Al Mahmoud v AAI Ltd
[2022] NSWPICMP 280
•8 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Al Mahmoud v AAI Ltd [2022] NSWPICMP 280 |
| CLAIMANT: | Talal Al Mahmoud |
INSURER: | AAI Ltd |
| REVIEW PANEL: | Principal Member John Harris Medical Assessor Thomas Rosenthal Medical Assessor Alan Home |
| DATE OF DECISION: | 8 July 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant was involved in a motor accident on 18 June 2017 when he was in his vehicle stationary in a carpark when the insured vehicle was reversing and collided with the back of the claimant’s vehicle; Held – the findings of the previous Medical Assessors and/or Review Panel are not, contrary to the claimant’s submission, determinative of causation in this dispute; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui considered; the claimant failed to establish that any of the treatment was causatively related to the motor accident based the evaluation of the records of pre-existing symptoms, the lack of initial treatment following the accident, histories recorded by the doctors in the months following the motor accident, the minor motor accident and the likelihood that the natural progression of degenerative changes which is the likely explanation for the subsequent deterioration in symptoms in the latter part of 2017; original assessment confirmed. |
| DETERMINATIONS MADE: | The Review Panel confirms the certificate dated 16 September 2021. |
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
REASONS
BACKGROUND
Mr Talal Al Mahmoud (the claimant) was involved in a motor accident on 18 June 2017 when he was in his vehicle stationary in a carpark when the insured vehicle was reversing and collided with the back of the claimant’s vehicle.
The claimant’s vehicle suffered minor bumper damage and was driveable.
No ambulance or police attended at the accident. Mr Al Mahmoud did not seek medical attention at that time.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Mr Mahmoud any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether 17 care and treatment disputes were “reasonable and necessary in the circumstances” and “relates to an injury caused by the motor accident”. Two of the care medical disputes relates to domestic assistance after 4 December 2017. The other 15 medical disputes concern treatment or care “from the date of the MAS assessment” into the future. These are medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
The medical disputes were referred to Medical Assessor McGrath who issued a Medical Assessment Certificate dated 16 September 2021. Medical Assessor McGrath concluded that none of the treatment were reasonable and necessary and otherwise not caused by the motor accident.
THE REVIEW
The application for referral of the medical assessments to a review panel were made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 13 December 2021, the President’s delegate referred the medical assessments 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.[5] No objection was taken by the parties to any member of the Panel.
[5] Section 63(2B) of the MAC Act.
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 new review provisions provide[6] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
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.[7]
[7] Section 41(2) of the PIC Act.
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.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles. The insurer subsequently served the report of a Review Panel dated 23 October 2021 which revoked the certificate issued by Medical Assessor Giblin. Given the submissions, the certificate of the Review Panel is admitted. In any event, that certificate was included in the insurer’s bundle and there was no need to file the document again by way of an application to admit further documents.
There was a late application by the insurer to admit the report of Dr Kenna dated 27 April 2022, which was served on 21 June 2022. There was no explanation by the insurer why the report was served at such a late stage in the middle of Panel deliberations. Despite the absence of response by the claimant, we have rejected the report in the interests of fairness to the claimant.
The profession should be aware that the late filing of materials will only delay Panels from performing their ability to determine medical assessments in a timely fashion. Proper explanation should be provided why materials are being served late rather than being filed in a piece meal fashion without any explanation.
PROCEDURAL HISTORY
It is necessary to set out the previous medical assessments in this matter.
Assessor Giblin
The assessment of permanent impairment was referred to Assessor Peter Giblin who issued a certificate dated 24 September 2020.[10] The Assessor obtained a history that Mr Mahmoud was taken to Campbelltown Hospital on the day after the accident and shortly thereafter he saw his general practitioner who referred him to Dr Darwish.
[10] Claimant’s bundle, page 827.
Based on the “history and examination and the contemporaneous reporting of low back pain”[11], Assessor Giblin concluded that there was a soft tissue injury to the low back with associated neurological impairment of the bladder.
[11] Claimant’s bundle, page 835.
First Review Panel
The certificate of Assessor Giblin was referred to a Medical Review Panel who issued a certificiate dated 23 October 2021 revoking the certificiate off Assessor Giblin.[12] That Panel’s reasons included the following:[13]
“There is a long-standing history of recurrent back pain in the treating GP’s documentation which started in 2008. In August 2015 it was recorded that Mr Mahmoud had severe low back pain with radiculopathy and a positive straight leg raise on the right side. A CT scan of the lumbar spine at the time recorded a L5/S1 disc protrusion. Due to persistent low back pain, the treating GP referred Mr Mahmoud to a neurosurgeon, Dr Darwish. An epidural cortisone injection was undertaken in November 2015 and Dr Darwish had put Mr Mahmoud on the waiting list due to lumbar disc pathology in 2016. A report from Liverpool Hospital on 8 March 2016 recorded chronic lower limb pain and worsening back pain after heavy lifting, An MRI at the time recorded a L5/S1 disc bulge with acute on chronic lumbar radiculopathy on the right side. Another discharge summary from Liverpool Hospital dated 26 July 2016 recorded low back pain with urinary incontinence and lower right limb worsening weakness. At that time there was reduced sensation in the entire right leg. An MRI on 1 August 2017 reported that there no such change in the size of the disc bulge in comparison to the pre-motor accident MRI in May 2017.
Mr Mahmoud returned to Syria in November 2017 when his back pina deteriorated
and an MRI at that time was reported as showing a large disc protrusion at L4/5. Mr Mahmoud then returned to Australia in January 2018 and was reviewed by Dr Darwish and admitted to Liverpool Hospital, On 31 January 2018, Dr Darwish operated in the form of an L4/5 laminectomy, discectomy and decompression.The Panel considers that there are significant, ongoing degenerative changes in the lumbar spine with a pre-existing disc bulge associated with radiculopathy that were not altered by the motor vehicle accident on 18 June 2017. The Panel has noted that this MVA was a minimal impact in a rear end collision and may have caused a soft tissue injury which would have resolved within weeks of the accident.”
[12] Insurer’s review bundle, page 3.
[13] Insurer’s review bundle, page 8.
That Panel also determined that there was evidence of cauda equina syndrome with documented urinary incontinence in July 2016 and did not consider any change in bladder impairment caused by the motor accident.
Medical Assessor McGrath
Medical Assessor McGrath issued a certificate dated 16 September 2021. He obtained a history of back pain becoming worse over a one to two-week period with bilateral neck pain and consulted his general practitioner but did not associate the increased symptoms with
the motor vehicle accident. Symptoms deteriorated around November 2017 when Mr Al Mahmoud returned to Syria.The Medical Assessor did not accept that the contribution by the motor accident was more than negligible to the trajectory of the increase in back symptoms.
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 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“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.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[14]. In Raina v CIC Allianz Insurance Ltd[15] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[14] See s 3B(2) of the CL Act.
[15] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the initial Direction and further material following the second Direction.
Pre-accident records
A CT lumbar sacral spine dated 28 March 2008 showed posterior annular bulge at L4/5 and L5/S1.[16] Centrelink medical certificates at that time noted low back pain as a reason for incapacity.[17]
[16] Claimant’s bundle, page 632.
[17] Claimant’s bundle, pages 648-652.
Centrelink medical certificates dated 16 August 2015 and 19 September 2015 referred to disc prolapse and degenerative changes in the lower back with radiculopathy.[18] On 18 November 2015, Dr Saleh certified the claimant in severe pain with impaired function.[19]
[18] Insurer’s bundle, page 57.
[19] Insurer’s bundle, page 60.
Hospital discharge record dated 15 October 2015 referred to low back pain with right sided referred pain down the leg with numbness and weakness.[20] Dr Saleh then referred Mr Mahmoud to Dr Levy.[21]
[20] Insurer’s bundle, page 61.
[21] Insurer’s bundle, page 63.
On 22 October 2015, Dr Stan Levy, neurologist noted chronic backache, possibly due to a prolapse intervertebral disc at L5/S1 with no work capacity at that time.[22] In a separate report of the same day noted a motor accident on 10 August 2015. A CT scan at that time showed a small L5/S1 disc protrusion and multilevel degenerative disc disease.[23]
[22] Claimant’s bundle, page 750.
[23] Claimant’s bundle, page 751.
An MRI scan dated 24 October 2015 showed a small tear of the annulus at L4/5 and moderate left paracentral disc protrusion at L5/S1 encroaching the theca and the left S1 nerve root.[24]
[24] Insurer’s bundle, page 65.
On 10 November 2015 Dr Balsam Darwish, neurosurgeon, reported that Mr Mahmoud had a two-month history of back and left leg pain in the S1 distribution. On 22 December 2015, Dr Darwish recommended that Mr Mahmoud undergo a L5/S1 discectomy.[25] Dr Samaan recorded a similar history in a certificate dated 29 November 2015.[26] A letter from South-Western Sydney Local Health District dated 1 February 2016 confirmed that Mr Mahmoud was on the elective surgery waiting list.[27]
[25] Claimant’s bundle, page 757.
[26] Claimant’s bundle, page 687.
[27] Claimant’s bundle, page 760.
In March 2016 the claimant was taken by ambulance to hospital for low back pain. An MRI scan dated 8 March 2016 reported a five-year history of back and right sided neuralgic pain with urinary hesitancy and incontinence.[28] Degenerative changes were noted from L3 to S1 with impingement of both the left S1 nerve root and contact of the descending right S1 nerve root.
[28] Insurer’s bundle, page 86; claimant’s bundle, pages 274-276.
Mr Mahmoud was admitted to hospital on 14 January 2017 with acute on chronic back pain and loss of sensation down the right leg following a lifting incident at home.[29] An MRI scan showed degenerative changes in the low back with mild broad base disc bulge at L4/5 and annular tear and disc bulge at L5/S1.[30] Dr Renato Abraszko, neurosurgeon, then recommended L5/S1 injection.[31]
[29] Insurer’s bundle, page 89.
[30] Insurer’s bundle, page 93.
[31] Claimant’s bundle, page 796.
On 13 February 2017 the claimant presented to Dr Darwish with a two-week history of low back and right sided sciatica in a non-dermatomal distribution.[32] A right L5/S1 epidural injection was performed on 16 March 2017.[33]
[32] Insurer’s bundle, page 69.
[33] Insurer’s bundle, page 82.
On 2 May 2017 the claimant presented with the aid of a walking frame with ongoing low back pain and neck pain and occipital headaches.[34] Dr Darwish recorded that Mr Mahmoud did not benefit from the cortisone injection. Current medications included Endone, Lyrica and Targin.
[34] Insurer’s bundle, page 71.
A bone scan and Spect CT dated 22 May 2017 showed active arthritic change in the left shoulder and the cervical spine.[35]
[35] Claimant’s bundle, page 801.
An MRI scan of the whole spine dated 24 May 2017 showed degenerative changes with no significant canal stenosis or nerve root compression.[36] The L4/5 disc was described as a mild broad based posterocentral protrusion and the L5/S1 in similar terms.
[36] Insurer’s bundle, page 97.
The clinical records of the general practitioner show regular Endone prescriptions for back pain since 2015.[37] Targin, medication used for severe pain, was also prescribed in early 2017.[38]
Initial medical treatment following the motor accident
[37] Claimant’s bundle, pages 601-620.
[38] Claimant’s bundle, page 616.
Mr Mahmoud attended his general practitioner on 18 July 2017. The clinical note states:[39]
“Back pain is worse
Needs form for housing”.
The doctor then provided a Centrelink medical certificate.
[39] Claimant’s bundle, page 621.
The Centrelink medical certificate dated 18 July 2017 refers to lower back and leg pain since 1 March 2019 and cervical spine pain since 1 January 2017.[40] There is no reference to the motor accident contained in the certificate or the clinical note.
[40] Insurer’s bundle, page 35.
Mr Mahmoud was admitted to hospital on 27 July 2017 and discharged on 4 August 2017 for acute on chronic back pain.[41] The updated MRI scan dated 1 August 2017 was reported as showing a slightly larger disc protrusion at L4/5 than the previous version in January 2017. The L5/S1 disc appeared unchanged. There is no reference to the motor accident in the hospital notes.
[41] Insurer’s bundle, page 35.
On 19 October 2017 Dr Mervat Guirguis referred Mr Mahmoud for opinion and management for a history of left shoulder and low back pain after a motor vehicle accident.[42]
[42] Claimant’s bundle, page 39.
On 10 November 2017 there was a request for physiotherapy for the low back, neck and left shoulder.[43] Eight sessions of physiotherapy were subsequently approved on a without prejudice basis.[44]
[43] Claimant’s bundle, page 469.
[44] Claimant’s bundle, page 470.
An MRI scan of the left shoulder dated 17 January 2018 showed bursal inflammation and tendinosis with low grade intrasubstance tears.[45]
[45] Claimant’s bundle, page 63.
Dr Darwish examined the claimant on 30 January 2018 noting a history of the motor accident aggravating the low back and right sided sciatica. The doctor also noted that Mr Mahmoud visited his father in November 2017 and returned to Australia on 3 January 2018. Pain had significantly increased in the last few weeks.[46] The MRI scan taken in Syria on 25 December 20017 showed a large right L5 disc protrusion compressing the right L5 nerve root and cauda equina. Dr Darwish proposed an emergency L4/5 discectomy.
[46] Insurer’s bundle, page 72.
An MRI scan of the lumbar spine dated 31 January 2018 noted a new large central/right paracentral disc protrusion at L4/5 with marked canal narrowing and cauda equina compression.
Mr Mahmoud underwent a right L4/5 discectomy and decompression of the right L5 nerve root on 31 January 2018 with complete resolution of the right sciatica and the recovery of bladder function.[47]
[47] Insurer’s bundle, page 74.
The hospital discharge notes referred to acute onset of bilateral leg pain and numbness over two weeks, unable to walk due to pain and impaired proprioception. Prior to this, there was three months of back pain with “subacute deterioration for 2 weeks”.[48]
[48] Claimant’s bundle, page 211.
Review on 30 April 2018 noted ongoing low back pain and right sided paraesthesia without bladder or bowel dysfunction.[49]
[49] Insurer’s bundle, page 75.
Further review on 2 July 2018 showed no change. Updated MRI scan dated 30 May 2018 showed no residual or recurrent disc protrusion and adequate decompression of the thecal sac.[50]
[50] Insurer’s bundle, page 76.
On 30 April 2019 Dr Darwish referred to ongoing low back pain with right sided sciatica. An updated MRI scan was organised to investigate the ongoing symptoms.[51] The subsequent MRI scan dated 13 May 2019 noted satisfactory L4/5 discectomy with no recurrent disc impingement and no cause for right radiculopathy.[52]
[51] Claimant’s bundle, page 498.
[52] Insurer’s bundle, page 78.
On 25 February 2020 Dr Darwish reviewed Mr Mahmoud who noted back and right leg pain. Dr Darwish opined that the recent MRI scan showed post-surgical changes at L4/5 but no obvious nerve root or cauda equina compression.[53] The doctor noted that the 24 May 2017 scan showed minor degenerative changes in the spine with no nerve root or cauda equina compression.
[53] Claimant’s bundle, page 516.
On 4 May 2020 the claimant received a subacromial injection into the left shoulder without any response. Dr Nabavi suspected the symptoms were from the shoulder and the neck.[54]
[54] Claimant’s bundle, page 517.
In a report dated 11 May 2021, Dr James van Gelder, neurosurgeon, noted persistent back pain and sensory changes in the leg and foot. The doctor recommended discectomy and decompression of the L5 nerve and anterior lumbar fusion.[55]
[55] Claimant’s bundle, page 838.
Dr Crozier, vascular surgeon noted the motor accident in a report dated 26 May 2021. The doctor recorded exacerbation of lower back discomfort “some days later” and the becoming paralysed and problems defecating in 2018 after prolong air travel to Syria.[56] The doctor noted the proposed surgery and emphasised the need to stop smoking indicating he was “happy to provide support on a day of mutual convenience”.
[56] Claimant’s bundle, page 839.
In a further report dated 20 July 2021, Dr van Gelder noted the recent MRI scan which showed disc herniation at L4/5 which was more prominent than the earlier scan. The doctor noted that Mr Mahmoud was “disabled by pain” and he was offering the surgery “as a last resort”.
Claim form
Mr Mahmoud completed a claim form dated 10 October 2017 which referred to injuries to the back, chest, right leg numbness and left shoulder in the motor accident.
Qualified opinions
Dr Naresh Verma was qualified by the claimant and provided a report dated 9 October 2017.[57] The doctor obtained a history of an exacerbation of low back pain and the development of shoulder pain. Two weeks after the motor accident the claimant was unable to move and went to hospital. The doctor diagnosed an exacerbation of chronic low back pain with a discogenic component.
[57] Claimant’s bundle, page 46.
Dr Leonard Lee, psychiatrist, was qualified by the claimant and provided a report dated 4 July 2018. The doctor obtained a history of the claimant ceasing work as a cement renderer in 2010 due to back pain.[58]
[58] Claimant’s bundle, page 70.
Dr Lee recorded a history of the same level of back pain following the motor accident which “worsened over the next one or two weeks to the point that he could not move”. Otherwise, the pain worsened whilst in Syria in November 2017.
Dr Lee diagnosed chronic pain resulting in emergency surgery. Current psychiatric condition related to the pain and the side effects of numerous medications.
Dr Uthum Dias, occupational physician, provided a report dated 12 September 2018.[59] Dr Dias obtained a history of whiplash injury to the neck, seatbelt distribution injury to the chest wall and jarring to the low back with subsequent consultation with the general practitioner three weeks after the motor accident. Ongoing symptoms persisted resulting in the need for lumbar surgery.
[59] Claimant’s bundle, page 75.
Dr Dias opined that Mr Mahmoud sustained a chronic cervical spine injury with associated loss of range of movement of both shoulders and an aggravation of pre-existing lumbar spine pain. The chest wall injury had resolved.
Dr Clive Kenna was qualified by the insurer and provided a report dated 5 July 2019.[60] The doctor noted a minor collision in a car park without immediate medical attention. Clinical examination indicated inconsistency with a low pain threshold and consistent with a fibromyalgia pain presentation. Dr Kenna concluded that the overall presentation was due “to a mixture of other factors which predate the motor vehicle accident”.
[60] Insurer’s bundle, page 41.
SUBMISSIONS
At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[61] that there was error in the previous assessment or in otherwise seeking a further assessment. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.
[61] Or the relevant predecessor.
Claimant’s submissions dated 14 October 2021[62]
[62] Claimant’s bundle, page 9.
These submissions were filed seeking a review of the certificate issued by Medical Assessor McGrath.
The claimant submitted that the certificate issued by Assessor Giblin was conclusive evidence that the back injury was caused by the motor accident pursuant to s 61(2) of the MAC Act. The certificate issued by Medical Assessor McGrath was inconsistent with the former certificate.
The claimant otherwise submitted that the certificate issued by Assessor Giblin was a relevant consideration which Medical Assessor McGrath “overlooked”. He did not engage with the contrary position as to causation.
Insurer’s submissions dated 9 July 2020[63]
[63] Insurer’s bundle, page 17.
The insurer submitted that the subject accident was a minor collision involving negligible forces where the claimant was in a stationary vehicle and the insured was reversing. The claimant did not seek medical attention.
The first attendance on 18 July 2017 noted that back pain was worse but did not mention the motor accident. The Centrelink medical certificiate noted a date of 1 March 2017. There was no mention in the clinical notes to the motor accident for four months.
The claimant had a longstanding and severe lumbar spine condition which was symptomatic at the time of the motor accident. Various attendance in 2015 and an MRI scan showed pathology at L5/S1. In December 2015 Dr Darwish recommended surgery at L5/S1. He was on the public waiting list for lumbar spine fusion at the time of the motor accident.
The claimant was using a walking frame one month prior to the motor accident.
The claimant’s case for domestic assistance is based on the opinion of Mr James Fitzpatrick who based his opinion on a whiplash associated disorder with a discogenic component. Mr Fitzpatrick also erroneously believed that the claimant mobilised independent of a walking aid prior to the motor accident.
The insurer otherwise refutes ongoing causation for any future claim for treatment or care. Any treatment is otherwise not required
Insurer’s submissions dated 16 November 2021[64]
[64] Insurer’s bundle, page 12.
These submissions were filed opposing the review application. The insurer submitted that the certificate issued by Assessor Giblin was binding on the issue of whether the claimant’s injuries are greater than 10% and not with respect to causation of injury: Brown v Lewis[65] and Pham v Sui.[66]
[65] [2006] NSWCA 87.
[66] [2006] NSWCA 373.
The insurer accepted that the Medical Assessor did not refer to the certificate issued by Assessor Giblin. However, the conclusions rejecting causation of injury were based on:
- back pain developing in 2015;
- continuation of low back symptoms;
- Mr Mahmoud did not feel he injured himself at the time of the motor accident which involved a minor impact;
- worsening back pain over a one to two-week period;
- a previous history off spontaneous flare-ups;
- no radiological evidence of acute injury, and
- lack of contemporary evidence of injury combined with a chronic relapsing condition.
RE-EXAMINATION
The Panel determined that Mr Mahmoud would be examined by both Medical Assessors. The examination report is as follows:
“The claimant was accompanied by his wife, however the history was obtained directly from the claimant.
Clinical Assessment
Past History
Mr Mahmoud states that before the accident, he suffered from chronic low back pain. He was under the care of a general practitioner. He confirms that he had attended Dr Darwish in November 2015 and 2016. He confirms a corticosteroid injection to the spine in November 2015. He confirms that he underwent MRI scans of the lumbar spine in May 2017. He confirms pre-accident symptoms of back pain and right leg pain.
He recalls that he was experiencing only intermittent back pain, possibly a few days every year.
However, to direct enquiry regarding his history, he confirmed that he could not explain why he was attending his doctors at monthly intervals for prescriptions of strong analgesia, including Lyrica and Endone, in the months leading up to the subject accident.
The panel found that there was an inconsistency between the claimant’s history that he was experiencing only intermittent back pain, possibly a few days every year and his medical attendances, which he could not explain.
History of Subject Accident
In relation to the mechanism of the accident, he states that he was the seat-belted driver of a Ford Territory four-wheel drive. He recalls that after visiting a medical centre in Ingleburn, he walked into the carpark with his wife. His daughter was sitting in the rear passenger seat. He said that after he fastened his seatbelt, his car was then struck by a Toyota Tarago van that was passing the rear of his car. He recalls that the hubcap of the Tarago struck his towbar with the hubcap separating from the car. He recalls feeling a jolt. The damage to his car was limited to the towbar. He recalls that the towbar surround was damaged. He says that following the incident, he alighted from the vehicle to check on the other driver and his daughter. He exchanged details. Police and ambulance did not attend. He did not return to the medical centre for review. He says that he drove to his home. He recalls that he may have experienced increased low back pain that day. He did not in his mind attribute the symptoms to the accident but rather to his known lower back disc complaint.
He confirms that he first attended his doctor about one month after the accident in relation to a housing application. He reported his back pain was worse when he attended his doctor on 18 July 2017. He returned for further medications on 27 July 2017.
He says that he was admitted to hospital with lower back pain in mid-2017. He then underwent further MRI scans of the lumbar spine. He says that after that, his back pain continued. He recalls the ongoing use of strong analgesia. He states that despite his symptoms, he travelled to Syria in November 2017. He says that after the flight, his back pain increased in severity. By Christmas day, his back pain was very severe and he then underwent further MRI scans of the lumbar spine. He confirms that these demonstrated a large L4/5 disc protrusion.
He returned to Australia on or about 5 January 2018. He recalls that it was difficult to obtain a specialist appointment. He did attend Dr Van Gelder and was advised that he should go onto a surgical waiting list. He says that within several weeks, his back pain increased in severity. In the two day period leading up to 31 January 2018, he developed additional symptoms of numbness in both legs and urinary retention. He was then seen by Dr Darwish, who recommended urgent admission for decompression surgery. He confirms that on 31 January 2018, he underwent surgery at L4/5.
He states that since the surgery, he has continued to experience severe low back pain and very severe pain in his right leg.
He recently attended Dr Van Gelder, who recommended consideration of a three-level spinal fusion procedure.
He has attended a rehabilitation facility at Camden Hospital and pain management specialist in Liverpool. He said that they were unable to offer him assistance.
He is currently taking Endone 5 mg three to four tablets daily, Targin 5/2.5 mg thrice daily, Lyrica 15 mg twice daily.
Neck/ shoulder complaints
In relation to his neck and shoulder complaints, he says that these came after the increase in symptoms in late 2017. He attributed this to the use of walking sticks and walking frames.
Current symptoms
The claimant reports current symptoms of constant low back pain up to 9/10 on visual analogue scale (VAS) in severity radiating across the lower back with constant radiation of pain in the right leg, intermittent radiation of pain to the left leg.
He is right hand dominant. He describes a sitting tolerance of no more than
10-15 minutes. He always holds firmly onto the arms of a chair. When walking, he utilises a walking frame at home. He sometimes mobilises with a walking stick. He estimates a walking tolerance of no more than 10 minutes in this fashion. Forward bending at the waist is markedly restricted.He experiences difficulty managing three steps at his home. He uses a rail for support.
His sleep pattern is disturbed. His wife helps him with dressing.
He describes numbness in the entire right leg. There is difficulty with dressing. He has been told not to lift more than a kilogram.
He is married with three children. He does not engage in any domestic chores or shopping.
Examination findings
On examination, Mr Mahmoud is reportedly 175 centimetres, weighing 74 kilograms. This could not be directly measured today due to pain behaviour. He sits askew in the examination chair and it is difficult to test spinal mobility due to pain behaviour. There is however marked rigidity of spinal mobility in all planes. The examiners could not adequately test straight leg raise due to resistance for straightening of the legs. He sits and stands with slightly flexed knees. Similarly, lower limb power could not be adequately tested. There was reduced sensibility in the right lower extremity in a non-dermatomal pattern from the hip to the toes. The deep tendon reflexes are symmetrically preserved. There is reduced calf size on the left by one centimetre.
Neck motion was performed to one-half normal range in all planes. The panel could not test shoulder motion due to the inability of the claimant to sit or stand unsupported.
Diagnosis and causation
Mr Mahmoud has a history of chronic low back pain, well documented from 2015 with previous imaging demonstrating underlying L5/S1 discopathy, for which there had been consideration of surgical treatment to relieve right leg radiculopathy prior to the subject accident.
It is well documented the claimant was requiring regular use of strong analgesia prior to the subject accident with monthly attendances to his general practitioner for prescriptions of Endone, Lyrica and at times Tramadol analgesia.
The panel has reviewed the MRI scan imaging findings. The pre-accident MRI scans of May 2017 were reviewed. These demonstrate desiccation and narrowing of the L4/5 disc with a mild broad-based posterocentral disc protrusion slightly flattening the anterior aspect of the thecal sac and causing mild canal stenosis; at L5/S1, a mild posterolateral disc protrusion associated with an annulus tear but not compressing the thecal sac or nerve roots.
The subsequent post-accident MRI scans performed 1 August 2017 again demonstrated a small broad-based posterior disc bulge at L4/5, reportedly slightly larger than on the scans of 18 January 2017, with mild degenerative change in the facet joints, mild central canal narrowing, possible contact with the descending L5 nerve roots in the subarticular recess. At L5/S1, a posterior annulus tear with a small broad-based posterior disc protrusion, also unchanged from the previous MRI scan.
The panel directly reviewed the subsequent MRI scans performed in Syria on 25 December 2017. These demonstrate a large disc protrusion at L4/5 almost obliterating the spinal canal. This is consistent with the claimant’s history of increased back pain in late 2017 and the subsequent development of symptoms of cauda equina syndrome, namely urinary retention and saddle and bilateral lower limb numbness.
Therefore, there is evidence that the claimant suffered an acute large disc protrusion at L4/5 in the immediate period leading up to 25 December 2017 and the subsequent decompression surgery performed on 31 January 2018 - by way of L4/5 laminectomy/discectomy and decompression.
The panel does not find that the pre-existing disc bulge associated with radiculopathy at L5/S1 was altered by the motor vehicle accident on 18 June 2017. Further the panel does not find that the motor accident caused a progression of the disc protrusion at L4/5 in late 2017.
The panel noted that the motor vehicle accident was of minimal impact and a rear end collision that may have caused a soft tissue injury, which would have resolved within weeks of the accident.
The findings of this panel are consistent with the previous panel findings of Assessors Maloney, Dixon and Crane in relation to a permanent impairment dispute as certified on 19 October 2021.
Whilst the panel notes the contrary opinion expressed by Dr Giblin regarding causation of the new large right disc bulge at L4/5, the panel does not agree that the motor accident is a causal factor in the radiological change seen. The panel finds that if the motor vehicle accident had caused a disc injury at L4/5, evidence of a large disc rupture and extrusion would have been evident by August 2017, some six weeks post-accident. However, the reported change was simply of a shallow L4/5 disc bulge, slightly larger than the preceding scans.
Therefore, the very large disc protrusion at L4/5 seen on imaging on Christmas Day, 25 December 2017 arose de novo and is not considered to be caused by the subject motor vehicle accident.
The panel finds therefore that there was a soft tissue injury which may have caused increased symptoms for a closed period of two weeks.
The Panel does not find that the treatment disputes were causally related to the subject accident as the claimant would have recovered within two weeks of the subject accident.
The treatments are not causally related to the injuries caused by the subject accident.
Subsequent imaging of the lumbar spine performed 12 February 2021 demonstrates residual findings in relation to the aggravation of the L4/5 disc that occurred in late 2017. The panel does not find that this was causally related to the subject accident for the reasons set out above.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decisions of the Medical Assessor. 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[67] and Insurance Australia Ltd v Marsh.[68]
[67] [2021] NSWCA 287 at [40], [41] and [45].
[68] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the Medical Assessors’ examination report and adds the following further reasons.
The findings of the previous Medical Assessors and/or Review Panel are not, contrary to the claimant’s submission, determinative of causation in this dispute: Owen v Motor Accidents Authority[69]; Allianz Australia Insurance Ltd v Girgis[70]; Brown v Lewis[71] and Pham v Shui.[72]
[69] [2012] NSWSC 650.
[70] [2011] NSWSC 1424.
[71] [2006] NSWCA 587.
[72] [2006] NSWCA 373.
In any event, the claimant’s submission that Medical Assessor McGrath was bound by Assessor Giblin’s findings has problems when Assessor’s Giblin’s certificate was subsequently revoked by a Review Panel. However, we are not bound by either decision and are required to form our own decision.
Several Supreme Court authorities have discussed jurisdictional error by Review Panels and Medical Assessors in determining the issue of causation solely based on the absence of record in contemporaneous notes.
In Norrington v QBE Insurance (Australia) Ltd[73] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[73] [2021] NSWSC 548 (Norrington).
The Court stated:[74]
“In the context of assessment under MACA, there is now a substantial body of authority that a panel which describes the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1).”
[74] Norrington at [31].
Injury
Pre-accident severe complaints of pain were symptomatic at the time of the motor accident. Shortly prior to the motor accident Mr Mahmoud consulted Dr Darwish with the aid of a walking frame.
This was a very minor motor accident in a car park when the claimant’s car was stationary involving a rear end collision where no ambulance, police or immediate medical treatment by any person present was sought.
The absence of initial medical treatment is more conspicuous in circumstances where the site of the motor accident was in a car park adjacent to a local medical centre. Otherwise, Mr Mahmoud regularly sought medical treatment. His initial medical treatment did not occur until 18 July 2017, more than four weeks after the motor accident. When the claimant initially sought medical treatment at the general practitioner it was in the context of a certificate for “housing” and he did not associate it with the motor accident.
There were various histories provided to a number of medical practitioners that there was no immediate increase in symptoms. Dr Lee obtained this history as did Dr Crozier. The absence of an exacerbation of symptoms is consistent with the minor nature of the collision, the failure to seek medical treatment and the absence of injury sustained in the motor accident.
The past history of back symptoms shows a relapsing history which is consistent with Mr Mahmoud’s admission to hospital in late July 2017. The MRI scan dated 1 August 2017 showed a slightly larger disc protrusion at L4/5 than the previous version in January 2017. The L5/S1 disc appeared unchanged.
However, the January 2018 scan showed a herniated disc in the context of a clinical history provided at hospital at that time of a worsening condition whilst Mr Mahmoud was in Syria.
We are not bound by previous findings of other Medical Assessors and the previous Review Panel. Our reasons are slightly different in that we have considered the changes in the L4/5 disc and the associated cauda equina syndrome which developed around Christmas 2017. This contrasts with the pre-accident complaints which were principally, if not exclusively centred on the L5/S1 disc. Indeed, the cauda equina symptoms in early 2018 were obviously due to the herniation at L4/5 because that was the level of the operation and resulted in an immediate recovery of symptoms.
The pre-accident scans showed some degenerative pathology at L4/5. The 1 August 2017 scan showed a slight deterioration from that taken six months earlier. The pathology substantially deteriorated in the period leading up to the 31 January 2018 scan because Mr Mahmoud complained of recent deterioration in lumbar pain and onset of cauda equina. The subsequent development of the herniation at L4/5 was proximate to the overseas trip and is not associated with the motor accident.
In QBE Insurance (Australia) Ltd v Shah[75] the Court referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”[76] between the motor accident and the alleged injury. Similarly, there is no explanation for the left shoulder injury in circumstances where the pre-accident Spect scan showed active arthritis. It is otherwise noted that Mr Mahmoud described a subsequent onset of neck and shoulder symptoms attributable to walking appliances. Assuming that to be correct, we do not accept that the motor accident caused or contributed to that need. The use of those aids pre-existed and was causatively unrelated to the motor accident.
[75] [2021] NSWSC 288 (Shah).
[76] Shah at [36].
Various medical reports were relied on by the claimant in support of his case. Some of the histories of post-accident treatment are incorrect and undercut their value.[77] Otherwise we are not required to rely on any opinion.
[77] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
The claimant is unsuccessful based on a variety of factors including the evaluation of the records of pre-existing symptoms, the lack of initial treatment following the accident, histories recorded by the doctors in the months following the motor accident, the minor motor accident and the likelihood that the natural progression of degenerative changes which is the likely explanation for the subsequent deterioration in symptoms in the latter part of 2017. We otherwise do not accept the accuracy of the claimant’s account to the Medical Assessors of his pre-accident symptoms.
CAUSAL RELATIONSHIP BETWEEN MOTOR ACCIDENT AND TREATMENT
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[78]
[78] [2018] NSWSC 1710 (Phillips) at [29].
The medical disputes relate to past care from and 4 December 2017 and otherwise for future treatment. Our reasons show that any injury was mild, and the effects would have ceased within weeks.
The Panel is not satisfied that Mr Mahmoud sustained injury other than possibly a minor soft tissue in the back in the motor accident which resolved within a short period. Accordingly, we agree with Medical Assessor McGrath’s conclusion that there is no causal relationship between the claimed treatment and the motor accident.
CONCLUSION
For these reasons the Panel confirms the medical assessment certificate dated 16 September 2021.
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