Ameer v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPICMP 630
•29 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ameer v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 630 |
| CLAIMANT: | Aamir Ameer |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Philip Truskett |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 29 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; review of assessment by single Medical Assessor (MA); whether the accident gave rise to a threshold injury pursuant to section 1.6(2); the MA had found that an injury to the cervical spine disc pathology with annular fissures causing C7 radiculopathy was not a threshold injury under schedule 2 section 2(e); MA had found that cervical spine disc pathology with annular fissure causing C7 radiculopathy with pain referred to both shoulders was caused by the accident; Peet v NRMA Insurance Ltd and Wallace v Kam referred to; where the test of causation under 5D(1)(a) of the Civil Liability Act 2001 was discussed at [16]; clinical examination by the Panel of the cervical spine, lumbar spine, and shoulders did not support the finding of a non-threshold injury; no clinical signs of radiculopathy in the cervical and lumbar spines; no annular fissure; Held – certificate of MA revoked; Panel certifies that the claimant’s injury, caused by the accident, was a threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 7.23 of the Motor Accidents Injuries Act 2017 The Review Panel: 1. Revokes the Certificate of Medical Assessor Mohammed Assem dated 31 May 2023. 2. Certifies that the claimant’s injury to the cervical spine, caused by the accident, is a Threshold injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
Background
Mr Ameer (the claimant) was born in April 1988.
On 26 February 2018, the claimant was the driver of a Toyota Hilux, wearing a seatbelt with a front seat passenger, travelling along Jenkins Rd, Carlingford. A Toyota Camry collided with the rear driver’s side of his vehicle and the impact is said to have moved the vehicle 20 metres down the road into the gutter. The airbags were not deployed.
The claimant alleged that he had sustained injuries to his right shoulder, neck, and low back.
Ambulance and police officers attended the scene of the accident, but the claimant was driven home by a friend.
The claimant attended his general practitioner (GP) the following day, on 27 February 2018, with complaints of pain in his right shoulder and low back pain radiating into his legs. His GP gave a referral for physiotherapy and prescribed analgesics.
Diagnostic investigations indicated a disc protrusion at C6/7 with an extrusion compressing the right C7 nerve root.
The claimant’s GP referred him to Dr Simon McKechnie, consultant neurosurgeon, who administered a CT guided right and left C7 perineural cortisone injection.
Dr McKechnie recommended an anterior C5/6 and C6/7 discectomy and fusion, which was declined by the Insurer.
APPLICATION UNDER REVIEW
On 31 May 2023, Medical Assessor Mohammed Assem certified that the claimant had an injury to his cervical spine, resulting in disc pathology with annular fissures causing C7 radiculopathy.
On 19 July 2023, the President’s Delegate certified as to satisfaction that there was a reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and the Review Application was accepted and referred to the Review Panel.
Reasons for Determination of Medical Assessor Mohammed Assem certified 31 May 2023
Medical Assessor Assem set out his diagnosis and the reasons at [20], summarised below:
· On clinical examination of the cervical spine, guarding was observed with hypertrophy of the left upper trapezius. There was marked restriction in cervical motion.
· At age 30, when the accident happened, it would be uncharacteristic for the claimant to have substantial degenerative pathology in his cervical spine.
· Early radiological images revealed a very large disc protrusion with an extruded component impinging C7 nerve roots.
· While subsequent imaging showed a decrease in the disc protrusion/extrusion site, it is important to note that persistent impingement of the exiting nerve root was identified, along with the presence of annular fissures which is a tear to the fibro cartilage.
· The findings were likely attributed to the trauma caused by the accident.
Considering the radiological evidence indicating substantial cervical disc pathology, including annular fissures, he concluded that the injury to the cervical spine was Not a Threshold injury. This interpretation was based on comprehensive examination and all of the available medical evidence.
With respect to the lumbar spine, Medical Assessor Assem commented that the clinical examination displayed a normal lumbar lordosis, there was no muscle guarding or spasm, there were no focal or neurological deficits corresponding to specific spinal nerve root distribution, and no significant pathology on imaging. The injury to the lumbar spine was a threshold injury.
MATERIAL BEFORE THE REVIEW PANEL
Submissions of the insurer of 19 June 2023
The Review Panel briefly summarises the submissions by reference to paragraph number:
Lack of Procedural Fairness
[3.3]-[3.5]The Medical Assessor diagnosed annular fissures that were not alleged in the Claimant’s Application, Submissions or medical evidence.
[3.7]The Insurer referred to Lewis v Motor Accident Authority of New South Wales & Ors [2012] NSWSC 56, as to procedural unfairness rendering a Certificate reviewable for material error.
[3.8]The diagnosis of cervical annular fissures does not appear in the evidence of Dr McKechnie or the Claimant’s Application. The Assessor did not have the MRI scan of 25 February 2022 before him which did not reveal annular fissures.
[3.9]The Member [sic – read Medical Assessor] should have provided notice to the parties to provide Submissions in respect of the fissures.
Failure to appropriately diagnose the cervical injury
[3.15]The Medical Assessor incorrectly included a diagnosis of annular fissures in the diagnosis of the cervical spine injury.
[3.18]The Medical Assessor references an MRI of 25 February 2022 to diagnose annular fissures which was not supplied in the Claimant’s Application or Insurer’s Submissions.
[3.19]-[3.20]The Assessor was supplied with three diagnostic investigations, none of which report annular fissures. Annular fissures are unable to be diagnosed on physical examination alone.
[3.22]The Insurer submits that the MRI of the cervical spine of 15 July 2020 is a ‘more reliable’ scan to assess the cervical spine injury caused by the motor accident because it occurred significantly closer to the date of the accident. The Insurer alleges that this MRI does not report annular fissures.
Failure to assess radiculopathy in accordance with the Motor Accident Authority Guidelines (the Guidelines)
[3.32]-[3.33]The Medical Assessor made a “cautious diagnosis” of C7 radiculopathy which does not accord with the Guidelines for diagnosis of radiculopathy, in the threshold injury section at [5.8].
[3.34]The Insurer alleges that the Medical Assessor incorrectly diagnosed radiculopathy at [24] as he relied upon radiological findings rather than the assessment criteria in paragraph 6.138 of the Guidelines.
[3.35]-[3.36]Pursuant to paragraph 6.138 the Medical Assessor must make a radiculopathy diagnosis based on the assessment criteria alone. The Insurer alleges that the Medical Assessor considered radiological evidence to diagnose substantial cervical disc pathology and subsequently a non-threshold injury of the cervical spine at [20] which is not permitted in an assessment of radiculopathy.
[3.37]The Insurer sets out paragraph 6.138 of the Guidelines.
[3.38]The Insurer submits that the Claimant’s symptoms did not sufficiently meet two or more of the assessment criteria.
[3.39]The Insurer sets out paragraph 5.9 of the Guidelines.
[3.42]The Insurer submits that pursuant to paragraph 5.9 the Claimant’s neurological symptoms would be diagnosed as a threshold injury.
Submissions of the claimant in Reply of 27 June 2023
The Review Panel briefly summarises the submissions by reference to paragraph number:
[5]The totality of the Insurer’s complaint with respect to the annular fissures is misleading and should be ignored.
[6]The Claimant’s Solicitor refers to the report of Dr James Bodel of 7 April 2021, which was commented on and considered by the Medical Assessor. The report noted the MRI scan of the cervical spine of 15 July 2020 which showed evidence of a “small insignificant bulge at C5/6” and a “small right and central paracentral disc bulge” at C6/7.
[8]-[9]The Insurer was ‘well aware’ of the annular fissure and fissures as set out in the radiological evidence in its possession. The Insurer had the opportunity in its Submissions to comment on the expert reports of Dr Bodel and Dr McKechnie.
[17]The Insurer’s Submission that ‘annular fissures are unable to be diagnosed by physical examination alone and require radiological scans’ is misleading, untrue and should be ignored.
[19]The Medical Assessor had available to him comprehensive radiological imaging and records of the Claimant’s treating neurosurgeon, Dr McKechnie. Dr McKechnie recommended a C5/6 and C6/7 discectomy and fusion at the ‘precise level’ of the annular fissures and radiculopathy.
[21]-[22]The Guidelines do not support the Insurer’s Submission that annular fissures cannot be diagnosed on physical examination alone. In any event, the Medical Assessor also relied on the extensive diagnostic imaging of Dr McKechnie, which was made available to the Insurer. Dr McKechnie would not have recommended surgery to an asymptomatic cervical spine.
[27]The Claimant’s Solicitor submits that the Medical Assessor conducted a complete physical examination and reviewed all the radiological evidence and records to come to a conclusion. The Insurer did not provide any expert medicolegal report.
[31]The Medical Assessor set out clear findings of radiculopathy on page 4 and 5. Dr McKechnie also found radiculopathy.
[33]The conclusion of radiculopathy is clear and in accordance with the Guidelines.
[35]The Guidelines were followed by the Medical Assessor as he found two or more signs of dysfunction of the spinal nerve root at pages 4 and 5.
[36]Various words used by the Medical Assessor such as “caution [sic – read cautious]” do not amount to error.
CAUSATION
Guidelines
With respect to causation, the Motor Accidents Injuries Guidelines (the Guidelines) provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Threshold Injury
Section 1.6(2) of the Motor Accident Injuries Act 2017 (MAI Act) provides:
“(2) A ‘soft tissue injury’ is (subject to this section) 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 4(1) of the Motor Accident Injuries Regulation 2017 (the Regulations) provides:
“4 Meaning of ‘threshold injury’, section 1.6(4) of the Act
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
THE EVIDENCE BEFORE THE REVIEW PANEL
The Review Panel had all of the material which was available to Medical Assessor Assem and considered all such material.
Reports of Dr Simon McKechnie of 18 March 2021
The Review Panel reviewed the various reports of Dr McKechnie, treating neurosurgeon, all dated 18 March 2021.
In a report to the claimant’s GP, Dr Magedy Hawi, Dr McKechnie reported on his review of the claimant on 7 November 2019. He noted the claimant’s complaints:
“He has since complained of neck pain radiating across the shoulders and both arms, worse on the right side. He also complains of lower back pain radiating through the left leg with distal sensory disturbance. He complains of left sided thoracic pain and pain in the left shoulder. He is not currently working. He has tried physiotherapy, medication and cortisone injections without success.”
Dr McKechnie noted:
“An MRI of the cervical spine demonstrates a small to medium sized C6/7 disc protrusion with a right sided component causing foraminal stenosis.”
Dr McKechnie referred the claimant for further cervical, thoracic, and lumbar spine MRIs.
Following a Telehealth consultation with the claimant on 15 June 2020, Dr McKechnie reported:
“He has had the CT guided left C6 and right C7 perineural co1tisone injections 2 months ago. Unfortunately there has been no relief in the symptoms. He is also tried physiotherapy, exercises and medication including Gabapentin without relief over the last 2 years. I have had a preliminary discussion regarding remaining treatment options including conservative and surgical treatment such as a 2 level cervical foraminotomy.”
In a further report to the Claimant’s GP, following a review of the Claimant on 9 July 2020, Dr McKechnie noted:
“I have now had the opportunity to review the November 2019 cervical MRI scan. It demonstrates broad-based disc protrusions at C5/6 and C6/7 with mild left C5/6 and mild right C6/7 foraminal stenosis.”
With respect to surgical intervention, Dr McKechnie stated:
“I have discussed both anterior and posterior surgical options but given the MRI appearance, if he wishes to pursue with surgery, I would offer him an anterior C5/6 and C6/7 discectomy and fusion. Generally there is an 80% chance of improvement in the arm pain, and a moderate chance of improvement in his neck pain with a 5 to 10% risk of complication.”
Dr McKechnie examined the claimant again on 13 August 2020. He commented:
“The follow-up cervical MRI demonstrates a very small C5/6 disc bulge and a small to medium sized C6/7 disc protrusion causing mild bilateral foraminal stenosis. I have discussed the MRI findings and treatment options. I have discussed a C6/7 anterior cervical discectomy. I have explained however that the surgery may not alleviate his chronic neck pain and it will certainly not have any significant impact on his back and leg symptoms.”
MEDICO-LEGAL REPORTS
Report of Dr Ronald Thomson of 24 September 2018
Dr Thomson, consultant surgeon, reported for the insurer on a medico-legal basis on 24 September 2018. He took a history and recorded the claimant’s complaints at page 1:
“He complains of ongoing chronic / intermittent pain at the neck, mid / lower lumbar back and right shoulder. The pains are said to be worse on the use or movement of any of these parts or any load bearing of even a mild amount.”
Dr Thomson conducted a physical examination, which he recorded on page 2:
“Physical examination of the neck revealed gross reduction in range of motion in all planes owing to pain claimed in the attempt…
Physical examination of the right shoulder likewise produced gross reduction in range of motion in all planes owing to pain claimed in the attempt.
There was said to be severe tenderness to palpation anteriorly at the right shoulder.”
Dr Thomson noted the MRI scan of the cervical spine dated 8 March 2018 on page 3:
“The cervical CT scan reported ‘Large focal disc protrusion at the C6/7 level eccentric to the right with extrusion extending behind the C6 and C7 vertebral bodies over a craniocaudal length of 11mm, with the other dimensions being transverse 22mm and AP 5mm’.”
It further reported
‘There is compression of the right C7 nerve root in the neural foramen’.”
Dr Thomson diagnosed:
“Musculo-ligamentous strain of the neck / possible aggravation of previous cervical spondylosis.
Musculo-ligamentous strain of the right shoulder / possible right shoulder impingement.
Musculo-ligamentous strain of the lumbar back.”
Supplementary report of Dr Thomson of 24 September 2018
Dr Thomson provided a supplementary report, the same day, on 24 September 2018. Dr Thomson noted:
“The complicating feature in this case is the fairly adverse finding in the cervical imaging which none the less may not be translated into legitimate adverse symptoms and corresponding work incapacity.”
Report of Dr Ron Muratore of 16 March 2021
Dr Muratore, sport and exercise physician, reported to the Insurer on a medico-legal basis on 16 March 2021. He took a history and recorded the claimant’s complaints at page 4:
“Mr Ameer describes constant neck pain which is worse on the right side of his neck, although he experiences pain bilaterally, which he describes as a ‘pinching pain’. This radiates into both arms on the extensor surface of the arms to the middle and index finger of both hands. He said that at times he also experiences pain in the little finger and the thumb of both hands, which he also describes as a pinching pain. If the pain in the middle finger and index finger improves, the pain in the little finger and thumb becomes worse.”
At page 8, Dr Muratore conducted a physical examination:
“Mr Ameer had normal posture. He reported tenderness from the occiput to the level of T2 in the midline and on either side of the midline, no matter what point was palpated, no matter how gently. He reported tenderness over the superior aspect of both shoulders, in the supraspinatus fossa. He then exhibited a restricted range of movement; with rotation to the right being one quarter normal range, rotation to the left half normal range, flexion and extension half normal range, and lateral flexion was minimal in both directions.”
He continued on page 9:
“[the Claimant] may not have genuine pathology causing his problem... Hoover's sign is a useful clinical test to confirm a clinical suspicion of non-organic (non-genuine) or medically unexplained symptoms. Mr Ameer then exhibited minimal resistance to any movement in both lower limbs from the hips to the toes, including the extensor hallucis longus, which was not consistent with the presence of an organic pathological lesion.”
On page 11, Dr Muratore concluded that:
“Mr Ameer may have sustained:
1. Cervical disc prolapse (protrusion) at C6/7, in the original motor vehicle accident. The disc prolapse has, over time diminished is size, whereas his symptoms have reportedly continued and spread.
2. Soft tissue injury of the righty shoulder, which, on the balance of probabilities has resolved.
3. Soft tissue injury of lumbar spine, which, on the balance of probabilities has resolved.”
He noted that:
“His presentation today was not explicable on a purely organic basis, as there were multiple inconsistencies which was not consistent with the presence of organic pathology.”
Report of Dr James Bodel of 7 April 2021
Dr Bodel, orthopaedic surgeon, reported on a medicolegal basis on 7 April 2021. He took a history and recorded the claimant’s complaints at page 3:
“He has a major complaint with his jaw, his teeth and his temporomandibular joints. These are issues for others to assess; He has complaints of pain in the base of the skull in the suboccipital region and in the neck on both sides and over the top of both shoulders; The pain spreads to the interscapular region of the thoracic spine and periscapular region and also in the lower part of the back with pain down the left leg all the way to the left great toe.”
On examination, Dr Bodel reported at page 4:
“He moves in a very stiff manner. He walks without a limp. He does complain of tenderness in the trapezius muscles at the base of the neck on both sides and has a restricted range of neck flexion, extension and rotation in all directions and this is most restricted on rotation to the right. There is therefore asymmetry of movement. He has a grossly restricted range of shoulder movement.”
Dr Bodel continued:
“There is tenderness over the rotator cuff and some impingement in the shoulders but no instability… There is no measurable wasting in the upper limbs. There are no reflex abnormalities and no objective signs of sensory loss.. There is a slight restriction of lateral bending and rotation of the thoracic spine but no asymmetry... He has tenderness on palpation at the lumbosacral junction and guarding on the left side… There is no measurable wasting in either thigh or calf and the reflexes are present and equal in both lower limbs.”
Dr Bodel noted at pages 4-5 the MRI report of 15 July 2020:
“the MRI scan of the cervical spine dated 15 July 2020 which was ordered by Dr McKechnie… shows evidence of ‘a small insignificant annular bulge’ at the C5/6 level and a ‘small central and right paracentral disc bulge is evident at C6/7’. There is no left foraminal narrowing foraminal narrowing and there is some mild narrowing of the right lateral recess. The comment indicates that there is a ‘small central and right paracentral disc bulge’ is again noted at C6/7, relatively unchanged when compared with the prior study in November 2019. There is no mention of any nerve root compromise at any level and that fits with the clinical picture that I have seen here today.”
With respect to the need for surgery, Dr Bodel stated that:
“The proposed anterior cervical decompression and fusion at C5/6 and C6/7 is reasonable and necessary treatment for the injury caused by the motor vehicle accident.”
Dr Bodel commented on the report of Dr Muratore at page 6:
“Dr Muratore and Dr Sheehy have indicated that they are of the view that the ongoing pathology is degenerative in nature only. I would draw your attention to the fact that this patient is only 34 years of age. He may well have some early degenerative change, but he was involved in a motor vehicle accident of significant force which has caused a material aggravation to the underlying degenerative process in the neck and the need for the surgery as proposed by Dr McKechnie.”
Further report of Dr James Bodel of 13 September 2022
Dr Bodel provided a further report on 13 September 2022 after conducting a second examination of the claimant. On examination, he reported:
“Again, on clinical testing, there is no definite sign of radiculopathy in the Left Upper Limb but there are non-verifiable radicular complaints in the left arm. There is no wasting in the small muscles of the hand and grip strength is normal.”
Dr Bodel continued on page 4:
“There is tenderness on palpation at the lumbosacral junction and guarding in that area on the left side and he reaches forward in flexion with his hands to the knees. He has backache at this point and also on extension and a restricted range of lateral bending to the right. Straight leg raising is 70 degrees on each side and limited by hamstring tightness. There is no definite evidence of reflex abnormality and sensory impairment in the lower limbs and no restriction of knee, ankle, or subtalar movement.”
Dr Bodel commented on the MRI of the cervical spine dated 23 August 2021 on page 4:
“There is significant disc pathology at C5/6 and C6/7 with some probable cord compression of the C6/7 level but no clinical signs of myelopathy. There are definite signs of nerve root compression.”
Dr Bodel noted that:
“[The claimant’s] condition has not resolved. He is awaiting surgical intervention recommended by Dr McKechnie to assist in his recovery.”
Re-examination of the claimant by the Review Panel
Medical Assessor Shane Moloney re-examined the claimant for the Review Panel at the Medical Suites of the Personal Injury Commission on 10 November 2023.
Pre-accident history
The claimant stated that he was working in technical sales on a full-time basis which had started in 2015. He is married and lives with his wife and has no children. He stated there was no past injuries to those assessed today and he sustained an injury to his left ankle in 2013 which required no surgical intervention.
History of motor accident
The claimant was the driver of his car and stationary when hit from the rear driver's side by another car. He was wearing a seatbelt at the time, but airbags were not deployed. He states that the impact moved his car 20m down the road into the gutter. His friend was a front seat passenger. He was able to get out of the car and the ambulance and police officers attended the scene of the accident. He stated that his car was a write-off and a friend drove him home. At that stage he felt pain in the right shoulder and anterior chest wall from the seatbelt and said that he hit his face on the steering wheel with no lacerations.
Subsequent history and treatment
The claimant consulted his GP on the following day when he had pain in the right shoulder and neck and some low back pain radiating into his legs. His GP referred him for physiotherapy which gave temporary relief and prescribed analgesics. After a few months he changed doctors to the Workers Doctors in Parramatta. He was then referred to a neurosurgeon Dr Singh in November 2018 and cortisone injections in the cervical spine were undertaken with some temporary benefit. Another change in doctors resulted in him being referred to another neurosurgeon Dr McKechnie. Further cortisone injections to the cervical spine were ordered with some temporary benefit. Dr McKechnie then recommended a spinal discectomy and fusion at the C5/C6 and C6/7 levels which was declined by the insurer. There were no further injuries sustained since the accident.
Current symptoms
The claimant has persistent neck pain which increases with rotation with some radiation into the occipital region of his head. The pain also radiates to both arms. He gets variable numbness in the thumb, index, and middle fingers bilaterally with pain in the elbows. This pain increases with gripping. There is a poor sleep pattern, and he frequently wakes with neck pain. There was also low back pain which shoots down both legs to the toes more so on the left side and this increases with flexion of the back. He is able to walk for 5 to 10 minutes and drive short distances. Since the accident, the claimant has not returned to any work and states that he stays home most of the time with his wife doing the shopping, cleaning, and other chores.
Current treatment
At present, the claimant takes Panadol Osteo, two to four per day, and occasional Nurofen and Gabapentin one twice a day. He has Valdoxan One-A-Day and Palexia when the pain increases. No manual therapy is being undertaken at present but he does his own home stretches. He consults his GP when needed and last consulted his neurosurgeon, Dr McKechnie, one month ago.
Clinical examination
The claimant walked into the rooms with a normal gait and stated that he was right-handed. His height was 179cm with shoes and weight 66kg.
Cervical spine
On testing range of movement, flexion was 50% of expected range and extension 20% of expected range. Side bending and rotation were both 30% of expected range bilaterally. On palpation there was tenderness in the intrascapular region and some guarding in the right trapezius muscle. On neurological examination of the upper limbs, reflexes were weak but equal with normal power and a global decrease in sensation to light touch in the right arm but not involving the hands. On inspection there was no wasting of the hand musculature or the remainder of the upper limbs. The circumference of the upper arms was 27cm bilaterally (10cm above the olecranon process) and, in the upper forearms, 25cm bilaterally.
Lumbar spine
The claimant had difficulty standing on his heels and toes and squatting was limited to 50% of expected range due to tight hamstring muscles. On testing range of movement, flexion/extension was 50% of expected range and side bending was 60% of expected range bilaterally with no asymmetry. On palpation, there was tenderness over the lower lumbar spines and sacroiliac joints, but no guarding or spasm was noted in the lumbar musculature. Straight leg raise was limited to 60° bilaterally due to hamstring tightness but 80° when seated bilaterally. Sciatic nerve root tension signs were negative.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no muscle wasting was apparent with the circumference of the lower thighs 39cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 33cm bilaterally. No sensory changes were noted in the lower limbs and there was a full pain free range of movement of the hips and knees.
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected with impingement tests negative. There was very limited range of movement on active testing and was repeated three times and measured with a goniometer. The claimant stated that the limitation in movement was due to pain in his arms but not in the shoulder joint or related to neck movement.
Comment
There have been several MRls of the cervical spine. The first, on 22 October 2018, reported a disc bulging of the C6/7 level. The claimant brought a new MRI of the cervical spine, dated 13 March 2023, with no report. I was able to visualise disc bulges C6/7 and C5/6 with no obvious annular tear. He also bought a report, an MRI dated 17 March 2022, with no films, which reported an annular disc protrusion with annular fissure at C5/6. The comment was that this was a significant new abnormality at the C5/6 level, in comparison to the MRI of 19 October 2018. It is possible that the report dated 2022 was actually related to the actual films dated 2023 as they are the same month.
Review Panel’s conclusion
There were no clinical signs of radiculopathy in the cervical and lumbar spines. The decrease in sensation was not in a dermatomal pattern in the upper limbs and, upon examination by Medical Assessor Moloney, there was no asymmetry in the testing reflexes of the upper limbs. The very limited range of movement of both shoulders did not seem to have an anatomical basis.
Medical Assessor Assem recorded absent triceps reflexes bilaterally which is not usually a sign of radiculopathy (requires asymmetry) and some sensory loss over C7 dermatome which was a global pattern (i.e., the entire right upper limb above the wrist and not in a dermatomal distribution when the Review Panel examined him).
The initial MRI of the cervical spine, dated 22 October 2018, reported a mild disc bulge at C6/7, with impingement of the exiting right C7 nerve root. The second MRI dated 17 March 2022 reported annular fissures with protrusion at C5/6, which were not present at the first MRI, and an annular fissure at C6/7, with impingement of each C7 nerve. The final MRI dated 13 March 2023 reported discovertebral disease with mild neuroforaminal narrowing on the left but none on the right at C5/6. At C6/7, the MRI showed neuroforaminal narrowing bilaterally with a central/left paracentral herniated disc. The Review Panel agreed with the conclusions of these reports.
The Review Panel considered that there was no annular fissure noted six months after the accident, but rather, it appeared four years after the accident, particularly with changes at the C5/6 level. The Review Panel considered that these changes were degenerative in nature and not directly related to the subject accident. Furthermore, the clinical signs did not correlate with the MRI findings. There was a global decrease in sensation in the right arm, but not in the left, with normal sensation in both hands, and no muscle wasting in any of the upper limb myotomes.
Review Panel’s determination
The Review Panel revokes the certificate of Medical Assessor Assem dated 31 May 2023.
The Review Panel certifies that the claimant’s injury to the cervical spine, caused by the accident, is a threshold injury for the purposes of the MAI Act.
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