AAI Limited t/as GIO v Lim
[2024] NSWPICMP 92
•22 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Lim [2024] NSWPICMP 92 |
| CLAIMANT: | Back Chun Lim |
| INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Tania Rogers |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 22 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a multi-vehicle accident on his way to work; claimant presented to his GP the next day with neck pain, right shoulder girdle pain, lower back pain and pain in the knees; disputes as to threshold injury, reasonable and necessary care and treatment improving recovery; Held – Medical Assessment Certificate confirmed; no issues as to principle. |
| DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 1. The Review Panel confirms the certificate dated 3 February 2023. CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 2. The Review Panel confirms the certificate dated 3 February 2023. CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT OR CARE IMPROVING RECOVERY Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 3. The Review Panel confirms the certificate dated 3 February 2023. |
STATEMENT OF REASONS
INTRODUCTION
Back Chun Lim (the claimant) is 42 years of age. The claimant was the driver of a car that was stationary behind another vehicle on Windsor Road at Northmead. He was on his way to work. The claimant’s vehicle was hit from behind by the insured vehicle and pushed into the vehicle in front of it. The claimant was able to self-extricate from his vehicle. It was towed away and subsequently assessed as being beyond repair. The claimant attended his local doctor the following day. He presented with neck pain, right shoulder girdle pain, lower back pain and pain in the knees.
The claimant eventually had MRI scans of the cervical spine, right shoulder and right back. He was referred to Dr Raoul Pope, a neurosurgeon. Dr Pope was of the opinion that the claimant has significant disc pathology in the cervical spine. He found disc protrusion at C6/C7 causing some C7 radicular symptoms that were not present at his original assessment. Dr Pope recommended a SPECT/CT bone scan and a peri-radicular block injection. The claimant was not keen to proceed with the block injection.
There is a dispute between the claimant and the insurer about the following medical assessment matters prescribed by Schedule 2, cl 2 of the Motor Accident Injuries Act2017 (the Act):
(a) whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24 of the Act (Entitlement to statutory benefits for treatment and care), and
(b) whether the injury caused by the motor accident is a minor injury for the purposes of the Act.
Section 1.6 of the Act, cl 4 of the Motor Accident Injuries Regulations 2017 (the Regulations) and the Motor Accident Guidelines (the Guidelines) are relevant in dealing with the assessment of whether an injury is a minor injury.
The Motor Accident Injuries Amendment Act 2022 changed a “minor injury” to a “threshold injury” as from 1 April 2023. References in this report to “minor injury/injuries” are quotations from documents crated before 1 April 2023.
The claimant was referred for assessment by Medical Assessor James Bodel who saw the claimant on 4 October 2022 and certified as follows:
The following injury caused by the motor accident:
- Left knee fat pad syndrome associated with trauma caused by the motor accident;
- Left shoulder – left shoulder musculo ligamentous strains with possible labral injury caused by the motor accident;
- Lumbar spine – lumbar spine L4/L5 disc annular tear with abutment of L5 nerve roots cause by the motor accident;
- Right shoulder – right shoulder musculo ligamentous strains with possible labral injury caused by the motor accident;
is a MINOR INJURY for the purposes of the Act.
The following injury caused by the motor accident:
- Cervical spine – C3/C4 disc protrusion and C6/C7 disc protrusion with impingement of the right C7 nerve root, cervical spine musculo ligamentous strain with C3/C4 and C6/C7 disc protrusions with right C7 nerve root impingement, cervical spine bilateral and upper quadrant pain caused by the motor accident
is not MINOR INJURY for the purposes of the Act.
The following treatment and care:
- The SPECT/CT bone scan and CT guided, C7 peri-radicular block;
- GP consultations regarding the lumbar spine from 1/11/2020 to 31/12/2020, 2 visits;
- GP consultations regarding the shoulder from 1/11/2020 to 31/12/2020, 2 visits;
- GP consultations regarding the cervical spine from 1/11/2020 to 31/12/2020, 2 visits;
RELATES TO THE INJURY caused by the motor accident.
The following treatment and care:
- The SPECT/CT bone scan and CT guided, C7 peri-radicular block;
- GP consultations regarding the lumbar spine from 1/11/2020 to 31/12/2020, 2 visits;
- GP consultations regarding the shoulder from 1/11/2020 to 31/12/2020, 2 visits;
- GP consultations regarding the cervical spine from 1/11/2020 to 31/12/2020, 2 visits;
IS REASONABLE AND NECESSARY in the circumstances.[TR1]
THE REVIEW
The insurer sought a review of Medical Assessor Bodel’s certificates on the basis that the assessments were incorrect in a material respect within the meaning of s 7.26 of the Act.
Pursuant to s 7.26(5A) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rule 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 based solely upon the written application.[2]
[2] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
ASSESSMENT UNDER REVIEW
The application for referral of the medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificates for the medical assessments for which the review is sought.[4] It was submitted that Medical Assessor Bodel failed to disclose his pathway of reasoning in his certificate and therefore failed to provide adequate reasons for his decision addressing the minor injury and treatment disputes.
[4] Section 7.25(10) of the Act.
The insurer submitted that it was open to Medical Assessor Bodel to conclude that the claimant’s cervical spine pathology was degenerative in nature and not causally related to the motor accident. It was then submitted that Medical Assessor Bodel failed to provide reasons for finding that the cervical spine pathology was caused by the motor accident, as opposed to the alternative possibility posited by the insurer. That is, the cervical pathology demonstrated by the MRI scan performed on 27 May 2020 was degenerative only, not related to any injury caused by the motor accident.
In relation to the treatment dispute, the insurer submitted that the bone scan and nerve block injection recommended by Dr Hope was related to the claimant’s degenerative condition and not causally related to the motor accident.
The insurer’s application for review was opposed by the claimant. The claimant submitted that the matter should not be referred to a Review Panel as the certificate of Medical Assessor Bodel was not incorrect in a material respect. It was submitted further that the President’s delegate should be satisfied that there is no reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The claimant submitted that Medical Assessor Bodel fully provided sufficient reasoning in his assessment and comments. The claimant contested the allegation that there was any lack of explanation when it is clear Medical Assessor Bodel had considered the relevant information before him in coming to his determination.
In relation to the MRI scan of the cervical spine, the claimant relied upon cl 5.4 of the Guidelines in submitting that it is not a requirement for a medical assessor, in making a determination on threshold injury, to consider diagnostic imaging. It was submitted that Medical Assessor Bodel had complied fully with cl 5.6 of the Guidelines in making his determination.
The insurer submitted that Medical Assessor Bodel failed to provide any explanation as to how the recommended treatment was causally related to the motor accident, in circumstances where the available radiological evidence indicated that the claimant did not suffer any significant injury to the cervical spine, as a result of the motor accident.
President’s delegate Jeremy Lum issued a Determination of an Application for Review of a Medical Assessment on 12 April 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The reasons given by the President’s delegate were as follows:
“• The applicant refers to the MRI scan of the cervical spine dated 27 May 2020. The applicant submits that the assessor failed to provide an explanation for finding the pathology shown in the MRI to be causally related to the motor accident, as opposed to attributing the pathology to a degenerative condition.
· I have read the MRI scan report and accept that the report findings and conclusion refer to cervical spine degenerative changes with no evidence of fracture.
· Without a clarifying explanation from the assessor as to why he attributed the reported degenerative changes to be causally related to the motor accident, satisfies me of reasonable cause to suspect that the assessment of the threshold injury is incorrect in a material respect.”
The following injuries have been referred to the Panel for assessment of threshold injury:
(a) Body Area: knee.
Injury Description: left knee fat pad syndrome associated with trauma
(b) Body Area: lumbar spine
Injury Description: lumbar spine L4/L5 disc annular tear with abutment of L5 nerve roots.
(c) Body Area: vervical spine
Injury Description: cervical spine – C3/C4 disc protrusion and C6/C7 disc protrusion with impingement of the right C7 nerve root.
(d) Body Area: dhoulder
Injury Description: left shoulder musculo ligamentous strains with possible labral injury.
(e) Body Area: dhoulder
Injury Description: right shoulder musculo ligamentous strains with possible labral injury.
The following treatment and care has been referred to the Panel for determination of whether it is reasonable and necessary in the circumstances:
(a) The SPECT/CT bone scan and CT-guided C7 peri-radicular block.
(b) General practitioner consultations regarding the lumbar spine from 1 November 2020 to 31 December 2020, two visits.
(c) General practitioner consultations regarding the shoulder from 1 November 2020 to 31 December 2020, two visits.
(d) General practitioner consultations regarding the cervical spine from 1 November 2020 to 31 December 2020, two visits.
The following treatment and care has been referred to the Panel for determination of whether it will improve the recovery of the injured person:
(a) The SPECT/CT bone scan and CT-guided C7 peri-radicular block.
(b) General practitioner consultations regarding the lumbar spine from 1 November 2020 to 31 December 2020, two visits.
(c) General practitioner consultations regarding the shoulder from 1 November 2020 to 31 December 2020, two visits.
(d) General practitioner consultations regarding the cervical spine from 1 November 2020 to 31 December 2020, two visits.
Rules 127 to 130 of the 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 based solely upon the written application.[5]
[5] Rule 128 of the PIC Rules.
MATERIAL BEFORE THE PANEL
The parties provided bundles of documents in accordance with the Panel’s directions.
The claimant relied upon the following material:
· Submissions dated 24 March 2023 in Reply to the insurer’s Application for Review of Medical Assessment.
· Certificate and Reasons dated 3 February 2023 by Medical Assessor James Bodel.
· Reports of MRI scans of the cervical and lumbar spines performed on 27 May 2020 by Dr Craig Harris.
· Clinical notes of Dr Angela Lam, treating general practitioner.
· Letter dated 26 August 2020 by Dr Raoul Pope, neurosurgeon and spine surgeon to Dr Lam.
· Clinical notes of Complete Allied Health Care, treating physiotherapists.
· Original hard copy MRI scan performed on 27 May 2020 of the cervical and lumbar spine
· Further submissions dated 20 September 2020 to the effect that all of the claimant’s injuries should be assessed.
As was noted by Medical Assessor Bodel, the claimant was referred to Dr Pope by Dr Lam only a few months after the motor accident. Dr Lam was concerned that the claimant have a C7 nerve root compression. Dr Hope recorded that the claimant was experiencing neck pain radiating into his right arm with pins and needles. He noted complaints of lower back pain following the motor accident. Dr Pope reviewed the MRI scans of the cervical spine and lumbar spine. He noted a C6/C7 paracentral disc herniation, without annular tearing in the lateral recess, with potential impingement of the C7 nerve root. The lumbar spine showed no disc herniations, no neural exit foraminal stenosis, no pars defects or spondylolisthesis, no evidence of any facet joints swelling. Dr Pope opined that the claimant has a disc herniation at C6/C7 that may be causing some C7 radicular symptoms. As well as musculoskeletal neck and lower back pain, Dr Pope noted right leg symptoms. He recommended a CT SPECT bone scan to confirm if there is any joint inflammation that would account for the claimant’s symptoms.
The insurer relied upon the following material:
· Insurer’s submissions dated 12 February 2021 to Medical Assessor Bodel.
· Insurer’s submissions dated 7 March 2023 to President’s delegate.
· Various Certificates of Capacity.
· Clinical notes of Dr Angela Lam.
· Clinical notes of treating physiotherapists.
· Report of MRI scan of the cervical spine.
· Clinical notes of Dr Raoul Pope.
· Certificate of Medical Assessor Bodel.
· Report dated 5 September 2023 by Dr Andrew Keller, occupational physician.
Based upon the findings of Dr Harris, radiologist, in his report dated 27 May 2020, the insurer submits that the changes noted in the claimant’s cervical spine are degenerative, rather than accident related.
In relation to the lumbar spine, Dr Harris reported as follows:
“L4/L5 posterior disc bulging with annual tear, abutting the L5 nerve roots in the lateral recesses without evidence of neural impingement, neural/dural irritation cannot be entirely excluded. Close clinical correlation is essential. If there is ongoing discomfort, it may be worth considering an epidural injection at the L4/L5 level as both a diagnostic and potentially a therapeutic procedure.”
The insurer conceded that traumatic injury can be the cause of an annular tear as found. It further conceded that, if the annular tear was caused as a result of the motor accident, this would fall under the definition of a non-minor injury. However, given the claimant’s age and the background of degeneration in the spine, the insurer considered that the more likely cause of the annular tear was natural degeneration, rather than trauma.
Dr Keller noted the claimant’s report of immediate neck pain following the motor accident. He notes also the MRI investigations of the cervical and lumbar spines. Dr Keller records a full symmetrical range of motion in the cervical spine, both upper limbs, thoracic and lumbar spine. He provides a diagnosis of a cervical spine soft tissue strain without signs of radiculopathy. In relation to the complaint of intermittent neck pain, Dr Keller says that the claimant appears to move his neck fully and freely. He describes the neck pain as “a subjective experience” which is stating the obvious. Dr Keller opines that the claimant’s condition has stabilised and assess 0% whole person impairment.
FINDINGS UPON REVIEW
As the nub of the dispute is the insurer’s objection to Medical Assessor Bodel’s finding that the following injury caused by the motor accident:
“Cervical spine – C3/C4 disc protrusion and C6/C7 disc protrusion with impingement of the right C7 nerve root, cervical spine musculoligamentous strain with C3/C4 and C6/C7 disc protrusion with right C7 nerve root impingement, cervical spine bilateral and upper quadrant pain caused by the motor accident is not a MINOR INJURY for the purposes of the Act.
The parties were invited to indicate if they required the Panel to assess the injuries to the claimant’s shoulders, lumbar spine and left knee, in addition to the cervical spine. The claimant responded in the affirmative. The insurer did not respond.”
As the insurer made a point of the fact that the original MRI scans had not been seen by Medical Assessor Bodel, the claimant’s solicitors were directed to provide the original scans of the cervical spine, right shoulder and lumbar spine. It is not clear why those scans were not made available to Medical Assessor Bodel. In any event, they were delivered to Medical Assessor Dixon’s rooms on 1 September last. Medical Assessor Dixon reports as follows:
“Stephen Young Lawyers have forwarded to me the MRI scans from 27 May 2020 of the cervical spine and lumbar spine.
In the cervical spine at C3/C4 there is extension of disc and endplate osteophyte into the neural exit foramina abutting the C4 nerve roots. There is minor disc bulging at C5/C6 without neural compression. At C6/C7 the disc bulge on the right extends into the neural exit foramen abutting the C7 nerve root. This is a significant finding as disc material has extruded into this area.
The radiology does show degenerative changes but superimposed on disc material extruding into the neural exit foramen at C6/C7 abutting the left C7 nerve root.
The lumbar spine MRI on 27 May 2020 shows an L4/L5 disc bulge with annual tear abutting both the L4 and L5 nerve roots. There are no significant degenerative changes in the lumbar spine shown on MRI so these changes appear to be accident-related.
In summary, the neck there was a C6/C7 disc extrusion into the neural exit foramina abutting the C7 nerve root and the lumbar spine shows L4/L5 disc bulge with annular tear. These are non-threshold injuries.”
Having considered Medical Assessor Dixon’s findings, Medical Assessor Rogers stated as follows:
“Assessor Dixon has found that disc material has extruded into the C6/C7 area, implying tearing of the annulus fibrosis, which correlates with Assessor Bodel’s opinion. The issue is whether the motor accident caused the disc extrusion. In this case, there are no previous MRI scan. The claimant reported to Dr Pope symptoms consistent with cervical radiculopathy.”
In terms of the lumbar spine, annular tears are commonly considered degenerative. The lumbar spine is generally supported by the car seat and seatbelt. It is possible that the annular tear does not relate to the motor accident. Medical Assessor Bodel stated that:
“I take notice of the report from Dr Pope in which he felt that the MRI scan of the lumbar spine was normal. He did not mention the annular tear. For that reason, without having the opportunity to see the scans, I accept Dr Pope’s judgment that this is probably a minor injury for the purpose of the Act.”
As Medical Assessor Dixon has seen the actual MRI scans, I defer to his views. For that reason, I am not inclined to revoke Medical Assessor Bodel’s certificate.
Medical Assessor Dixon concurs.
Having regard to the findings made by the Panel in relation to injury to the claimant’s cervical and lumbar spines, the Panel does not think it is necessary to re-assess the claimant's other injuries. Having regard to the complaints made to Dr Lam and the treating physiotherapist, Wei Liu, concerning bilateral shoulder pain and left knee pain, the Panel accepts that the claimant suffered injuries to those body parts, as a result of the motor accident. It does not think that further assessment of those soft tissue injuries, almost four years after the motor accident, is likely to be of any diagnostic benefit.
CONCLUSIONS
The Panel concludes that the motor accident caused injuries to the claimant’s cervical and lumbar spines, both shoulders and left knee, as a matter of medical determination.
The Panel further concludes that the motor accident caused injuries to the claimant’s cervical and lumbar spines, both shoulders and left knee, as a matter of factual non-medical determination.
The Panel concludes that the injury to the cervical spine, caused by the motor accident, is not a threshold injury for the purposes of the Act.
The Panel concludes that the injuries to the claimant’s shoulders, lumbar spine and left knee, caused by the accident, are threshold injuries for the purposes of the Act.
FINDINGS
In reaching these conclusions and findings, the Panel has attempted to apply the principles of causation, as explained in Briggs v IAG Limited t/as NRMA Insurance.[6]
[6] [2022] NSWSC 372.
For these reasons, the Panel confirms the certificate of Medical Assessor James Bodel dated 3 February 2023.
[TR1]As above comment
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