Allianz Australia Insurance Limited v Begnell
[2023] NSWPICMP 464
•19 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Begnell [2023] NSWPICMP 464 |
| CLAIMANT: | Jeremy Begnell |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Cameron Thompson |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 19 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was injured in a motor accident on 19 November 2017 when as the driver of a vehicle which was proceeding through an intersection a vehicle being driven in a slip lane collided with the front passenger side of the claimant’s vehicle; Medical Assessor (MA) determined that the injury to the cervical spine and scarring to the cervical spine were caused by the accident and assessed whole person impairment (WPI) of the cervical spine at 25% and the scarring to the cervical spine at 0%; insurer sought review; Held – Panel found the claimant has whiplash associated disorder caused by the accident; claimant had no verifiable radicular complaints prior to undergoing two cervical fusions, however, the clinical evidence including the radiological investigations does not indicate any objective neurological deficit or any fracture or dislocation of the cervical spine and therefore was assessed as Diagnosis Related Estimate (DRE) cervicothoracic category 2 resulting in 5% WPI; the two cervical fusions do not relate to the whiplash disorder caused by the accident and consequently the scarring from the surgery does not give rise to a permanent impairment. |
| DETERMINATIONS MADE: | Review Panel Assessment of Permanent Impairment 1. The Review Panel certifies that the degree of permanent impairment as a result of the following injury caused by the motor accident is 5%: (a) cervical spine – whiplash associated disorder. 2. The Review Panel certifies that the motor accident did not cause the following injury which does not give rise to a permanent impairment: (a) scarring – cervical spine. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Jeremy Begnell, suffered injuries in a motor vehicle accident on
19 November 2017. The claimant was the driver of a vehicle which was proceeding through an intersection when a vehicle being driven in a slip lane to the left of the claimant’s vehicle collided with the front passenger side of the claimant’s vehicle (the accident).The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Allianz Australia Insurance Limited (the insurer), is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The present dispute between the parties is whether the “degree of permanent impairment as a result of the injury caused by the accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
The claimant alleges that he suffered impairment to the following body parts caused by the accident:
(a) cervical spine;
(b) skin – scarring, and
(c) visual system.
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.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Meakin and is dated 15 June 2021. Medical Assessor Meakin found that the following injuries caused by the motor accident give rise to a permanent impairment of 25%:
(a) cervical spine – soft tissue injury, disc rupture at C5/6, aggravation of degenerative change to adjacent cervical discs, and
(b) scarring – cervical spine.
Medical Assessor Meakin assessed that the whole person impairment of the claimant’s cervical spine is 25% with no pre-existing or subsequent causes, and that the whole person impairment arising from the scarring is 0%.
THE REVIEW
The application for review of the medical assessment to a Review Panel (the Panel) was made by the claimant on 1 March 2022.
On 19 April 2022, the President’s delegate referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.[3]
[3] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[4]
[4] 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.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters in which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.
THE ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Meakin for assessment:
(a) cervical spine – soft tissue injury, disc rupture at C5/6 and aggravation of degenerative change in adjacent cervical disc, and
(b) scarring – cervical spine.
Medical Assessor Meakin obtained a history from the claimant that prior to the accident he had generally good health. He had a left shoulder injury in 2000, which did not require surgery and from which he completely recovered, and prior to the accident he had no history of painful disorder associated with his cervical neck, nor history of headaches or shoulder discomfort other than the left shoulder injury which had recovered.
Medical Assessor Meakin obtained a history from the claimant that on 19 November 2017 he was the driver of a vehicle travelling at approximately 80 kmph wearing a seatbelt and with a head restraint. He was proceeding through an intersection when he became (aware) of a vehicle in the slip lane that was not going to stop but travelling much slower than he was. He tried to break but could not avoid the collision and his vehicle was struck on the left front by the other vehicle. The force of the accident pushed him to the right into a very broad concrete median strip and his vehicle became airborne and landed on the median strip. There was no frontal impact. His vehicle was badly damaged and he was briefly unconscious but eventually opened the door and was able to extricate himself before police and ambulance attended the scene. They felt that it was safe for him to travel home, and he was picked up by his wife. However, by late afternoon he had significant pain in his cervical neck, radiating to the pad of the left shoulder. He had significant headaches and was taken to Norwest Private Hospital, and he also noted numbness and tingling radiating to the left forearm and involving the middle, ring and little fingers of the left hand. He was discharged after overnight observation.
Medical Assessor Meakin noted that the claimant’s general practitioner, Dr Siri-Wardene, referred him to see Dr Brian Hsu, adult and paediatric spinal surgeon, who noted no evidence of neurological deficit and that a cervical MRI scan demonstrated no cord compression for foraminal stenosis. Dr Hsu suggested that the claimant had sustained a significant whiplash injury to the cervical neck and was hoping that the symptoms would settle. However, prior to Christmas, the claimant was readmitted to Norwest Private Hospital due to an acute acerbation of neck pain and symptoms also radiating into the left upper arm. Repeated scans suggested that there was no increase in disc bulge accounting for the continuing symptoms and he reported significant headaches.
In February 2018, the claimant had a consultation with an ENT specialist to rule out other pathology as well as consultation with a pain management team.
Because of continuing symptoms of neck pain, headaches and discomfort radiating to the left arm, Dr Hsu suggested surgical intervention. Initial surgery was performed on 18 May 2018 in the form of a C5/6 and C6/7 anterior cervical decompression and fusion (ACDF). This surgery essentially resolved the left arm pain and improved the cervical neck pain to some degree. However, there was continuing relentless headaches, one which appeared to be at the base of the neck and one in the scalp area.
In November 2018, Dr Hsu suggested nerve conduction studies, which, according to the claimant, were not performed, and a brain scan was performed to rule out occult pathology.
In December 2018, Dr Hsu trialled a C4/5 guided injection which did give relief for 24 hours but the symptoms returned and the claimant’s headaches became a significant feature of symptomologies.
Dr Hsu commended further surgery in the form of posterior fusion from C3 to T1 posteriorly which was subsequently performed on 19 May 2019 by Dr Hsu. The claimant advised Medical Assessor Meakin that this operation rid him of the headaches and neck pain.
Medical Assessor Meakin determined that the following injuries were caused by the motor accident:
(a) cervical spine – soft tissue injury, disc rupture at C5/6 and aggravation of degenerative change in adjacent cervical disc, and
(b) scarring to the cervical spine.
Medical Assessor Meakin assessed the permanent impairment arising from the injury to the cervical spine. He assessed that the claimant demonstrates a DRE Cervicothoracic Category IV Impairment, a 25% whole person impairment with no pre-existing or subsequent causes. Medical Assessor Meakin noted that Item 1.146 of the Guidelines states that multi-level structural compromise, which includes spinal fusion intervertebral disc replacement across regions, is assessed as if one region, with the region giving the highest impairment to be chosen.
Medical Assessor Meakin noted that at the time of his assessment, the claimant does not satisfy the definition of radiculopathy as set out in Item 1.38 of the Guidelines. He has no loss of asymmetry of reflexes or evidence of muscle atrophy, muscle weakness or reproduceable sensory loss that can be anatomically localised to an appropriate spinal nerve root distribution or not explained by his right handedness.
Medical Assessor Meakin noted that in the MRI scan of the cervical spine performed on 21 November 2017, two days after the accident, there was supported evidence of minor spondylitic change throughout the mid cervical spine which was previously asymptomatic and can be considered consistent with the claimant’s age group.
Medical Assessor Meakin assessed the scarring to the cervical spine at 0% whole person impairment, noting that the scars are having no or negligible effect on activities of daily living and require no treatment, and that there is no adherence to deeper structures and only some minor contour defect of the posterior scar and that the scars are consistent with the surgery performed.
The assessment of Medical Assessor Delaney
The claimant lodged a separate application for assessment of the dispute in relation to the whole person impairment arising from the following injuries to the visual system:
(a) visual snow;
(b) visual disturbance;
(c) cortical and subcortical and visual abnormalities;
(d) photophobia, and
(e) presbyopia.
That application was referred for determination to Medical Assessor Delaney. Medical Assessor Delaney examined the claimant and issued a certificate dated 16 November 2021.
Medical Assessor Delaney determined that the claimant’s visual disturbance due to conversion insufficiency was caused by the accident and that the claimant’s visual snow, cortical and subcortical and visual abnormality, photophobia and presbyopia were not caused by the accident.
Medical Assessor Delaney assessed that the whole person impairment to the claimant’s visual system caused by the accident is 5% with no pre-existing or subsequent causes.
The insurer lodged an application for review of the assessment certificate of Medical Assessor Delaney on the basis that the assessment was incorrect in a material respect. On 20 April 2022, the President’s delegate accepted the review application and referred it to a Review Panel.
The Review Panel which was constituted to determine the review of the certificate of Medical Assessor Delaney is a different panel to that which was allocated for determination of the review application in relation to Medical Assessor Meakin’s certificate. It comprises of Member Thompson and Medical Assessors Wechsler and Cameron.
The assessment of Medical Assessor Wong and the review panel in relation to the treatment dispute
The claimant was assessed by Medical Assessor Wong on 13 March 2019 to determine a treatment dispute.
During that assessment, the claimant advised that his neck pain and upper limb symptoms had improved significantly since the cervical fusion performed by Dr Hsu on 18 May 2018. He complained, however, of ongoing pain at the junction of his upper cervical spine and the back of his skull, and also complained of constant headaches.
The claimant confirmed that he continued to take Targin, Lyrica, Panadol and Endone and that he was still an impatient of The Hills Clinic under the care of a psychiatrist, Dr Lim.
Dr Hsu had also proposed a C2 to T1 fusion of the neck should his headaches and neck pain fail to improve.On examination, Medical Assessor Wong noted some tenderness in the cervico-occipital junctions and reduced range of movement in the claimant’s cervical spine with evidence of dysmetria. He confirmed that there was non-verifiable radicular symptoms or signs of radiculopathy in his upper limbs. Medical Assessor Wong also noted the claimant’s radiological investigations did not demonstrate any significant injury caused by the accident. However, in his opinion, there were pre-existing underlying age-related multilevel degenerative changes of his cervical spine.[7] He therefore concluded that the claimant’s injury was limited to a whiplash associated disorder (WAD) Grade II neck injury. In his opinion it did not belong to a higher WAD, because the claimant had symptoms but did not have any objective neurological deficit or fracture or dislocation of his cervical spine.[8] He did not accept that the claimant had sustained any closed head injury, noting that there was no objective medical imaging or clinical evidence to indicate that the claimant had sustained a head injury in the subject accident.
[7] IB p.321.
[8] IB p.330.
Medical Assessor Wong found that the CT scan of the claimant’s brain performed on
21 June 2018 was not causally related to the subject accident. He also found that the following treatment was not reasonable and necessary:(a) the MRI scan of the claimant’s cervical spine performed on 19 December 2017;
(b) the cervical fusion performed by Dr Hsu on 18 May 2018;
(c) upper limb nerve conduction studies performed on 2 May 2018;
(d) CT head scan performed on 9 January 2018;
(e) various admissions to Norwest and North Shore Private Hospitals;
(f) the adjustable Bluetooth headband;
(g) pathology tests, and
(h) ongoing prescription for Endone, Targin and Lyrica.[9]
[9] IB pp.312-313.
The claimant applied for a review of Medical Assessor Wong’s Certificate which was referred to a Review Panel for determination and the Review Panel issued a certificate dated 6 January 2020.[10]
[10] IB p.339.
In the opinion of the Review Panel, the medical evidence indicated that the claimant sustained a mild soft tissue injury in the cervical spine in the accident with ensuing neck pain and headaches and it did not accept that the accident had caused traumatic brain injury.
The Review Panel agreed with Medical Assessor Wong that the cervical fusion performed on 18 May 2018 was not reasonable and necessary. In support of this opinion, the Review Panel noted that there was no persuasive clinical evidence of radiculopathy, and in particular, that Medical Assessor Wong did not find evidence of cervical radiculopathy. In the opinion of the Review Panel a cervical fusion cannot be justified in the absence of radiculopathy, and the medical literature shows no evidence of benefit.[11]
[11] IB p.362.
STATUTORY PROVISIONS AND 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 a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and this includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
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. 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 (MAC) 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 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.
2.6 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 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. Sections 5D and 5E of the CL Act apply to the MAC Act.[12] In Raina v CIC Allianz Insurance Ltd[13] 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), ss 5D 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.”
[12] See s 3B(2) of the CL Act.
[13] [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 PANEL
The Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the Review.
In response to these directions, the insurer uploaded to the portal at AD5 an index and bundle of documents paginated from pages 1 to 458 whilst (IB). The claimant uploaded to the portal at AD6 a bundle of documents paginated from pages 1 to 59 (CB).
Pursuant to a direction dated 27 June 2022, the claimant served on the insurer and uploaded to the portal colour photographs of the scarring to his cervical spine.[14]
[14] AD5.
The Panel has read and considered the documentation relied upon by the parties on this review as identified in paragraphs 48 to 50 above in making its findings and determinations.
The Panel determined that whilst a physical re-examination of the claimant was not required, a phone conference with the claimant was necessary to determine the issues in the Review. In response to a direction dated 27 June 2022, the parties advised that they agreed with this.
A conference with the claimant was conducted by Medical Assessors Dixon and Cameron by Microsoft Teams on 18 July 2022.
RADIOLOGICAL INVESTIGATIONS
CT scan of the cervical spine on 19 November 2017 showed degenerative changes between C3 and C7 with anterior disc osteophyte and posterior disc osteophytes with no fracture or dislocation or subluxation. There was no paravertebral soft tissue abnormalities and no fracture or disc locations seen. There was no soft tissue injury.
A CT scan of the brain and CT angiogram of the brain and its vessels on 19 November 2017 showed normal brain and CT carotid Circle of Willis angiogram were normal.
MRI of the cervical spine on 21 November 2017 showed normal spine alignment. There is desiccation throughout the cervical spine and multilevel osteophyte formation. There is shallow annular bulge at C4/5 broad base. At C5/6 there is a mild diffuse annular bulge with endplate osteophyte and desiccation and left foraminal narrowing due to uncovertebral osteophyte formation. At C6/7 there is dislocation with minimal annular bulge. At C7/T1 there is minor posterior degeneration. Soft tissue examinations are normal. The appearances are cervical spondylosis with no traumatic injury changes on the MRI scan of the cervical spine performed on 21 November 2017.
MRI scan of the cervical spine on 19 December 2017 showed normal spine alignment. There is desiccation throughout the cervical spine. There is multi-level osteophyte formation and shallow annular bulge at C4/5 broad base. At C5/6 there is mild diffuse annular bulge with N-plate osteophyte and desiccation and left foraminal narrowing due to uncovertebral osteophyte formation. At C6/7 there is desiccation with minimal annular bulge. At C7/T1 there is minor posterior degeneration. Soft tissue examinations are normal and the appearances are cervical spondylosis with no traumatic injury changes compared to the MRI of the cervical spine performed on 21 November 2017.
CT scan of the brain on 9 January 2018 showed no acute focal intracranial abnormality. A nuclear bone scan and SPECT on 22 March 2018 showed low-grade degenerative activity of the cervical spine, left C3/4 and right C5/6 facet joints and to a lesser degree left C1/2 and left C2/3 facet joints. There was mild uptake on the right AC joint. Appearances are cervical spondylosis.
X-ray of the cervical spine on 17 May 2018 showed no fracture or dislocation but noted degenerative changes. The CT scan of the head on 21 June 2018 showed a normal examination.
X-ray of the cervical spine on 4 July 2018 showed C5/6 and C6/7 disc spacer and anterior instrumentation and normal spine alignment.
MRI scan of the cervical spine on 1 August 2018 showed post operative changes at C5 to C7. There was multilevel disc bulging at C2/3 and C3/4 and moderate bilateral foraminal stenosis due to uncovertebral osteophytes at C5/6. There was broad-based annular bulging at C6/7 and mild foraminal stenosis. There was facet degeneration at C7/T1 but no Chiari malformation and the cord signal was normal.
MRI scan of the cervical spine on 27 November 2018 showed post operative changes at C5/7. There was multilevel disc bulging at C2/3 and C3/4, moderate bilateral foraminal stenosis due to uncovertebral osteophytes at C5/6. There was broad-based annular disc bulging at C6/7 and mild foraminal stenosis. There was facet degeneration at C7/T1 but no Chiari malformation and the cord signal was normal.
SUBMISSIONS
Insurer’s MAS 2A Submissions[15]
[15] IB p.1.
These submissions were lodged by the insurer in relation to the MAS 2A Application.
The insurer relied on the following:
(a) the pre-accident treating medical evidence;
(b) the post-accident treating medical evidence;
(c) the insurer’s medico-legal evidence from the reports of Dr Thomas Newlyn and Dr Coroneos, and
(d) the MAS Assessment Certificates of Medical Assessors Wong and Steiner and the Review Panel’s Certificates in relation to the Certificates of Medical Assessors Wong and Steiner.
The insurer relies upon the findings of Medical Assessor Wong and the Review Panel in relation to the treatment dispute and submits that any injury to the cervical spine caused by the accident was limited to a minor soft tissue injury, and that the surgery performed by Dr Hsu in May 2018 for a C5/6 C6/7 anterior cervical decompression and fusion and the subsequent surgery in the form of a cervical fusion from C3 to T1 were not reasonable or necessary in relation to any injuries sustained to the cervical spine in the accident.
The insurer submits that Dr Coroneos agreed that the surgery performed by Dr Hsu was not reasonable and necessary and that he also considered that any injury to the cervical spine sustained in the accident was limited to a soft tissue injury and assessed that injury as giving rise to a 0% whole person impairment.
Having regard to the above, the insurer submits that any injury to the cervical spine sustained in the accident gives rise to a 0% whole person impairment, and further, the insurer disputes that any reduced range of movement in the left shoulder can be attributed to the cervical spine injury under the Nguyen principle in view of the claimant’s history of left shoulder complaints. In this regard, the insurer notes that the claimant was reviewed by
Dr Duckworth only four months prior to the accident on 13 July 2017 at which time he recorded that the claimant had previously fallen and injured his left shoulder 16 years ago, and that five years ago he again experienced pain in his left shoulder, and that the claimant reported to Dr Duckworth that he was experiencing increasing pain in his left shoulder after playing basketball and undertaking overhead activities. Dr Duckworth recorded that MRI findings were consistent with arthritis, arthritic change and a postero-labral tear.
Dr Duckworth considered that the claimant presented with a difficult problem affecting his left shoulder in the form of early arthritic change associated with a slight postero-labral tear and instability, and in his opinion, a simple operation would not fix the claimant’s symptoms. He prescribed the claimant with anti-inflammatories and advised that in the future the claimant would require a shoulder replacement.
Insurer’s MAS 5A Submissions[16]
[16] IB p.439.
These submissions were lodged in support of the application for the review by the insurer of the Certificates of Medical Assessors Meakin and Delaney.
The insurer submits that there are a number of material errors in Medical Assessor Meakin’s Certificate:
(a) the Medical Assessor has not complied with Chapter 1.6 of the Guidelines by failing to determine causation on a factual basis before assessing impairment;
(b) Medical Assessor Meakin has failed to provide reasons and apply the applicable common law and statutory principles in determining the claimant’s current impairment arising out of the accident, and
(c) Medical Assessor Meakin’s findings are wholly inconsistent with the findings of the Review Panel in relation to the treatment dispute and there is no explanation with any certificate as to why his opinion is different to the Review Panel.
The insurer submits that in considering causation, Medical Assessor Meakin failed to consider all of the evidence provided and not just the version of the accident given to him by the claimant in finding that the accident gave rise to an injury to the cervical spine requiring cervical fusion procedures.
The insurer submits that Medical Assessor Meakin’s Certificate is in stark contrast to the Certificate of Medical Assessor Wong and the findings of the Review Panel comprising of Medical Assessors Lahz, Fitzsimons and Stubbs as contained in the Review Panel Certificate dated 6 January 2021. Both Medical Assessor Wong and the Review Panel found that the claimant sustained a soft tissue injury to the cervical spine in the subject accident and the cervical fusion performed in May 2018 by Dr Hsu was not reasonable and necessary as there was no persuasive clinical evidence of radiculopathy.
With regards to causation, the insurer submits that cls 1.5 to 1.7 of the Guidelines require both a medical and a non-medical determination before causation can be satisfied. The medical determination is that the accident “could” have caused the condition, and the non-medical determination is that the accident “did” cause the condition.
The insurer submits that Medical Assessor Meakin failed to determine causation on a factual basis and therefore did not comply with cls 1.5 to 1.7 and further that Medical Assessor Meakin failed to provide reasons for his findings.
The insurer submits that whilst Medical Assessor Meakin gave some consideration to the medical determination for causation (that the accident could have caused the accident to the cervical spine of the kind requiring surgery), he has not adequately addressed the non-medical determination, being that the accident did cause an injury requiring the surgeries performed.
The insurer submits that in finding that the claimant sustained an injury to the cervical spine requiring surgery, Medical Assessor Meakin appears to have relied solely upon the history of symptoms as described by the claimant and in the claimant’s history, and that his symptoms resolved following the two surgeries and that Medical Assessor Meakin has not had adequate, or any, regard to the absence of confirmed radiculopathy following the accident.
The insurer submits that both Medical Assessor Wong and the Review Panel, following a thorough review of the contemporaneous medical evidence, found that there is no persuasive clinical evidence of radiculopathy and that cervical fusion in the absence of radiculopathy cannot be justified. However, Medical Assessor Meakin, the insurer submits, did not have any adequate regard to the lack of clinical evidence of radiculopathy following the accident when accepting that the accident caused an injury to the cervical spine necessitating two cervical fusions. Further, the insurer submits that had Medical Assessor Meakin properly analysed the medical evidence, he would have realised that there was no clinical evidence of radiculopathy, and he would not have surmised that the claimant had sustained a disc injury in the subject accident necessitating two surviving fusion procedures. The insurer submits that although Medical Assessor Meakin has set out, in summary, the medical records and reports that were before him, he has not undertaken any real analysis of those records nor has he disclosed his path of reasoning by which he reached his conclusions. In particular, he has not referred at all to the findings of Medical Assessor Wong and the Review Panel that there was no clinical evidence of radiculopathy either before or after the first surgery, or their findings that the first surgery was not reasonable and necessary.
The insurer submits that having not referred to these findings, Medical Assessor Meakin has not explained why his opinion differed to the opinions of Medical Assessor Wong and the Review Panel and he submits that the reasoning provided by Medical Assessor Meakin is wholly inadequate and as such gives rise to a material error.
The insurer further submits that, but for this error, it would be found that the claimant’s injury was limited to a soft tissue injury of the cervical spine without any evidence of disc injury or radiculopathy, and that the surgery undertaken, and the resulting impairment, was not related to any injury sustained in the accident.
The insurer further submits that Medical Assessor Meakin’s determination is inconsistent with the Review Panel’s decision. The Review Panel was called upon to determine only whether the first cervical fusion surgery was reasonable and necessary and found that it was not, based on contemporaneous records and a lack of any clinical evidence of radiculopathy. Whilst the insurer concedes that the Review Panel certificate is not binding upon Medical Assessor Meakin, it submits that it carries with it significant weight, given the fact that three leading MAS Assessor’s made that decision. It is in stark contrast to Medical Assessor Meakin’s view, and the insurer submits he was required to detail why he did not accept it.
Claimant’s MAS 5R Submissions[17]
[17] CB p.1.
These submissions are relied upon by the claimant in response to the insurer’s application for a review of Medical Assessors Meakin and Delaney’s Certificates.
The claimant submits that the insurer’s primary complaint is that Medical Assessor Meakin has misapplied the medical and common law test of causation. However, the claimant submits that in advancing this cause, the insurer wrongly states the test to be that the accident “did cause an injury” and contends that neither the common law test, nor the medical test, required this (absolute) level of certainty.
The claimant submits that this fundamental misunderstanding of the test of causation underscores and undermines the insurer’s position for the following reasons.
The claimant submits that at page 2 of Medical Assessor Meakin’s Certificate he noted the parties’ respective written submissions. In respect of the claimant’s position, he noted continuing discomfort associated with cervical spine pain since the accident on
19 November 2017. In respect of the insurer’s position, he noted the insurer’s complaint that the claimant was initially diagnosed with a soft tissue injury to his cervical spine which was not caused by the accident.The claimant submits that the insurer’s position must be understood to mean that the claimant did not sustain any injury to his neck in the collision which is in distinct contrast to the contemporaneous medical and other evidence, and is directly contradicted by Dr Coroneos’ opinions, which the insurer embraces (Dr Coroneos considered that any injury sustained by the claimant in the accident was likely to be limited to a soft tissue strain of the cervical spine and did not accept that the surgery performed by Dr Hsu was reasonable and necessary or that it was indicated).
The claimant contends that Medical Assessor Meakin considered the documentation and the application and reply (which included contemporaneous records and other documents setting out the claimant’s proximate complaints of neck pain very shortly after the accident) and then reported on the claimant’s medical history, in which he noted that the claimant was generally in good health before the accident and had no history of neck pain and nor did he have a history of headaches.
The claimant submits that this history is not challenged by the insurer.
The claimant notes that Medical Assessor Meakin set out salient details of the accident in his reasons and then summarised the claimant’s general practitioners notes and the observation by the treating spinal surgeon, Dr Hsu, the diagnosis of a significant whiplash injury to his cervical spine by Dr Hsu, which he hoped would settle but did not, and the readmission to Norwest Private Hospital prior to Christmas in 2017 on account of an acute exacerbation of neck pain with symptoms radiating into the left upper arm.
The claimant submits that Medical Assessor Meakin then goes on to note the performance of a C5/6 and C6/7 anterior cervical decompression and fusion on 18 May 2018 by Dr Hsu which was successful, essentially resolving the claimant’s left arm pain and improving his cervical pain, but that despite this the claimant’s neck pain persisted, a C4/5 guided injection was trialled but that the claimant’s symptoms returned. Medical Assessor Meakin then summarises aspects of each report he considered relevant to the question at hand which included a summary of Dr Hsu’s reports. Medical Assessor Meakin then spent considerable time addressing the reports of Dr Coroneos, neurosurgeon, relied upon medico-legally by the insurer. He noted the demarcation between Dr Coroneos’ opinions on causation and
Dr Hsu’s opinion, and further that whilst Dr Coroneos focused exclusively on radiological evidence to suggest that there was no underlying pathology objectively confirming a serious discal injury, Dr Hsu’s diagnosis was primarily guided by clinical symptoms and signs, supplemented by X-rays and radiological evidence.The claimant submits that the Medical Assessor’s conclusion that there had been an excellent outcome must plainly be understood to mean that the surgery which achieved a complete resolution of the claimant’s symptoms was obviously warranted, that there was clearly an issue and clearly pathology causing the claimant’s complaint, and that the surgery was clearly warranted.
The claimant further submits that Medical Assessor Meakin noted in his reasons the radiological and other scans and the significant resolution of the claimant’s symptoms in his cervical spine following surgery, and submits that this must, as a matter of common sense, have been surgically warranted. Medical Assessor Meakin then assessed the claimant’s cervical spine impairment at 25% which reflected the spinal fusion procedures, and the claimant submits that on any reasonable reading of his certificate, Medical Assessor Meakin considered the objective and the subjective evidence which, in combination, well and truly established a causal connection between the two.
The claimant submits that the insurer’s complaint that Medical Assessor Meakin failed to adequately or at all address the issue of causation is misguided. It contends that this misunderstands the test of causation, and that it is plain the issue of causation was properly considered rationalised and reasoned as set out in the analysis by Medical Assessor Meakin of the clinical and medical records set out above.
With regards to the insurer’s position that there is a difference of opinion between Medical Assessors Wong and Meakin, the claimant submits that Medical Assessor Wong was commissioned to undertake a different assessment and he had different information to that which was available to Medical Assessor Meakin, and further, that Medical Assessor Meakin was not bound by Medical Assessor Wong’s opinion or approach. The claimant submits that when Medical Assessor Meakin assessed the claimant, he approached the question of causation from an objective and subjective basis and had the benefit of post-operative information which was not available to Medical Assessor Wong.
With regards to the complaint of inadequate reasoning, the claimant submits that the Medical Assessor Meakin’s approach is stepped, logical and full. It submits that the reasons do not need to be elaborate but that they do need to disclose the actual path of reasoning, which Medical Assessor Meakin has done.[18]
[18] See AAI Limited v Fitzpatrick [2015] NSW SC 1108.
Finally, the claimant submits that the insurer’s submission that Medical Assessor Meakin’s opinion is inconsistent with the Review Panel’s decision is not a proper ground for relief. The Review Panel was tasked with a different role than Medical Assessor Meakin, and when exercising its power in respect of that role, gave primacy to the absence of objective radiological evidence, but did not have the benefit of the claimant’s post-operative status and, more particularly, information regarding the complete resolution of symptoms following surgery. The claimant submits that as Medical Assessor Meakin rationalised it, the fact that there was a good outcome from the surgery must mean that there was a problem which required fixing and which was fixed. The claimant submits that radiology is not a flawless process and that the Guidelines make plain that a Medical Assessor must bring to bear the full gamut of his or her clinical experience and training when assessing the claimant. It contends that Medical Assessor Meakin brought all these qualities and skills to the table when applying himself as carefully to the question of causation as he did.
Insurer’s submissions in response to the claimant’s reply submissions[19]
[19] IB p.453.
In these submissions the insurer addresses the claimant’s MAS 5R submissions.
The insurer submits that Medical Assessor Meakin’s very brief reference to the parties’ respective submissions demonstrates that he did not engage with the insurer’s main argument at all. He refers to the insurer’s position being that “any injury to the cervical spine was limited to a soft tissue injury”, however, he does not refer at all to its submission that the surgeries performed, and resultant impairment, was not reasonable and necessary or related to that injury.
The insurer submits that the claimant has clearly misunderstood the submissions relied upon by the insurer in support of its original application, Medical Assessor Meakin’s reference to those submissions and the submissions relied upon by the insurer in support of its Application for Review.
The insurer emphasises that in its original submissions, it relied upon the opinion of
Dr Coroneos and submitted that any injury sustained to the cervical spine in the accident was limited to a minor soft tissue injury and, as such, the surgery performed by Dr Hsu was not related to the injury sustained in the accident.The insurer submits that it is unclear how the claimant came to conclude that it is the insurer’s position that the soft tissue injury to the cervical spine was not caused by the subject accident.
With regards to the claimant’s submissions in relation to Medical Assessor Meakin’s application of the test of causation, the insurer submits that the claimant has not referred to at all the submissions made by it in respect to the issues of causation and has merely taken a snippet of the insurer’s submissions. It further submits that the claimant has not demonstrated how Medical Assessor Meakin properly applied the Guidelines and specifically cl 1.6(2).
The insurer maintains that Medical Assessor Meakin has failed to determine causation on a factual basis and has therefore not complied with cls 1.5 to 1.7.
The insurer maintains that whilst Medical Assessor Meakin gave some consideration to the medical determination for causation, that the accident could have caused or contributed to an injury to the cervical spine requiring surgery, he has not adequately addressed the non-medical determination, being that the accident did cause or contribute to an injury requiring the surgeries performed.
The insurer submits that it was not enough for Medical Assessor Meakin to accept that the claimant sustained an injury to the cervical spine requiring the surgeries performed by Dr Hsu having regard only to the circumstances of the accident and the fact that the claimant reported that his symptoms resolved following the second surgery.
The insurer maintains that Medical Assessor Meakin did not have adequate, or any, regard to the lack of clinical evidence of radiculopathy following the accident when accepting that the accident caused or contributed to an injury to the cervical spine necessitating two cervical fusions. It further submits that had Medical Assessor Meakin properly analysed the medical evidence, he would have realised that there was no clinical evidence of radiculopathy, and he would not have surmised that the claimant had sustained a disc injury in the accident, necessitating the two cervical fusion procedures.
As to the adequacy of Medical Assessor Meakin’s reasoning, the insurer disputes that the Medical Assessor’s approach was stepped, logical and full as submitted by the claimant. It notes that the reasoning given by Medical Assessor Meakin under “Causation and reasons” did not include any diagnosis at all and is merely a recitation of the claimant’s description of symptoms both prior to and following surgery. It submits that Medical Assessor Meakin provides no diagnosis of the claimant’s injuries, and then concludes that the following injuries were caused by the motor accident:
“Cervical Spine – soft tissue injury, disc rupture at C5/6 and aggravation of degenerative change in the adjacent cervical discs.”
The insurer submits that it is not clear how he came to this conclusion and therefore the inadequacy of his reasons is abundantly clear.
RE-EXAMINATION
Mr Begnell was assessed by Medical Assessors Cameron and Dixon by video conference on 18 July 2022. The re-examination report is as follows:
“Background
Mr Begnell is living at Glenwood with his wife and two children aged 15 and 18. He described himself currently as the house husband. He is driving regularly. He reported no leisure interests.History of injury and treatment
Mr Begnell provided the following history of the accident and treatment of his injuries.
On 19 November 2017, Mr Begnell was involved in a major motor vehicle accident.
Mr Begnell said that he was the driver of a vehicle which was travelling at approximately 80 km/hour and he was wearing a seatbelt. He became aware of a vehicle that was entering from another lane that was not going to stop but was travelling slower than his vehicle. He tried to brake but could not avoid a collision with the other vehicle. His vehicle was impacted on the left front pushing it onto a concrete medium strip and into the air, and it came down heavily on two wheels landing on the medium strip. His vehicle was severely damaged. Mr Begnell said the chassis of his vehicle was bent and there was a very quick reduction of speed from approximately 80 km/hour to 30 km/hour. Mr Begnell does not recall the actual impact. He said the curtain airbags did not deploy and he impacted the interior of the vehicle.
Mr Begnell said that he had a brief period of loss of consciousness. Police and ambulance attended the scene of the accident. He was taken home by his wife and later developed significant pain in his neck, radiating into his left shoulder and had significant headaches. Mr Begnell said that he could not lift his left arm. He was taken to Norwest Private Hospital where he reported numbness and tingling into the left forearm, involving the middle, ring and little fingers of his left hand. He was given analgesia and had a CT scan of his neck and because of persisting pain, stayed in hospital for two days. He was receiving regular morphine injections to relieve the pain and was discharged with Panadol, and then attended his GP, Dr Siri-Wardene, on 22/ November 2017 and was prescribed Norgesic as well. Due to the symptoms from the neck and other body areas he was referred to Dr Hsu, spinal surgeon. He saw Dr Hsu on 7 December 2017, who requested an MRI. Mr Begnell said that he continued to have left sided neck pain and severe headache. He said the headaches were of two types; a ‘vice like’ feeling involving his scalp and a throbbing headache felt on the right side.
His headaches and neck pain were still persisting and on 23 November 2017 he was given a muscle/relaxant pain relief by his GP with a prescription for Valium and then prescribed Oxycodone twice a day and in December was prescribed additional Oxycodone to be taken at night and Temazepam was added for night sedation.He had further review by Dr Hsu and continued his opiates and the pain did not resolve and it was recommended he have cortisone injections which did not have sustained benefit and he was then referred for pain management. He had nerve blocks arranged through Dr Taylor. He said that on 19 December 2017 he had difficulty moving his little finger. and required re-admission to Norwest Hospital with severe pain in his neck and headaches, and as there had been no improvement with conservative treatment, Dr Hsu recommended a C5/6/7 ACDF which was performed on 18 May 2018, after which his radicular complaint, the numbness and pain in his arm, resolved. This procedure improved the left arm pain but there were continuing severe headaches and neck symptoms.
It is noted a subsequent MRI of the cervical spine with functional views (multi-positional MRI) on 21 November 2018 showed no skull-based abnormality and no Chiari formation but showed retrolisthesis at C2/3, which with flexion, an anterolisthesis appeared, and with extension there was return to retrolisthesis. At C3/4 there was a mild central disc herniation on dynamic imaging with flexion and anterolisthesis appears with return to normal alignment on extension. At C4/5 there was central herniation with annular tear contacting the cord. There was no significant change on dynamic imaging. At C5/6 there was mild bilateral foraminal stenosis with a mild disc osteophyte at C6/7. This multi-positional MRI of the cervical spine is showing that he has developed disc herniation above the C5/6/7 ACDF and has instability at C2/3 and disc herniation at C3/4 and C4/5 which has evolved since the subject motor vehicle accident above the level of the cervical fusion.
There were further investigations and a neck injection. Mr Begnell said that he had a Botox injection from a neurologist which reduced his throbbing headaches. After that time, he said that he decided to undergo an extensive posterior cervical fusion from C3 to T1 which was performed by Dr Hsu on 19 May 2019.
Current Status
His main problem appears to be ongoing occipital headaches for which he has had Botox injections and radio-frequency injections without sustained benefit. These headaches are cervico-genic in origin and represent greater and lesser occipital neuralgia of severe magnitude. The claimant reports that these headaches settled after he had the C3 to T1 posterior fusion as did most of his neck pain.
Mr Begnell said that he is managing reasonably well. There are some continuing psychological symptoms but he does not have pain.
Current medications are propranolol 40 mg twice daily, Catapres 300 mcg daily, Circadian one tablet at night, Valdoxan 25 mg daily and occasional Imovane.
Mr Begnell said that he was taking the propranolol and Catapres for anxiety and he was aware that the Valdoxan is an antidepressant.
There are no analgesics currently. The general practitioner continues to be Dr Siri-Wardene. Mr Begnell has occasional massages, three to four times a year but does not have other treatment.
Mr Begnell said that he commenced a programme in the gym in October or November 2019 and at that time also had mid back symptoms. These symptoms gradually resolved. Mr Begnell said that he has had no pain since September 2020.Examination
Mr Begnell is right handed, 189 cm in height and weighs 86 kg. Mr Begnell has reduced range of motion at his cervical spine to approximately 70% generally with much more reduced movement in flexion to about 10% normal.
There was a full range of motion at the shoulders and upper extremities.
The photographs that were supplied showed a posterior neck scar consistent with the posterior cervical fusion and a small anterior neck scar also consistent with the surgery[20].[20] AD5.
Diagnosis and causation
| Mr Begnell was involved in a major motor vehicle accident causing significant whiplash to his neck with left shoulder brachalgia and radicular complaint with paraesthesia to his middle, ring and little fingers of his left hand (C7/8 distribution) with MRI of the cervical spine on 21 November 2017 showing degenerate disc bulges at C4/5, C5/6 and C6/7 and a subsequent MRI of the cervical spine on 19 December 2017 showing central disc bulge at C4/5 and a central and left sided disc prolapse at C5/6 and a minor disc bulge at C6/7. In the Panel’s opinion there was evolution of his C5/6 disc lesion to a left sided disc prolapse which is consistent with radicular complaint. After the C5/6/7 ACDF the radicular complaint in the left upper extremity resolved. Permanent impairment Cervical spine Mr Begnell's main complaint is occipital headaches. In the clinical judgment of the medical members of the Panel these are not due to any significant neck instability, nor are there persisting neurological abnormalities in the upper extremities, so that on clinical grounds the assessment is as follows. ‘Headache or other pain potentially arising from the nervous system, including migraine, is assessed as part of the impairment related to a specific structure.The AMA 4 Guides state that the impairment percentages shown in the chapters of the AMA 4 Guides make allowance for the pain that may accompany the impairing condition.’ Mr Begnell’s headaches are assessed as a component of his cervical spine condition. There is no evidence that he had a specific injury to an occipital nerve which results in a separate and additional impaiment assessment. Scarring Of Minor Skin Impairments (TEMSKI), this is assessed at 0% whole person impairment.
|
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[21] and Insurance Australia Ltd v Marsh.[22]
[21] [2021] NSWCA 287 at [40], [41] and [45].
[22] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the conference report of Medical Assessors Cameron and Dixon in its reasons and adds the following further reasons.
Causation
The Panel is satisfied on the basis of the circumstances of the accident in the history provided by the claimant to Medical Assessors Cameron and Dixon during their re-examination of him and the clinical and treating records that the accident caused an injury to his cervical spine.
It is the Panel’s diagnosis that the claimant has whiplash associated disorder caused by the accident.
The clinical evidence, including the radiological investigations, does not indicate that the accident caused the claimant to sustain any objective neural deficit or cervical radiculopathy. It is therefore the opinion of the Panel that the claimant’s radicular symptoms after the accident were caused by his underlying age-related multilevel cervical spondylosis (cervical spine degenerative disease) and this is the cause of the disc abnormalities demonstrated by the radiological investigations which have been referred to above.
The claimant had two cervical fusions at the recommendation of his treating surgeon,
Dr Hsu, after there was a lack of response to conservative treatment of his symptoms. Accepted indications for cervical fusion are persisting radiculopathy, or myelopathy, or instability of the cervical spine. None of these indications were clinically present after the accident, and in particular, there was no clinical evidence of cervical radiculopathy to justify the cervical fusion procedures. In the clinical judgment and experience of the medical members of the Panel, the lack of response to conservative treatment is not an indication for surgery, and that approach is taken in the treatment of many patients with chronic pain and disability. In the opinion of the Panel these two surgical procedures do not relate to the whiplash associated disorder caused by the accident.
Impairment assessment
Mr Begnell had non verifiable radicular complaints prior to undergoing the two cervical fusions. However, the clinical evidence, including the radiological investigations, does not indicate any objective neurological deficit or any fracture or dislocation of the cervical spine and therefore Cervicothoracic DRE II (5% WPI) is the appropriate permanent impairment evaluation.
The photographs at AD5 show a posterior neck scar consistent with the posterior cervical fusion and a small anterior neck scar also consistent with the surgery. In the opinion of the Panel, the two surgical procedures do not relate to the whiplash disorder caused by the accident and consequently the scarring from the surgery does not give rise to a permanent impairment.
CONCLUSION
The Certificate of Medical Assessor Meakin dated 15 June 2021 is revoked. A replacement Certificate is attached at the commencement of these Reasons.
0
3
0