unit for three days for observation. There was concern she might go into premature labour. She was then discharged home. She did indeed go into early labour but was successfully induced at Maitland Hospital the following week. She subsequently had her fourth child by caesarean section.
Ms Cox complained of low back pain spreading into the right leg following the accident.
Ms Cox now has four children aged between two and eight years. She is living with the children in Mayfield a suburb of Newcastle and supports herself on Centrelink benefits and child endowment. She is not studying and has few hobbies. She reports ongoing difficulties with childcare and other aspects of housework due to low back pain.
At the time of the accident Ms Cox lived in a house at the back of her mother’s house in Cessnock. She had previously studied nursing but had abandoned this when she first became pregnant.
Ms Cox was asked about the GP record where the treating GP noted regular complaints of bilateral low back pain from 2016 up till three weeks before the accident. She reported that the attendances were for loin pain due to recurrent urinary tract infections which became particularly troublesome as the pregnancies progressed. She had not had a previous mechanical injury to the low back.
Ms Cox reported she continued to have low back pain centralising with the lumbosacral pain spreading into both buttocks and the back of the thigh. Additionally, there is another pain of colder character that intermittently spreads down the outside of the right lower limb. This will reach the lateral side of the sole of her right foot. She experiences bilateral pins and needles in her feet from time to time. The low back component of the pain is worse when straining at the toilet. The pain spreading into the right leg is less predictable. This pain produces a numb feeling on the outside of her right foot accompanied by tingling and swelling of both feet and ankles. There are two components to the low back pain, firstly central low back pain spreading into both buttocks and the back of the thighs that is both activity and posture related. Secondly, pain solely on the right-hand side which spreads down the back of the leg and the outside border of the shin as far as the little toe.
Ms Cox gets occasional mid thoracic backpain and has some ongoing soreness and tenderness in the cervical spine. These pains are intermittent and do not significantly affect her activities of daily living.
Ms Cox takes paracetamol/codeine at six to seven tablets a day with multi-prescriptions by her present GP. She drives locally around Newcastle and occasionally as far as Cessnock to visit her mother. A friend drove her to the examination.
Clinical examination
Ms Cox was dressed in shorts and T-shirt. She stands 168cm tall and weighs 68kg. She has a normal walking pattern and can tip toe and heel toe walk, stand on one leg with a negative Trendelenburg sign and hop without discomfort in the leg. Her overall posture is good.
Cervical spine
The cervical spine revealed a normal posture and mild symmetrical restriction in range of motion in all directions to ¾ of normal range. There was local tenderness mostly in the upper left trapezius to firm pressure. Grip strength in the upper limbs was 5/5 in all motor groups. Movements of all the upper limb joints were full range without discomfort or restriction. Biceps, triceps, and supinator jerk were brisk and symmetrical. The girth of the upper limbs was right equals left. Sensation was normal.
Thoracic spine
In the thoracic spine there was some midline lower scapular tenderness to firm pressure but otherwise the thoracic spine is entirely normal.
Lumbar spine
Ms Cox was able to move comfortably and get on and off the examination table without assistance. The straight leg raising was 50° with right equalling left. Ankle dorsiflexion at this position produced some complaints of tightness in the right hamstrings and some tightness of the right left ankle. The girth of the thighs was measured at 48cm on the right and 47.5cm on the left and the calves were measured at 34.5cm on both sides. Knee-jerk, ankle jerk and hamstring jerks were brisk and symmetrical. Clinical power was 5/5 and there was a perception of diffuse numbness to light touch over the outer thigh spreading down the outside border of the right calf and into the dorsum and sole of the lateral side of the right foot. Traction signs were negative.
On examination no radiculopathy was confirmed.
PANEL REASONS
Threshold injury
Cervical spine
The panel agree the claimant has sustained a soft tissue injury to the cervical spine. The panel agrees with the earlier Medical Assessors that in accordance with s 1.6 of the MAI Act this is a threshold injury.
Thoracic spine
The Panel finds the claimant sustained a soft tissue injury to the thoracic spine. The panel agrees with the earlier Medical Assessors that in accordance with s 1.6 of the MAI Act this is a threshold injury.
Lumbar spine
Both Medical Assessor Assem and Medical Assessor Stubbs had an opportunity to assess the claimant’s presentation during the examination. They agree Ms Cox was co-operative and consistent during the examination.
Whilst the clinical records disclose pre-accident complaints of back pain, the Panel notes a total of five complaints over a period of six years. The Panel accepts the complaints may have been due to short lived lumbar strains, to urinary tract infections as suggested by Ms Cox or even the effects of pregnancy and child birth.
The Panel notes the impact of the accident was sufficient to cause the airbags to deploy. On 2 July 2018, 12 days post-accident Dr Singh reported pain and tenderness over the sacrum and the L5 region and pain on moving although he noted the range of motion of the cervical and lumbar spine was not restricted. Thereafter, Ms Cox has consistently reported low back pain to Dr Singh and Dr Low and on 10 June 2020 she was referred to Dr Marc Russo of Hunter Pain Clinic for treatment of her chronic back pain.
The Panel does not consider it significant that the claimant made no report of lumbar spine pain during her admissions on 13 January 2019, 7 December 2020, 24 March 2020 or 11 January 2021 where it is clear she was focused on abdominal pain on three of those admissions and on dental related pain during the remaining admission.
The Panel is satisfied the accident was a contributing cause which was more than negligible to the injury sustained to the lumbar spine.
The Panel did not find radiculopathy on examination. This is also the finding made by Medical Assessor Cameron in 2022. However, the Panel agrees with Medical Assessor Cameron that radiculopathy can resolve.
In 2020 Medical Assessor Wallace reported borderline difference in calf circumference but with the smaller calf being on the right side; he felt there was “evidence of an irritating right S1 radiculopathy”.
Dr John Davies also diagnosed an S1 radiculopathy. In his findings there was a borderline right sided difference in thigh rather than calf circumference. He also reported sensory changes to 2 point discrimination that matches an S1 distribution.
The imaging studies are unremarkable. All the examiners noted there were no abnormalities on the medical imaging.
The insurer sought panel review on the basis that the treating general practitioner noted regular complaints of bilateral low back pain from 2016 up till three weeks before the motor vehicle accident. This history was unknown the prior examiners.
Whilst the Panel did not find any radiculopathy on examination, the Panel also notes that both Medical Assessor Wallace and Davies, two reliable observers found Ms Cox had minor S1 radiculopathy based on the sensory findings in 2020 and 2021 respectively.
However, the Panel notes they contradict each other on muscle wasting and the Panel expects that any atrophy from an S1 nerve root lesion should be in the calf not the thigh. The Panel also notes that the one-centimetre difference recorded by Medical Assessor Wallace is in the calf as expected for an S1 radiculopathy.
Dr Davis found reproducible sensory loss that was anatomically localised to an appropriate spinal nerve root distribution but wasting in the thigh was unexpected for an S1 radiculopathy,
The Panel accepts that the pre-accident complaints of back pain were due to urinary tract infection.
The Panel adopts the reasoning in David that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.[38]
[38] David v Allianz Australia Ltd [2021] NSWPICMP 227.
Accepting that radiculopathy can resolve and having regard to the principle established by David and where Panel finds the claimant demonstrated two clinical signs of radiculopathy at the time of her examination by Medical Assessor Wallace the Panel finds the claimant has established radiculopathy was present. Accordingly, the Panel finds the injury to the lumbar spine is a non-threshold injury.
PERMANENT IMPAIRMENT
Cervical spine
Ms Cox has complaints of cervical spine pain with no dysmetria, guarding, spasm, non-verifiable radicular features or signs of radiculopathy. In accordance with page 3/102 of the AMA 4 Guides Ms Cox therefore meets the criteria for cervicothoracic DRE Impairment Category I which attracts a 0% WPI.
Thoracic spine
Other than midline lower scapular tenderness to firm pressure the thoracic spine was normal on examination.
In the absence of significant clinical findings, no evidence of neurological impairment or vertebral body compression or vertebral fracture the thoracic spine injury would be assessed as thoracolumbar DRE Impairment Category which attracts a 0% WPI.
Lumbar spine
Clause 6.21 of the Guidelines requires the evaluation of permanent impairment to be considered at the time of the assessment.
The Panel did not find any evidence of radiculopathy now. The Panel finds the claimant has residual symptoms of injury to her lumbar spine and non-verifiable radicular complaints which would be assessed as lumbosacral DRE Impairment Category II, resulting in a 5% WPI.
CONCLUSION
The Panel affirms the certificate of Medical Assessor Cameron dated 21 December 2022.
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