AAI Limited t/as GIO v Slocombe
[2025] NSWPICMP 132
•3 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Limited t/as GIO v Slocombe [2025] NSWPICMP 132 |
CLAIMANT: | Lisa Slocombe |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Tai-Tak Wan |
DATE OF DECISION: | 3 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; Certificate of Determination; reasonable and necessary treatment; whether cervical discectomy is causally related to injury sustained in the subject accident; whether the surgery of cervical discectomy fusion is reasonable and necessary in the circumstances; claimant pre-existing issues; generalised pain and stiffness in neck, lower back, and knees; claimant received acupuncture, massage, and physiotherapy; altered sensation in right C6 root distribution; claimant in wheelchair; numbness not in any dermatomal distribution; marked pain behaviours; associated degenerative disease; signs of radiculopathy; extensive pre-accident medical history; no objective clinical evidence of underlying injury to the neck, shoulders, lower back or knees; widespread symptoms and abnormal illness behaviour; Held – treatment and care does not relate to injuries sustained in the accident; treatment is not reasonable and necessary in the circumstances; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Reasonable and Necessary Treatment Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor David McGrath dated · The anterior cervical discectomy fusion at C5/6 level as recommended by Dr Abrazsko does not relate to the injury caused by the accident. · The surgery of the anterior cervical discectomy fusion at C5/6 level as recommended by Dr Abrazsko is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
Lisa Slocombe (the claimant) is a 53 year old woman who was injured in a motor vehicle accident which occurred on 26 February 2017. The claimant has been examined by Medical Assessors of the Personal Injury Commission on three occasions and has also been the subject of a Medical Review Panel in respect to the assessment of the finding of whole person impairment. It has been determined that the claimant has sustained a non-threshold injury.
The claimant has sought approval from the insurer to undergo an anterior cervical discectomy fusion at C5-6 level. The insurer declined to meet the cost of this treatment on the basis that the injury was neither caused by the motor vehicle accident nor was reasonable and necessary. This issue led to the claimant being examined by Medical Assessor David McGrath on 8 February 2024 who, in a Certificate dated 18 February 2024, determined that the proposed surgery relates to the injury caused by the accident and the proposed surgery is reasonable and necessary in the circumstances.
The insurer sought a review of this determination and, in a Certificate dated 24 August 2024, President’s Delegate Rachel Brittliff determined that she was satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. This determination would seem to have been based on a concern that the medical assessor did not comment on whether the identified disc disease could have been caused by the accident and, accordingly, did not meet the definition of causation under the Permanent Impairment Guidelines Volume 1. That is, he did not specifically state whether the accident did cause the condition for which the claimant was seeking surgery.
Thereafter the matter was referred to this Panel. The Panel noted that there was significant material which is not before the Panel but which is referred to in the medical certificate of Medical Assessor David McGrath. Accordingly, directions were made to the parties to upload all the material which was before Medical Assessor David McGrath and this has now occurred.
The Panel convened on 6 November 2024 and determined that it was appropriate to re-examine the claimant so as to clarify the extent of her injuries and disabilities and clarify the history given in respect to the onset of conditions allegedly arising from the motor vehicle accident.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by 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 its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The claimant was examined by Medical Assessor David Gorman on 5 February 2025 at
1 Oxford Street, Darlinghurst. She was accompanied by Mr Sua, her husband.
Pre-accident medical history
Ms Slocombe is 53 years of age. She is a non-smoker and does not drink alcohol. She has three children at home aged 25, 23 and 14. She has one older son who is independent. She currently receives Centrelink payments and reports that she is trying to get on the Disability Support Pension. She was born in New Zealand but is of Samoan descent. The family moved to Brisbane when she was aged 17. She moved to Sydney at age 21.
In New Zealand she had a high school education. In Australia, she has obtained a Certificate IV in Customer Service. She has worked in a number of secretarial occupations. She was not working at the time of her MVA. Ms Slocombe confirmed previous interests in volleyball and softball and some summer swimming. She does not give a history of previous motor vehicle accidents.
Ms Slocombe recalls a fall in 2014 at a shopping centre. She remembers falling onto her backside. She was taken by ambulance to hospital where she was examined and discharged after three hours. Ms Slocombe recalls mostly lower back pain as a result of this accident with some more widespread but not severe pain. She had some time off work and did put in a public liability claim against the store. She received around $5,000 in compensation.
She agreed that she had some episodes of neck and left knee pain in the past which resolved. She has been diagnosed with lupus as a cause of a skin rash and hair loss.
History of the motor accident
On 26 February 2017 she was involved in an accident. She confirmed that she was a backseat passenger behind the driver in a vehicle driven by her husband. According to Ms Slocombe, another vehicle crossed the midline and there was a head on collision. Their SUV Toyota was towed away and later written off. Reportedly an ambulance attended and she was examined at the site of the accident and it was suggested that she go to hospital. All four of the occupants of the Toyota SUV were picked up and taken home.
History of symptoms and treatment following the motor accident
Ms Slocombe did not appear particularly injured at the time of the accident but was in shock.
On 28 February 2017, two days after the accident, she saw Dr Patu at the Blacktown Doctors & Medical Centre. At the initial consultation, she reported post-traumatic stress disorder, right shoulder, back and neck pain and headaches as well as left knee pain. She was diagnosed with a whiplash injury. and it was recommended she ingest Panadol and Nurofen.
On 29 March 2017 she was referred to Dr Gotis Graham (Rheumatologist) for opinion and management of the generalised pain and stiffness in her neck, lower back and knees possibly related to the lupus. She reported that he thought the lupus was only affecting her skin.
On 24 August 2017 Dr Patu completed a medical certificate was completed. At that time, her complaints expanded to include both knees, both shoulders and the neck but without the lower back.
She was treated with six months of physiotherapy. She also received acupuncture, massage and some treatment from Maori elders. She was given an exercise program which aggravated her pain and she stopped doing them. She practises meditation.
She had periods of rectal problems and gastro-oesophageal reflux. The Medical Review Panel certificate dated 1 December 2022 determined that the claimant did not suffer any accident-related gastric reflux. Similarly, the Panel was not satisfied the claimant is experiencing any anal seepage.
She had a consultation with Dr Abraszko in July 2020. Dr Abraszko thought that she had sufficient symptoms and signs to justify a CS/6 anterior cervical fusion in her letter dated
12 August 2020. This was mostly based upon a disc protrusion at that level and severe neck pain – she did not document radiculopathy in either of her assessments only mentioning “altered sensation in the right C6 nerve root distribution” in her letter of 15 July 2020. Dr Abraszko’s own records show the widespread nature of the pain in the neck, shoulders, arms, thighs and knees in the diagram completed on 15 July 2020.
Details of any relevant injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
She has pain in the neck and shoulders bilaterally. She reports numbness in all of the fingers. The pain radiates down her spine to the low back and legs. She reported sensations of numbness in the knees and feet. As well she has occipital headaches.
Current and proposed treatment
Ms Slocombe takes the following medications:
· Panadeine Forte 4 per day
· Zoloft
· Lyrica
· Plaquenil
· Somac
· Voltaren 40mg (maximum 4 per day)
She sees a physiotherapist in Liverpool Hospital. In the past, she has used a neck brace and still occasionally uses it. She has purchased a number of pillows to assist with sleep.
CLINICAL EXAMINATION
General presentation
She was wheeled in by her husband in a wheelchair. She said that she usually has a walking stick for shorter walks. Her husband helped her out of the wheelchair. She “whimpered” frequently during the examination. Her weight was 116kg and her height 167cm. The gave her a BMI of 41.6 placing her in the Grade 3 obesity category. She walked slowly with an unusual gait being wide based with the feet sliding along the ground.
Cervical Spine
Ms Slocombe’s neck was held slightly tilted to the left. She has a markedly restricted range of motion in all planes. In fact, she had no active movements of the cervical spine during the examination.
She has a “numbness” in both hands with light touch and pinprick. This was not in any dermatomal distribution. Reflexes and power were equal and normal. There was no atrophy. There was “give way” weakness with no objective loss of muscle power.
Comments on consistency
She had marked “pain behaviours”. Her gait was not in keeping with any pathological cause.
REVIEW OF DOCUMENTATION
Summary of relevant investigations
Prior to the subject accident:
20/3/15. XR both shoulders revealed little cortical irregularity over the greater tuberosities of the humerus and about the acromion processes. The changes were a little more prominent on the left. No other bone or joint abnormality was seen.
20/3/15. XR of the cervical spine revealed slight narrowing of the C5/6 and C6/7-disc spaces. Osteophytes developed at the joints bilaterally at C4/5, C5/6 and C6/7. They were most prominent on the right at CS/6. There was little encroachment on the neuroforamina but narrowing did not appear significant. No other abnormality was detected.
29/3/15. MRI of the cervical spine revealed degenerative disc space changes at the C4/5, CS/6, C6/7 and mild disc space changes at C2/3. Focal osteophyte disc complexes with no significant central spinal canal stenosis or nerve re- impingement.
After the subject accident:
3/7/20. MRI cervical spine revealed multilevel degenerative change in the mid/lower cervical spine. Mild-to-moderate bilateral foraminal narrowing at the C5/C6 level with possible impingement of the exiting C6 nerve roots bilaterally. Indentation of the right anterior margin of the cervical spinal cord at this level due to moderate sized right posterior paracentral disc protrusion.
24/7/20. XR cervical spine revealed mild loss of disc height at C3/4. There was moderate loss of disc height at C4/5, CS/6 and C6/7 with bony degenerative changes at these levels. There is no instability with flexion or extension.
DETERMINATIONS
Causation and reasons
Ms Slocombe was involved in an MVA on 26 February 2017. She was a backseat passenger in a front-end collision. She reports being thrown forward and hitting her head with some bruising. She has known degenerative disease and it is possible that the accident caused aggravation for some months after the accident. The Panel believes it is likely that her current condition is now related to her ongoing degenerative disease and abnormal illness behaviours rather than any effects of the accident. The Panel considered that the claimant’s gross obesity has contributed significantly to widespread and ongoing degenerative disease.
There is no radiculopathy. The neck pain was present before the accident and is part of a widespread pain syndrome.
Medical Assessor Assem (Rehabilitation Physician) saw her on 13 December 2019 for the assessment of her physical symptoms for the Commission. Dealing with the injury to the neck, Assessor Assem was asked to assess a C4-5 annular tears with disc protrusion at CS-6 and C6-7 and soft tissue injury. "She now has widespread complaints that cannot be explained on the basis of the accident or any organic basis. In fact, it was difficult to find a part of her body where she was not experiencing pain. Dr Liew tried to explain her symptoms on the basis of fibromyalgia as there was no other possible medical explanation." Medical Assessor Gorman made the same assessment in this MRP Examination.
Dr Virginia Pascall (Occupational Physician) on 20 July 2020 provided a detailed account of the claimant's pre- accident medical history based on the documentation available to her. The insurer relies on Dr Pascall's report to submit that when viewed considering her past medical history, there was nothing to distinguish the post-accident period with the pre-accident period. There was nothing about the claimant's complaints that separated them into a different injury in terms of nature of complaint or site of complaint, that could be construed as being caused by the accident.
On 4 August 2020 Dr Robin Mitchell (Occupational Physician) examined her. She reported ongoing widespread pain throughout the neck, both shoulders, thoracic and lower back with radiation down each leg to the level of each knee, following the subject accident. Dr Mitchell indicated the complaints appeared to be of a soft tissue nature, with no objective clinical evidence of any underlying injury in the neck, shoulders, lower back or knees. Dr Mitchell acknowledged that the numerous radiological investigations undertaken identified degenerative changes in the cervical spine without evidence of nerve impingement from March 2015, well before the subject accident of 26 February 2017.Dr Mitchell went on to say her ongoing and current symptoms had little, if any relationship with the subject accident.
Considering Medical Assessor Gorman’s examination and the documentation reviewed above, the Panel determined that the request by Dr Abrazsko for cervical discectomy and fusion was not related to the motor accident.
Treatment and Care - reasonable and necessary
In the presence of such widespread symptoms and abnormal illness behaviour the Panel believes that surgery on the cervical spine is not indicated and in fact may worsen her condition.
She has no radiculopathy. The degenerative disease is more widespread than one or two levels. Investigations (flexion and extension X rays) have not shown spinal instability.
The proposed anterior cervical discectomy at the C5-6 level is not reasonable and necessary in the circumstances.
CONCLUSION
The following treatment and care DOES NOT relate to the injuries caused by the motor accident:
• the surgery of anterior cervical discectomy fusion at C5-6 Level as recommended by Dr Abrazsko.
The following treatment and care is NOT reasonable and necessary in the circumstances:
• the surgery of anterior cervical discectomy fusion at C5-6 Level as recommended by Dr Abrazsko.
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