Allianz Australia Insurance Limited v Curtin
[2024] NSWPICMP 263
•30 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Curtin [2024] NSWPICMP 263 |
| CLAIMANT: | Lorna Curtin |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 30 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute as to whether injuries caused by the motor accident are threshold injuries for the purposes of the MAI Act; claimant was a pedestrian when she suffered injury due to a collision with a motor vehicle on 9 July 2021; parties agreed that the issue in dispute related to whether an annular fissure of the L4/5 level of the lumbar spine was caused by the motor accident; it was conceded by the insurer that such injury is not a threshold injury for the purposes of the MAI Act; the issue in dispute was whether the annular fissure was caused by the motor accident; claimant had suffered a previous lumbar spine injury as a result of a work accident; also suffered a subsequent lumbar spine injury as a result of a turbulent flight; original Medical Assessor found that the motor accident caused the annular fissure; Review Panel found that on the basis of the examination findings and the documentary medical evidence, on the balance of probabilities, the annular fissure was caused by the turbulent flight that occurred after the motor accident; Held – claimant suffered a soft tissue injury as a result of the motor accident, which is a threshold injury for the purposes of the MAI Act. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the Medical Assessment Certificate of Medical Assessor Nelukshi Wijetunga dated 24 August 2023 and determines: · the injury to the lumbar spine caused by the accident is a THRESHOLD injury for the purposes of the Motor Accident Injuries Act2017, and · the L4/5 disc injury with annulus fissure was not caused by the motor accident. |
STATEMENT OF REASONS
INTRODUCTION
Ms Lorna Curtin (the claimant) is a 28-year-old female who alleges injury as a result of a motor vehicle accident which occurred on 9 July 2021. The claimant was a pedestrian traversing across a pedestrian crossing when a motor vehicle collided with her.
The issue in dispute between the parties is whether any physical injury suffered by the claimant as a result of the accident is a threshold injury (previously known as a minor injury – any reference to ‘minor injury’ in this determination is a reference to ‘threshold injury’).
A threshold injury determination is an important one in terms of an injured person’s entitlements under the Motor Accident Injuries Act2017 (MAI Act). If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits beyond 26/52 weeks and an entitlement to claim common law damages is opened.
The claimant lodged an Application for personal injury benefits (claim form) with the insurer of the vehicle, Allianz Australia Insurance Ltd (the insurer), on or about 13 July 2021.
It appears that liability for payments of statutory benefits was initially accepted by the insurer, however, subsequently denied due to a decision that the claimant’s injuries met the definition of threshold injuries for the purposes of the MAI Act.
An internal review decision of the insurer dated 19 July 2022 affirmed the original decision.
Subsequently an application was lodged with the Personal Injury Commission (Commission) to determine the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor.
The dispute about whether the claimant’s accident caused psychological injury is a threshold injury, is a medical dispute, as defined by s 7.17 of the MAI Act, and a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The medical dispute was assessed by Medical Assessor Nelukshi Wijetunga. The Medical Assessor gave a certificate dated 24 August 2023 wherein she certified that the claimant suffered a non threshold injury to the lumbar spine, by way of a L4/5 disc injury with annulus fissure caused by the motor accident.
THE REVIEW
The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 30 October 2023 the President’s delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
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[1] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[1] Section 7.26(5A) of the MAI Act.
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
The Panel issued interim directions dated 28 November 2023 requesting paginated and indexed bundles of all documents relied upon by the parties.
Following an initial preliminary conference, the Panel issued directions dated
22 January 2024 requiring the claimant to attend a re-examination. The parties were also requested to provide the clinical records of various treating health practitioners and doctors. In addition, the parties were asked to confirm the following:“whether the dispute for determination by the Review Panel relates solely to the lumbar spine injury. Further, whether the findings of the medical assessor that injuries to the thoracic spine, cervical spine and any separate injury to the left leg were not caused by the motor accident are agreed to.”
The insurer’s representatives responded on 1 February 2024 stating: “absent an indication from the Claimant to the contrary that the assessment of the cervical spine, thoracic spine or left leg contained an error, the dispute relates solely to the lumbar spine.” The claimant’s representatives responded on 19 February 2024 confirming the dispute relates to the lumbar spine injury only.
On such basis, the Panel has confined its determination and certificate to the lumbar spine only.
A re-examination conducted by Medical Assessor Gibson was arranged to occur with Medical Assessor Oates joining via telephone. The Panel reconvened for a further preliminary conference on 1 March 2024.
LEGISLATIVE FRAMEWORK
The term ‘threshold injury’ is defined in s 1.6 of the MAI Act. It provides that a threshold injury is a soft tissue injury or a threshold psychological or psychiatric injury. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“…an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 also provides that the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.6 of the Guidelines provides: “in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“…radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines Permanent Impairment’.
a)Loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
b)Positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
c)Muscle atrophy and/or decreased limb circumference (see definitions of clinical findings in Table 6.8 in these Guidelines)
d)Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.”
Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[2]
[2] See s3B(2) of the Civil Liability Act 2002.
In respect of the issue of causation, Part 6 of the Guidelines includes guidance. Whilst Part 6 deals with permanent impairment, it is still relevant to the issue of causation in respect of threshold injury disputes.[3]
[3] Briggs v IAG Ltd [2022] NSWSC 372.
Clause 6.7 of the Guidelines provides:
“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.”
ORIGINAL MEDICAL ASSESSMENT
Medical Assessor Wijetunga in a certificate dated 24 August 2023, found an L4/5 disc injury with annulus fissure to the lumbar spine was not a threshold injury for the purposes of the MAI Act.
In his reasons, he found that injuries to the cervical spine, thoracic spine, and left leg were not caused by the motor accident. Specifically, he found that there was no separate injury to the left leg and instead referred symptoms to the left leg were part of the lumbar spine injury.
The Medical Assessor noted MRI findings of the lumbar spine, and found given the claimant’s young age, absence of degenerative disc disease and the manner in which she flexed her spine to the left, the pathology is considered to be causally related to the subject accident.
He found that an annulus fissure is a tear in the fibrocartilage and meets the criteria of a non-threshold injury.
SUBMISSIONS
Claimant’s submissions dated 12 April 2023
These submissions were lodged in support of the original application for assessment of a threshold dispute. The submissions simply state the claimant has suffered injuries that are not threshold injuries.
Insurer’s submissions dated 28 April 2023
In reply, the insurer submitted that the totality of evidence clearly demonstrates the accident was mild at most and was unlikely to result in the kind of injuries or symptoms now alleged by the claimant. With reference to the evidentiary material, the insurer noted the following in support of such submission:
(a) the claimant concedes that the accident occurred at low speed;
(b) the impact was so mild that the claimant did not fall to the ground or lose her balance;
(c) the insured driver estimates his pre-crash speed at less than 5kmph;
(d) the insured vehicle was not damaged, and
(e) the claimant was observed to walk home freely after the accident
The insurer further notes that the claimant returned to work and activities of daily living in an unrestricted capacity and was discharged from all active treatment shortly after the accident. It was not until after the claimant “felt a jolt” on a flight around February 2022 that she re-engaged in treatment.
Accordingly, it is submitted that the accident related injuries were soft tissue and temporary in nature, thereby satisfying the definition of threshold injury.
The insurer denies the claimant suffered injury to her cervical or thoracic spine as a result of the accident, noting, amongst other things that there was no initial complaint to such areas of the body. For instance, no such injury was listed in the claim form.
The insurer concedes the claimant suffered an injury to the lumbar spine as a result of the accident, however, such injury is confined to a soft tissue injury only and is therefore to be considered a threshold injury.
In respect of causation, the insurer notes the claimant disclosing a prior back injury at work shortly before the subject accident. Whilst the claimant stated she had fully recovered, the insurer notes the claimant advised her general practitioner (GP) on 21 June 2021 that she was unable to go to the gym, was consulting a chiropractor and was avoiding manual handling and heavier duties. The claimant is noted to have again attended upon her GP on 30 June 2021 again reporting lumbar spine symptoms.
The insurer submits that even if it were accepted the pre-existing lumbar spine condition was asymptomatic at the time of the accident, the claimant described her lumbar spine pain as ‘chronic’ to hospital staff following the accident.
The insurer refers to contemporaneous medical evidence in supporting a submission that at most the claimant suffered a soft tissue injury that temporarily exacerbated her ‘pre-existing and degenerative lumbar condition’.
It is submitted that there were no radiculopathic complaints in the months after the accident and evidence suggests that her injury fully resolved. It was not until an injury to the back on a flight in February 2022 that radiculopathic and left leg sciatic complaints are recorded.
The insurer notes that imaging revealing a ‘small disc extrusion’ that was not taken until after the subsequent injury, is more consistent with the ‘pre-existing degenerative condition’ rather than of acute trauma.
The insurer refers to Dr Mobbs accepting that an annular tear was sustained in the motor accident, however, he was not advised of the subsequent injury or “pre-existing chronic back pain” or history.
Insurer’s submissions dated 20 September 2023
In support of the subject application for review, the insurer confirms that no issue is taken with the diagnosis of annulus tear, nor that such injury is not a threshold injury for the purpose of the MAI Act. The basis for the application is on the basis that the evidence is supportive of the position that the annulus tear is not causally related to the subject accident.
It is submitted that the Medical Assessor failed to attend to the general provisions of assessment, failed to sufficiently address the issue of causation and failed to provide adequate reasons for his decision.
The insurer submits the Medical Assessor failed to properly account for the pre-existing lower back injury by not adequately reviewing the medical evidence. This led to erroneous comments in the general history and determinations regarding causation. The insurer notes the claimant suffered a lower back injury one month prior to the accident. It is submitted that it is reasonable to suggest that the annulus tear observed on imaging in February 2022 was present prior to the subject accident.
The insurer submits the Medical Assessor failed to explain his actual path of reasoning, in accordance with principles expressed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) CLR 480.
The medical evidence is referenced to support a submission that the claimant did not suffer the annulus tear as a result of the subject accident, noting her return to activities of daily living, including gym sessions shortly after the motor accident.
The insurer submits that the annulus fissure revealed on the MRI relates to either pre-existing lumbar spine complaints or relates to the jolting incident of February 2022. It is submitted that it is ‘highly unlikely’ that the fissure was caused by the mild nature of the subject accident.
Claimant’s submissions dated 11 October 2023
The claimant notes the Medical Assessor did in fact acknowledge the prior back injury and relevant information. The claimant also rejects a suggestion that the medical certificate and reasons did not contain a proper path of reasoning.
DOCUMENTATION
The Panel has considered all material provided by the parties in both the application and reply. In addition, all documents included in the parties’ bundles has been considered including material requested by the Panel following the initial preliminary conference.
The claim form dated 13 July 2021 (4 days post accident), lists the following injuries: “left leg bruising, swollen right knee (had x-ray). Lower back pain.”
The claimant attended upon the Emergency Department of the Prince of Wales Hospital. The discharge summary of 9 July 2021 took a history of a low speed impact (10kmph). The claimant noted pain in knees and legs. She was assessed, including an X-ray, and was diagnosed with a soft tissue injury. There is no mention of lower back pain.
The claimant was referred for physiotherapy with Coogee Bay Physio. The notes begin on 13 July 2021. The claimant is recorded as giving a history of the motor accident, and noted that she twisted toward car. Noted: “back pain is across all the lower back isolated lower back.” Nil referred pain in the leg was noted.
On 15 July 2021 the lower back pain was described as significant. The claimant continued to attend for regular sessions with the physiotherapist with complaints of lower back pain. By August 2021 the claimant noted some improvement with ability to perform most work duties without issues and also attending pilates and “HIIT” sessions.
The claimant attended upon the practice again on 3 March 2022 providing a history of feeling a “jolt” on a flight three weeks prior. A few days later she felt a bit “funny” in the back and after four days from flight she felt some pain from the left leg down to the sole of the foot, with it later subsiding.
The clinical file of Coogee Family Medical Centre has been considered. The first entry is four days after the motor accident on 13 July 2021. A history of the motor accident is noted and the claimant was noted to have low back pain. Two days later the pain is noted as worse with muscle spasm. She was advised not to work for a week. Subsequent attendances records the claimant as improving with ongoing “twitches” and pain occurring.
The claimant presented on 14 October 2021 and an improvement was noted but not “100%”. She reported some low back pain in the evening after a 2km run attempt. It was noted that physiotherapy ceased as of 7 September 2021 and the claimant would continue to work normal hours and continue daily stretches/exercises. The claimant was to be reviewed in one month. However, she did not return to the practice until February 2022.
On 7 February 2022 the GP noted the claimant’s back pain becoming worse after a recent flight from Hayman Island that was bumpy. The lower back pain was described as “the same”, however, now experiencing tingling in the left foot and down the left leg. The claimant was subsequently referred for an MRI scan and to neurosurgeon, Dr Ralph Mobbs. On 21 February 2022 the GP noted that the insurer had refused to reopen the claim. It is noted the claimant to perform “nil ward work not to lift more than 5kg”.
The claimant attended again on 1 March 2022 and stated that she felt ready to return to work and had “nil pain”. She was doing housework without pain and would continue with exercises/pilates. The claimant was noted to be feeling as fit as last time that she returned to work after the initial injury.
The material includes the clinical file of IMMEX Waterloo. The claimant attended upon this practice in respect of her earlier work related back injury. The various certificates of fitness, note the claimant was performing a patient roll when she developed pain in the lower back, radiating to the left buttock. The file includes some internal email correspondence from her employer, that discusses the causation of the injury. The emails also confirm that the claimant had called in sick due to back pain for two days, with a return on light duties.
The claimant attended IMMEX on 21 June 2021 and gave a history of the work injury occurring two weeks prior. The claimant was not able to return to the gym due to pain. On 7 July 2021, the claimant was noted to be “feeling much better” and was able to do most manual handling on ward without pain or discomfort. She was noted mainly to be getting discomfort after prolonged sitting. She was noted to have a trial of pre-injury duties but to avoid log rolls with obese patients.
A note dated 11 August 2021 is stated to be written in retrospect for the 7 July 2021 consultation. The notes include the claimant having no further pain, no longer taking analgesia and no issues with the trial of pre-injury duties. She had been discharged from physiotherapy.
Prior to the accident, the claimant had regularly attended upon Bronte Family Doctors. The file includes a history of unrelated complaints. On 15 June 2021 the notes record recurrent low back pain, niggling for a few days and was noted to have some left sciatica. A referral to an MRI of the lumbosacral spine was given. However, on 17 June 2021 the claimant’s back pain was described as much improved. No further back complaints are noted, and no mention of the motor accident is mentioned in the file.
The claimant was referred to neurosurgeon Dr Mobbs by Dr Ryan of Coogee Family Medical Centre. In a report dated 17 February 2022, Dr Mobbs stated that the claimant “…has recently had a flare-up of her original CTP injury.” He referred to the MRI scan showing a central annular tear with broad based annular bulging. He stated: “following a review of her original injury, it is clear that this is a flare-up of that injury.”
A report of Paige Hawkins, physiotherapist of Elite Spinal Physiotherapy and Pilates dated 25 June 2022, notes the claimant was first assessed on 16 May 2022. The claimant reported right sided lower back pain with activities of daily living. The claimant was said to be keen to get back to gym classes and PT sessions. Poor biomechanics of the lumbar extension was noted on examination. The claimant was said to be going well with weekly pilates sessions and “only reports 3/7 days with no discomfort and only 30% of the day being painful on the other 4/7 days a week”.
RE-EXAMINATION
Ms Curtin attended as arranged. She was unaccompanied to the assessment. Medical Assessor Chris Oates attended via telephone.
Background
Ms Curtin had been involved as a pedestrian in the subject accident on 9 July 2021. The matter was referred to Medical Assessor Wijetunga for a threshold determination. The referred injuries were to the cervical spine, lumbar spine, thoracic spine and left leg (sciatica/radiculopathy). The Medical Assessor had determined that the lumbar spine was a non-threshold injury, and that the remaining injuries were not caused by the accident.
Prior to the subject accident, Ms Curtin had sustained a work related low back injury on
9 June 2021. At the time of this incident, she was working on a ward treating neurological, plastics and orthopaedic patients at the Prince of Wales Private Hospital where she commenced work there in February 2020. She had been nursing for seven years and arrived in Australia from Ireland in 2018.Ms Curtin said she had been rolling a patient over in bed when she had developed the low back pain. She said her symptoms had lasted a week or so and she had been placed on light duties at work. There had been no pain referral beyond the low back. When asked, she could not recall having taken any time off work or from her recreational pursuits. She hadn’t made any claim for Workers' Compensation. She had taken anti-inflammatory medication for 2-3 days. She had attended IMMEX Consulting on about three occasions where she had seen a doctor and had physiotherapy and exercise therapy.
When asked about the entry in their clinical notes, stating she was off-work for a week, she confirmed that she couldn’t recall having any time off work.
She said she had continued her Gaelic football following the work injury, but at the time they were only training, as there were no matches due to the COVID-19 epidemic.
Ms Curtin maintained that she was fully fit and had resumed all her normal work duties, including overtime, well before the date of the subject accident. She added that on the day of the subject accident she had been returning to work after an overtime shift.
There was no other history of injury, accident, medical or surgical issues.
History of motor accident and subsequent symptoms and treatment
The subject accident had occurred on a zebra pedestrian crossing on Coogee Bay Road.
Ms Curtin said the cars had stopped, and a lady in front of her had crossed to the other side without issue. However, the driver of an SUV had continued through the intersection and so struck Ms Curtin, the impact being to the lateral aspect of her left hip. She didn’t fall to the ground, and in fact had no symptoms at the time. She declined the driver's offer to take her to the hospital and she then walked the short distance back home.She later noticed her left knee was sore, but there was no low back pain at the time. She reported the incident to the police that evening.
By the Sunday evening after the subject accident, her back felt stiff and sore and there was pain spreading to her left buttock, at 4-5/10 severity. She contacted her workplace, as she was rostered to do a 12-hour night shift. She had nevertheless gone to work as they were short staffed and she was reassured the wardsmen would do any physical work, and she was only caring for a single patient over that shift. However, over that shift, despite doing no more than sitting or standing and monitoring the patient she was in agony with severe low back pain, which had gradually increased in severity. She had taken ibuprofen and paracetamol for pain. She spoke to her manager the next morning, and was unable to come in for work for the next three night shifts because of the severity of the pain.
She visited her GP and was prescribed a stronger analgesic medication, together with meloxicam and paracetamol. This regime was unhelpful, so she was then prescribed diazepam 5mg which she had taken at night for several weeks.
She returned to work three weeks after the accident, but she was only taking temperatures at the door and checking patients into the hospital. She did these duties for two weeks. She returned to the ward in August 2021, but again relying on the wardsmen for any lifting or carrying activities.
She had visited a physiotherapist in Coogee till about August of the year of the subject accident. He apparently advised against her having an MRI scan. She had then gone on holidays to Hamilton Island. She had had some turbulence on the flight, but remained seated with her belt on.
She said her low back pain had continued to get worse over time. And she had then developed pain and pins and needles extending to her left foot. She said at that stage she was doing Pilates exercises, but she had not returned to her football. On 7 February 2022, she visited her general practitioner, Dr Karen Ryan.
She was referred for an MRI scan and this was done on 8 February 2022.
The report dated 15 February 2022 concluded “Small central focal disc extrusion L4/5 level which contacts and indents the thecal sac and traversing right greater than left L5 nerve roots within their respective subarticular recesses/lateral recesses. No pars defect or stress reaction.”
Ms Curtin was referred to Dr Ralph Mobbs, neurosurgeon. On 17 February 2022, he had noted:
“She has recently had a flare-up of her original CTP injury. Her primary issue is low back pain, although initially she did have an element of sciatica. I will include a sequence of her MRI scan that shows that she has a central annular tear with broad based annular bulging. Following a review of her original injury, it is clear that this is a flare-up of that injury.”
He recommended she visit a spinal physiotherapist in Bondi Junction for six weeks of treatment and take pain relief and anti-inflammatories as required.
She said after six weeks the nerve pain settled, but she still had the low back pain.
She didn’t return to the ward work, and instead commenced duties in the Day Unit where she remained for the next 2-3 months. She said she found the work boring, so she had requested transfer to the Recovery Unit, and she has been working there ever since.
She said she returned to football in 2023, but was still having low back and intermittent left buttock pain. She added that she had tried to play a match for about 10 minutes but then went off because her back was troubling her and her left foot was tingly. She had also stopped running.
She hadn’t taken any more time off work. She had continued taking anti-inflammatories.
By October 2023, she visited an exercise physiologist, Rachel at Longevity in Randwick. At that stage she had returned to running and was visiting a gym. She was still experiencing flares of low back pain.
The physiologist had recommended she enrol at the BFT gym, which she did in January 2023. She continues to attend there 3-4 times a week.
Currently Ms Curtin described having intermittent right-sided low back pain. However, there was no pain referred beyond the back for at least 12 months.
She takes no regular medication. She uses an anti-inflammatory or paracetamol as required, and had last taken medication yesterday. She said she would generally take only the one dose.
She said her low back had been a bit sore this week.
She said her left knee was sore initially, but this had settled a few days after the subject accident.
She couldn’t recall having had a thoracic spine injury, nor were there any complaints in relation to the cervical spine.
Clinical examination
Ms Curtin was 167cm tall and weighed 57kg. She had a normal gait. She could walk on heels and toes and squat fully.
On examination of the neck, there was no tenderness and she had full range of pain-free movement. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the upper limbs, shoulder movements were symmetrical and to full range bilaterally.
Upper limb power, sensation and reflexes were normal.
Upper limb circumferences measured 23cm at upper arms, and right forearm was 22cm and left 21cm. so consistent with right hand dominance.
On examination of the upper back, there was no tenderness. Thoracic spinal movements were to full normal range. There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the low back, there was tenderness over the right lower facets. Movements were to full range in all planes. There was no muscle spasm or guarding, and no asymmetry of movements.
Straight leg raise was 80 degrees bilaterally with a negative sciatic stretch test. There was normal lower limb power, sensation and reflexes. There was dysesthesia over the left lateral thigh but not elsewhere.
Summary
Ms Curtin was involved in the subject motor accident as a pedestrian on 9 July 2021. She had sustained a low back injury. There had been a prior work related low back injury, which she had described as being muscular in nature. She maintained she had returned to all normal occupational pursuits, including overtime. This is consistent with the GP notes that confirms an improvement in her symptoms and a return to normal activities.
The Panel notes that the claimant also had a good return of function after the motor accident. In this regard, the clinical files provided demonstrated a return to work with some minor issues. The claimant also returned to “HIIT” sessions and attended pilates, as at July 2021, as noted in the Coogee Bay Physio notes. The claimant returned to her treating practitioners after the February 2022 flight.
The MRI scan pictures were available on her mobile phone via her access to the radiology portal and these were reviewed by the Medical Assessors. The Panel noted Dr Ralph Mobbs’ report including a copy of a scan image, and noted that the L4/5 disc looked degenerative, and there was a bright spot indicative of an annular tear.
There is no medical imaging of the lumbar spine available to the Panel that pre-dates the subject motor accident. The MRI of the lumbar spine was performed only after the February 2022 flight.
The claimant had an acute incident of lower back symptoms following the February 2022 flight. Prior to this the claimant had ceased treatment and consultation with her treating practitioners since October 2021. After the flight, the claimant’s symptoms worsened, and the MRI scan was performed contemporaneously with this incident. Whilst the claimant has returned to work since such time, she has not returned to the same level of duties.
On the balance of probabilities, the Panel finds that the acute disc disruption by way of annular fissure, located centrally in the L4/5 disc, occurred as a result of the jolting to the spine from “g” forces during the February 2022 flight. Whereas the earlier work incident and subject motor accident, based on the medical evidence and examination findings, is consistent with a soft tissue injury causing inflammation of a temporary nature, followed by a relatively rapid return to function.
The Panel notes the opinion of Dr Ralph Mobbs, however, note that he does not appear to be privy to the entire clinical history, including all clinical notes that are before the Review Panel.
The examination of the claimant’s lumbar spine did not demonstrate two or more of the criteria, and therefore a diagnosis of lumbar radiculopathy is not made out.
The accident did not cause injury to the cervical or thoracic spine. The examination findings in these regions were normal.
The accident caused an initial impact contusive injury to the left knee which subsequently resolved.
CONCLUSION
For these reasons the Panel revokes the certificate of Medical Assessor Wijetunga dated
23 August 2024, and finds that the discal injury by way of annular fissure to the L4/5 was not caused by the motor accident. The claimant suffered a soft tissue injury caused by the motor accident and is a threshold injury for the purposes of the MAI Act.
0
1
0