AAI Limited t/as GIO v Dell (No 3)

[2024] NSWPICMP 218

DETERMINATION OF REVIEW PANEL

CITATION:

AAI Limited t/as GIO v Dell (No 3) [2024] NSWPICMP 218

CLAIMANT:

Jeremy Dell

INSURER:

AAI Limited t/as GIO

REVIEW PANEL

MEMBER:

Belinda Cassidy

MEDICAL ASSESSOR:

Michael Couch

MEDICAL ASSESSOR:

John O’Neill

DATE OF DECISION:

9 April 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; insurer’s application for review of Medical Assessor (MA) Garvey’s whole person impairment (WPI) assessment dated 11 September 2023; MA referred assessment of impairment to bowel functioning arising out of 2 June 2017 accident; degree of impairment assessed was 30%; insurer challenged MA’s finding on causation based on previous cauda equina syndrome; claimant said bowel function was well controlled at time of accident and worsened after the accident; Held – Panel relied on Panel’s findings of causation of the lower back and worsening cauda equina injury in other proceedings; Panel assessed current bowel function at 35% and pre-existing impairment at 20%; degree of impairment caused by accident was 15%; MA Garvey’s certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under Part 3.4 of the Motor Accidents Compensation Act 1999

The Review Panel:

1.     Revokes the certificate issued by Medical Assessor Garvey on 11 September 2023.

2.     Certifies that 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 greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

1. 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.

2. 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.

3. 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.

4. The Commission arranged medical assessments in respect of the injuries alleged by the claimant in order to determine that dispute as follows:

   (a)    bowel dysfunction arising from the pre-existing cauda equina syndrome – Medical Assessor Garvey;

   (b)    musculoskeletal injuries including fractured sacrum – Medical Assessor Dixon;

   (c)    bladder and sexual dysfunction arising from the pre-existing cauda equina syndrome – Medical Assessor Korbel, and

   (d)    psychological or psychiatric injury – Medical Assessor Suman. The Panel understands this assessment is not under review.

Medical Assessment by Medical Assessor Garvey

1. On 11 September 2023, Medical Assessor Garvey determine that Mr Dell had a WPI of 30% which is greater than 10%.

2. GIO lodged an application with the Commission seeking a review of Medical Assessor Garvey’s decision (proceedings numbered R-M10542161/22).

3. 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.

4. On 17 January 2024, 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

1. 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).

2. 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.

3. 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 Korbel

1. 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%).

2. 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.

3. On 24 October 2023, the President convened a Panel comprising Member Cassidy and Medical Assessors O’Neill and Couch to conduct the Review.

The current proceedings

1. 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.

2. 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.

3. 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

1. Mr Dell’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).

2. Damages for non-economic loss are provided for in Part 5.3 of the MAC Act but are limited and 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

1. 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.

2. 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.

3. 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

1. 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.

2. 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

1. Medical Assessor Garvey examined the claimant on 11 September 2023 and issued his certificate the same day. He says he was asked to assess “urinary tract including bladder; bowel incontinence”.

2. The Medical Assessor records at [9] the claimant’s previous accident in March 2012, the development of symptoms a week later and the diagnosis of cauda equina requiring an emergency discectomy three months later. Medical Assessor Garvey has a history of improving but not resolving symptoms which appeared to have plateaued in 2015. He then records the history of the current accident and said Mr Dell was diagnosed with a fractured sacrum. The claimant said he was allowed home but experienced severe back pain every month which led to facet joint injections and then emergency surgery in respect of the L5/S1 disc.

3. Medical Assessor Garvey documents at [10]:

   (a)    between 2012 – 2017 the claimant opened his bowels 2 – 3 times a day with no regular accidents;

   (b)    after the accident in 2017, he started having small accidents and for example if he went swimming, he would notice a smear of faeces on his swimming costume;

   (c)    after 2017 he used the Valsalva manoeuvre 8 – 10 time a day when he emptied his bladder;

   (d)    if he exercised or changed his diet, he would have an accident;

   (e)    his bladder function is unchanged since 2012, and

   (f)    since 2017 Mr Dell has experienced no sexual intercourse.

4. On examination, there was no abdominal abnormality. The Medical Assessor undertook a rectal examination which revealed normal internal sphincter control, weak voluntary external sphincter contraction and there was faecal soiling from incontinence visible.

5. Medical Assessor Garvey says at [19] there is objective clinical evidence of a neurogenic bladder and anorectal incontinence after the June 2017 accident and surgery. He assessed 40% WPI for the bladder but deducted all of it as the claimant acknowledged his symptoms were the same as after the 2012 accident. Bowel incontinence was assessed at 40% less 10% for previous incontinence.

6. He confirmed the diagnosis of cauda equina syndrome and assessed WPI at 30%.

ISSUES FOR DETERMINATION

Insurer’s submissions

1. The Panel notes that there has been a breach of Procedural Direction PIC 6 in that the non-lead Medical Assessors’ certificates (Dixon and Garvey) were sent to the parties separately from the lead assessor’s combined certificate (Medical Assessor Korbel).

2. The insurer also notes that as two of the medical certificates were already the subject of a review based on reasonable cause to suspect they were erroneous. The insurer says Medical Assessor Garvey appears to have relied on the causation findings of the other two Medial Assessors.

3. The insurer says Medical Assessor Garvey has failed to provide adequate reasons for causation.

4. The insurer also says the Medical Assessor has failed to provide sufficient reasons for his 10% deduction for the prior impairment and has failed to undertake a pre-existing impairment assessment as is required by the Guidelines.

Claimant’s submissions

1. The claimant opposes the review on the basis that the Medical Assessor did provide reasons, has explained his finding in support of a 10% deduction and refers to evidence which supports a finding that the claimant has experienced worsening of his bladder condition after the accident.

Procedural matters

1. 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

1. 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

1. 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

1. 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.

2. The Panel also finds that the aggravation has not ceased and that the claimant’s bowel symptoms have continued at a level the Panel is satisfied is at a greater degree than it was immediately before the 2 June 2017 accident.

IMPAIRMENT ASSESSMENT

Anorectal impairment - Guides and Guidelines

1. 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.

2. 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.

3. When assessing impairment of anorectal dysfunction due to an injury to the spinal cord there are three impairment descriptions and a range of impairments provided in Table 18 at page 149 of the AMA4 Guides as follows:

Impairment description	% impairment of the whole person
Anorectum has reflex regulation but only limited voluntary control	1 – 19
Anorectum has reflex regulation but no voluntary control	20 - 39
Anorectum has no reflex regulation or voluntary control	40 - 50

Current impairment

1. It is the clinical judgment of the medical members of the Panel based on the claimant’s history that at the time of the re-examination Mr Dell has reflex regulation but no voluntary control of his bowel movements. 

2. The Panel is of the view that the claimant’s anorectal dysfunction should be assessed at the higher end of the range that is 35% WPI due to the severity of the claimant’s current symptoms. The claimant is embarrassed by the condition, and it affects his activities of daily living for example he must, when out and about be near a toilet.

Pre-existing impairment 

1. The claimant acknowledges that immediately before the accident he had bowel issues but says he had a greater level of control of his bowel movements then than he does today.

2. The Panel notes previous impairment assessments for anorectal dysfunction namely

   
   

   Dr Ghobrial in November 2013 who assessed 10% and Dr Truskett who assessed 24% in April 2014.

3. The Panel is satisfied that immediately before the bicycle accident in 2017 Mr Dell had reflex regulation with no voluntary control but that his impairment was at the lower end of the range and that impairment should be assessed at 20% WPI.  The Panel feels Mr Dell’s anorectal function was at the lower end of the range before the bicycle accident because Mr Dell said he could produce a bowel action twice a day with a Valsalva manoeuvre and there was no faecal incontinence.  In other words, there was a greater degree of control over his bowel actions.

Impairment caused by the accident              

1. When the pre-existing impairment (20%) is deducted from the current impairment (35%) as required by cl 1.31 of the Guidelines, the Panel finds that Mr Dell’s cycling accident and the injury to his lower back and cauda equina has resulted in a 15% impairment of anorectal function.

CONCLUSION

1. The Panel is satisfied that the claimant has a greater than 10% WPI in respect of the anorectal dysfunction resulting from the lower back injury and additional neurological injury (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
Anorectal dysfunction	35%	20%	15%

1. As Medical Assessor Garvey found a WPI of 30% and included that figure in his certificate it follows that his certificate must be revoked.