AAI Limited t/as GIO v Dell (No 2)
[2024] NSWPICMP 217
•9 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Dell (No 2) [2024] NSWPICMP 217 |
| CLAIMANT: | Jeremy Dell |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Michael Couch |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; insurer’s application for review of Medical Assessor (MA) Korbel’s whole person impairment (WPI) assessment dated 3 November 2022; MA referred assessment of impairment to bladder and sexual functioning arising out of 2 June 2017 accident; bladder dysfunction assessed at 0% WPI and sexual dysfunction at 5% WPI; insurer challenged MA’s finding on causation based on previous cauda equina syndrome; claimant conceded bladder function similar now to what it was like at the time of the accident; claimant’s sensation in the penis similar to before the accident but his ability to maintain and sustain an erection had been affected; Held – Panel relied on Panel’s findings of causation of the lower back and worsening cauda equina injury in other proceedings; Panel assessed bladder function at same level as before the accident; 24% WPI less 24% WPI meant no WPI caused by the accident; Panel assessed sexual function at 20% and pre-existing impairment at 15%; degree of impairment caused by the accident was 5%; MA Korbel’s certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Confirms the certificate issued by Medical Assessor Korbel on 3 November 2022 in respect of the injuries he was asked to assess and certifies that, in respect of the injuries he was asked to assess, the degree of permanent impairment that has resulted from the injuries sustained by Jeremy Dell and caused by the motor accident on 2 June 2017 is not greater than 10%. 2. Revokes any certificate issued by Medical Assessor Korbel combining his assessment with any other assessment of impairment. |
STATEMENT OF REASONS
INTRODUCTION
Jeremy Dell was involved in a motor accident on 2 June 2017. Mr Dell was at the time, 42 years of age. He is now 48.
Mr Dell was riding his bicycle when he was hit from behind by a vehicle insured with GIO.
Mr Dell says he injured his cervical and lumbosacral spine in the accident and aggravated a pre-existing cauda equina syndrome. Mr Dell made a claim for damages against GIO, and the Panel understands GIO has accepted liability for the claim.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with that claim and on 12 June 2021 Mr Dell referred that dispute to the Personal Injury Commission (Commission) for assessment.
The Commission arranged medical assessments in respect of the injuries alleged by the claimant in order to determine that dispute as follows:
(a) bladder and sexual dysfunction arising from a cauda equina syndrome – Medical Assessor Korbel;
(b) bowel dysfunction arising from a cauda equina syndrome – Medical Assessor Garvey;
(c) musculoskeletal injuries including fractured sacrum – Medical Assessor Dixon, and
(d) psychological or psychiatric injury – Medical Assessor Suman. The Panel understands this assessment is not under review.
Medical Assessment by Medical Assessor Korbel
On 3 November 2022, Medical Assessor Korbel had determined that Mr Dell did not have a WPI of greater than 10% (the WPI found was 5%).
GIO lodged an application with the Commission seeking a review of Medical Assessor Korbel’s decision (proceedings number R-M10422780/21-52-1).
On 18 August 2023, the President’s delegate Ms Jones determined there was reasonable cause to suspect a material error in the assessment and allowed the Review to proceed.
On 24 October 2023, the President convened a Panel comprising Member Cassidy and Medical Assessors O’Neill and Couch to conduct the Review.
Medical Assessment by Medical Assessor Dixon
On 29 September 2022, Medical Assessor Dixon had determined that Mr Dell did not have a WPI of greater than 10% (the WPI found was 10% exactly).
Mr Dell lodged an application with the Commission seeking a review of the Medical Assessor’s decision (proceedings numbered R-M10542161/22).
On 20 December 2022, the President’s delegate Ms Baba determined there was reasonable cause to suspect a material error in the assessment and allowed the Review to proceed.
On 16 February 2023, the President convened a Panel comprising Member Cassidy and Medical Assessors Stubbs and Couch to conduct the Review. In due course that Panel was reconvened to comprise Medical Assessors O’Neill and Couch with Member Cassidy.
Medical Assessment by Medical Assessor Garvey
On 11 September 2023, Medical Assessor Garvey determine that Mr Dell had a WPI of 30% which is greater than 10%.
GIO lodged an application with the Commission seeking a review of Medical Assessor Garvey’s decision (proceedings numbered R-M10542161/22).
On 16 January 2024, the President’s delegate Ms Brittliff determined there was reasonable cause to suspect a material error in the assessment and allowed the Review to proceed.
On 17 January 2024, the President convened a Panel comprising Member Cassidy and Medical Assessors O’Neill and Couch to conduct the Review.
The current proceedings
Each of the three assessments under review arose out of the referral of a single dispute to the Commission and the members of the Panel in each review are the same. The Panel determined to hear the three matters together.
The three review proceedings were each commenced separately, at different times and were given a separate matter number by the Commission. The three proceedings were not consolidated under Rule 64 of the Personal Injury Commission Rules 2021.
The Panel therefore formed the view that a separate decision will need to be issued in each matter and a combined certificate will also need to be issued.
LEGISLATIVE FRAMEWORK
Mr Dell’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act but are regulated. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
In the Supreme Court decision of Nguyen v Motor Accidents Authority of New South Wales and Anor[3] it was found that if an injury to one part of the body (in the Nguyen case it was the neck) caused an impairment to the functioning of another part of the body (in that case the shoulders), that impairment must be assessed, and its value included in the determination of the claimant’s total WPI. Therefore, if a spinal cord or nerve injury caused impairment to the functioning of the bladder, bowel and sexual organs, those impairments must be assessed and combined and added to the WPI assessment for the injured spine.
[3] [2011] NSWSC 351.
Due to the nature of the impairment alleged by Mr Dell to be re-assessed by this Panel, Chapter 4, the neurological chapter is relevant to the assessment.
Dispute resolution
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[4]
[4] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as those of Medical Assessors Dixon, Korbel and Garvey further medical assessments and the review of medical assessments by this Panel.[5]
[5] Sections 61, 62 and 63 of the MAC Act.
ASSESSMENTS UNDER REVIEW
Medical Assessor Korbel examined the claimant on 1 November 2022 and issued his certificate on 3 November 2022. He says he was asked to assess the following injury:
“Urinary Tract including Bladder – Aggravation of cauda equina syndrome which includes sexual dysfunction, bowel/bladder incontinence due to the accident dislodging the disc fragment causing recurrent L5/S1 disc prolapse.”
Medical Assessor Korbel had a history of the accident, the diagnosis of the sacral fracture and that Mr Dell then returned from work. Mr Dell then reported deteriorating bladder, bowel and sexual function after the accident with an increase in back and hamstring pain. Medical Assessor Korbel records that urgent surgery was carried out in August 2018. This improved the back and thigh pain, but Mr Dell’s bowel symptoms have worsened, his bladder symptoms had slightly changed, and he has become completely impotent since this accident.
Medical Assessor Korbel diagnosed:
“Mr Dell has suffered disc fragment dislodgement causing recurrent L5/S1 disc prolapse as noted in the referral to me from PIC. This has resulted in sexual dysfunction worsening as well as his bowel and bladder problems worsening. His bladder problem is only minimally worsened.
At present, as far as his bowel is concerned, he states that he needs to open his bowels at least 8 times a day and sometimes has faecal incontinence if he doesn’t get to the toilet in time.”
Medical Assessor Korbel noted the claimant’s bowel incontinence was outside his expertise and did not assess it.
Medical Assessor Korbel diagnosed an aggravation of the claimant’s pre-existing cauda equina syndrome which was affecting Mr Dell’s sexual functioning and causing bowel and bladder incontinence.
Medical Assessor Korbel assessed Mr Dell’s current WPI at 20% assessing the bladder and sexual functioning together,[6] deducting 15% for pre-existing impairment and found 5% WPI therefore due to the motor accident.
[6] Which he did in accordance with AMA4 page 149 table 4.3 class 3.
He cited AMA 4, page 149, table 4.3 class 3.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer filed submissions which dealt with firstly the late application for review. In terms of the substance of the review, the insurer takes issue with the Medical Assessors acceptance of causation without engaging with the argument and his finding of a 75% deduction for pre-existing impairment without reasons.
The insurer says Medical Assessor Korbel did not properly assess the pre-existing impairment.
Claimant’s submissions
The claimant’s submissions comprise 28 paragraphs over 7 pages however they do not actually address the insurer’s submissions and whether there is a material error or not and do not make any submissions as to the substantive issue as to how the assessment should be undertaken.
Procedural matters
The Panel adopts the summary of the procedural matters, the outline of the final submissions from both parties and the reasons for rejecting the claimant’s application to admit late documents contained within paragraphs 48 – 72 of the decision issued in respect of the Review of Medical Assessor Dixon’s assessment.
REVIEW OF THE EVIDENCE
The Panel adopts the summary of the documentary evidence contained within paragraphs
73 – 153 of the decision issued in respect of the Review of Medical Assessor Dixon’s assessment.
RE-EXAMINATION FINDINGS
The Panel adopts the re-examination findings recorded by Medical Assessors O’Neill and Couch and contained in paragraphs 154 – 196 of the decision issued in respect of the Review of Medical Assessor Dixon’s decision.
CONSIDERATION OF THE CLAIMANT’S BACK INJURY
The Panel adopts its reasoning concerning the issue of causation contained within paragraphs 197 - 217 of the decision issued in respect of the Review of Medical Assessor Dixon’s decision and finds:
(a) the mechanism of the accident on 2 June 2017 could have caused an injury to the claimant’s lower back and in particular a further injury to the nerves of the cauda equina, and
(b) the accident did cause an injury to the claimant’s lower back including a further injury to the nerves of the cauda equina that caused or materially contributed to an aggravation or worsening of the claimant’s cauda equina syndrome.
The Panel also finds that the aggravation has not ceased, and that the claimant’s sexual function has continued at a level the Panel is satisfied on the balance of probabilities is at a greater degree than it was immediately before the 2 June 2017 accident.
IMPAIRMENT ASSESSMENT
Bladder dysfunction – Guides and Guidelines
Assessment of the nervous system is covered in Chapter 4 of the AMA4 Guides and includes the following sections:
(a) 4.1 – the central nervous system;
(b) 4.2 - the brain stem;
(c) 4.3 - the spinal cord, and
(d) 4.4 - the muscular and peripheral nervous systems.
Assessment of spinal cord impairment under section 4.3 includes, if relevant, station and gait, the use of the upper extremities, respiration and relevantly to Mr Dell’s matter:
(a) 4.3d – urinary bladder dysfunction;
(b) 4.3e - anorectal dysfunction, and
(c) 4.3 f - sexual functioning.
When assessing impairment of urinary bladder dysfunction due to an injury to the spinal cord there are four impairment descriptions and a range of impairments provided in Table 17 at page 149 of the AMA4 Guides as follows:
Impairment description
% impairment of the whole person
Patient has some degree of voluntary control but is impaired by urgency or intermittent incontinence
1 – 9
Patient has good bladder reflex activity, limited capacity, and intermittent emptying without voluntary control
10 – 24
Patient has poor bladder reflex activity, intermittent dribbling and no voluntary control
25 – 39
Patient has no reflex or voluntary control of bladder
40 – 60
Current impairment
It is the clinical judgment of the medical members of the Panel based on the claimant’s history at the time of the re-examination that he had good bladder reflex activity and intermittent emptying of his bladder without voluntary control. The claimant therefore falls within the second category of impairment.
The Panel is of the view that the claimant’s bladder dysfunction should be assessed at the maximum 24% due to the severity of the symptoms.
Pre-existing impairment
The claimant acknowledged the pre-accident impairment and that his bladder incontinence had not changed from how it was before the accident.
The Panel notes Dr Ghobrial assessed bladder impairment in November 2013 at 10% and that Dr Taylor assessed impairment at 33%.
The Panel is of the view that the claimant’s pre-accident impairment would also fall within the second category of impairment and should be assessed at 24% due to the severity of the claimant’s reported symptoms and his history that there has been no change in the bladder symptoms from before the accident to the current time.
Impairment caused by the accident
In accordance with cl 1.31 of the Guidelines, when the pre-existing impairment (24%) is deducted from the current impairment (24%), the resulting impairment from the accident is therefore 0%.
Sexual dysfunction – Guides and Guidelines
When assessing impairment of sexual function due to an injury to the spinal cord there are three impairment descriptions and a range of impairments provided in Table 19 at page 149 as follows:
Impairment description
% impairment of the whole person
Sexual function is possible but with difficulty of erection or ejaculation in men …
1 – 9
Reflex sexual functioning is possible but there is no awareness
10 –19
No sexual functioning or awareness is present
20
Current impairment
Mr Dell reported he currently had no sexual function (he is unable to maintain and sustain an erection) and awareness was not present. Medication had been prescribed before the accident and different medication after the accident which was not helpful and other aids have been suggested. Clause 1.30 of the Guidelines says that impairment assessment should be conducted without assistive devices.
It is the Panel’s view that the claimant currently falls into the third impairment category which attracts a 20% WPI.
Pre-existing impairment
The Panel notes that Dr Ghobrial assessed WPI at 10% for sexual dysfunction and that
Dr Taylor in February 2014 assessed WPI at 20%.
Before the current cycling accident Mr Dell was able to maintain an erection and sexual intercourse was possible however Mr Dell conceded that before the current accident, he also had no awareness of sensation in his penis. The Panel is therefore of the view that before the accident the claimant fell within the second level of impairment and that this impairment would have been assessed at 15%.
Impairment caused by the accident
In accordance with cl 1.31, when the pre-existing impairment (15%) is deducted from the current impairment (20%) there is a 5% WPI resulting from the worsening impairment of sexual function as a consequence of the cycling accident and subsequent surgery.
CONCLUSION
The Panel is satisfied that the claimant does not have a greater than 10% WPI in respect of the bladder and sexual dysfunction resulting from the neurological injury (aggravation or worsening of the cauda equina syndrome) caused by the accident as summarised below:
Area of the body injured
Current impairment
Pre-existing symptomatic impairment
Degree of impairment caused by the accident
Bladder dysfunction
24%
24%
0%
Sexual dysfunction
20%
15%
5%
The Panel has come to the same conclusion as Medical Assessor Korbel and has arrived at the same impairment assessment of 5% WPI.
The Panel therefore affirms the certificate of Medical Assessor Korbel.
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