AAI Limited t/as GIO v Georges
[2023] NSWPICMP 480
•28 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Georges [2023] NSWPICMP 480 |
| CLAIMANT: | John Georges |
INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Philip G Truskett AM |
| DATE OF DECISION: | 28 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Dispute about whether the degree of permanent impairment of the claimant as a result of physical injury caused by the accident is greater than 10%; whether the claimant suffered from gastro-oesophageal intestinal disease as a result of the accident; medical assessment under review certified that the injuries caused by the accident gave rise to a permanent impairment greater than 10%; Held – the claimant’s injuries as a result of the accident did not give rise to permanent impairment greater than 10%; the certificate of Medical Assessor Berry is revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the Certificate of Medical Assessor Neil Berry dated 14 February 2023. 2. Certifies the following conditions: · cervical spine; · left upper extremity (shoulder); · left upper extremity (arm); · right upper extremity (shoulder), and · gastrointestinal system do not give rise to a permanent impairment of greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Claim and dispute summary
John Georges (Mr Georges), the claimant was injured in a motor vehicle accident on
22 March 2017.He was the driver of a Nissan Dualis and wearing a seatbelt. He stopped at lights and recalls that while stationary there were two impacts into the back of his vehicle. The airbags did not deploy. Police and ambulance did not attend. He was able to drive his vehicle home, which was nearby.
A medical dispute has arisen in connection with the claim, as to whether or not Mr Georges’ injuries have led to a degree of whole person impairment (WPI) greater than 10% within the statutory definition.
The following medical disputes were referred to the Personal Injury Commission (Commission) for determination:
· cervical spine;
· left upper extremity (shoulder);
· left upper extremity (arm);
· right upper extremity (shoulder), and
· gastrointestinal system.
On 14 February 2023, Medical Assessor Neil Berry determined the dispute, assessing the degree of WPI at 14%.
The insurer was dissatisfied with this result and lodged an application seeking a review. On 17 May 2023, a delegate of the President of the Commission determined that there was reasonable cause to suspect the decision was incorrect in a material respect, and the delegate of the President convened this Panel to conduct the Review.
THE REVIEW
The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by Schedule 1, cl 3 of the Personal Injury Commission Act 2020 (PIC Act).
Under Schedule 1, cl 14A(1) of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the Motor Accidents Compensation Act 1999 (MAC Act).
Schedule 1, cl 14F of the 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 Schedule 1,
cl 14A(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 Panel is to conduct the review in accordance with s 63 of the MAC Act. Section 63(3) provides that the review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A) MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from
12 February 2021, apply to this review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).Causation of injury is to be determined in accordance with cls 1.5 – 1.7 of the Impairment Guidelines.
On 24 August 2023 the Panel determined that an examination of the claimant was required.
The Panel has considered the documents and submissions relied on by the parties for the purposes of the Review.
LEGISLATIVE FRAMEWORK
No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 131 MAC Act.
Section 132 of the MAC Act deals with the assessment of impairment. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a Medical Assessor under Part 3.4 of the MAC Act.
The method of assessing the degree of impairment is dealt within s 133, which is in the following terms:
“133 Method of assessing degree of impairment
(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.
(2) The assessment of the degree of permanent impairment is to be made in accordance with—
(a) Motor Accidents Medical Guidelines issued for that purpose, or
(b) if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
Note—
See Part 3.1 for Motor Accidents Medical Guidelines”Clause 1.3 of the Impairment Guidelines provide that they apply to the assessment of the degree of permanent impairment that has resulted from an injury between 5 October 1999 and 30 November 2017. The Impairment Guidelines state as follows with respect to causation of injury:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 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.
1.7 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.”GIO’s Application for Review was made under s 7.26 of the Motor Accident Injuries Act 2017 (MAI Act). Pursuant to s 7.26(5A), the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
ASSESSMENT UNDER REVIEW
Medical Assessor Berry was asked to assess whether the injuries referred were caused by the motor vehicle accident and gave rise to a permanent impairment greater than 10%:
· cervical spine;
· left upper extremity (shoulder);
· left upper extremity (arm);
· right upper extremity (shoulder), and
· gastrointestinal system.
The scarring resulting from the decompressive laminectomy at C3/4, performed in 2019, was not assessed as it was not included in the list of injuries to be assessed. In any event, it would have made no difference to the outcome of this medical dispute in terms of the WPI threshold.
It will be noted that Panellist Moloney found a 1% WPI as per Table 68 for an injury to the lateral cutaneous nerve of the left thigh, if that was considered causal. The issue of causality was not considered by the Panel as that injury had not been referred for assessment.
Mr Georges gave a history to Medical Assessor Berry, which is set out at [9]:
“Mr Georges sustained injuries initially to the neck and left arm and he attended
Dr Muhammad Memon, his general practitioner, and was treated conservatively, however he continued to suffer pain in his neck and left arm. After taking Voltaren he began to develop reflux. He saw a number of Neurosurgeons including Dr Brian Hsu,
Dr Renata Bazina and Dr Richard Parkinson. Dr Richard Parkinson, Neurosurgeon subsequently operated on him at Prince of Wales Private Hospital in 2019 carrying out a decompressive laminectomy.”Mr Georges gave a history of his current symptoms at [11]-[12]:
“Mr Georges complained today that he suffers pain in the neck and he gets headaches. He also has pain in both shoulders and pins and needles in both hands. Since he commenced on medications, he has developed belching and constant nausea…
He takes medications only:
• Duloxetine
• Celebrex
• Norflex
• Seroquel
• Amitriptyline
• Lyrica”
Clinical examination by Medical Assessor Berry
Medical Assessor Berry set out the results of his clinical examination at [13]-[20], noting that he had half the normal range of the cervical spine without muscle spasm or alteration of spinal contour, half the normal range of movement of the lumbar spine, but no paraspinal muscle spasm, and significant reduction in the range of movement of both shoulders, but without muscle wasting and no evidence of nerve root tension.
The Medical Assessor’s review of documentation
The Medical Assessor had available the documents to which he refers in [21] of his Reasons and the medical imaging to which he refers at [22].
The Medical Assessor’s determination, diagnosis, and reasons
The Medical Assessor gave his diagnosis and reasons at [23]:
“Mr Georges has a history of sustaining neck and left shoulder pain as a result of his motor vehicle accident. Imaging has shown a C3/4 disc lesion which has been decompressed. There is bursitis but no evidence of a tear in the rotator cuff mechanism.”
He continued at [24]:
“The claimant’s vehicle was struck twice from behind and he was thrown backwards and forwards and also thrown against his seatbelt sustaining a left shoulder injury of the soft tissue type and also an injury to the cervical spine injuring a C3/4 lesion. The claimant has subsequently developed what appears to be an adverse psychological response to his injuries. He also has evidence of bloating and reflux due to medications affecting his oesophagus and gastrointestinal system.”
Summary of injuries referred by the parties
Medical Assessor Berry concluded that the following injuries were caused by the motor vehicle accident:
·intestine – gastro-oesophageal reflux;
·left arm – radicular complaints;
·shoulders – bilateral brachalgia, and
·cervical spine – aggravation of previously asymptomatic C3/4 disc.
SUBMISSIONS
Claimant’s submissions of 9 May 2023
The Panel briefly summarises the submissions by reference to paragraph numbers. The Summary deals only with that part of the submissions as relates to the substantive aspects of the matter, namely, the Review:
[8.1]Medical Assessor Berry had proper regard to the available medical evidence, and he provided a clear path of reasoning.
[8.4]The assessment of WPI in relation to the cervical spine at 5% was simple and reasonable. There was an overwhelming amount of medical evidence supporting that assessment.
[8.5]The assessment of both the left shoulder and the right shoulder at 2% were both simple and reasonable of Assessor Berry, his methodology and use of the goniometer were correct.
[8.6]The assessment by analogy (for both shoulders) was correct, as was the diagnosis of the bilateral brachalgia.
[8.7]There were objective findings. Further, the submission refers to the report of Dr Dixon of 3 August 2022.
[8.9]Refers to the assessment of the Upper Digestive Tract at 5% and argues that it was simple and reasonable and supported by objective findings, including the report of Dr Greenberg.
Insurer’s submissions of 14 April 2023
I briefly summarise the insurer’s submissions by reference to paragraph numbers:
[8-23]Submits that the Medical Assessor’s assessment of DRE II at 5% for the cervical spine was demonstrably erroneous and without a clear path of reasoning. There are a number of specific criticisms, which are not necessary to reproduce given the outcome of the Review.
[24-44]Similarly, there are criticisms of both the line of reasoning and the findings in respect of the left and right shoulder, but again, they are of no significance given the outcome of the Review.
[45-52]Criticises the reasoning process in respect of the conclusion on the Upper Digestive Tract and provides that the conclusions were inconsistent with cl 1.247.
Generally, the submission makes a number of other specific and general criticisms.
THE EVIDENCE BEFORE THE REVIEW PANEL
Mr Georges attended the medical suites of the Commission on 18 September 2023. Both Medical Assessor Truskett and Medical Assessor Moloney were present during the examination.
Assessment of Medical Assessor Moloney 18 September 2023
Medical Assessor Moloney sets out his report of his findings and conclusions with respect to each medical dispute, with the exception of the medical dispute relating to the gastro-intestinal tract as follows:
“Mr Georges attended the medical suites of PIC on 18 September 2023. He was accompanied by his wife. The Review Panel examiners were Medical Assessor Phil Truskett and Medical Assessor Shane Moloney.
Pre-accident history
Mr Georges stated that he was very active prior to the accident and was working full-time in the setup of the beverage business which initially started in 2013. He stated that he was very fit and worked out on a very regular basis. There were no previous injuries noted prior to the 2017 motor vehicle accident. He is married and lives with his wife and 3 children. His wife had been diagnosed with primary biliary cirrhosis and was treated by liver transplant about 4 months prior to the accident.
History of motor accident
Mr Georges was a driver of his car, four-wheel-drive Nissan and was stationary when hit from the rear with 2 impacts. He was wearing a seatbelt at the time, but airbags did not deploy. The ambulance and police officers did not attend the scene of the accident and he was able to get out of his car and exchanged details with the other driver. As the accident occurred 1 km from his house, he was able to drive home but then arranged for it to be towed and subsequently repaired.
History of symptoms and treatment following the motor accident
After resting at home, he noticed there was increasing pain in the left side of his neck radiating to the left arm. He consulted his GP, Dr Memon who prescribed Voltaren and then referred him for a CT and MRI of the cervical spine. Due to increasing pain, he was referred to a neurosurgeon, Dr Hsu who advised Mr Georges that a fusion operation of his upper cervical spine was necessary, and this was also advised by another neurosurgeon Dr Bazina who also recommended a fusion operation. Later referrals made to another neurosurgeon, Dr Parkinson who recommended a decompressive laminectomy of the C3/4 level. This was undertaken in 2019 and was funded by the insurer. There have been no relevant injuries sustained since the motor accident. Since the cervical surgery, there has been increased pain down both arms radiating across the shoulders associated with a tremor in the head and weakness in the neck. In a follow-up consultation with Dr Parkinson, he was told it was persistent impingement of the C3/4 level, but no further surgery was suggested. He was then referred to a pain specialist, Dr McMaster who told Mr Georges that there was bruising on the spine which is myelomalacia which was causing his persistent symptoms. He was also informed that fusion surgery at this level was too risky. There has also been more recent follow-up with another pain specialist, Dr Hu. At his pain clinic, there has been treatment by the physiotherapist, psychologist and bilateral nerve blocks to his upper cervical spine which gave relief for 2 days from his migraine. Botox injections were also administered but he claims that this caused a swelling over his left scapula. In early 2023, Mr Georges developed cardiac symptoms which resulted in an admission to hospital and cardiac stents inserted in February 2023.
Current symptoms
At present, he has developed a constant feeling of pins and needles in the right hand which increases at night over the last 3 weeks and in particular the right index and middle fingers. He gets a spasm in the left hand which is constant and occasional electric shocks down the left arm. There is constant neck pain which radiates into the head, and he states that he gets a migraine every day. This pain also radiates into the shoulders and scapulae. There is some relief from the pain when he lies down. Mr Georges states that whenever he has a long car journey such as the one-hour taxi ride to attend today, he gets increased cervical pain and wears a cervical brace to minimise jolting when in the car. He also states that he has had several assessments and they all increased marked anxiety and escalation of his pain. There has been a development of low back pain which started about 6 months after the accident and in particular after the cervical surgery. This is a radiation of pain into the right buttock region but not into the legs. He also developed the numbness over the left lateral thigh which developed immediately after the cervical surgery.
Current treatment
Mr Georges continues to attend the pain clinic and is on numerous medications. Present medication is duloxetine 90 mg One-A-Day, Celebrex hundred milligrams One-A-Day, Norflex 100 mg One-A-Day, Seroquel 25 mg 2 per day, amitriptyline 50 mg 2 per day, Lyrica 75 mg One-A-Day, Efexor 75 mg One-A-Day, pantoprazole 40 mg 2 per day, lidocaine patches 5% One-A-Day. He is also on medication for his cardiac condition which is Atacand 4 mg One-A-Day, rosuvastatin 20 mg One-ADay, metoprolol 95 mg One-A-Day, plidogrel 75 mg One-A-Day, cardia hundred milligrams day and a Nitro lingual pump spray.
Clinical examination
General appearanceMr Georges walked into the rooms with the assistance of his wife in a stooped posture and was distressed during the interview. When seated, he was tilted to the left and was frequently belching. He stated that he was more distressed today as he didn't take his Seroquel medication as advised by his lawyer.
Cervical spine
On testing range of movement, flexion was 50% of expected range but extension was 10% of expected range which was probably related to his cervical surgery. Side bending and rotation were 50% of expected range bilaterally. On palpation there was tenderness over the paravertebral muscle, but no guarding or spasm was noted. On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted except for sensation of pins and needles in the right index and middle fingers. No wasting was apparent in the muscles of the hand. The circumferences of the upper arms were 37 cm in the right and 36.5 cm on the left (10 cm above the olecranon process) and in the upper forearm 33 cm bilaterally. This is within normal limits for right-handed man.
Thoracic spine
On testing range of movement, there was a symmetrical decrease inflexion/extension, rotation and side bending of 50%. No guarding or spasm was noted and no signs of radiculopathy. There is a large soft swelling over his left scapula with a diameter of about 8 cm. This is clinically a large lipoma. He states that this swelling developed after the Botox injections at the cervical spine, but this is not anatomically possible. On palpation of the anterior chest wall, there was significant tenderness over the costochondritis junctions which has been diagnosed as costochondritis which is not related to the motor vehicle accident.
Lumbar spine
Mr Georges walked with a stooped gait holding his arms close to his body. He was unable to stand fully erect. He was also unable to attempt to walk on his heels and toes or squat due to poor balance. It was difficult to assess range of movement of the lumbar spine due to his flexed posture, but the Panel was able to determine that there was a symmetrical reduction in range of movement of 50% in flexion/extension and side bending with no guarding or spasm noted in the lumbar musculature. On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted except for decreased sensation over the left lateral thigh which was in the clinical distribution of the left lateral cutaneous nerve. Mr Georges stated that this only occurred after the cervical surgery and it is feasible that there had been some compression of this nerve during the surgical procedure.
Shoulders
Both shoulders were significantly restricted in range of movement with no muscle wasting apparent around the shoulder joints and on passive movement no crepitus was detected. When range of movement was measured using a goniometer, there was significant variations when repeated. Flexion of both shoulders varied between 60 and 90°, extension varied between 0° and 10°, as did adduction. Abduction fluctuated between 40° and 70° bilaterally and internal and external rotation also fluctuated between 0° and 30° bilaterally. Mr Georges stated that pain referred from the cervical spine and trapezius muscles caused restriction in range of movement and he understood that this impairment could not be assessed by this movement but rather by analogy.
Scarring
There was a 7 cm surgical scar vertically situated down his cervical spine. Mr Georges was conscious of the scar with colour contrast with surrounding skin. He was able to locate the scar and there are minimal trophic changes. With minor contour defect, this scar would be visible when wearing a shirt with a low collar or a T-shirt. There was negligible effect on any ADLs and no treatment is required with no adherence. Classification of best fit using the Temski chart was 1% WPI.
Comments
Cervical spineThe Panel has determined that there is a 5% WPI for the cervical spine. On examination there was some dysmetria on testing range of movement and is associated with the surgical decompression laminectomy of the C3/4 level. There are no clinical signs of radiculopathy but recently, there is a peripheral development of possible carpal tunnel syndrome especially in the right hand. This is not however related to the motor vehicle accident.
Thoracic spine
The swelling over the left scapula is clinically a large lipoma and not related to the motor vehicle accident or procedures undertaken.
Lumbar spine
The Panel does not consider that there has been an injury to the lumbar spine sustained in the subject accident. He was asymptomatic in this region in the first 6 months after the accident.
Shoulders
There have been no injuries recorded to the glenohumeral joint of his shoulders but there is a referral of pain from the cervical spine radiating into the trapezius muscle and shoulder region bilaterally. In consideration the Nguyen principle, the Panel considers that has been an injury to the shoulders sustained in the subject accident. However, due to marked inconsistency at the time of our examination and in comparison, to previous assessments, range of movement could not be used to assess impairment. The most appropriate method would be by analogy. An appropriate analogy would be using the acromioclavicular joints. In Table 18 of AMA 4th, this joint is 15 % WPI and mild crepitation using table 19 is 10 % of the joint which give 1.5% WPI and is rounded up to 2 % WPI for each shoulder.
Scarring
1% WPI as per Temski chart
Lateral cutaneous nerve of left thigh
This was 1 % WPI as per Table 68 if we consider causal. However, this has not previously been listed as an injury for assessment.”
Assessment of Medical Assessor Truskett 19 September 2023
Medical Assessor Truskett sets out his report of his findings in respect of the medical dispute concerning the gastrointestinal tract as follows:
“Gastrointestinal tract
Began to experience gastrointestinal symptoms about 2 years ago. Symptoms of profuse belching. Also, retrosternal burning from lower sternum with welling of acid into mouth. This is worse at night. No trouble swallowing. No special diet but avoids pasta and spicy food as may make worse. No epigastric or lower abdominal pain. Bowels open daily. Formed motion. Good bowel control. Can distinguish flatus from faeces. At time of accident weighed 90kg and is now 107kg.
Current medications
· Duloxetine 90mg 1 daily for 1 year Antidepressant
· Celebrex 100mg daily for 4 years NSAID
· Norflex 100mg 1 daily for 18 months Antispasmodic
· Seroquel 25mg 2 daily for 18 months Antidepressant
· Amitriptyline 50mg 2 daily for 18 months Antidepressant
· Lyrica 75mg 1 daily for 5 years Pain modulator
· Effexor 75mg 1 daily for 18 months Antidepressant
· Pantoprazole 40mg 2 daily for 2 years Proton pump inhibitor (for reflux)
· Lidocaine patches 1 per day for 18 months Local anaesthetic
Cardiac medications
· Atacand 4mg 1 daily for 3 years Antihypertensive
· Rosuvastatin 20mg 1 daily 3 years For Cholesterol
· Toprol XL 95mg 1 daily for 4 years Beta blocker
· Plidogrel 75mg 1 daily for 2 years Blood thinner for stents
· Cartia (aspirin) 100mg 1 daily for 2 years Blood thinner for stents
On general examination
He walked with an abnormal wide based gait as if almost skating. He sat tilted to the left and stood with a similar tilt. He would frequently shake either hand alternatively and sat with the right hand hyper flexed at the wrist as if in carpal spasm with occasional athetoid movements which were distractible when examined. He belched frequently throughout the interviews quite loudly and would apologise. He was agitated and was air swallowing. He was extremely angry with the insurers and lawyers who “treated him like a criminal”. He was very pain focused and would rely on his wife for memory lapses. She would provide photographs and documentation from time to time to verify his history. Only Xray results were considered.
It was put to Mr Georges that most of the air in the gut is swallowed. He was asked if he swallowed excessive air. He felt that he might as he sucks in air when he feels pain.
He did not appear anaemic or jaundiced. His shirt was removed for the purpose of examination. His wife assisted him to do so.
He had a non-reducible non tender umbilical hernia about 2 cm in diameter.
His abdomen was soft. There was no guarding. There was mild subjective tenderness in the RUQ. There were no masses or organomegaly. There was no ascites.Review of Relevant Documentation
Report by Dr Sam Al-Sohaily (Gastroenterologist) dated 02/02/2022: He described a 12 – 18-month history of severe gastro oesophageal reflux with retrosternal burning. He also described oesophageal spasm. He recommended as gastroscopy. He suggested that his symptoms were due to reduced motility because of medication.
Gastroscopy Report, Dr Sam Al-Sohaily, dated 11/03/22: Hiatus 40cm from teeth (normal) with Hill’s III laxity (minor). Oesophagus and stomach no inflammation. Mild duodenitis 1st part duodenum, rest duodenum normal. Biopsies taken.Assessor Truskett commented: Biopsy result not provided. Mild focal duodenitis is a common finding and is usually due to focal increased blood flow and not due to inflammation.
Medical Records Allcare Carnes Hill Medical Centre: Documentation indicates that he has been prescribed intermittent NSAID drugs sine 28 July 2014 and will need to be on aspirin lifelong because of his stents. He has also been on antidepressants since 3 September 2014 for depression. This is well prior to his MVA.
Medicolegal Report of Dr Anthony Greenberg dated 2 May 2022: His report focuses on the gastrointestinal tract. He describes symptoms of reflux. He also describes symptoms of nausea, which was not expressed today. Dr Greenberg documents excessive belching but does not provide an explanation for this or how it might relate to his dyspepsia. He then assesses him as having a 3% WPI of his Upper GI according to AMA 4 Page 239 Table 2. To qualify for class 1 (0-9%), he must have symptoms and signs of disease. His reasoning is not outlined but if he implies that NSAID has caused ulceration to the stomach, this is not supported by the Gastroscopy report by Dr Sam Al-Sohaily dated 11 March 2022. Although mild duodenitis has been described, this can often be due to increased blood flow. Biopsies were taken but have not been provided to demonstrate anatomic loss or alteration. If he feels that his symptoms are due to a motility disorder due to medications, this is a side effect of the medication and is not a disease or an injury and is fully reversible. His reasoning is not explained.
Lower GI assessed under AMA 4, Table 3 Class 1 as 2%. To qualify for Class 1, Mr Georges must have symptoms and signs of lower digestive tract disease. He has no signs. He therefore does not qualify for Class 1.Conclusion GI Tract
He suffers from dyspepsia which commenced about 2 years ago, some 4 years from his motor vehicle accident. This is a significant temporal dissociation from the time of his accident to the onset of his symptoms. Such a dissociation makes any form of causation difficult to support. It is most likely that his air swallowing is the cause of his belching and dyspepsia. There was no evidence of gastrointestinal injury from his MVA. In addition, he was taking NSAID and antidepressants prior to the accident. He has Aerophagia (air swallowing). This is a voluntary phenomenon which may be secondary to anxiety. It is not a disease and will contribute to reflux symptoms. According to AMA 4 Table 2 page 239 to qualify for Class 1 (0-9% WPI). He must have symptoms or signs of a gastrointestinal disease, He has no demonstrable disease, as he is an air swallower which is a voluntary act. In addition, any motility alteration due to medication is a pharmacological effect which resolves once the medication is modified or ceased. He was on antidepressants, as now, before his motor vehicle accident.”
The claimant therefore does not qualify for Class 1.
Documentary material
Although the Panel has read all of the documentary material which was before Medical Assessor Berry, it will limit its Review and discussion to the reports and material which were before the Panel with respect to the gastrointestinal tract disease issue, as only these reports were critical to the question of whether or not Mr Georges succeeded in this Review in establishing WPI above 10%, findings on the other injuries being consistent with the finding of Medical Assessor Berry as set out in the findings of the Panel on the other injuries referred.
Report of Dr Anthony Greenberg
Dr Anthony Greenberg, general and gastrointestinal surgeon reported at the request of the claimant’s solicitor on 2 May 2022.
He had available to him extensive documents which he lists on page 2-3.
He took a good history including a clinical history of the upper gastrointestinal tract, which he sets out at pages 2-3.
Dr Greenberg was obviously somewhat restricted in terms of medical examination as it was by video consultation.
Dr Greenberg set out an overview of the long-term uses of analgesics and antidepressants and considers that the symptoms described were consistent with the history and diagnosis.
Dr Greenberg was able to consider the findings of the treating gastroenterologists Dr Sam Al-Sohaily, whose report to the general practitioner (GP) of 2 February 2022, was available to him, as was the finding of the gastroscopy of 11 March 2022.
Dr Greenberg set out his opinion at pages 12-13, his key conclusions being:
“On the balance of probabilities, the symptoms described by Mr Georges are related to the medication he requires as a consequence of his orthopaedic injuries.
NSAIDs are recognised to cause significant GI effects particularly, affecting the upper GI tract. It is accepted that on occasion its effects on the stomach can be serious and on occasions cause serious GI bleeding, perforation and duodenal or gastric ulceration. It is accepted patients can have symptoms of epigastric pain and gastroesophageal reflux as described by Mr Georges.
As discussed in the comment the recognised side effects of the various medication could account for some of Mr Georges’ upper GI symptoms.”Dr Greenberg concluded that the claimant had gastro oesophageal reflux disease (GORD), probable analgesic gastropathy, and medication-induced gastrointestinal motility disorder.
Report of Dr Sam Al-Sohaily of 2 February 2022
Dr Sam Al-Sohaily, treating gastroenterologist saw Mr Georges on the referral of his GP.
He commented:
“For the last 12 to 18 months, he developed severe gastro-oesophageal reflux symptoms and symptoms suggestive of oesophageal spasms: intermittent sharp severe epigastric and lower chest pain extending up to the throat, as well as severe burning sensation in the pharyngeal area which sometimes radiates up to the nasopharynx. He has intermittent choking sensation while asleep. He has no dysphagia, no vomiting and no weight loss. He also has abdominal bloating and constipation.”
Dr Al-Sohaily considered that the symptoms were likely due to gastro-oesophageal reflux and oesophageal spasms, and that his medications were probably contributing to reduced GI motility, causing abdominal bloating and gastro-oesophageal reflux.
FINDINGS OF THE PANEL
The Panel acknowledges that the Review is a new assessment of all matters with which the Medical Assessment is concerned. The original assessment related to whether the injury to the right hip was a minor injury (now called a threshold injury) as defined under the MAI Act.
The Panel included two specialist medical practitioners, and was not required to choose between competing medical opinions, but rather is required to form its own opinion (Insurance Australia Group Limited v Keen [2021] NSWCA 287; Insurance Australia Group Limited v Marsh [2022] NSWCA 31).
Panel’s consideration of whether Mr Georges had gastro oesophageal reflux disease as a result of the motor vehicle accident
Medical Assessor Truskett, who is a specialist gastrointestinal surgeon, put it to Mr Georges that most of the air in his gut was swallowed. He was asked if he swallowed excessive air and he said that he might as he sucks in air when he feels pain.
Medical Assessor Truskett considered the report of Dr Greenberg and noted that
Dr Greenberg’s reasoning for the finding that Mr Georges’ had a 3% WPI on his upper gastrointestinal tract was not set out in his report.Medical Assessor Truskett further concluded that Mr Georges did not have symptoms and signs of lower digestive tract disease.
With respect to Mr Georges’ motility disorder, Medical Assessor Truskett was critical that
Dr Greenberg’s reasoning was not explained.Medical Assessor Truskett’s conclusions with respect to the GI tract are set out in [66]-[68] above. It was significant that he considered the dyspepsia had commenced two years ago, four years after his motor vehicle accident. This was a significant temporal dissociation from the time of the accident to the onset of his symptoms and this made any form of causation difficult to support.
Medical Assessor Truskett was of the opinion that it was most likely that Mr Georges’ air swallowing was the cause of his belching and dyspepsia. There was no evidence of gastro-intestinal injury from the motor vehicle accident.
Medical Assessor Truskett further was of the opinion that the claimant was taking non-steroidal anti-inflammatories and anti-depressants prior to the accident.
In fact, what Mr Georges had was Aerophagia (air swallowing) which he described as a voluntary phenomenon, which may be secondary to anxiety, but was not a disease, though it would contribute to reflux symptoms. Mr Georges had no symptoms or signs of a gastrointestinal disease, as he was an air swallower, which is a voluntary act, he did not qualify under AMA4-table 2 page 239 for Class 1 (0-9% WPI).
Finally, Medical Assessor Truskett commented that any motility alteration was due to medication and was a pharmacological effect which resolved once medication was modified or ceased. Mr Georges was on anti-depressants now, as he was before his motor vehicle accident.
Medical Assessor Moloney was fully in agreement with Medical Assessor Truskett.
Conclusions of the Panel
The Panel concluded that the claimant’s WPI was, in summary:
· cervical spine – 5%;
· left shoulder – 2%;
· right shoulder – 2%;
· lumbar spine – 0% (as the claimant was asymptomatic in the first six months after the accident);
· thoracic spine – 0% (the swelling was clinically a large lipoma and not related to the motor vehicle accident), and
· GORD is not established nor causally related.
Total WPI: 9%
For these reasons, the Panel found that the Certificate issued by Medical Assessor Berry should be revoked and a new Certificate should be issued. The new Certificate appears at the commencement of these Reasons.
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