Amore v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 125
•27 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Amore v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 125 |
CLAIMANT: | Ivan Amore |
INSURER: | IAG Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Leslie Barnsley |
DATE OF DECISION: | 27 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Application by the claimant for a review of a certificate and reasons of Medical Assessor (MA) dated 28 June 2024; claimant involved in a motor vehicle accident on 14 December 2018; the MA found that the claimants injuries for assessment were not causally related to the accident and consequently there was no need to assess permanent impairment; claimant had pre-existing disabilities; claimant injured his cervical spine and lumbar spine but also claimed that assessment of referred pain from the lumbar spine to the right leg should be assessed in accordance with the decision of Nguyen v Motor Accident Authority of NSW; claimant also submitted that the issue of causation had already been determined by an MA in a previous determination for treatment and care and relied on the decision of Wood v Insurance Australia Group Limited trading as NRMA Insurance; insurer subsequently conceded that causation was not in issue and that the matter for determination was only the claimant’s whole person impairment; Review Panel assessed the claimant’s whole person impairment (WPI) of his cervical spine on the basis of the finding of DRE III at 15% with two signs of radiculopathy but deducted 5% WPI on the basis of a pre-existing cervicothoracic DRE II assessment due to spinal surgery; giving a total cervical spine assessment of 10%; the claimant’s lumbar spine was assessed at 5% WPI on a DRE II assessment less 5% WPI for a pre-existing DRE II assessment due to spinal surgery; total WPI assessed at 10%; Medical Assessment Certificate revoked with the claimant having a total WPI assessment 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. As a result of an accident on 14 December 2018, the claimant injured his cervical spine and his lumbar spine. 2. The Review Panel revokes the certificate of Medical Assessor Kuru dated 28 June 2024. 3. The Review Panel finds the claimant has a whole person impairment of 10%. |
STATEMENT OF REASONS
INTRODUCTION
Ivan Amore (the claimant) has sought a review of the certificate and reasons of Medical Assessor Kuru (the Medical Assessor) dated 28 June 2024
There is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2, s 2(a) of the Motor Accident Injuries Act 2017 (the Act) arising out of an accident which occurred on 14 December 2018.
The following injuries were referred by the Personal Injury Commission (the Commission) for assessment:
(a) cervical spine – migraines and cortisone injections, and
(b) lumbar spine – right lower limb.
The Medical Assessor determined that the following injuries referred to him for assessment were not caused by the motor accident:
(a) cervical spine – migraines and cortisone injections, and
(b) lumbar spine – right lower limb.
The Medical Assessor thereafter determined that an assessment of the degree of permanent impairment of these injuries was not required.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
The accident
The accident occurred on 14 December 2018. The claimant was the driver of a car which was slowing in traffic. His car was rear ended. He was able to get out of his car, unassisted. After the exchange of information, the claimant drove the driver of the other vehicle home. He then drove himself to Concord Hospital.
With symptoms persisting, the claimant sought medical attention through his general practitioner (GP).
Background
On 3 November 2020, Medical Assessor Bodel examined the claimant, and on 17 November 2020, he issued a certificate under s.7.23(1) of the Act to the effect that the following treatment and care, an L5/S1 lumbar spine decompression as requested by Dr Parkinson on 7 February 2020, was related to the injury caused by the motor accident.
Medical Assessor Bodel also certified that the following treatment and care, a request for an L5/S1 lumbar spine decompression as requested by Dr Parkinson on 7 February 2020, was reasonable and necessary in the circumstances.
In paragraph 23 of his certificate, Medical Assessor Bodel stated:
“23. Causation and Reasons
This gentleman has suffered a disc rupture at the lumbosacral junction at the L5/S1 level. He initially had a disc injury in a motor vehicle accident in 2014 but there has been further material aggravation of his disc injury in the accident under review that occurred here on 14 December 2018.
24. Treatment and Care – causation
The need for the L5/S1 lumbar spine decompression as requested by Richard Parkinson on 07 February 2020 is causally related to the motor vehicle accident under review.
25. Treatment and Care – reasonable and necessary
The proposed surgical decompression is reasonable and necessary in the circumstances.”
An application for a review of that decision was rejected, under s.7.26 of the Act, by way of a decision made on 27 January 2021.
Accordingly, the claimant submits that no dispute exists between the parties that, as a result of the subject accident, the claimant had suffered injuries to his lumbar spine.
The claimant submits that the only remaining relevant medical dispute was whether the degree of permanent impairment as a result of that spinal injury was greater than 10%.
The assessment of the degree of permanent impairment of the claimant’s cervical spine and lumbar spine were allocated to the Medical Assessor for determination.
The claimant says the Medical Assessor made that determination, even though, to use the words contained in [65] of Wright J in Wood v Insurance Australia Group Ltd trading as NRMA Insurance [2022] NSWSC 1290, “there was no dispute or issue between the parties as to that fact” and “has previously been certified by Assessor Bodel”.
The claimant submits that as was the situation in Wood’s case, the Medical Assessor was not required to form any view as to causation because that issue was not in dispute between the parties.
The claimant submits that in accordance with the decision in Wood’s case, it follows that the “medical dispute” that was referred to the Medical Assessor only concerned an assessment of the degree of permanent impairment that was caused by each of
(a) the cervical spine injury, and
(b) the lumbar spine injury.
However, the claimant says that the Medical Assessor’s certificate did not assess the degree of permanent impairment because he determined that the injuries to each of
(a) the cervical spine, and
(b) the lumbar spine,
were not caused by the accident.
The claimant says that in the Medical Assessor’s certificate, he listed the following injuries as having been referred by the Commission for his assessment of permanent impairment:
(a) cervical spine – migraines and cortisone injections, and
(b) lumbar spine – right lower limb.
The claimant says that in regard to the cervical spine, the inclusion of the words “migraines and cortisone injections” may have caused some confusion in the mind of the Medical Assessor. However, the claimant says that migraines are symptoms and cortisone injections represent treatment. The claimant says that the injury to be assessed for permanent impairment was the claimant’s cervical spine.
Regarding the assessment of the lumbar spine, the claimant says that there existed no dispute between the parties that the accident had caused an injury to the lumbar spine and in this respect the claimant relies on Wood’s case. Accordingly, the claimant says that the lumbar spine was another bodily part that was required to be assessed for permanent impairment.
Also, the claimant submits that the medical evidence that was provided by each party for the purpose of assessing permanent impairment – namely, the reports of Dr Giblin (for the claimant) and the report of Dr Rimmer (for the insurer) – both contained permanent impairment assessments of the claimant’s (a) cervical spine and (b) lumbar spine.
The claimant says that Dr Giblin’s assessment of permanent impairment, dated 1 June 2023, was made in regard to the claimant’s (a) cervical spine and (b) lumbar spine.
In regard to the insurer’s medical evidence, the claimant says that it relied on reports from Dr Rimmer. Although Dr Rimmer determined that the injury to the cervical spine gave rise to a 0% impairment, the claimant submits that the important fact concerning this application is that Dr Rimmer determined that the claimant’s cervical spine had been injured as a consequence of the accident. In particular, the claimant submits that Dr Rimmer diagnosed that the accident had caused an aggravation of cervical spondylosis.
Regarding the claimant’s lumbar spine, Dr Rimmer diagnosed that the accident had caused “Recurrent right L5/S1 disc prolapse with subsequent revision resection”.
Dr Rimmer assessed that the lumbar spine injury fell within diagnostic related estimate (DRE) Category II, which gives a 5% whole person impairment (WPI) assessment.
The claimant submits therefore that the parties were not in dispute as regards the accident having caused an injury to each of (a) the claimant’s cervical spine; and (b) the claimant’s lumbar spine.
The claimant submits that the only disagreement is in regard to the degree of permanent impairment that has arisen as a consequence of each of those injuries. The claimant says that was the only issue/dispute that was required to be determined by the Medical Assessor.
The claimant submits that nowhere within his certificate has the Medical Assessor made any reference why he disagrees with the opinions of Medical Assessor Bodel, Dr Giblin and Dr Rimmer that the subject accident caused an injury to the claimant’s lumbar spine, that gave rise to the need for surgery.
The claimant submits that nowhere within his certificate does the Medical Assessor address the determinations of Medical Assessor Bodel.
The claimant submits that the Medical Assessor also failed to address or engage with the opinions of both Dr Giblin and Dr Rimmer that the subject accident caused an injury to the claimant’s cervical spine.
Right leg
The claimant submits that, as concerned the injury to the claimant’s lumbar spine, it was also sought that there be an assessment of the permanent impairment to the claimant’s right leg, as a consequence of his lumbar spine injury.
In that regard, the claimant submits that it does not matter that the claimant’s right leg was not directly injured in the accident. The claimant says that the impairment to his right leg has arisen as a consequence of the injury to the his lumbar spine and accordingly, the claimant submits that it must be included in the assessment.
The claimant submits that his right leg impairment has arisen as a consequence of the injury and subsequent surgery to the claimant’s lumbar spine.
In the present circumstances, the claimant submits that the assessment required that the Medical Assessor assess not only the claimant’s cervical spine and lumbar spine but also the impairment occasioned to his right leg as a consequence of the lumbar spine injury.
The claimant submits that the reasons of the Medical Assessor failed to address:
(a) the fact, that the claimant’s right leg may not have been directly injured during the course of the subject accident does not exclude the right leg from being included in the assessment of permanent impairment. is not determinative of the issue.
(b) The earlier assessment of Medical Assessor Bodel, who determined that the accident had caused an injury to the lumbar spine resulting in the need for the lumbar spine surgery.
(c) The deterioration in the claimant’s accident-related back injury, caused him to develop recurrent right leg pain that gave rise to the L5/S1 lumbar spine decompression that was not only requested by the claimant’s treating specialist, Dr Parkinson, but also confirmed by Medical Assessor Bodel to be reasonable and necessary treatment as a consequence of the accident.
(d) The Medical Assessor has also failed to engage or address the assessments of both Dr Giblin and Dr Rimmer.
The claimant submits that contrary to the evidence, the Medical Assessor concluded that because the claimant had previously injured his back and as he did not make any immediate post-accident complaints of back pain following the subject accident, he did not injure his low back in the subject accident.
The claimant also submits that there must be an assessment of the permanent impairment occasioned to the claimant’s right leg as a consequence of his lumbar spine injury and in this regard relies on Nguyen v Motor Accident Authority of NSW & Anor [2011] NSWSC 351. The insurer has made no submissions in reply about this.
Insurers submissions
Cervical spine
The insurer asserts that the claimant has a long-standing history of neck and lower back pain.
The insurer says the claimant was involved in a motor vehicle accident in 2014 and from which he eventually underwent a cervical spine foraminotomy in February 2016 and a L5/S1 decompression in February 2018.
The insurer says the claimant underwent cortisone injections into his cervical spine and lumbar spine both pre and post-accident.
The insurer says that the claimant also reported that “he had surgery on his neck with a good clinical result and at the time of the accident of December 2018, he has ‘no neck pain at all’”. The insurer says that is contrary to the pre-accident treating records, particularly in the twelve months prior to the subject accident.
The insurer says that the claimant reported to Dr Rimmer that he has not had a cortisone injection into his lumbar spine following the subject accident which is in contradiction of Dr Pell’s records and Dr Parkinson’s correspondence dated February 2023. Dr Rimmer also noted that the claimant walked with a limp, which he found was inconsistent with his injuries.
The insurer submits the claimant’s evidence should be treated with caution.
The insurer says the claimant has a long-standing history of cervical spine pain with radiation of pain extending down his right arm. The first mention of migraines in the clinical records is not until about 5 September 2022, almost three years after the subject accident. There are no reports of the claimant suffering from migraines throughout the records of Dr Pell and Dr Parkinson,
The history provided to Dr Giblin is contrary to the claimant’s pre-accident clinical records.
In his report dated 13 March 2018, Dr Pell noted that the claimant reported “a recent fall at home and he describes a painful neck and pain throughout the right shoulder”.
The claimant did not report suffering from migraines to Dr Bodel during his assessment in November 2021 or to his own qualified doctor, Dr Giblin during his assessment in July 2023.
The claimant first consulted Dr Pell in relation to the subject accident on 30 January 2019. In his report dated 6 February 2019, Dr Pell noted “examination was unchanged from before. There was tenderness on the right side at C3.4. Upper limb examination was normal.” The claimant was referred for a C5 peri-radicular injection.
In his report dated 9 May 2018, Dr Pell noted that the claimant reported that he:
“…has pain on the right side of his neck and right shoulder, down the outer arm to the elbow. This has persisted since lumbar surgery. This is the same as before but goes down to the elbow where previously it extended down to the hand. There was some restriction of cervical movements. There was mild weakness of elbow extension on the right. Reflexed were present… I have organised MRI scan of the cervical spine…”
An MRI scan of the cervical spine performed on 14 May 2018 revealed:
“.. At C3/4 there is a new small right posterolateral to proximal foraminal disc protrusion measuring less than 2mm in AP dimension and associated with only foraminal stenosis. There is accompanying mild uncovertebral hypertrophy. The left foramen is widely patent. There is mild bilateral facet arthrosis” [R6].
On 4 June 2018, the claimant reported to his physiotherapist that he fell down the stairs and injured his neck and thoracic spine.
In his report dated 30 June 2018, Dr Pell noted: “…he complained of neck pain and right shoulder pain running down the outer aspect of the arm to elbow. This is similar to what he has experienced before but on that occasion the pain radiated below the elbow”. It also noted “examination of his cervical spine showed some restrict of movement. There was mild weakness of elbow extension on the right”.
On 8 November 2018, one month prior to the subject accident, the claimant reported “spasms in thoracic spine up into c/sp and traps. R side predominantly.”
The insurer submits there are contemporaneous treating records in the 12 months prior to the subject accident revealing that the claimant continued to report ongoing pain and restriction in his cervical spine with no improvement.
The insurer submits that should the Panel determine that there is a finding of permanent impairment in the cervical spine, then there should be a deduction for pre-existing impairment in accordance with clause 6.31 of the Motor Accident Guidelines (the Guidelines).
In any event, the insurer relies on the findings of Dr Rimmer who assessed 0% WPI on the basis that the claimant has no significant clinical findings, no muscular guarding and no documentable neurological impairment causally related to the subject accident.
The insurer submits there should be no finding of permanent impairment in line with Dr Rimmer’s findings.
Lumbar spine – right lower limb
The insurer submits that the claimant has a long-standing history of lower back pain. The claimant underwent L5/S1 decompression in February 2018. An MRI scan of the lumbar spine dated 11 July 2022 noted:
“Stable appearances. There is no nerve impingement of the right S1 nerve root”.
The insurer says that when the claimant was assessed by Dr Giblin in July 2023, he reported that he still had some minor discomfort from his back at the time of the accident on 14 December 2018.
The insurer submits that any findings of permanent impairment will not exceed 10% WPI.
Medical evidence
The Medical Assessor provided a certificate of 28 June 2024. He found that complaints of injuries to the cervical spine – migraines and cortisone injections and to the lumbar spine – right lower limb, were not caused by the accident. Consequently, the Medical Assessor said that no assessment of permanent impairment was required.
In support of this determination, the Medical Assessor said that the migraine headaches were a separate pathological entity and unlikely to be associated with degenerative spondylosis of the cervical spine. Regarding the lumbar spine, the Medical Assessor said that the claimant developed symptoms consistent with recurrent right sided L5/S1 disc protrusion around 12 months after the subject accident and were not caused by the accident,
With respect to a treatment dispute, the claimant was assessed by Medical Assessor Bodel. He noted that the claimant developed neck and back pain within half an hour of the accident. He attended Concord Hospital later that day and he was feeling nauseous. X-rays were taken, no fractures were identified and he was observed for four or five hours and then discharged home. He came under the care of his local doctor, Dr Chu, with neck pain, right shoulder girdle pain, lower back pain with right leg pain to all five digits of the right foot.
Medical Assessor Bodel noted the insurer’s position that the L5/S1 disc pathology was well established prior to the motor vehicle accident in review. The insurers position was that the need for the “microdiscectomy at L5/S1 is not reasonable nor necessary”.
Medical Assessor Bodel said that the insurer acknowledged that the claimant had previously received treatment for the lumbar spine and that it was of the view that the “underlying condition has not arisen as a result of the accident but due to the prior motor vehicle accident in 2014”. Medical Assessor Bodel said that Dr Pell and Dr Parkinson have a different view. He agreed with the clinical assessments.
Following on from this, the treatment reports from Dr Parkinson confirm that it is his view that the accident on 14 December 2018 has substantially contributed to the claimant’s clinical symptoms and signs and that the “surgical microdiscectomy is the result of this”.
Medical Assessor Bodel said that the claimant suffered a disc rupture at the lumbosacral junction at the L5/S1 level. He said that the claimant initially had a disc injury in a motor vehicle accident in 2014 but there had been further material aggravation of this disc injury in the accident under review that occurring on 14 December 2018.
Medical Assessor Bodel concluded that the need for the L5/S1 lumbar spine decompression as requested by Dr Parkinson was causally related to the subject accident. He also found that the proposed surgical decompression was reasonable and necessary in the circumstances. These two procedures were said by the Medical Assessor to relate to the injuries caused by the motor accident.
Dr Giblin provided a report of 21 June 2023. He noted that the claimant did have a motor vehicle accident in November 2014, at which time he sustained injuries to his cervical spine, lumbar spine and right elbow. Dr Giblin reported that the claimant had surgery on his neck with a good clinical result and at the time of the accident of December 2018, he had no neck pain at all. Regarding the lumbar spine injury, he had surgery for that in January of 2018, at which time he had a right sided LS/S1 microdiscectomy. He still had some minor discomfort from his back at the time of the injury of December 2018, but on a scale of 0 to 10, where 10 is most severe, the claimant only rated it at 2 out of 10 and was not requiring any tablets, doctors appointments or physiotherapy. The claimant reported that his back would only bother him if he did any repetitive, heavy lifting.
Dr Giblin concluded that the claimant’s injuries were consistent with the accident described. He said that the claimant sustained an aggravation of underlying degenerative change of his cervical spine and an aggravation of pre-existing LS/S1 disc lesion. The cervical spine had been treated conservatively and the lumbar spine had gone on to have a microdiscectomy.
Dr Giblin assessed WPI at 15%. This represented a 5% WPI for the cervical spine and 10% WPI for the lumbar spine on a DRE Category III assessment.
Dr Giblin said the DRE Category III was correct, as the claimant had radiculopathy for which he had surgery. As previously discussed, he relied on Table 70, page 108, where it indicates "previous spine operation without segment integrity or radiculopathy”. Dr Giblin said that having had the surgery, there would be improvement in his pre-operative symptoms, but he still had some residual limitation of straight leg raising of 40 degrees on the left. His ankle jerks however, were bilaterally depressed, so it was difficult to determine whether one was more depressed than the other and the fact that there was no sensory deficit meant that the surgery had been successful.
Dr Rimmer provided a report for the insurer dated 7 November 2023. He noted that the claimant had a significant past medical history being involved in a previous motor vehicle accident in 2014. He said that this resulted in the following surgical procedures:
(a) cervical C4 to 7 foraminotomy in 2016 which the claimant described as a fantastic outcome, and
(b) right L5/S1 discectomy in 2018, again described by the claimant as a great success.
Dr Rimmer said that on the balance of probabilities, the claimant would not have come to further spinal surgery in any event, had the motor vehicle accident of 2018 not occurred. Dr Rimmer said that with the benefit of an MRI scan, updated, he could consider this matter further. Consequently, the insurer provided MRI images of the claimant’s lumbar spine dated 11 July 2022. This additional scan showed the following;
(a) right L5/S1 hemilaminectomy and redo microdiscectomy, and
(b) there is a small residual disc extrusion on the right L5/S1 area however, no obvious nerve root impingement.
Dr Rimmer assessed 0% WPI for the cervical spine with a DRE Category I assessment. For the lumbar spine he assessed a DRE Category II assessment applying Table 72, page 110 of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) and giving a 5% WPI with a total combined WPI of 5%.
Dr Parkinson was the claimant’s treating surgeon. He provided an opinion that the accident on 14 December 2018 had substantially contributed to the claimant’s clinical symptoms and signs and that the surgical microdiscectomy was the result of this.
The clinical notes of Concord Family Doctors record the motor vehicle accident and subsequent treatment on 11 November 2014. The claimant was complaining of neck pain, right shoulder pain and thoracic spine pain. The claimant subsequently had considerable medical treatment leading to decompression surgery of his neck but he still had right lower back pain and right leg pain.
On 27 February 2018 the claimant had a fall on stairs, hitting his lower back and injuring that area and his right shoulder. He reported no difference in his pain down the right leg and prior to the accident and no numbness or pins and needles down the legs.
The claimant was still seeking treatment for his lumbar spine as late as 28 June 2018, before the accident the subject of this claim.
The clinical records note the claimant attending a consultation on 24 December 2018, 10 days following the accident. The claimant reported he attended the emergency department and complained of neck and thoracic spine pain.
On the next consultation on 8 March 2019 the claimant complained of cervical pain down his right arm and arthritis having been aggravated by the accident.
It was not until 17 June 2019 that the claimant complained of lower back pain and pain in his lower legs. The lumbar pain was said to be slowly improving on 20 June 2019 but thereafter noted to have been worse again on 6 September 2019.
Medical examination
The claimant was medically examined by Medical Assessor Gibson and Medical Assessor Barnsley on 6 December 2024. Their report follows.
“Mr Amore attended for re-examination following an appeal against the certificate of Assessor Robert Kuru dated 28 June 2024.
Assessor Kuru found injuries to the Cervical spine — Migraines and cortisone injections and Lumbar spine — Right lower limb were not caused by the motor accident and were threshold injuries.
The appeal by the claimant has resulted in this re-examination.
Mr Amore attended as arranged. He brought no imaging with him for the assessment.
PAST MEDICAL HISTORY
Mr Amore had C5 decompression in 2016 and a lumbar spine discectomy in 2018.
In 2019, he had been at work and when he had attempted to move a steel pole, this had fallen back onto his head. He said there were no ongoing issues relating to this incident.
When asked about the 2014 motor vehicle accident, he said he had been stationary at a give way sign in Lansvale when his car was hit from behind by a van. He said he had noticed there was immediate pain in his neck and mid back, then a day or so later he had developed low back pain. He continued to work although the neck pain became increasingly severe. He added that prior to this accident he had been running 10km a day and was employed as a sales manager in the construction industry.
Mr Amore had visited Dr Malcolm Pell about 18 months later. He said that at that stage he had been noticing that every time he turned his head right to check the road when he was driving, he felt nauseous. There was also numbness and pain in his right arm and he was suffering with headaches.
In 2016 Dr Malcolm Pell performed the C5 decompression. Mr Amore said that a week after this procedure all his symptoms had disappeared. He added that Dr Pell had also examined his back at the time of his initial assessment, but the neck was given priority. However, over time the low back became progressively more painful and he was noticing a lot of pins and needles in his legs.
In early 2018, he underwent lumbar spine surgery. He said that this had gone very well.
His back was fine and his neck was good. He was feeling ‘fantastic’, he was back to driving, he was cycling short distances, and he was not requiring any pain medication at all.
Mr Amore agreed that he had presented again to Dr Pell in March 2018 with complaints of right-sided neck pain and right forearm numbness. He said these symptoms had lasted a few months but Dr Pell had reassured him at the time that it was temporary and the nerve might get ‘angry’ at times.
Nevertheless, prior to the subject accident he was able to walk long distances up to 10km. He was working and there were no other symptoms at all with respect to his neck and back.
HISTORY OF THE SUBJECT ACCIDENT
Mr Amore said it was a rainy day and he was driving a Mitsubishi Triton 4-wheel drive with his seatbelt fastened. It was a company car. The vehicle had no bull bar or tow bar. He was travelling along Punchbowl Road when the car in front of him made an erratic turn to the right and then lost control and collided with a tree on the side of the road. Mr Amore had slowed down at the time, and this was when he was hit from behind by another vehicle.
He got out of his car and inspected the damage. He said the other car was a write-off. There was little obvious damage evident to his car at the scene, but he later found out that the ute tray had dented the cabin.
There was immediate right-sided neck pain, but there were no upper limb symptoms at that stage.
Ambulance and police were not called. Details were exchanged with the other driver, an older gentleman. Mr Amore had then given the gentleman a lift back home.
He said that by the time he was making his way back to work, he had started to feel nauseous. He had contacted his wife who suggested he visit the hospital.
Mr Amore took himself to Concord Hospital where he spent about the next 6 hours and whilst there he was fitted with a cervical collar. He said there was pain in his neck spreading to his right shoulder. He was eventually discharged home and said he had been reassured that there was ‘nothing serious.’ He visited his regular general practitioner either that day or sometime over the next week as the neck pain was becoming increasingly severe. He noticed the low back pain about 3 or 4 days later and about a month after the accident there were pins and needles in his left leg. Then, six months after the subject accident, he developed heaviness in his right arm.
He was prescribed gabapentin and tramadol, which he had been taking several years previously. He had returned to Dr Pell for review, but the doctor advised that he was retiring and so recommended a colleague, Dr Richard Parkinson. Dr Parkinson later performed a revision lumbar discectomy. Mr Amore maintained that since then there has been no improvement in either his back or leg pains.
He added that he had later developed a tear to his right rotator cuff. He was not quite sure when this problem had started, but it wasn’t a work injury, and he couldn’t identify any particular incident. He maintained his right shoulder movements were reduced even prior to the rotator cuff condition was diagnosed.
In 2022, he had been lifting a 12kg bag of springs using his left arm when he tore a ligament in his left elbow, but this has since healed.
CURRENT COMPLAINTS
Mr Amore described pain across the low back, more to the right and occasionally to the left side. There is intermittent shooting pain into the lateral thigh and calf, and pins and needles over the sole of the foot and at times his three lateral toes.
There is neck pain felt above the region of the surgical scar. He also notices pins and needles over his right biceps muscle and he feels his right arm is not as strong as it was prior to the accident.
He suffers with migraines about twice a month. He was asked about the headaches. He said they generally start from his neck and spread over the top of his head, but only on the right side. There is some blurring of vision as the headache comes on. He volunteered that his migraines had gone away after the neck surgery and recurred in mid-2019. He takes sumatriptan as required, which helps.
CURRENT TREATMENT
Mr Amore takes tramadol as required, and he has averaged 2-3 tablets a week over the last four weeks. He has been taking 2 gabapentin tablets a day over the last few weeks.
He had tried Pilates exercises but found this had increased the neck pain. He has started swimming again.
He continues to work in construction, but as he is employed as a supervisor he is not on the tools.
PHYSICAL EXAMINATION
Mr Amore had a normal gait. He weighed 112kg and was 177cm tall. He was right hand dominant.
On examination of the cervical spine, there was a noticeable hypopigmented paramedial scar measuring 10cm. There was tenderness over the right lateral articular pillars. There was 75% flexion and extension. Lateral flexion 75% bilaterally. Rotation 75% to the right and 100% to the left. There was no muscle spasm or guarding. Spurling's test was negative.
Upper limb power was normal apart from some giving way on the right. He had a reduced biceps jerk on the right (C5/6). There were sensory changes over the right upper limb conforming to a C5 nerve root distribution. Right arm circumference 10cm above the lateral epicondyle was 40cm and 39cm on the left. Forearms measured 10cm below the lateral epicondyle were 32.5cm on the right and 31cm on the left.
On examination of the low back, there was 75% flexion and extension and 50% lateral flexion to the right and 25% to the left, rotation was 50% on the right and 75% on the left. There was no muscle guarding or spasm. There was tenderness over the left paravertebral region. He had a slightly hypopigmented scar measuring 5cm over the low back in the midline and a 1.5cm scar slightly to the right of the midline scar. There was no significant contour defect and no adherence and there were no obvious suture marks visible. No treatment was required for the scars and they did not impact ADL.
Straight leg raise was 60° on the left and 45° on the right. Sciatic stretch was negative bilaterally.
Lower limb reflexes are present and equal. There were patchy sensory changes in the right lower limb involving multiple dermatomes. Circumferential measurements of the thighs 10cm above the upper pole of patella, was 56cm on the right and 55cm on the left. Maximum diameter of the right calf was 41cm and on the left 43cm. On testing muscle power, there was mild global weakness of the right lower limb.
The Panel assessed:
Cervicothoracic DRE category III as there were two signs of radiculopathy. This attracts a 15% WPI. However, there was a pre-existing cervicothoracic DRE Category II due to the spinal surgery. This attracts a 5% WPI. The Panel accepted the history as offered by the claimant. They also noted the medical evidence that six months prior to subject accident there has been symptoms in arm. However, he had returned to normal function and claimed not to have ongoing symptoms prior to the subject accident, and the Panel accepted this.
The current impairment related to the Cervical spine stemming from the accident is therefore 15% WPI (due to radiculopathy) minus 5% (due to the surgical procedure and no ongoing radiculopathy), so therefore a net impairment of 10%WPI.
Lumbosacral DRE Category II due to asymmetry. This attracts a 5% WPI. The Panel considered the complaints of pain in leg. They were noted to involve multiple dermatomes and so did not meet the criteria for non-verifiable radicular complaint. There was no radiculopathy, and so no lower limb impairment as a consequence of the lumbar spine injury.
There was a pre-existing Lumbosacral DRE Category II due to the spinal surgery. Therefore net impairment for the lumbosacral spine was 5%-5% = 0%.
Scarring
The Panel had not been referred to assess scarring of the claimant. The Panel did observe however that the claimant had two surgical scars of a minor nature which would have attracted a 0% WPI assessment.”
The Panel adopts the report and findings of Medical Assessor Gibson and Medical Assessor Barnsley.
Causation
In Wood’s case, referred to previously in the claimant’s submissions, Wright J held that following an earlier medical assessment by the Medical Assessor, there existed no disagreement between the plaintiff and the insurer that, as a result of the motor accident, Mr Wood had suffered a spinal injury and there was:
(a) no disagreement between Mr Wood and the insurer that, as a result of the motor accident, Mr Wood had suffered a spinal injury;
(b) there was no disagreement that the spinal surgery undertaken on 5 April 2018 was causally related to the spinal injury sustained in the subject accident; and
(c) There was no disagreement that the surgery was reasonable and necessary; and
(d) The only remaining relevant medical dispute was whether the degree of permanent impairment as a result of that spinal injury
was greater than 10%.
The Panel does note that Medical Assessor Bodel, whilst finding that the two medical procedures were reasonable and necessary and causally related to the accident, nevertheless did not specifically provide his reasons for finding this.
The Panel requested the insurer to confirm if it considered causation in issue given the earlier finding and certificate of Medical Assessor Bodel. The insurer responded on 24 January 2025 that it conceded that there was no dispute about causation in relation to the claimant’s injuries and that the only consideration of the Panel is the assessment of WPI and deduction for pre-existing impairment.
Medical Assessor Kumar had found that the injuries to the claimants cervical and lumbar spines were not causally related, and, on that basis, he did not make any assessment of the claimants WPI. Noting the insurers concession on causation, the position taken by the Medical Assessor was not correct.
As the insurer has conceded that causation is not in issue, the Panel will not deal with this issue further.
Reasons
Dr Giblin assessed the claimant’s lumbar spine impairment at DRE Category III which gives 10% WPI using Table 72, page 110 of the AMA 4 Guides. This classification requires a diagnosis of radiculopathy. However, in his findings on examination at page 4 of his report, Dr Giblin did not record observations of two or more signs required by clause 6.138 of the Guidelines. Arguably, his assessment of the lumbar spine should be DRE II which amounts to 5% WPI. This accords with the findings of Dr Rimmer of a threshold impairment.
In his supplementary report, Dr Giblin continued to maintain that the categorisation of DRE Category III at 10% was correct given that the claimant “had radiculopathy for which he had surgery.” Dr Giblin referred to Table 70 page 108 of the AMA 4 Guides where it indicated regarding a patient’s condition with a previous spine operation without loss of motion segment integrity or radiculopathy pursuant to Table 70, can produce DRE Categories II, III or IV. Lumbar spine impairment categories are then considered under Table 72 of the AMA 4 Guides. For the claimant to satisfy DRE Category III, “evidence of radiculopathy is present” is required.
Regarding the claimants claim of pain to his right leg, referred from his lumbar spine, the Panel refers to Nguyen v Motor Accident Authority of NSW & Anor [2011] NSWSC 351. In that case, there was no contemporaneous evidence of an injury to either shoulder. Nevertheless, as a consequence of the plaintiff’s neck injury, she developed pain and impairments in her shoulder.
Hall J held that, although there was no direct injury to the shoulder, its impairment had arisen as a consequence of the neck injury that was caused by the accident
Accordingly, both the neck and shoulder had to be taken into account when assessing permanent impairment.
Consequently, it was held that the assessment of permanent impairment necessitated that the Court assess the impairment caused by both the injury to the cervical spine and also the injury to the claimant’s impaired shoulder/upper limb. The claimant is applying the same analogous argument in this claim, regarding referred pain from the claimants back to his legs.
The claimant has a considerable pre-accident medical history.
The claimant did not report suffering from migraines to Dr Bodel during his assessment in November 2021 or to his own qualified doctor, Dr Giblin during his assessment in July 2023.
The claimant first consulted Dr Pell, following the accident of 14 December 2018, on 30 January 2019. In his report dated 6 February 2019, Dr Pell noted “examination was unchanged from before. There was tenderness on the right side at C3.4. Upper limb examination was normal.” The claimant was referred for a C5 peri-radicular injection.
In his report dated 9 May 2018, before the accident, Dr Pell noted that the claimant reported that he:
“…has pain on the right side of his neck and right shoulder, down the outer arm to the elbow. This has persisted since lumbar surgery. This is the same as before but goes down to the elbow where previously it extended down to the hand. There was some restriction of cervical movements. There was mild weakness of elbow extension on the right. Reflexed were present… I have organised MRI scan of the cervical spine…”
An MRI scan of the cervical spine performed on 14 May 2018 revealed:
“.. At C3/4 there is a new small right posterolateral to proximal foraminal disc protrusion measuring less than 2mm in AP dimension and associated with only foraminal stenosis. There is accompanying mild uncovertebral hypertrophy. The left foramen is widely patent. There is mild bilateral facet arthrosis” [R6].
On 4 June 2018, the claimant reported to his physiotherapist that he fell down some stairs and injured his neck and thoracic spine.
In his report dated 30 June 2018, Dr Pell noted “he complained of neck pain and right shoulder pain running down the outer aspect of the arm to elbow. This is similar to what he has experienced before but on that occasion the pain radiated below the elbow”. It also noted “examination of his cervical spine showed some restrict of movement. There was mild weakness of elbow extension on the right”.
On 8 November 2018, one month before the subject accident, the claimant reported “spasms in thoracic spine up into c/sp and traps. R side predominantly.”
The insurer has submitted that there are contemporaneous treating records in the 12 months prior to the subject accident revealing that the claimant continued to report ongoing pain and restriction in his cervical spine with no improvement. In support of this the insurer provided detailed records of complaints made regarding the claimant’s cervical spine from 27 February 2018 to 8 November 2018.
The Panel requested the insurer to stipulate and identify the records referred to, and the dates referred to by it, as well as the specific nature of complaint. To this request the insurer responded as follows:
Date of attendance
Source
Comment on records/complaints
27 February 2018
Concord Family Doctors
“Fell downstairs. Since fall return of R. C6 mild numbness” (page 73 of the insurer’s bundle)
1 March 20218
Concord Family Doctors
“R. C6 dermatome? Since operation on neck but now? More noticeable, wait and see. Dressing changed” (page 74)
8 March 2018
Concord Family Doctors
“.. R.arm still sore, saw Dr Pell y’day on celebrex bd. Y’day pain R neck. Some numbness R. lateral forearm” (page 74)
13 March 2018
Dr Malcolm Pell
“Had a recent fall at home and he describes a painful neck through the right shoulder” (page 220).
9 May 2018
Dr Malcolm Pell
“He has pain on the right side of his neck and right shoulder, down the outer arm to the elbow. This has persisted since lumbar surgery. This is the same as before but goes to the elbow where it previously it extended down to the hand.
There was some restriction of cervical movements. There was mild weakness of elbow extension to the right” (page 321).
15 May 2018
St Vincent’s Clinic Medical Imaging & Nuclear Medicine - Dr Bou-Haidar
“Neck pain. Right sided. Right shoulder pain. Previous surgery.
MRI cervical spine report
Conclusion:
No definite neural impingement. There is a very small disc protrusion, which is new compared to the previous study performed in 2016, at C3/4 on the right at the posterolateral aspect to proximal foraminal level causing mild foraminal stenosis. It may be associated with right C4 irritation. Close clinical correlation is needed. Status post right C5/6 foraminotomy with no recurrent foraminal stenosis at this level.” (page 280)
4 June 2018
Peak Fitness Physiotherapy
The handwritten notes are difficult to decipher.
“Chronic upper back and thoracic pain..
Fell downstairs C2 - C5” (page 396)
30 June 2018
Dr Malcolm Pell
“He complained today of neck pain and right shoulder pain running foen (sic-down) the outer aspect of the arm and elbow. This is similar to what he has experienced before but on that occasion the pain radiated below the elbow.
Examination of his cervical spine showed some restriction of movement” (page 254).
8 November 2018
Peak Fitness Physiotherapy
“Similar pain to last treatments back in July. Spasms in thoracic spine up to c/sp and traps. R side predominantly” (page 399).
The insurer also submits that should the Panel determine that there is a finding of permanent impairment in the cervical spine, then there should be a deduction for pre-existing impairment in accordance with clause 6.31 of the Guidelines. The Panel has taken this into account.
The Medical Assessors were of the opinion that the claimant was reliable and direct in his responses to questions and accepted the history provided by him. The claimant said that he was fully recovered from any injuries at the time of the accident and the Medical Assessors accepted this. Whilst the insurer has provided a table of the claimant’s medical complaints and treatment, they are not significant complaints and can be regarded as periodic body management and not something that puts causation in issue.
The Panel notes that in some instances, while it was about six months after the accident before symptoms arose, that is not however, unreasonable.
Whilst there was a long-standing history of neck and back pain, the claimant said he had recovered. There was no radiculopathy in the claimant's lumbar spine.
Regarding the claimant’s submission that on the Nguyen principle, the Panel should separately assess the referred pain of the claimant’s lumbar spine to his legs, the Panel observed that multiple dermatomes were involved and accordingly, did not meet the criteria for non-verifiable radicular complaint.
Determination
As a result of an accident on 14 December 2018, the claimant injured his cervical spine and his lumbar spine.
The Panel revokes the certificate of Medical Assessor Kuru dated 28 June 2024.
The Panel finds the claimant has a WPI of 10%.
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