AAI Limited t/as GIO v Stanizzo
[2023] NSWPICMP 230
•26 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | AAI Limited t/as GIO v Stanizzo [2023] NSWPICMP 230 |
| CLAIMANT: | Vincent Francis Stanizzo |
INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 26 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claim for neck surgery and associated treatment; the claimant had a long history of neck pain with scans showing pre-existing degenerative spinal canal stenosis; motor accident involved a minor sideswipe collision which exacerbated neck symptoms without aggravating underlying pathology; claimant’s underlying severe spinal stenosis and early myelopathy was progressive and fluctuating; scans showed no traumatic changes; minimal impact from motor accident; ongoing symptoms due to underlying pathology; findings made that exacerbation ceased after six months and ongoing condition unrelated to the motor accident; finding made that there was no causal relationship between the accident and the need for surgery; Held – original assessment on cause of surgery revoked; finding made that surgery would assist in recovery. |
| DETERMINATIONS MADE: | Medical Assessment – Review Panel Assessment of Treatment and Care and The Review Panel revokes the certificate dated 10 November 2022 and issues a new certificate determining that: · cervical cord decompression surgery recommended by Dr Timothy Steel; · the referral for an MRI scan of the cervical spine by Dr Robert Chester on · the referral for an MRI scan of the cervical spine by Dr Robert Chester on DOES NOT RELATE TO THE INJURY CAUSED BY THE MOTOR ACCIDENT. Medical Assessment – Recovery Review Panel Assessment of Recovery The Review Panel confirms the certificate dated 10 November 2022. |
REASONS
BACKGROUND
Mr Vincent Stanizzo (the claimant) suffered injury in a motor accident on 16 May 2018 (the motor accident) when the insured front left wheel collided with the right front wheel of the claimant’s vehicle.[1]
[1] Insured bundle, p 67.
The claimant alleges that the motor accident caused injuries to the neck, right thumb and hand.
The disputes are whether the following treatments are caused by the motor accident and whether they will improve the recovery of the claimant:
· cervical cord decompression surgery recommended by Dr Timothy Steel;
· the referral for an MRI scan of the cervical spine by Dr Robert Chester on 10 August 2018 and performed on 24 September 2019, and
· the referral for an MRI scan of the cervical spine by Dr Robert Chester on 10 August 2018 and performed on 28 October 2019.
The disputes are before a Review Panel having been determined at first instance by a Medical Assessor. The legislation provides that the medical dispute be determined on Review by two Medical Assessors and a Member of the Personal Injury Commission (Commission).
The insurer is liable to pay to Mr Stanizzo any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether certain 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 and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
Pursuant to Schedule 2, cl 2 of the MAI Act, these disputes are declared to be medical assessment matters.
A medical assessment matter is determined in accordance with division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT
The medical disputes were referred to Medical Assessor Dixon who issued a Medical Assessment Certificate dated 10 November 2022 (the medical assessment). The Medical Assessor concluded that the proposed treatment related to the injuries caused by the motor accident and that the treatment would improve the recovery of the claimant.
The Medical Assessor concluded:[3]
“The anterior cervical decompression, as recommended by Dr Steel, and the MRI scans of the cervical spine referred by Dr Robert Chester performed on 24.9.19 and 28.10.19 are related to the severe impact caused by the subject motor accident, in that he has aggravated his asymptomatic cervical myelomalacia in his whiplash injury and developed C6/7 radiculopathy.”
PRIOR MEDICAL ASSESSMENTS
[3] Insurer’s bundle, p 16.
Medical Assessor Rosenthal provided a certificate dated 23 April 2019 when he concluded that the motor accident caused an aggravation of cervical spondylosis and disc osteophyte complex and de Quervain’s tenosynovitis and inflammation of the carpo-metacarpal joint of the right thumb.[4] The Medical Assessor found no evidence of radiculopathy in the upper limbs.
[4] Insurer’s bundle, p 22.
Medical Assessor Wallace provided a certificate dated 8 September 2020 when he concluded that the proposed surgery and provisions of the MRI scans dated
24 September 2019 and 28 October 2019 do not relate to the motor accident.[5][5] Insurer’s bundle, p 24.
Medical Assessor Wallace concluded:[6]
“At worst, Mr Stanizzo suffered a temporary aggravation of pre-existing degenerative cervical spondylosis as a result of the index motor vehicle accident on 16 May 2018, over two years ago, would have settled within 6 months of this incident.
His current cervical spinal symptoms are due to pre-existing significant degenerative spinal canal stenosis at the cervical spine which is constitutional in origin and unrelated to his motor vehicle accident.
The need for surgical intervention at this time does not relate to injury caused by the motor vehicle accident.
Further, Mr Stanizzo did not require MRI investigations of the cervical spine on 24 September 2019 and 28 October 2019, some 17 months post-injury as he had already undergone an MRI investigation of the cervical spine on 10 August 2018, some 3 months post-injury. This investigation in August 2018 would have detailed any acute trauma related to his motor vehicle accident. There was no medical indication for him to undergo further MRI investigations of the cervical spine after the previous scan in August 2018 in relation to injuries caused by the motor accident.”
[6] Insurer’s bundle, p 30.
The Medical Assessor concluded that the proposed surgery would improve recovery as the current neck and right arm symptoms would be relieved. The MRI scans in September and October 2019 would not in isolation improve recovery and the claimant had already undergone a scan in August 2018 and the decision to operate had been determined in a review by Dr Steel in October 2018.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by
the insurer within 28 days after the parties were issued with the medical assessment.The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[7]
[7] Section 7.26(5) of the MAI Act; claimant’s bundle, p 4.
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 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 review provisions provide[8] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[8] Section 7.26(5A) of the MAI Act.
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.[9]
[9] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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 solely based on the written application.[10]
[10] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[11]
[11] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration. The claimant also provided a copy of the MRI scan dated 29 October 2019 pursuant to the further Direction.
STATUTORY PROVISIONS
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12]
[12] See s 3B(2) of the Civil Liability Act 2002.
Section 3.24 of the MAI Act provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (“treatment and care expenses”) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
SUBMISSIONS
Claimant’s submissions dated 18 January 2023[13]
[13] Claimant’s bundle, p 8.
These submissions were filed opposing the review of the Medical Assessment.
The claimant referred to the notes relied upon by the insurer in relation to the pre-existing neck pain.
The claimant submitted that the use by Dr Sokolovska on 30 July 2015 of “chronic neck pain” was incorrect as this was inconsistent with the notes obtained by Dr Steel,
Dr Chester, Primary Medical Centre Corrimal.The claimant submitted that the history obtained by the Medical Assessor was correct and consistent with the history recorded by Dr Steel in the report dated
4 December 2019.The claimant noted that the insurer relied on clinical records of the general practitioner (GP) and an MRI scan that predate the motor accident by over two years. Reference was made to the limitations of clinical notes referencing Mason v Demasi.[14]
[14] [2009] NSWCA 277.
The claimant emphasised the opinion of Dr Steel and that the Medical Assessor placed weight on his opinion that he was asymptomatic, and the previous recommendations that surgery is not undertaken.
The claimant submitted that the Medical Assessor’s reasons on the presence of radiculopathy were clear.
The claimant referred to the principles of causation at common law referring to Secretary, New South Wales Department of Education v Johnson[15] and State Government Insurance Commission v Oakley.[16] Reference was also made to another Review Panel decision[17] with submissions adopting it without quoting portions of that decision.
[15] [2019] NSWCA 324 at [55].
[16] (1990) 10 MVR 570.
[17] Venizelou v AAI Ltd [2021] NSWPICMP 215 at [123]-[132].
The claimant submitted that the Medical Assessor addressed the relevant test in circumstances where the claimant’s symptoms were more severe following the motor accident.
Insurer’s internal review dated 20 December 2019[18]
[18] Insurer’s bundle, p 43.
The insurer noted the extensive pre-accident history and the findings of Medical Assessor Rosenthal. It also noted that the claimant had undergone a CT and an MRI scan after the motor accident, and it was highly unlikely that any further radiology will demonstrate any different pathology.
The insurer submitted that the symptoms reflected the underlying progression of the disease and did not relate to the motor accident. Accordingly, the need for the surgery was unrelated to the motor accident.
Insurer’s submissions dated 29 January 2020[19]
[19] Insurer’s bundle, p 40.
The insurer referred to its internal review and the determination of Medical Assessor Rosenthal dated 23 April 2019 and submitted that the treatment was not related to the motor accident.
Insurer’s submissions dated 14 December 2022[20]
[20] Insurer’s bundle, p 1.
These submissions were filed by the insurer seeking leave to review the medical assessment.
The insurer submitted that the Medical Assessor failed to consider relevant pre-accident history including:
· clinical records of Bellambi Family Medical Practice dated 30 July 2015 (“chronic neck pain”), 10 February 2016 (“chronic neck pain” and referral for an MRI scan) and the MRI scan dated 27 February 2016 with relevant history referring to paraesthesia, and
· MRI scan dated 16 September 2013, bone scan dated 11 April 2014 and MRI scan dated 27 February 2016.
The insurer submitted that the clinical examination by the Medical Assessor did not show radiculopathy.
The insurer otherwise submitted that the Medical Assessor did not explain how the recorded deterioration in symptoms was related to the motor accident.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
In June 2009, Dr Peter Moloney, neurosurgeon, noted a history of “many years neck ache radiating more to the left side” with more severe neck pain of recent origin.[21]
[21] Insurer’s bundle, p 606.
An MRI scan dated 11 June 2009 noted a clinical history of neck pain and left arm paraesthesia.[22] The scan showed substantial mid cervical degenerative changes with cord flattening and bilateral foraminal stenosis particularly at C4/5, C5/6 and C6/7.
[22] Insurer’s bundle, p 263.
Dr Moloney commented on the recent MRI scan in a report dated 25 June 2009.[23] The doctor then recommended surgical intervention to decompress the cord and existing cervical nerve roots.
[23] Insurer’s bundle, p 607.
In April 2011 Dr Timothy Steel, neurosurgeon, noted a history of neck pain in 2005 which was aggravated by an assault in 2009. Both Dr Moloney and Dr Al-Kawahja had previous recommended cervical cord decompression. Dr Steel did not recommend surgery at that time due to the absence of pain or neurological deficit.[24]
[24] Insurer’s bundle, p 143.
In a report dated 27 May 2011 addressed to Victims Services, Dr Sobol noted an assault in 2009 causing retinal detachment and left sided neck pain in the context of significant cervical spondylosis of a longstanding nature.[25]
[25] Insurer’s bundle, p 214.
The claimant was involved in a motor accident on 28 April 2013 injuring his lower neck and aggravating a pre-existing condition.[26]
[26] Insurer’s bundle, p 130.
In a report dated 12 June 2013, Dr Sobol noted a longstanding disability of the cervical spine back to 2005 with diffuse degenerative protrusions at C4/5, C5/6 and C6/7 associated with marked canal stenosis.[27] In a letter dated 26 July 2013 to the claimant, Dr Sobol noted that he had prepared a report two weeks prior to the 2013 motor accident for a disability support pension related to pain issues.[28]
[27] Insurer’s bundle, p 140.
[28] Insurer’s bundle, p 171.
An MRI scan of the cervical spine dated 16 September 2013 showed fairly advanced cervical spondylosis with cord compression from C4 to C7.[29]
[29] Insurer’s bundle, p 151.
A report by Medical Assessor Meakin dated 10 February 2014 concluded that the 2013 motor accident rendered the claimant symptomatic resulting in the need for a consultation with Dr Steel.[30]
[30] Insurer’s bundle, p 596.
In April 2014 Dr Steel noted the bone CT scan showed moderately avid linear uptake at C4/5 with endplate sclerosis and moderate uptake at C6/7 with uncovertebral articulation.[31]
[31] Insurer’s bundle, p 147.
On 14 July 2014 Dr Steel noted aching sensation down the right side of the neck around the C6/7 level, not sufficiently severe to warrant surgery.[32]
[32] Insurer’s bundle, p 142.
On 1 October 2014 Dr Cusack noted the claimant’s history of neck pain with reduced range of motion, especially on rotation to the right.[33]
[33] Insurer’s bundle, p 298.
A medical report by Dr Sokolovska dated 2 August 2015 completed on a form seeking a disability support pension referred to “chronic neck pain and stiffness since 2009”.[34]
[34] Insurer’s bundle, p 540.
On 21 October 2015 the GP noted exacerbation of cervical spine pain.[35]
[35] Insurer’s bundle, p 380.
An MRI scan of the cervical spine dated 29 February 2016 noted a clinical history of chronic neck pain and paraesthesia.[36] The radiologist concluded that the scan showed:
“Combination of broad based osteophytes and mild to moderate facet joint arthroplasty causing bilateral severe foraminal narrowing, bilateral nerve impingement and severe canal stenosis at C4-C7 levels.”
[36] Insurer’s bundle, pp 522 – 523.
Post-accident medical evidence
The CT scan of the cervical spine dated 23 May 2018 noted a clinical history of numbness in the right upper limb down to the fingers.[37] The scan showed multilevel cervical spondylosis with severe neural exit foraminal narrowing through the mid to lower cervical spine with likely impingement on the existing cervical nerve roots.[38]
[37] Insurer’s bundle, p 69.
[38] Insurer’s bundle, p 69.
In a referral to Dr Steel dated 29 May 2018, Dr Chester noted that the claimant had neck pain following the motor accident.[39]
[39] Claimant’s bundle, p 3.
Mr Stanizzo completed a claim form dated 5 June 2018 which asserted injuries to the neck, right thumb and right hand.[40]
[40] Insurer’s bundle, p 67.
An ultrasound of the right wrist dated 10 July 2018 showed tenosynovitis consistent with de Quervain’s synovitis.[41]
[41] Insurer’s bundle, p 77.
The certificate of capacity dated 17 July 2018 noted an exacerbation of neck pain due to abrupt movement of neck on the impact of the other vehicle with an onset of wrist pain.[42]
[42] Insurer’s bundle, p 74.
An MRI scan dated 10 August 2018[43] showed multilevel degenerative changes with reduced disc spaces and foraminal stenosis in the mid to lower cervical spine.
[43] Insurer’s bundle, p 109.
Dr Steel provided a report dated 29 October 2018 noting previous review in July 2014 with “reported alleviation of his neck symptoms in 2014”.[44] Examination showed some right C6 radicular symptoms. The doctor opined that the claimant was symptomatic from the cord compression and recommended a cervical decompression and resection at C4/5, C5/6 and C6/7.
[44] Insurer’s bundle, p 267.
In a report dated 4 December 2018 Dr Steel noted that the motor accident triggered onset of neck pain and right arm brachialgia.[45] The doctor opined that the motor accident caused the current symptoms due to the absence of prior symptoms. Dr Steel otherwise opined that without surgery the claimant’s symptoms will progress.
[45] Insurer’s bundle, p 287.
Dr Steel provided a report dated 6 January 2019.[46] The doctor opined that the claimant was symptomatic from spinal cord compression which had been exacerbated by the motor accident based on a history of no significant symptoms prior to the motor accident and relentless progression since that time. The doctor opined that the claimant was at risk of acute deterioration if he does not undergo surgery which was required as a matter of urgency.
[46] Claimant’s bundle, p 1.
In a subsequent report dated 31 July 2019 Dr Steel noted that the claimant developed recurrent neck pain following the motor accident[47] with right arm pain and weakness and loss of grip in both hands.
[47] Insurer’s bundle, p 277.
On 7 August 2019 Dr Steel reviewed the claimant who continued to report right arm brachialgia. The doctor noted that “symptoms are not severe enough to mandate surgery” and recommended a progress cervical spine MRI scan.[48]
[48] Insurer’s bundle, p 281.
An MRI scan of the cervical spine dated 24 September 2019 noted early spinal canal stenosis at C4/5, C5/6 and C6/7 which was due to disc degeneration, posterior disc-osteophyte complex and thickened posterior longitudinal ligament. Narrowing of exit foraminal with impingement of exiting nerve roots was noted at C4/5, C5/6 and C6/7.[49]
[49] Insurer’s bundle, p 428.
In a report dated 28 October 2019 Dr Steel stated that he organised a further scan because the “Wollongong MRI was not optimal for surgical planning”.[50] The further scan showed significant high grade canal stenosis with cord distortion at C4/5, C5/6 and C6/7 due to disc bulges at C6/7 (predominantly right sided), centrally at C5/6 and left sided at C4/5. The doctor again recommended surgical decompression at all three levels.
[50] Claimant’s bundle, p 5.
The MRI scan dated 29 October 2019 showed multiple sites of neural compromise and mild to moderate central canal stenosis at C4/5 and C5/6, foraminal stenosis at C4/5 and C5/6 encroaching exiting nerve roots at C5 (right) and C6 (bilateral), and moderate foraminal stenosis at C6/7 contacting the right C7 nerve root.
Photographs
Photographs of the claimant’s vehicle show mild damage behind the front driver’s side wheel[51] and barely, if any noticeable damage to the insured vehicle.[52]
[51] Insurer’s bundle, p 620.
[52] Insurer’s bundle, p 621.
EXAMINATION
The claimant was examined by both Medical Assessors. Their joint examination report is as follows:
“Mr Stanizzo attended the PIC rooms at 12:00 noon on Wednesday, 10 May 2023. The re-examination took approximately one hour.
History
Pre-Accident medical history and relevant personal details
Mr Stanizzo said that he retired from his practice as a solicitor at the age of 59 years. The Assessors noted the history detailed by Assessor Dixon of previous neck symptoms. On further questioning, Mr Stanizzo confirmed the history of an assault in June 2009 when he was punched in the face. He said that he had been more concerned about injuries to his face and a retinal detachment in the left eye, than about his neck, at that time. Mr Stanizzo also gave a brief history of a low-speed collision between his car and that of his wife at his home in 2013.
Mr Stanizzo went on further to say that he did not wish to conceal the fact that he had had some neck symptoms on and off over the years. He mentioned that in the late 1990’s, a dancing instructor had commented on his poor posture. However, when asked about any neck symptoms in the year prior to the subject motor vehicle accident in May 2018, he replied that there had been “no symptoms”.
History of the motor accident
Mr Stanizzo described this accident further to the two Assessors. He said that about 7:30 – 8:00 pm on 16 May 2018, he was the seat-belted driver of a Volkswagen Golf. He recalled that his car was in the middle lane approaching an intersection, and the lights were about to change. He said that a bigger car to his right tried to merge left into his lane. The left front wheel of the other vehicle struck the rear of the Volkswagen’s right front wheel arch. (The Assessors had available photographs showing some dark marks and indentations in this area of the white Volkswagen.) Mr Stanizzo recalled that his car was pushed somewhat to the left but confirmed there had been no secondary collision with another vehicle or object.
History of symptoms and treatment following the motor accident
Mr Stanizzo recalled that the same evening he developed pain at the base of his right thumb. He said that initially he thought he might have strained it on the steering wheel in the crash. The next day he developed burning at the back of his neck and recalled that “I thought it was flaring up again”.
He subsequently consulted his GP who apparently could find nothing wrong with his right hand or wrist. Subsequently he was referred back to Dr Steele, Neurosurgeon (Whom he had consulted previously for his neck in 2014). The Assessors noted that in his letter to the GP, dated 29 October 2018, Dr Steele recommended surgical decompression of his cervical spine because:“He is now symptomatic, almost certainly from his cord compression”.
The Assessors asked Mr Stanizzo if he had in fact had surgery to his cervical spine. He said he had not to date and that Dr Steele had advised him to have surgery “when you can’t put up with it.” He said Dr Steele had also told him to be careful to avoid any future injury to his neck.
Current symptoms
Mr Stanizzo described pain at the base of his right thumb and said that this area swells at times (he was wearing a soft Velcro-fastened brace which was removed well before the physical examination). His neck is stiff and painful – when asked to localise the pain, he pointed to the distal cervical spine, more on the right side. This is a constant ache. Coughing or sneezing increase his neck pain.
Mr Stanizzo also described some other upper limb symptoms, mainly in the right upper limb (he is right-handed, but said that he has gradually come to use the left upper limb more because of symptoms). In addition to an ache at the base of the right thumb, he described numbness over the flexor aspect of the upper arm and forearm, and pins and needles-mainly over the radial fingers of the right hand.
The right upper limb feels weaker than the left and he sometimes drops things. Mr Stanizzo said that if he holds a cup of tea in his right hand, he needs to add additional support with his left hand. He was asked about doing and undoing buttons – he said that he is very slow with his right hand and does better with his left hand. When eating, he can use utensils in his right hand but his grip is weak. He has taken to cutting up things such as a steak with a knife held in his left hand. Mr Stanizzo said that he has “borderline diabetes”. When he pricks a finger to check his blood sugar level, this is (normally) painful on the left hand, but not painful on the right.
He was asked about mobility. He said that when walking on the level, he was “much slower and not very steady.” Two to three months ago he had fallen down some stairs at home. He has not been using a stick or other assistive device, but said that he thought he might need one soon. He feels particularly unsteady on his feet in the dark.
Current activities
Mr Stanizzo is retired. He said he was currently relying on an aged pension but added the fact that he had been receiving the Disability Support Pension (DSP) for four or five years. He said that this was after the low speed motor vehicle accident in 2013. On questioning, he said that this was because of his neck and that he had applied for the DSP in 2014.
Mr Stanizzo is separated from his wife and currently living alone in a split-level house. He said that he had asked (presumably the insurer) for domestic assistance, but was not currently receiving any. He said that he is able to mow a small area of lawn, doing a bit at a time. He said that there was not much else to do in the yard. He was asked about driving – he said that he now had a different car. This is a small hatchback with automatic transmission, and it has various blind spot warning devices/cameras (Mr Stanizzo said that he finds it difficult to turn his head to look to check in traffic). He also explained that he had driven from his home near Wollongong to Waterfall Station, and then taken the train to the CBD for this appointment.
Current treatment
Mr Stanizzo said he was taking the antidepressant Efexor and medication for hypertension. He also uses eyedrops for glaucoma. He did not mention any analgesic, anti-neuropathic or anti-inflammatory medication.
Physical examination
Mr Stanizzo arrived promptly. He presented as a moderately obese 69-year-old man, who was cleanshaven and had short white hair. He walked slowly with a slight limp, leaning slightly forward at the waist. He appeared to be generally deconditioned. Height was 1.75 m (Mr Stanizzo recalled being 1.8 metres in his 20s). He weighed 109 kg (BMI 35).
Mr Stanizzo was cooperative, spoke perfect English with a slight Italian accent, and was quite talkative about his history and condition – the Assessors needed to lead him back to direct questions at times. He was cooperative during the physical examination without apparent abnormal pain behaviours or self-limitation. He was able to slowly undress down to his underpants and a singlet for full physical examination, but one of the Assessors needed to remove his lace-up socks and shoes and socks for him and replace them afterwards, as he could not apparently reach them. He was able to climb on and off the low examination couch to lie supine for examination of his lower limbs.
Cervical spine
There was a slight upper thoracic kyphosis with forward protrusion of the head and neck. Active range of movement (AROM) of the cervical spine was markedly restricted in all planes: flexion was about one-quarter of normal at 10 degrees and extension minimal. Rotation was half of normal to the left and one a quarter of normal to the right. Lateral flexion was half of normal to the left and one-third of normal to the right (thus there was restricted movement and dysmetria). Spurling’s test was negative on the left but on the right, Mr Stanizzo cried out complaining of quite severe neck pain. Brachial stretch tests were negative bilaterally.
Upper extremities
Mr Stanizzo said that he is right-handed. The right upper arm measured 31 cm in circumference, the left 32; the right forearm 26 and the left 27. Biceps, triceps and brachioradialis reflexes were all less brisk than average but approximately symmetrical. Finger jerks appeared to be asymmetrical, with the left rather brisker than the right. Hoffmann’s sign was negative bilaterally.
There was tenderness to palpation over the right wrist and Finklestein’s provocation tests for De Quervain's tenosynovitis was positive in the right thumb.
On testing power, grip strength was full (5/5) on the left but somewhat reduced (4/5) on the right. Bulk and power of intrinsic muscles was normal in the left hand. In the right hand there was slight wasting of the first dorsal interosseous and some weakness of the interosseous muscles.
Power of elbow flexion was normal (5/5) on the left and somewhat reduced (4/5) on the right. On sensory testing there was some apparent patchy loss in the upper limbs, but with no definite dermatomal distribution.
AROM of both shoulders was measured with a goniometer as tabulated.
Right Left Flexion 80° 150° Extension 35° 30° Abduction 60° 90° Adduction 25° 35° External rotation 75° 75° Internal rotation 75° 75°
During these movements, Mr Stanizzo complained of pain in the trapezius muscles, particularly on the right (rather than in the shoulder joints proper). There was no visible wasting of shoulder girdle muscles on either side. Power of external rotation appeared to be normal on the left and slightly reduced on the right.
Lower extremities
Measured 10 cm proximal to the patella, both thighs measured equal in girth at 52 cm. The right calf measured 36 cm and the left 37. Tone was normal in both lower limbs. Ankle jerks were both somewhat depressed but symmetrical. The right knee jerk was brisker than the left.
Testing sensation, there was some stocking loss to pinprick in the right lower limb. Joint position sense was also absent in the right great toe but preserved on the left (the Assessors noted the history of diabetes/pre-diabetes). Both plantar responses were flexor (normal).
Mr Stanizzo was able to take a few steps with weight on his forefeet and his heels just off the floor – he was noted to raise his right heel higher than the left. He was not really able to walk on his heels with forefeet off the floor and complained of pain in the right heel. Balance was somewhat unsteady – he appeared to balance better on the left foot than the right.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[53] and Insurance Australia Ltd v Marsh.[54]
[53] [2021] NSWCA 287 at [40], [41] and [45].
[54] [2022] NSWCA 31 at [11], [21] and [64].
Injury
We accept the insurer’s submission that there was a chronic history of neck pain. That history is outlined earlier in these Reasons.
The claimant’s submission that the clinical notes were an error seems unlikely as the claimant underwent an MRI scan of the cervical spine in early 2016. The suggestion that the claimant recovered in 2014 is unlikely and implausible given the fact that the claimant underwent an MRI scan of the cervical spine in 2016 with then reported signs of chronic neck pain and paraesthesia.
The MRI scan of the cervical spine dated 16 September 2013 showed fairly advanced cervical spondylosis with cord compression from C4 to C7. The MRI scan dated
29 February 2016 noted a clinical history of chronic neck pain and paraesthesia.[55] The radiologist then concluded that the scan showed “bilateral nerve impingement and severe canal stenosis at C4-C7 levels”.[55] Insurer’s bundle, pp 522 – 523.
However, there is an absence of recorded complaint of neck pain in the period prior to the motor accident reflecting the view that the claimant was relatively stable during this period.
The insurer conceded injury to the cervical spine which is consistent with regular recorded complaints of neck pain following the motor accident.
The claimant suffered from pre-existing severe spinal stenosis and probable early myelopathy which tends to be progressive and may fluctuate over time. The scans following the motor accident showed no traumatic changes and otherwise reflect the progressive nature of the claimant’s underlying severe disease.
The photographs showed mild damage to the claimant’s motor vehicle. To the extent that the Panel can rely on this material, they do not suggest forceful impact. That conclusion is otherwise consistent with the history provided by the claimant to the Medical Assessors of the insured vehicle sideswiping the claimant’s vehicle causing the claimant’s vehicle to move to the left with no secondary collision.
We note that on 29 October 2018 Dr Steele opined that the cervical spine symptoms were caused by underlying cord compression. We agree with that view. Dr Steele emphasises that the claimant’s symptoms were and are caused by pathology unrelated to the motor accident.
We otherwise agree with the opinion expressed by Medical Assessor Wallace that any exacerbation of cervical spine symptoms was in the order of six months. This view reflects, in part, our view that this was a minor motor accident of minimal force.
The claimant now presents with symptoms related to cervical radiculopathy and cord compression. That pathology has not been aggravated or exacerbated by a mild side swipe collision.
Does the proposed treatment relate to the injury resulting from the motor accident
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[56] These principles are well settled and equally apply to the causal relationship of treatment under the MAI Act by reasons of the same statutory language.
[56] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[57] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[57] [2018] NSWSC 1710 at [29] (Phillips).
We also agree with the claimant’s submission that, consistent with the observations of the Court of Appeal in McKenzie v Wood,[58] surgery can be causally related where the accident has accelerated the need.
[58] [2015] NSWCA 142.
The need for cervical spine decompression is to treat the underlying pathology, which is causing radicular symptoms in the upper limbs, and probable myelopathic symptoms in the lower limbs. The present symptoms and pathology are unrelated to the motor accident. In these circumstances we do not accept the claimant’s submission that the present case falls within the second category of State Government Insurance Commission v Oakley[59] as we do not accept that the claimant’s condition is now greater (or worse) due to the motor accident.
[59] (1990) 10 MVR 570.
For the reasons provided earlier, the Panel is not satisfied that the motor accident has caused the need for surgery and/or any of the scans undertaken in late 2019.
Recovery
This dispute does not relate to causation but whether the treatment will improve the claimant’s recovery.
Noting the severe underlying pathology, it is plausible that, in due course, especially with deteriorating symptoms, the claimant will require surgery as recommended by
Dr Steele. That surgery would probably reduce upper limb radicular symptoms and prevent further deterioration. For any symptoms related to myelopathy (spinal cord damage), the main aim would be to prevent further deterioration. In that respect the further scans are considered incidental to the need for further surgery.For these reasons, like Medical Assessor Dixon, we accept that the treatment will improve the claimant’s recovery.
CONCLUSION
For these reasons, the Panel concludes that the certificate issued by Medical Assessor Dixon on the cause of the need for the treatments is revoked. The certificate on recovery is confirmed.
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