Allianz Australia Insurance Limited v Vella (No 1)
[2023] NSWPICMP 73
•3 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Vella (No 1) [2023] NSWPICMP 73 |
| CLAIMANT: | Natasha Vella |
INSURER: | Allianz Australia Insurance Limited |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Ian Cameron |
| DATE OF DECISION: | 3 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute and review under section 63 of Medical Assessor (MA) Bodel’s determination of treatment and care lumbar fusion surgery, domestic assistance past and future and child-care assistance past and future; MA had allowed all treatment and care; claimant involved in two accidents; these proceedings concerned the second in time (September 2014); insurer sought review on basis lumbar spine injury not caused by accident; Held – Parties agreed child care assistance is not treatment provided or to be provided to the claimant and therefore not a medical assessment matter; claimant sustained soft tissue cervical, thoracic and lumbar spine injury; the claimant said her radiating pain from her back to her legs occurred a year after the accident and medical records indicated first complaints of radiating pain 20 months after the accident and neurological symptoms developed two years after the accident; surgery not related to this accident; panel accepted claimant would have required some assistance after the accident to the end of December 2014; Certificate of Assessor Bodel revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Bodel dated 28 December 2021. 2. Determines that the Personal Injury Commission has no power to determine a dispute about whether assistance provided to the claimant’s children by others, for the claimant relates to any injury caused by the 2014 motor accident. 3. Certifies that: (a) the claimant’s lumbar spine surgery is not related to the injuries caused by her 2014 accident; (b) the claimant has a need for some domestic care and assistance from the date of the accident to 31 December 2014 and that this treatment relates to the injuries caused by the motor accident, and (c) any domestic care and assistance required by the claimant from |
STATEMENT OF REASONS
INTRODUCTION
Natasha Vella has been involved in two separate motor vehicle accidents.
The first accident occurred on 10 December 2013, when the claimant was stationary at traffic lights and was hit from behind by another car. In respect of her injuries arising from this accident, Ms Vella made a claim against NRMA, the third-party insurer of the vehicle that hit hers.
The second accident occurred on 19 September 2014, when the claimant was again stationary in a line of traffic, and she was hit from behind by a vehicle which had in turn been hit by another car which had allegedly been driving somewhat erratically.
Ms Vella made a claim against Allianz the insurer of that vehicle in respect of the injuries arising from this accident.
In late 2019 Ms Vella had lumbar spine surgery which both insurers refused to pay for. Ms Vella apparently seeks damages for domestic care and assistance provided to her on a gratuitous basis since the accident and she also appears to be seeking damages for childcare assistance. The insurers have apparently refused to concede an entitlement to damages for domestic care and assistance provided to the claimant and childcare assistance provided to the claimant’s children by others on her behalf.
The insurers have referred medical disputes about all three forms of “treatment” (surgery, domestic assistance and childcare assistance) to the Personal Injury Commission (the Commission) for determination in two separate proceedings, one set of proceedings for each claim.
On 28 December 2021, Medical Assessor Bodel issued a single document which incorporates one set of reasons and four separate certificates, the overall outcome of which was:
(a) the surgery is related to both accidents and is reasonable and necessary;
(b) domestic assistance in the past and proposed for the future is reasonable and necessary and caused by the accidents, and
(c) child-care assistance in the past and proposed for the future is reasonable and necessary and related to the Allianz accident only.
The insurers were dissatisfied with those decisions and each insurer lodged an application for review. A delegate of the President determined that there was reasonable cause to suspect a material error in Medical Assessor Bodel’s certifications and allowed both reviews to proceed.
The President of the Commission convened the same Panel to determine both reviews and the Panel first met on 14 July 2022. The Panel determined it would hear both matters together but issue separate certificates and reasons.
LEGISLATIVE FRAMEWORK
As Ms Vella’s accidents occurred in 2013 and 2014, her claims, her entitlements to damages and the medical dispute jurisdiction is governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Section 58(1) of the MAC Act says that the Commission has power to determine the following:
(a) whether the treatment provided or to be provided to the injured person was, or is reasonable and necessary in the circumstances, and
(b) whether any such treatment relates to the injury caused by the motor accident.
While Ms Vella’s two claims arose out of two accidents nearly eight and nine years ago, the medical assessments that are the subject of the review were made on or after 1 March 2021. Therefore, cl 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the review provisions of the PIC Act apply in relation to Medical Assessor Bodel’s decisions.
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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[2]
[2] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
The proceedings before the Panel involve decisions about treatment made in respect of two separate claims arising from two accidents, nine months apart. The Panel determined it would consider both matters together and issue one set of reasons with two separate certificates (one for each accident). The Panel advised the parties it would proceed on the basis that the evidence in one matter will be the evidence in the other matter.
ASSESSMENT UNDER REVIEW
Medical Assessor Bodel examined the claimant on 14 December 2021 and issued his decision two weeks later. He issued one document with reasons and separate certifications for the various disputes and in respect of both of the accidents.
The following treatment disputes were before the Medical Assessor for determination:
(a) Surgery:
iwhether the past (2019) L4/5 and L5/1 decompressive laminotomy and neurolysis is causally related to the injuries sustained in the claimant’s two accidents, and
iiwhether the surgery was reasonable and necessary in the circumstances.
(b) Domestic assistance:
(i)whether the claimant’s physical injuries sustained in her accidents gave rise to a need for domestic assistance from the date of each accident to the date of the medical assessment;
(ii)whether 0 – 28 hours (NRMA) and 0 – 12 hours (Allianz) per week of past domestic assistance is reasonable and necessary in the circumstances;
(iii)whether the claimant’s physical injuries sustained in her accidents give rise to a need for domestic assistance from the date of each assessment for the remainder of the claimant’s life expectancy, and
(iv)whether 0 – 7.8 hours (NRMA and Allianz) per week in the future is reasonable and necessary in the circumstances.
(b) Child-care assistance:
(i)whether the claimant’s physical injuries sustained in the accident give rise to a need for child care assistance from the date of the Allianz accident to the date of the assessment and from the date of the assessment for the remainder of the claimant’s life expectancy, and
(ii)whether 0 – 14 hours per week of childcare assistance in the past and 0 – 7 hours per week of childcare assistance into the future are reasonable and necessary in the circumstances.
Medical Assessor Bodel summarises the submissions that were before him and took the following history from the claimant:
(a) she was 26 with a young child;
(b) she has no other health issues;
(c) she did some childcare work after her child was born;
(d) she lives at home with her parent but has a relationship with her child’s father, and
(e) her accidents have affected her ability to undertake household maintenance and cleaning activities.
Medical Assessor Bodel has a history of the two accidents and notes:
(a) after the first accident her car was driveable and was repaired;
(b) Ms Vella developed back pain within 45 minutes and then pain to the neck, shoulders and back;
(c) she had a few weeks off work, then medication and physiotherapy;
(d) she resigned in January or February 2014 because of her pain;
(e) she was 15 weeks pregnant at the time of the second accident;
(f) after the second accident her car was impacted from behind a second time after that car had been hit. Her car was not pushed into the vehicle in front;
(g) her vehicle was towed away and repaired;
(h) police and ambulance attended, and the claimant was taken to hospital with neck and shoulder girdle pain. Her arms were sore as was the interscapular region and the lower part of her back and she had pain down the left leg;
(i)
Ms Vella had surgery as a public patient in late 2019 and at the hands of
Dr Charles New. She takes (or possibly took) Endone, Panadeine Forte and at one stage Targin but is now taking Panadol only. She has physiotherapy which she pays for herself;
(j) the claimant was 22 week’s pregnant at the time of the assessment, and
(k) she walks with a walking stick but not while she is at home.
The claimant complained to Medical Assessor Bodel of a dull aching pain across the lower part of her back, the left buttock and thigh and down the left leg. There is intermittent pain in the foot. Ms Vella also complained of neck and interscapular pain as well as shoulder girdle pain.
On examination Medical Assessor Bodel noted:
(a) the claimant was uncomfortable, rises slowly and walks with a stick;
(b) in her neck – she has tenderness at the base of the neck on the left side with reduced range of motion. While she had dysmetria there were no clinical signs of radiculopathy;
(c) in her thoracic spine – there was no restriction of movement and no neurological complaint;
(d)
in her back, Medical Assessor Bodel observed the healed scar and
Ms Vella complained of tenderness in the lower part of the back with restriction of movement. There were positive signs of radiculopathy in the left leg;
(e) her shoulders, elbows, wrist and hands had a full range of motion, and
(f) there were clinical signs of persisting radiculopathy in the left leg (diminished hamstring and ankle jerk reflexes, wasting of the calf and sensory loss).
Medical Assessor Bodel formed the view the claimant had clinical signs of radiculopathy which he related to the motor vehicle accident. He noted some improvement in her symptoms since the surgery but not complete resolution. He acknowledged the dispute about causation that is that the surgery was not contemplated until more than two years after the claimant’s second accident and therefore could not be accident related.
He accepted the claimant’s history that she had back pain after both accidents and consistently complained of back pain between the accidents and after the second.
He found the need for surgery was accident related as was domestic assistance and child-care assistance and reasonably and necessary.
SUBMISSIONS RECEIVED
NRMA’s submissions 2013 accident
NRMA notes that at the time of its accident, the claimant was 17 and she is now 26.
NRMA says there was minimal impact between the two cars, and both were able to be driven away. The insurer acknowledges that the claimant was taken to hospital that evening and the accident was reported to police.
NRMA says at [2.5] that Medical Assessor Bodel has not demonstrated that he has considered causation.
The main thrust of NRMA’s submissions are at [4] that he failed to disclose his path of reasoning. As the Panel does not sit on “appeal” and as the delegate of the President has made her decision, the Panel does not propose to summarise these submissions further. Suffice to say NRMA complains that Medical Assessor Bodel has not explained how surgery, 6.5 years after the first accident, could be accident related in circumstances where there were no radicular complaints after the first accident and before the second accident.
NRMA refers at [5] to the Permanent Impairment Guidelines and says the Medical Assessor has not complied with them referring to the test of causation contained at
cls 1.5 – 1.7.
NRMA argues at [6] that Medical Assessor Bodel failed to consider the radiology of the claimant’s lumbar spine undertaken on 15 May 2016, 2.5 years after the first accident. While he noted the presence of the disc findings at L3/4 and L5/S1, he did not explain how this could be related to the accident.
NRMA points to the later radiology of 9 January 2017 and his conclusion that the pathology has progressed but he does not explain how it is related to the accident.
While NRMA acknowledges the claimant attended hospital complaining of back pain after each accident NRMA says Medical Assessor Bodel has not explained why the back surgery six years later is related to the first accident.
NRMA says Medical Assessor Bodel has not engaged with the opinions of the insurer’s experts.
In section 7, NRMA says Medical Assessor Bodel did not deal appropriately with the surveillance film. Medical Assessor Bodel had said that what he viewed was not incompatible with Ms Vella’s presentation. The insurer points out that in the film the claimant did not use a walking stick whereas in the assessment she did.
NRMA goes on to argue in [8] that Medical Assessor Bodel has failed to delineate between the two insurers when deciding the issue of care and assistance.
Claimant’s submissions NRMA 2013 accident
The claimant says the Medical Assessor did disclose his path of reasoning for all the decisions he made. The claimant cites case law relevant to the President’s delegate’s decision.
The claimant notes the time difference between the surveillance file (2019) and the assessment (2021).
The claimant says that the Medical Assessor is simply required to determine a need for care arising from the accident but not consider apportionment.
Allianz’s submissions 2014 accident
Allianz submits there are errors of inconsistency, errors in the Medical Assessors review of the submissions and evidence, causation and findings of reasonable and necessary.
In terms of inconsistency Allianz says:
(a) Medical Assessor Bodel appears to have proceeded on the basis that the claimant’s radicular symptoms commenced after the second accident when she reported pain down her left leg;
(b) the insurer says the claimant did not report neck or leg or back symptoms to the ambulance personnel and no complaints of leg symptoms to the hospital;
(c)
although she had been to her general practitioner (GP) on 22 September,
2 October and 7 October 2014 she did not complain then of symptoms and only referred to neck and back pain on 28 October 2014 in the context of requesting a Centrelink certificate;
(d) on 28 October 2014, her GP completed the medical certificate indicating the injuries were a neck sprain and lower back strain;
(e) the claimant attended physiotherapy on 26 November 2014, complained of neck pain with pins and needs and back pain but did not report any leg pain;
(f) there were five further attendances on her GP but no complaint of accident related pain until 12 May 2015 where she complained of thoracic and lumbar spine;
(g) there were eight further attendances without complaint until 8 September 2015 with a complaint of low back pain;
(h) on 16 May 2016, the claimant complained of pain radiating into both legs, had a CT scan which revealed bulging discs then an MRI which revealed mild bulging without nerve root compression at L4/5 and L5/S1, and
(i) there was surveillance film from February and April 2019 which did not demonstrate significant disability, and which was inconsistent with her presentation to Medical Assessor Bodel.
The insurer says these inconsistencies were not put to the claimant in particular the significant discrepancy between the claimant’s statement she had left leg symptoms since the second accident and the documentary evidence.
In terms of Medical Assessor Bodel’s alleged errors on review of the submissions and medical evidence, Allianz points to:
(a) the referral to Dr Fraser occurred after the second accident and not before it;
(b) Medical Assessor Bodel said the hospital notes (after the second accident) are consistent with the claimant’s presentation and this incorrect because the hospital notes do not record any leg symptoms after the second accident;
(c) Medical Assessor Bodel did not refer in his summary to Allianz’s submissions with regards to the time lapse between accident and reports of leg symptoms;
(d) Medical Assessor Bodel misstated Dr Deveridge’s opinions in August 2015, and
(e) Medical Assessor Bodel refers to Dr Sekel’s view that the claimant did not develop significant back pain or sciatic pain in the left leg until May 2016 and suggests the hospital records “imply” there was back pain but he does not acknowledge the absence of complaints of leg pain.
Medical Assessor Bodel, says Allianz, did not therefore undertake a proper review of the medical records.
On the issue of causation Allianz refers to cls 1.5 to 1.7 of the Motor Accident Permanent Impairment Guidelines (the Guidelines) and says that the medical determination to be made is that the accident “could” have caused the condition and the non-medical determination that it “did” cause the condition.
The insurer provides a summary of the relevant case law and then considers Medical Assessor Bodel’s findings on causation. The insurer says while Medical Assessor Bodel gave some consideration to whether the Allianz accident “could” have caused the need for surgery and care he did not adequately deal with the “did” cause point by properly considering the evidence, testing the claimant’s history and addressing the insurer’s submissions.
Allianz also complains about the Medical Assessor’s failure to provide adequate reasons.
Claimant’s submissions Allianz 2014 accident
The claimant says the issues about inconsistency are not dealt with by considering the Guidelines because the Guidelines only apply to permanent impairment disputes and not treatment and care issues.
The claimant refers to the claim form dated 2 December 2014 in which the claimant said she had “cramping to the legs and pain to the legs”.
The claimant refers to the case law which supports the proposition that clinical records or the absence of complaint are not determinative of causation. The claimant says there is an explanation for the lack of contemporaneous records.
The claimant deals with the errors of interpretation of the evidence and submissions and says they are not material.
The claimant says it is a matter for the Panel to form its own opinion and it is not the function of the panel to decide a dispute by reference to competing opinions and evidence.
On the issue of causation, the claimant agreed with the basic principles set out by the insurer but says the Medical Assessor did engage with the issue and the arguments and provided adequate reasoning.
The claimant identifies the medical dispute about domestic assistance and childcare stems from the dispute about whether the surgery was reasonable and necessary and caused by the accident.
Issues to be determined
Injuries and issues
The jurisdiction of the Panel is, under s 56(1) to determine:
(a) whether the treatment provided or to be provided to the injured person was, or is reasonable and necessary in the circumstances, and
(b) whether any such treatment relates to the injury caused by the motor accident.
This requires the Panel to firstly determine what injuries were caused in each of the claimant’s two accidents and then determined whether the treatment in issue relates to the 2013 and / or the 2014 accident and if so whether it was reasonable and necessary in the circumstances.
In its report to the parties following the Panel’s teleconference on 14 July 2022, the Panel noted there were disputes in each matter about surgery and domestic assistance and in one matter about childcare assistance.
Childcare assistance
In respect of the childcare assistance, the Panel drew the parties’ attention to the case of NRMA v Scott Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138. In what are clearly obiter judgments, Basten JA at [11] and [15] and Gleeson JA at [125] expressed doubts as to whether services to dependants provided by others fell within the definition of treatment in s 42 of the MAC Act. Gleeson in particular noted that medical assessors had power to determine whether “treatment provided or to be provided to an injured person” which may not cover services provided not to the claimant but to a claimant’s dependants.
The Panel expressed the preliminary view that Medical Assessor Bodel had no power to make any determination about whether the claimant’s need for childcare was related to the accident and was reasonable and necessary in the circumstances. While the Panel may have power to revoke Medical Assessor Bodel’s certificate, the Panel expressed the preliminary view that it too would have no power to determine any issue about childcare assistance.
Causation
All parties in the proceedings provided submissions about causation. After the first teleconference, the Panel reminded the parties that the proceedings concern treatment and not the assessment of whole person impairment (WPI) therefore the provisions about causation of injury in the AMA4 Guides and the Guidelines have limited utility.
The Panel expressed the preliminary view that the test to be applied and the questions to be answered (on the issue of causation of injury) were:
(a) whether the injury could have been caused by the accident (medical determination), and
(b) whether the injury was in fact caused by the accident (non-medical determination).
The Panel remarked that this was in keeping with the approach to causation in the permanent impairment chapter of the Guidelines, the provisions of the Civil Liability Act 2002 and the approach of the courts noting for example the High Court’s judgment in the lung cancer case of Amaca v Ellis[4]. In that case the Court determined that in circumstances where one substance “can” (on the basis of epidemiological evidence) cause an injury, causation will only be established if it is shown that it 'did' cause the injury assessed on the balance of probabilities.
[4] Amaca Pty Limited v Ellis; The State of South Australia v Ellis; Millenium Inordanic Chemicals Limited v Ellis [2010] HCA 5.
The parties were invited to confirm that this approach is appropriate or to make further submissions.
Further submissions
The claimant, in submissions uploaded to the portal on 24 September 2022 did not press the childcare assistance issue appearing to concede that Medical Assessor Bodel had no jurisdiction to determine whether childcare assistance is caused by the accident or is reasonable and necessary on the basis that it is not a “medical dispute”.
NRMA in submissions dated 18 August 2022 agreed.
Allianz also agreed that Assessor Bodel had no power to determine whether the need for childcare was related to the accident or whether it was reasonable and necessary.
Allianz refers to the payslips provided by the claimant to suggest she was not employed at the time of the first accident (contrary to her claim form and the statement). NRMA provided further evidence which suggests the claimant was employed at the time of the first accident but that there were issues with her employment and she left for reasons unrelated to her accident.
Allianz says that Medical Assessor Bodel did not properly consider the contemporaneous medical evidence which revealed the claimant sustained soft tissue injuries in the accident as there was no evidence of any disc injury for 18 months after the accident. The insurer says there were no radicular type complaints for more than 18 months after the second injury. NRMA referred to its original submissions and said that the Panel would not be satisfied the claimant’s lumbar spine surgery undertaken in November 2019 (nearly six years after the first accident) or domestic assistance relates to the first accident based on the claimant’s limited complaint after that accident, the undisputed late onset of radicular complaints and the previous findings about the lumbar spine made by other Medical Assessors.
REVIEW OF THE EVIDENCE
Claim forms
The claimant’s first claim form[5] is dated 14 March 2014 and notes the police did not attend the accident scene. The claimant reported the following injuries: “neck, lower back, thoracic spine, headaches, shock”. She said she was experiencing “Pain, tenderness and restriction of movement of neck, lower back and thoracic spine. Headaches. Dizziness. Feeling faint, difficulty bending, lifting and carrying. Shock”. She said at the time of the accident she was working 40 hours plus per week in childcare and that she had resigned from her employment on 22 February 2014 because of her physical and psychological injuries.
[5] Page 56 of the insurers’ combined bundle.
Dr Parvez did not identify himself in the medical certificate, but his signature is the same as the one on the second claim form. He records complaints of lower back, neck and abdominal pain with painful lower back and restricted movement, painful neck and he said that CT scans did not detect any abnormality.
The claimant’s second claim form[6] is dated 2 December 2014. The claimant described her injuries as “aggravation to neck and lower back, injuries to thoracic spine, both hands, legs, psych trauma”. She says she has “increased pain to neck and lower back, pain to thoracic spine, tingling and numbness to forearms and hands, cramping to legs, pain to legs, increased anxiety, difficulty walking, psych trauma”. She discloses the
10 December 2013 accident saying in that accident she injured her “neck, lower back, thoracic”. She says before the accident she was seeking work in business or administration or office jobs but was unemployed at the time of the accident.
[6] Page 43 of the insurers’ combined bundle.
Dr Parvez completed the medical certificate for this accident on 28 October 2014 noting he examined the claimant on 22 September 2014, and he diagnosed a neck sprain and low back strain.
Claims related correspondence
There is a letter from the claimant’s solicitors to Allianz dated 23 December 2014 which refers to the claimant’s injuries as “aggravation of pre-existing” injuries to cervical and lumbar spine and injuries to the thoracic spine and both hands. The claimant’s solicitor also says that the claimant has pain radiating into her legs and she sustained an aggravation of a psychological condition.
There is a statement from the claimant[7] dated 20 August 2015. She attributes injuries to the cervical, thoracic and lumbar spine as well as psychological trauma to the first accident and says the spinal injuries were aggravated in the second accident which also caused injury to both hands and further psychological trauma [5].
[7] Page 78 of the insurers’ combined bundle.
She says she drove from the accident scene after the first accident but that her mother drove her immediately to hospital where she remained overnight [6].
The claimant details her treatment after the first accident and the emergence of her psychological symptoms [7] – [17].
The claimant says she was taken to hospital by ambulance after the second accident [18] and discharged and then did not go to the doctor for a few days as she was too anxious to get in a car [19].
Her statement sets out in detail her disabilities and need for medication and home care assistance. The Panel notes that at [24] the claimant includes in her list of disabilities “radiation of pain into both legs when the lower back pain is severe” and “pain and cramping to both legs”.
The claimant has at times lived with her mother, her step-father and her partner Ben. She appears to indicate in this statement that the main reason for requiring domestic assistance up until January 2014 was her physical state but that between January and May 2014 the cause of her difficulties was her psychological state. Ms Vella says at [33] that in July 2014 she began feeling better, returned to live with her mother and resumed some of the domestic duties other than two hours a week of heavier duties.
The claimant said that after the second accident her pain levels increased which impacted her psychological accident and that her partner Ben was also injured in this accident [35].
She sets out the duties undertaken by her mother, her brother and Ben after the accident at [36].
The claimant also says that she commenced employment as a childcare worker in August 2013 earning close to $350 per week. She says she was absent from work from 10 to 16 December 2013 and returned to her employment but resigned on 22 February 2014 due to her injuries.
In a second statement dated 11 August 2018[8] the claimant says she moved out with her partner Ben in mid-April 2016 but separated from him and returned to her mother’s home two weeks later [8].
[8] Page 87 of the combined bundle.
The claimant reports that she has difficulty getting a good night’s sleep and getting out of the bed in the morning and that her mother provides one to two hours of child care every day.
There is a statement from the claimant’s mother that supports her daughter’s need for care and the level of care that is provided.
Treating medical evidence
Dr Parvez of the Advance Medical Practice Windsor’s records are before the Panel[9] these records show:
[9] Page 979 of the insurers’ bundle. There is also a large volume of documents said to be provided by “AMP” commencing at page 100 of the combined insurers’ bundle. Both sets of records will be considered however, from pages 317 to 684 there are what appear to be computer generated records of individual attendances on a medical practitioner however these entries are undated or a handwritten date has been added to them. Due to the difficulty of determining their accuracy the Panel will not consider them further.
(a) before the accident[10] the claimant had allergy issues and was referred to a dietician due to weight gain and had gynaecological issues. She had a laparoscopic appendectomy in September 2013 and appears to be having abdominal and gynaecological issues at the time of the first accident;
[10] The notes commence in August 2010 and end on 3 January 2017.
(b) 11 December 2013, the claimant attended Dr Parvez for gynaecological issues and reported “had MVA yesterday, was in ED, non-tender midline, painful both side of the neck, no neurological deficit”. She was seen by her gynaecologist earlier in the day;
(c) 6 January 2014 she attended for other reasons and on 9 January 2014 she attended for what appears to be bilateral low back pain around L4-S1. “Occurred after whiplash injury following a car crash from the rear 1 month ago. No referring pain. No trouble sleeping”. Ms Vella was given advise on lifting and was referred to a chiropractor;
(d) 14 January 2014 “had one treatment – lower back felt little better”;
(e) 21 January 2014 attended for suspected “absence seizures” and was referred to Dr Daud and Dr Gopintha (both neurologists) and warned to be careful while driving;
(f) 23 January 2014 “had MVA on 10/12/13 was in ED C/o lower back every now and then. Had CT and bloods at ED need few papers as per advice from her solicitors”;
(g) 24 January 2014 the claimant failed to attend but was called regarding difficulties getting an appointment with the specialist (neurologist). She was advised to be careful about driving.
(h) 28 January 2014 “grumpy, angry, more near fainting episode, feels depressed last couple of weeks”. Ms Vella was referred to a psychologist for counselling in respect of depression. The motor accident was not mentioned in the notes or the referral and in particular the mental health plan[11] refers to depression over the “last couple of weeks” and mentions relationship issues with her boyfriend and mother. A similar attendance on 6 February 2014 also mentions breaking up with her boyfriend and verbal and physical abuse but no mention of the accident. There was a further attendance on 17 February 2014 for counselling issues;
[11] Page 116 of the insurers’ combined bundle.
(i)
10 and 21 March 2014 – relationship issues and sexual health issues on
24 and 25 March 2013;
(j) 27 and 28 March 2014 unrelated issues but relationship issues and reference to an AVO and reluctance to leave the home. There are further attendances in March and April not mentioning the car accident;
(k) letter from Dr Parvez to NRMA dated 9 April 2014 advising the claimant attended the day after the accident with pain in the neck and that lower back pain was reported at a later consultation. Dr Parvez refers to the referrals and says the claimant was limited in her capacity to work;
(l) 11 April 2014 attendance suggesting her boyfriend came to her workplace and she had a major panic attack;
(m) 14, 15, 17 and 29 April 2014 attendance for abdominal pain and other unrelated matters;
(n) 5 and 9 May 2014 – unrelated issues “getting better for anxiety symptoms” and further referrals for abdominal pain and counselling were provided;
(o) 15, 20 and 29 May 2014 unrelated attendances;
(p) 2 June 2014 abdominal pain, 10 June tender finger and blurring vision;
(q) 16 June 2014 “want Centrelink form used to work fulltime now not working” a Centrelink medical certificate was provided which says the claimant has back pain since 16 December 2013 and depression since 1 January 2014;
(r) July and August 2014 are attendances concerning her pregnancy;
(s) 29 August 2014 – Ms Vella “is seeing physio for the back pain which started after the accident in December. She is grieving her loss of health and conflict with her boyfriend”. Medication and therapy was helping and a referral for physiotherapy was given;
(t) 22 September 2014 – Ultrasound request for obstetric reasons “had MVA few days ago was in ED”;
(u) 9 October 2014 “would like to get a [certificate] for Centrelink as she is pregnant. Also she had MVA recently. Since then neck and lower back pain can’t stand for long time”;
(v) 28 October 2014 “filled out form for MVA had MVA few weeks ago”;
(w) 26 November 2014 “history of MVA on Sept 2014 still having neck pain, back pain, pregnant no x-ray done. No sign of fracture possible musculo-skeletal pain”. There is a further referral for physiotherapy;
(x) 26 November 2014 – first attendance on Physioworx for neck and back issues. The records suggest she had eight sessions between then and January 2015;
(y) 12 May 2015 “ongoing thoracic and lumbar back pain following MVA. Has been taking Panadol. Advised to start seeing physio again”;
(z) 8 September 2015 “still gets low back pain” and the claimant was referred for counselling due to post-natal depression;
(aa) 16 May 2016 “lower back pain MVA in Sept 2014 sometimes pain radiates to both legs nil neurological deficit”. On 18 May 2016, results of the CT scan with the disc prolapse provided;
(bb) 2 June 2016 – prescription for Panadeine Forte given;
(cc) 21 July 2016 – call to Blacktown Hospital regarding Ms Vella’s MRI results from the weekend. Mild disc prolapse but nil compression to nerve;
(dd) 15 August 2016 “suffers from lower back pain on Panadeine forte not helping her … requesting for stronger pain killer” and claimant was prescribed Endone;
(ee) 6, 20 and 28 September 2016 for repeat scripts of Endone. Similar attendances on 11 and 21 October 2016, and
(ff) 24 October 2016 – struggling with pain, pins and needles, numbness and weakness to the left. Further scripts were provided for Endone in November and December 2016.
There are a number of referrals from Dr Parvez:
(a) 18 May 2016 – to Dr Fraser for opinion and management of disc prolapse;[12]
[12] Page 144 of AD2 and following;
(b) 9 January 2017 – to Nepean Hospital for opinion and management of “left sided numbness / weakness/ pines and needles”;
(c) 10 February 2017 – to Dr Al-Khawaja (neurosurgeon) for opinion and management of lower back pain;
(d) 10 February 2017 – to Dr Hsu (spine surgeon) for opinion and management of chronic lower back pain;
(e) 16 February 2017 – to Dr Paterson pain physician for opinion and management of chronic low back pain;
(f) 28 February 2017 – to pain management clinic at Westmead for management of chronic low back pain;
(g) 28 February 2017 – to pain clinic Nepean Hospital – for management of chronic lower back pain;
(h) 16 June 2017 – pain management clinic Westmead Hospital – chronic back pain from car accident and no improvement with physiotherapy or corticosteroid injections and she has been told by two surgeons that she is too young for surgical management. She has developed an oxycodone dependence;
(i) 20 July 2017 – to Dr Deshpande pain specialist at Penrith – in the same terms as above;
(j) 29 August 2017 – to Dr Fraser for opinion and management of ongoing low back pain;
(k) 14 December 2017 – to neurosurgery outpatient clinic at Nepean Hospital – for opinion and management of chronic lower back pain, “seen by Dr Fraser few times. Decrease sensation to L5 and S1 distribution of left foot but weakness mainly on S1”. Similar referral to Westmead Neurosurgery clinic;
(l) 6 February 2018 – to the pai management clinic Nepean Hospital, and
(m) 23 February 2018 – to Dr Anil Nair[13] for opinion and management of significant low back pain secondary to motor vehicle accident approximately five years ago. “She does have significant degenerative changes to her back and possible nerve root compression. I have attached letters from her previous neurosurgeon and pain clinic in order for you to get a clear picture of her condition”.
[13] Page 168 of AD2.
Apart from the report of Dr Fraser, there are no reports or records from any of the other specialists to whom the claimant has been referred put before the Panel. There are no letters or reports from these doctors to Dr Parvez in his records.
The hospital’s record relating to the 19 September 2014 accident[14] notes the claimant was brought in by ambulance at 16 weeks’ pregnant having been “rear ended at low speed” and that there was “minimal damage to vehicle” and the clamant self-extracted and was walking around at the scene. The notes are difficult to read but the claimant complained of neck pain on both sides and lower back pain.
[14] Page 686 of the insurers’ bundles.
Documents have been produced by Physioworx and Dr Charles New documenting
Ms Vella’s treatment.
Dr New, an orthopaedic surgeon appears to have been retained by the claimant’s solicitors to provide a medico-legal opinion, but he then appears to have progressed to become one of the claimant’s treating doctor. In his report dated 2 August 2017[15] he records a history of neck and developing low back pain after the first accident but that “since the time of the second accident she notes that there has been a continual progression of her back pain” and Ms Vella has developed left sided radicular pain. On the basis of that history, he expressed the view that the claimant had not fully recovered after the first accident and that 25% of her presentation is related to her first accident and 7% to the second. It does not appear that Dr New has the history that the claimant told Medical Assessors Cameron and Stubbs that it was a year after the accident before her first episodes of radiating lower back pain. Dr New may also not have had the GP’s notes.
[15] Page 742
Dr Fraser, an orthopaedic surgeon provided a report to the claimant’s solicitors dated 31 August 2016. The claimant told him the second accident made her neck, back and arms all more painful “with a thousand times more discomfort than she had had in the first accident”. He also suggests that since the first accident Ms Vella has had low back pain radiating into her buttocks and from mid-2015 pain developed in the left leg all the way down to her left foot and to a lesser extent in her right leg. He thought 30% of her current symptoms related to the first accident and 70% to the second.
Dr Fraser refers to the X-rays of 16 July 2016 and the MRI which was “not particularly good” but he says there is a disc prolapse and says “a severe flexion type injury could have been the cause or a significant aggravating factor”.
Medico-legal evidence
Dr Deveridge provided a report to the claimant’s solicitors dated 13 August 2015[16]. The claimant gave a history of the second accident being a heavier accident that the first and that her neck and back pain from the first accident was made “considerably worse” by the second accident. She denied any improvement and that she has aches and pain and altered sensation in all of her four limbs.
[16] Page 766 of the insurers’ bundle.
Dr Deveridge examined the claimant’s lower back and lower limbs and noted no neurological deficits. There is no record of lower limb symptoms in particular no reference to pain radiating down the back of the claimant’s legs. He refers to the development of “somatic symptoms” in all four limbs.
Dr Deveridge expressed the view that but for the second accident, the claimant may well have recovered from the soft tissue injuries caused by the first. He then expressed the view that 25% of her current symptoms are referable to the first accident and 75% to the second.
In a supplementary report dated 21 June 2016, Dr Deveridge considers the CT scan which reveals the bulging disc at L3/4 and the disc protrusion at L4/5 and the disc protrusion at L5/S1 displacing the S1 nerve root. He notes this scan was requested following an incident of stabbing pain in the back and severe back pain with no apparent cause.
He says, “the radiological findings … are a direct consequence of one or both of the subject road traffic accidents”. He expressed the view the first accident initiated the claimant’s back pain and the second would have placed greater stress on her spine and he repeated his 25% / 75% apportionment.
The claimant obtained a report from Ms Joanna Heathcote of Skilled Health dated
11 January 2016. This was a report into the claimant’s domestic assistance needs and the assessment was undertaken in the claimant’s home on 14 December 2015. She has a history (at page 6 of the report) of the claimant having lower back, upper back and neck pain, shoulder pain and “altered sensation in her hands”. Ms Heathcote does have a history (on pages 7 and 9) of pain down the back to her legs and ankles. The claimant reported taking Myodol and Panadeine Extra when her pain was aggravated.
Dr Sekel occupational physician provided a report to NRMA’s solicitors dated
12 June 2019. He has a history:
(a) of the first accident occurring at a time she as involved in an abusive relationship with a boyfriend who struck her a few weeks after the accident and that she had psychosocial problems with other family members;
(b) she remained at work for two and a half months after the first accident resigned over a pay dispute (and not because of symptoms), and
(c) she displayed abnormal illness behaviours;
He summarised the records including the WPI assessment of Medical Assessor Wong and the Review Panel as well as psychiatric assessments. He outlines her treatment. He says that while Dr Fraser recommended surgery to the claimant’s lumbar spine he retracted that opinion. The claimant was referred to Dr Al Khawaja, a neurosurgeon who apparently also first recommended surgery then withdrew the opinion. Dr Sekel has a history that Dr New while originally a medico-legal expert has become the claimant’s treating surgeon and has agreed to perform surgery.
Dr Sekel documents the claimant’s symptoms:
(a) constant pain radiating from her left buttock throughout the whole of her left lower limb;
(b) constant ache in her lumbosacral region spreading up to her mid thoracic region;
(c) difficulty raising her arms above her head;
(d) intermittent numbness in her left foot causing her to trip, and
(e) intermittent neck ache.
Dr Sekel expressed the view that with psychological problems the claimant was a poor candidate for spinal surgery and that neither the first or the second accident were responsible for the need for the spinal surgery and that the sudden onset of pain 2.5 or 1.75 years after her first accident was unrelated to the accidents.
Allianz obtained a report from Ralph Stanford orthopaedic and spinal surgeon. He has a history of the claimant’s accidents and treatments and notes that she was taking eight Panadeine Forte every day. He reviewed the radiology.
He has a history of left leg pain starting after the first accident however notes it is not mentioned to the ambulance or hospital. He notes the clinical examination is not consistent with chronic compression of a lumbar or sacral nerve root due to the absence of muscle wasting. He noted inconsistencies in straight leg raise test and suggests there was a lack of co-operation in reflex testing. He considered there were psychosocial factors at play in the development of chronic pain.
He was of the view surgical treatment as not indicated and in fact contraindicated due to her chronic pain state.
He compared the July 2016 MRI with the October 2016 scan and said the tear to the disc occurred between the two radiology scans which was after both accident andwas not caused by the accidents.
A subsequent report assesses WPI at 5% for the lower back injury and a further report dated 1 July 2019 provides commentary on the surveillance footage which “contradicts the clinical impression formed on 5 March 2019 and would suggest that Natasha Vella’s physical function is good, certainly enough to carry out normal activities of daily living without impediment”.
Other assessments
Medical Assessor James Wong undertook an assessment of the claimant’s WPI on
6 July 2016 in respect of both of the claimant’s accidents. He determined that the claimant had a WPI of not greater than 10% in relation to the claimant’s “neck strain” and “lumbar spine strain”. He was asked to assess the claimant’s thoracic spine injury, left and right hand and left and right leg soft tissue injuries.
Medical Assessor Wong notes that the claimant did not recall any discrete injury to her hands or legs but that she has spine related neurological symptoms in her lower limbs from the date of the accident.
There were symptoms in the claimant’s neck but not sufficient to qualify for a diagnosis related estimate (DRE) of greater than category I (0%). Ms Vella’s thoracic spine was normal other than there being some tenderness. In terms of her lumbar spine injury, Ms Vella had “global subjective reduced sensation” in her lower limbs which did not follow the anatomical pathway of a specific spine nerve root but there was pain corresponding with the left L5 nerve root distribution and some similar right leg pain. He found a DRE category I impairment in the lumbar spine.
A review panel determined that the claimant’s neck and lower back injuries should both be assessed at 0%. While the Panel found the claimant had a current impairment of 5%, the Panel was not satisfied that it was caused by either accident.
RE-EXAMINATION FINDINGS
The claimant attended a re-examination with Medical Assessors Cameron and Stubbs on 20 December 2022.
History provided by Ms Vella
Ms Vella has one brother, six half siblings and her mother has fostered five children.
Ms Vella left school in Year 10. She was interested in dancing when she was younger. During childhood she moved around including in Sydney.
Currently, Ms Vella, lives next door to her mother and the seven children currently in her mother’s house. Ms Vella lives with her seven year old daughter and younger son.
History of motor vehicle crashes
The first motor vehicle crash was in December 2013. Ms Vella said that at the time she had two jobs and worked seven days per week. Five days per week was in a full-time childcare job. At that time, she was living with her mother.
Ms Vella was driving a small vehicle and was hit from behind at traffic lights. She exited the vehicle and exchanged details. She then drove home. She could not get out of her car once home and her mother took her to Hawkesbury Hospital. She was treated in the Emergency Department and discharged.
The next day she said she had neck and back pain. She was away from work for a week or two. She then returned to work for a week and “could not handle it” and resigned in February 2014.
Ms Vella said after the first accident she had physiotherapy and hydrotherapy but did not return to work. She said she was prescribed an antidepressant as well as Panadeine Forte. She said she was also prescribed Endone at this time. Ms Vella could not return to dancing.
The second accident was in September 2014. At the time she was living with her mother and was 15 weeks pregnant. She said that Endone had been ceased with the pregnancy and Panadeine Forte was used instead.
Ms Vella describes being stationary in a small vehicle which was hit from behind by a vehicle that had in turn been hit from behind by another vehicle. She was assisted by bystanders. She then collapsed. She was taken to the Emergency Department at Hawkesbury Hospital and was assessed.
Ms Vella’s child was born in February 2015. There was persisting pain and opioid medications were used to treat this pain. She says she attended Hawkesbury and Nepean Hospitals on multiple occasions due to low and mid back pain with radiation to the lateral aspects of the thighs.
Later in 2015 Ms Vella consulted Dr Fraser about her back. She had been referred by her GP to Dr Fraser due to persisting pain after her pregnancy. Dr New was then consulted as Dr Fraser had died.
Ms Vella went to the multidisciplinary pain clinic at Nepean Hospital in 2018 and her pain diagram showed whole of leg pain. Ms Vella reports contact with the Pain Clinic continues and she sees a physiotherapist and has consultations with a psychiatrist and psychologist.
Ms Vella said that in November 2019 she had decompressive laminectomy and she told the Medical Assessors that the onset of urinary incontinence may have been the indication for surgery. The Panel has reviewed all the documentation from the claimant’s doctors and cannot find a reference to urinary incontinence.
Ms Vella says there was a limited improvement as a result of this treatment. Within six months of the date of the surgery, Ms Vella said that her levels of pain were as bad as they had been before the surgery.
Ms Vella said that her most recent pregnancy was difficult and her son’s birth weight was 2kg. She reports that her back pain was severe during the pregnancy.
Current status
Ms Vella says she has current low back pain that is relieved by lying down. It is worse with activity or prolonged sitting.
Ms Vella says her current medications include a Norspan 10mcg per hour patch and regular paracetamol (12 tablets per day), pregabalin 75mg twice daily, Endep 25mg at night and Motilium.
Currently Ms Vella is in receipt of the parenting payment. She is living with her two children and her partner and there are separate finances.
Ms Vella’s mother assists her with cleaning and some cooking. She pays for lawn mowing. Ms Vella says she is able to drive an automatic vehicle however she was driven to the appointment by her stepfather.
Ms Vella feels unable to return to work due to her continuing symptoms.
When asked to differentiate the symptoms from her first and second accidents,
Ms Vella said that the first motor accident caused neck and low back pain. She feels that the second accident caused severe low back pain with radiation to the left leg.
Ms Vella was asked about the onset of that left leg pain and she said that there was a delay of over a year between the second motor vehicle accident and the development of her left leg pain. She said there is loss of feeling in the whole of the left leg, but she did not describe pins and needles in her lower leg. She did not report symptoms of her left leg giving way.
Ms Vella states that her current weight is similar to that at the time of the motor vehicle crashes.
Ms Vella had an appendectomy in 2013 and a cholecystectomy in 2017.
Examination
Ms Vella is right-handed, 163cm in height and weights 87kg.
Ms Vella had a tentative gait without specific abnormalities. The Panel notes she used a walking stick when examined by Medical Assessor Woo (but not other examiners) and she did not use a walking stick during the course of the examination by Medical Assessors Cameron and Stubbs. She had difficulty with walking on the heels and toes. She has long thin planovalgus feet. Squatting was to 90 degrees of knee flexion.
At the cervical spine there was a full range of movement in all three planes.
There was no muscle weakness, or any sensory or reflex deficits detected in the claimant’s upper extremities. In fact, there were no abnormalities at all in the claimant’s upper limbs or shoulders.
Circumferences of the upper extremities were:
Above the elbow
Below the elbow
Left
36 cm
27 cm
Right
37 cm
28 cm
The difference between the left and right arms is consistent with Ms Vella’s hand dominance and does not indicate any neurological issue flowing from the neck or any nerve injury.
At the thoracic spine there was full range of movement.
There was symmetrically restricted range of movement at the lumbar spine.
Circumferences of the lower extremities were:
15 cm above patella
Below the knee
Left
61 cm
44 cm
Right
61 cm
43 cm
The medical members of the Panel are of the view that the slight difference in below knee measurements is not clinically significant.
In the lower extremities, there was hamstring pain reported on sciatic nerve stretch.
Ms Vella had difficulty with strength in the left leg that she said was due to pain. Her straight leg raising appeared to be restricted on the left side. The slump test was negative with thigh pain.
There was no abnormality of any of the lower extremity reflexes detected during the course of the examination. No sensory disturbance was detected in the left leg (which she said was numb) or the right leg during the course of the examination. Ms Vella told the examiners after the examination that she experiences numbness in her left foot only.
REVIEW OF RADIOLOGY
Medical Assessor Stubbs reviewed all of the radiology the claimant brought with her or sent to the Panel before the examination.
The Castlereagh Imaging Hawkesbury Hospital scan[17] of 16 December 2013 was a CT scan of the abdomen and pelvis. Roto-scoliosis is present, but the transverse processes and the spinous processes are basically midline and the curve is a double primary one of only 5 to 10 degrees which is well balanced. The occiput is directly above the sacrum. There is a little torsion of the spinous processes and there are close spines in the lumbar region due to the marked lumbosacral angle and suggest possible discontinuities L4/5 spinous process. The official report comments that there is no lumbar spinal pelvic fracture and no intra-abdominal pathology with a clinical history of lower abdominal pain following the motor accident.
[17] Celluloid hard copy.
Dr Fraser referred the claimant to the Bankstown Hospital for an MRI of the lumbar spine on 16 July 2016. The scan[18] shows mild scoliosis, early fatty degeneration of the spinal musculature and low height broad-based bulges at L4/5 and L5/S1 with relatively good nuclear signal at all levels. Alar of the sacrum is unremarkable. The acute lumbosacral angle is noted. Transverse images show a capacious spinal canal, positive sedimentation sign in the multiple cauda equina, well aligned facet joints and no lumbosacral abnormalities. The T2-weighted transfers views show a bright signal in the left alar S1 being of less height than L4/5 and the L5 lumbosacral angle is quite acute, about 70 degrees at the lumbosacral junction. The coronal views show a slight lumbar scoliosis to the right. Spinous processes do not seem to appear rotated. The official report concurs with the mild posterior disc bulging at L4/5 and L5/S1 levels and notes no annular tear and no nerve compression.
[18] Hard copy print.
Dr Fraser referred the claimant to Castlereagh Imaging in Penrith for a further MRI of the lumbar spine on 26 October 2016[19]. This showed a capacious spinal canal with some fatty degeneration in the deep lumbar musculature of the mid lumbar region. Good annular signal at all levels with bulging at L4/5 and L5/S1 but very mild. T2-weighted images show good annular signal at all levels on sagittal view.
[19] Celluloid.
Dr Fraser again referred the claimant to Castlereagh Imaging for an MRI of the spine on 9 January 2017. This scan[20] showed the same minor disc bulging at L4/and L5/S1 with good nuclear signal at all levels. Coronal view shows mild scoliosis. Fatty atrophy is more pronounced in the mid lumbar region. On coronal views there are no T2-weighted views of the sacrum.
[20] Celluloid hard copy.
Dr New referred the claimant to Castlereagh Imaging at Westmead for an MRI of the lumbar spine on 13 May 2018. This scan[21] suggests that the L4/5 bulge may be marginally larger in these imaging studies but otherwise normal. Fatty atrophy is increased equally in the deep layers both sides. Radiology comments that the left sided foraminal narrowing at L4/5 comes close to the L5 nerve root. There is good nuclear signal at both levels. Transverse images show adequate spinal canal with nerve root sedimentation. The fatty atrophy in the deep muscles has progressed. No reaction sacrum on the T1 weighted image. The official report mentions some narrowing on the left L4/5 subarticular zone nerve root foramina and but in general appearance is similar to that of 9 January 2017
[21] Celluloid.
Dr New arranged for the claimant to attend Castlereagh Imaging for a whole-body bone scan plus SPECT on 16 May 2018. This confirms a lumbar scoliosis convexity to the left and compensatory thoracic scoliosis. Both curves are slight and the skull is well centred of the midpoint pelvis. No excessive bone activity point. The official report confirms the mid lumbar scoliosis convexity to the left but no evidence of facet arthropathy or marked degenerative disease at the disco-vertebral joints.
The Blacktown Hospital MRI of the lumbar spine dated 12 February 2019[22] shows good signal on the T2 weighted images from the nucleus at L4/5 and L5/S1. Coronal views show more extensive fatty atrophy in the deep erector spinae musculature. The sacrum is not very reactive on the T2-weighted images. The coronal view confirms mild scoliosis.
[22] Hard copy print.
Mount Druitt Hospital lumbar spine dated 12 February 2019[23] sagittal views are unremarkable on the L4/5 and L5/S1 only marginally more prominent than at the higher levels on the T2 series. Imaging is easier to assess in the negative mode. Intervertebral foramina appear adequate without evidence of nerve root compression though scoliosis does complicate matters. The STIR image is good There is brighter nuclear signal at L2/3/4 compared to L4/5/S1. Transverse T2 images show adequate spinal canal with nerve root sedimentation. T1 transfers view gives good appreciation of the progress of the fatty atrophy. Coronal T2-weighted images shows good filling of the nerve roots best appreciated in the negative view.
[23] CD-ROM scans.
Dr New referred the claimant to Synergy Radiology on 19 June 2020 for an MRI of the lumbar spine.[24] The bulges at L4/5 and L5/S1 are about the same, L4/5 having the darkest nucleus. The impression is that there is very little change since 2016, the spinal canal seems adequate and the acute lumbosacral angulation remains the same.
[24] very dark hard copy print.
Dr New arranged for the claimant to have an MRI of her lumbar spine at Synergy Radiology on 22 January 2021.[25] Fatty atrophy is now much more marked on the left side and is presumably postsurgical. Some of the transverse images are very dark. T1 weighted sagittal images at L4 level shows some extra bulging which may be postsurgical changes. The nerve roots are clear of compression. Both L4/5 and L5/S1 are darker than the other levels. One sagittal view shows what may be postsurgical artefact of darker material apparently sequestered (or left behind) at L4/5 on the left.
[25] Hard copy print
In summary there are 10 imaging studies over an eight year period. The first imaging sequences are CT scans of the abdomen and pelvis and lumbar spine done in hospital assessment after presentation for the 2013 motor vehicle accident. This shows the presence of an adolescent idiopathic double primary scoliosis that is very mild and well-balanced. Clinically detectable scoliosis occurs in three per thousand teenage girls. Adolescent idiopathic scoliosis is not painful. Presentation to health practitioners occurs usually because of moderate to severe scoliosis with visible deformity. The true incidence of mild scoliosis is higher than the 3:1,000 because mild scoliosis is only detected in imaging undertaken for other reasons.
There is a more prominent than normal lordosis between L5 and S1. The lumbosacral angle is acute enough for the spinous processes in the lower lumbar vertebrae to come close to contact each other. However, there is no correlation between low back pain and the lumbosacral angle, it is like scoliosis, a pain-free condition. This imaging study shows no sign of any acute injury to the pelvis, abdomen, or spine.
The first MRI is performed about 16 months after the second motor vehicle accident and confirms scoliosis and the marked lumbosacral angle noted above. The last MRI is performed after the surgery. There is slight bulging of the L4/L5 and L5/S1 intervertebral discs posteriorly. This is a low height bulging of the lower two vertebral discs. The bulges are only one third or so of disc height. This is often called senile bulging as it becomes more common with advancing age. However, it is a normal finding and not indicative of injury. The brightness of the fluid signal from the annulus at L4/and L5/S1 is marginally less that in the upper lumbar vertebral discs. This is a normal finding of disc desiccation and other features of intervertebral disc ageing and significantly more common in the last two levels. Ninety-five percent of all intervertebral prolapsed discs occur at these lower levels.
While these findings are uncommon for someone of Ms Vella’s age they are not, in the clinical judgment of the Medical Assessors indicative of a pain source. The disc dehydration seems to advance marginally over the five years between the first and last study. This would be an anticipated change. The exiting nerve roots maintain a normal position in the spinal canal on both sides and the exiting spinal foramina adequate dimensions. There is no cause identified on any of the MRIs for any lumbar radicular symptoms or signs of radiculopathy.
The first MRI undertaken in July 2016 shows a mild increase fluid signal, in the left sided alar. This is not seen in the other images. Pregnancy can lead to reactive changes in the sacroiliac joint which can mimic low back pain, but the normal CT SPECT of 2018 shows no increase in isotope activity and rules out sacroiliac disease as the continuing cause of back pain.
There is progressive fatty atrophy of the deep spinal extensive musculature. Fatty atrophy is one of the features more common in those with back pain than those without. Fatty atrophy is an arguable cause for chronic backache but is not caused by trauma. It is caused by prolonged inactivity. The marked increase in fatty atrophy seen on the left-sided extensor muscles after the decompressive laminectomy (the last of the MRIs) is an expected postsurgical change.
CONSIDERING THE ISSUE CONCERNING THE 2014 ACCIDENT
What injuries were caused by the 2014 accident?
Ms Vella attended Nepean Hospital after the accident complaining of neck and back pain. The claimant was pregnant and concerned for the health of her baby and this affected the tests and treatment she could have.
The medical certificate completed by Dr Parvez on 28 October 2014 mentions neck and back strains, but no radiating pain or neurological symptoms are mentioned.
On 26 November 2014 Dr Parvez referred the claimant for physiotherapy mentioning neck and back pain but not mentioning radiation or any symptoms in the legs or arms.
The physiotherapy notes which start on 26 November 2014 record pins and needles occasionally in the hand with numbness. The pain diagram completed by or with the assistance of the claimant suggests symptoms in the neck, thoracic and lower back and dots are drawn down the front of both arms suggesting symptoms of pins and needles in the arms, but no symptoms are indicated in the legs.
Ms Vella’s claim form signed on 2 December 2014 identified an aggravation of neck and lower back problems and injuries to the thoracic spine, both hands and legs. She says she has increased pain and “tingling and numbness to forearms and hands, cramping to legs, pain to legs … [and] difficulty walking”.
The claimant said in her 2015 statutory declaration at [5] that she aggravated a pre-existing injury to her cervical, thoracic and lumbar spine and that she also sustained an injury to both her hands, but the Panel notes she does not mention her legs. At [24] she says she had more pain and stiffness in the neck, severe and unbearable pain in her thoracic region and debilitating pain in her lumbar spine. The claimant says she has pain radiating into her shoulders and down into her arms with tingling and numbness to both hands and forearms. She also complained of radiating pain into both legs with numbness and pins and needles in the upper and lower back, and pain and cramping to both legs.
In her second statement the claimant says at [4] that since February 2016 she has had a few falls because her left leg gave way and she consulted Dr Parvez about this. The Panel has reviewed Dr Parvez’s notes and cannot see any reference to any falls in those notes.
At [6] of her statement the claimant says she “always” experiences pins and needles and numbness to the left leg which is quite painful. The Panel notes the claimant complained in May 2016 to Dr Parvez of radiating pain into the “right back/leg”.
Ms Vella attended her GP on 22 September 2014 seeking an ultrasound and mentioning the accident and the next consultation was on 9 October 2014 with complaints of neck and back pain. There were five further consultations which record neck and back pain, and thoracic pain is mentioned on 12 May 2015. The Panel notes that it was not until 16 May 2016 when the claimant is reported to have complained to her GP about radiating pain to both legs. On 24 October 2016 the claimant complained to Dr Parvez of “pins and needles, numbness and weakness”.
The Panel has previously expressed concerns about the claimant’s recollection of details of the symptoms and treatment since the accident. The Panel has said this is to be expected bearing in mind the effluxion of time since the claimant’s two accidents. The Panel notes that Dr Fraser had a history from the claimant of low back pain radiating into her buttocks since the first accident and from mid-2015 pain in the left leg down to her left foot and into her right leg. There is no mention in the GP notes of radiating pain after either accident before 16 May 2016 and no mention of pins and needles or numbness until 24 October 2016. The Panel notes that the claimant confirmed at the re-examination that her leg pain started a year after the accident, and she has told the previous panel that it began in March April 2016. This corrected and corroborated history from the claimant therefore calls into question Dr Fraser’s opinions.
Dr Deveridge, a medico-legal expert retained by the claimant on 13 August 2015 takes a history from the claimant of “referred aches, pains and altered sensation to all four limbs” developing and recurring. On examination he found no neurological deficits in the limbs. It is the Panel’s view that if the claimant did have altered sensation in her upper or lower limbs, Dr Deveridge would have noted it and would not have recorded “no neurological deficits”. In other words, the claimant’s complaints of altered sensation in her arms and legs is not supported by her own expert. The Panel also notes that in a supplementary report dated 21 June 2016, Dr Deveridge says the claimant had “no objective evidence of radiculopathy in the right lower limb and clinical testing for nerve root compression was negative”. Dr Deveridge says there was an incident in April 2016 which led to severe lower back pain but does not say what this incident was. The claimant did not disclose to the Panel what this incident was.
Ms Heathcote, during her December 2015 examination of the claimant in Ms Vella’s home had a history of altered sensation in the claimant’s hands and pain radiating down the back of the claimant’s legs with right sided symptoms worse than the left. The Panel notes she does not mention numbness or pins and needles in the lower legs. The Panel also notes the claimant’s statement and the report of Dr Fraser suggests if there were symptoms, they were in the left leg.
The Panel notes the first script for Panadeine forte was prescribed in June 2016 then Endone and there is certainly pattern of attendance which changes after mid 2016 from medical attendances before then and there is a definite increase in medication from mid 2016 onwards.
The claimant told Medical Assessors Cameron and Stubbs that her back pain started radiating a year after the 2014 car accident.
Having considered all of the treating medical material, as well as the claim form, the claimant’s statements and her history, the Panel is satisfied that the claimant sustained an injury to her cervical, thoracic and lumbar spine in the accident of
19 September 2014.
The claimant said in her claim form she injured both hands and her legs. The Panel is not satisfied that the claimant sustained a frank injury to her hands or any part of her legs. The Panel notes the claimant has complained of pain and symptoms in her arms and hands and in her lower limbs but the treating medical evidence does not support any specific injury to the claimant’s arms or legs. The panel notes that when examined by Medical Assessor Wong in July 2016, the claimant denied any discrete injury to her hands or legs.
What is the nature of the 2014 cervical spine injury?
The medical members of the Panel are of the view that the claimant sustained a soft tissue injury to her cervical spine in the accident. The claimant complained about neck pain at the time of the accident, but her neck pain has certainly not been the dominant feature in her presentation since then.
In the more than eight years since the accident the claimant has had no imaging studies done of her cervical spine. There is no evidence of any fractures or bony injury to the neck.
There is also no evidence before the Panel of any explanation for radicular symptoms and the complaints of numbness and pins and needles down the whole of the arm and hands is not a constant feature and, in any event, does not follow the dermatomal pattern of a particular nerve root.
There do not appear to be any complaints of neck pain after the end of 2014. While there were some complaints in 2016, when examined by Medical Assessor Wong, the claimant had no assessable impairment. Dr Sekel has a history of intermittent neck pain in 2019. Ms Vella did not complain to Medical Assessors Cameron and Stubbs of any neck pain and the cervical spine examination was normal. The Panel is satisfied that whatever injury the claimant may have sustained to her cervical spine it has now recovered.
What is the nature of the thoracic spine injury
The Panel is satisfied that the claimant also sustained a minor or mild soft tissue injury to her thoracic spine. There is no imaging to suggest any bony injury or any disc injury and it is the medical members of the Panel’s view that the claimant’s thoracic spine injury is musculoligamentous in nature.
Again, like the neck, the thoracic spine is barely mentioned in the treating material and on re-examination by the Panel is completely normal.
What is the nature of the lumbar spine injury?
The medical members of the Panel are of the view the claimant has sustained a soft tissue musculoligamentous injury to her lower back.
The claimant told the examining members of the Panel her symptoms of pain radiating from her lower back into her legs (in particular the left leg) did not commence until a year after the accident. The GP’s notes first record radiating pain in May 2016 which is 20 months after the accident and neurological symptoms are first recorded in
October 2016, two years after the accident. Medical Assessors Maloney and Lahz in December 2016 had a history from the claimant that her shooting pain into the legs began in March or April 2016.
Dr Deveridge did not report any neurological symptoms (such as muscle wasting, loss of reflexes or altered sensation) in August 2015.
Medical Assessor Wong recorded his examination findings in July 2016 including no guarding or spasm and no dysmetria. There was no muscle wasting and no reported loss of or reduction in reflexes. While there was reduced sensation in the right lower limb it was globally reduced sensation in the whole of the left lower limb which “did not follow the anatomical pathway of a specific spine nerve root”. Medical Assessor Wong recorded that the claimant had pain in an L5 nerve root distribution in both legs more so on the left. The previous Review Panel in December 2016 reported similar findings but with weakness of the left leg developing.
Dr New in August 2017 examined the claimant’s lumbar spine and recorded altered sensation in an L5/S1 nerve root distribution on the left side, a decreased left ankle jerk and he recorded an antalgic gait favouring the left and test indicated weakness.
The development of radiating pain in March or April (or as recorded in the GP’s notes May) 2016, 18 or more months after the accident could not be or is not, in the clinical experience of the medical members of Panel, related to the accident. The development of neurological symptoms two years after the accident is also not related to the accident. The medical members of the Panel are of the view that the development of these signs and symptoms is more medically plausible and in line with some other event occurring independent of the accident.
The Medical Assessors accept that the claimant does have disc bulges at L4/5 and L5/S1 but the bulges are slight with the exiting nerve roots showing no signs of compression in July 2016. The bulges therefore do not explain the symptoms and signs that appear to have developed 18 – 24 months after the accident. If the disc bulges were caused by the accident, the medical members of the Panel would expect signs and symptoms to have developed within a much shorter period of time and for there to be documentation of that in the GP’s records. The development of neurological symptoms in someone as young as the claimant in closer proximity to a car accident would be something the Panel would expect to be recorded by her long time GP. The absence of any such record in any of the many consultations after the accident until May 2016 is, in the Panel’s view significant.
Is the surgery related to the 2014 accident or reasonable and necessary?
The Panel is not satisfied that the motor accident of September 2014 caused or materially contributed to the need for the surgery. The Panel has determined that the 2014 accident caused soft tissue injuries only to the lumbar spine and the clinical judgment of the medical members of the Panel is that surgery is not required to treat soft tissue musculoskeletal injuries.
The Panel considers it significant that there were no signs or symptoms of any neurological involvement at any time after the second accident reported in any of the medical evidence put before the Panel until May - December 2016, 18 - 22 months after the accident. There was therefore no need for any surgery from the date of the accident until at least December 2016. The Panel notes the surgery did not take place until 2019.
If the Panel is wrong, and the claimant’s need for surgery is related to the soft tissue injuries she received in the accident, then in the Panel’s view the surgery was not reasonable and necessary in any event.
There are very few decisions from the Courts in relation to the test of reasonable and necessary in the motor accidents legislation. There are however several decisions of relevance in the workers compensation schemes where the test for an employer’s liability is whether the treatment is “reasonably necessary”.
In Diab v NRMA Ltd[26] (Diab) at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) the appropriateness of the treatment in dispute;
(b) the availability of alternative treatment;
(c) the cost effectiveness of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the appropriateness of the treatment.
[26] [2014] NSWWCCPD 2.
The Panel notes that the 26 October 2016 MRI showed a ‘capacious’ spinal canal with good cord signals at all levels and very mild bulging at the two known levels. The January 2017 MRI was very similar. The bulges were marginally larger in May 2018 which demonstrates to the Panel a progression or deterioration of the claimant’s condition.
Lumbar laminotomy surgery is aimed at decompressing compromised nerves and nerve roots. Having considered the radiology, the medical members of the Panel had significant concerns about why the claimant’s surgery took place when there was no compression or compromise identified.
The two medical members of the Review Panel are of the view that in the light of the radiological findings the surgery was not appropriate. While the claimant had trialled alternative treatment including medication and some allied health treatment, it is not clear to the Panel whether she had exhausted conservative measures such as regular exercise and physiotherapy.
The medical members of the Panel note that Dr New’s operation report indicates there was a “large facet L5 causing compression”. The report further states there was “good decompression” achieved. Dr New’s finding is surprising in light of the many scans undertaken including excellent quality MRI’s that did not reveal a “large facet” or any other evidence of L5 nerve root compression. This might suggest that the surgery was reasonable, but the medical members of the Panel are not satisfied that any “large facet” was caused by the accident as this is a structural part of the claimant’s anatomy that was pre-existing before either of her accidents.
The claimant appears to have obtained only temporary relief from any pain as a result of the surgery and says within six months her pain levels have returned to where they were before her surgery. This suggests to the Panel that the surgery was not an effective form of treatment for the claimant’s soft tissue injuries.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987, Grove J in Clampett v WorkCover Authority of NSW (Clampett)[27], said:
“[22] I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.”
[27] [2003] NSWCA 52.
The surgery was not, in the clinical judgment of Medical Assessors Stubbs and Cameron view something essential and therefore not necessary.
Does the claimant have a need for care and assistance due to her 2014 injuries?
In the medical certificate attached to the claim form Dr Parvez indicated on
28 October 2014 that the claimant was unfit for work until 14 November 2014. The claimant started physiotherapy on 26 November 2014 and thereafter her treatment and recovery was complicated by her advancing pregnancy. The Panel is of the view that the claimant would have required some care and assistance in any event as her pregnancy progressed.
The Panel is satisfied that following the accident, the claimant would have required some care and assistance until the end of 2014 due to the nature of her soft tissue injuries.
The Panel is not satisfied that the need for any care and assistance provided beyond the end of December 2014 was caused by any of the claimant’s physical injuries.
Thereafter the Medical Assessors note that in their clinical experience a graduated return to activities should have been encouraged and would have been expected. Ongoing care and assistance with usual household activities such as clothes washing, cooking and cleaning would not be reasonable and necessary and would perpetuate the claimant’s sick or victim role and impede or delay recovery.
The Panel is satisfied that the claimant had a need for domestic care and assistance related to the physical injuries caused by the accident. The domestic care and assistance is required from the date of the accident (19 September 2014) to
31 December 2014. The Panel understands that the question of the amount of care required is the subject of a separate medical assessment which has not yet taken place.
The Panel is not satisfied that the claimant has any accident-related need for care caused or materially contributed to by the claimant’s September accident:
(a) after 31 December 2014 and to the date of assessment, and
(b) after the date of assessment into the future.
CONCLUSION
Bearing in mind the findings of the Panel, the certificates of Medical Assessor Bodel must be set aside, and fresh certificates issued.
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