Beydoun v AAI Ltd t/as GIO
[2022] NSWPICMP 65
•25 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Beydoun v AAI Ltd t/as GIO [2022] NSWPICMP 65 |
| CLAIMANT: | Batoul Beydoun |
INSURER: | AAI Ltd t/as GIO |
| REVIEW PANEL: | Principal Member John Harris Dr Neil Berry Dr Margaret Gibson |
| DATE OF DECISION: | 25 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- The claimant was involved in a motor accident on 31 May 2016 when she sustained an injury to the lumbar spine; an MRI scan in May 2017 showed a disc lesion at L5/S1; the claimant underwent a discectomy in April 2019; Held- the disc lesion was not caused by the motor accident; the contemporaneous notes of the general practitioner record no neurological signs which did not arise until at least 12 months after the accident; the absence of contemporaneous neurological signs was confirmed by the claimant to the Medical Assessor and consistent with the history provided to Dr Conrad in April 2017; the conclusion that that there was no disc injury was consistent with the opinion of Dr McIntosh based on the minor impact in the motor accident; the doctors who opined that the disc injury was caused by the motor accident was based on a history of contemporary neurological symptoms; those opinions were not based on a fair climate; Paric v John Holland (Constructions) Pty Ltd applied; finding made that the claimant suffered a soft tissue injury to the lumbar spine causing non-uniform range of motion; claimant assessed at 5% impairment; original assessment confirmed. |
| DETERMINATIONS MADE: | The Panel confirms the certificate dated 4 July 2021. |
REASONS
BACKGROUND
Ms Batoul Bedoun (the claimant) was involved in a motor accident on 31 May 2016 when another motor vehicle collided with the rear of her vehicle (the motor accident). Ms Beydoun was sitting in the front passenger seat in a motor vehicle driven by her husband.
The insurer insured the owner and driver of the other motor vehicle for liability to pay Ms Beydoun any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[3] Section 60 of the MAC Act.
THE REVIEW
The medical assessment the subject of the review was issued by Medical Assessor Cameron and dated 4 July 2021. The Medical Assessor found that Ms Beydoun suffered a soft tissue injury and not a disc injury to the lumbar spine in the motor accident and the soft tissue injury had resolved with no assessable impairment.
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
On 5 October 2021, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[6] that a review panel consists of two Medical Assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] 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 matter solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
On 9 December 2021 the Panel issued a direction to the parties requesting the provision of respective bundles. The parties filed bundles in accordance with the direction.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the 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 claims assessor) in considering such issues.
1.6 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 non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[10]. In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
PREVIOUS MEDICAL ASSESSMENTS
Assessor Bodel issued a certificate concluding that the lumbar surgery was reasonable and necessary and caused by the motor accident.
A Review Panel issued a certificate dated 20 April 2020 stating that the lumbar spine surgery and subsequent physiotherapy were “not reasonable and necessary in the circumstances”.[12] The Review ’s reasons that Ms Beydoun suffered a soft tissue injury “at most” was based on the photographs of vehicle damage, the engineering opinion and absence of radicular symptoms for at least 18 months until when Dr Giblin conducted his examination. The Review Panel held that the motor accident did not cause the disc protrusion resulting in the need for spinal surgery observing that there was no medical evidence supporting the view that the lumbar spine was more vulnerable to injury whilst pregnant. That Review Panel revoked Assessor Bodel’s certificate.
[12] Insurer’s bundle, page 8.
MATERIAL BEFORE THE REVIEW PANEL
Claimant’s statement evidence
Ms Beydoun provided a statement dated 1 August 2017.[13] Ms Beydoun stated that she was in excellent health prior to the motor accident. At that time Ms Beydoun was about one month pregnant. She was the passenger in a motor vehicle stationary at lights and felt “an enormous impact to the rear of our vehicle”[14] forcing the body “backwards then forwards”.
[13] Claimant’s bundle, page 22.
[14] Claimant’s bundle, page 24.
Ms Beydoun stated that she was “not immediately aware of any pain” and “over the next few weeks [was] aware of lower back discomfort”.[15] After some weeks the back was getting worse sought medical treatment about six or seven weeks after the motor accident. At that time Ms Beydoun was told to take paracetamol.
[15] Claimant’s bundle, page 25.
The claimant’s baby was born healthy, but pain levels got worse to the extent that she would spend days in bed because of back pain. An MRI scan was then organised in May 2017. The claimant complained of “pain, discomfort, restricted movement in the lower back”. There was no mention of sciatic type symptoms in the statement.
The claimant provided a further statement dated 22 October 2018 describing ongoing low back pain which was even worse following the birth of a second child.[16]
[16] Claimant’s bundle, page 33.
The claimant completed a claim form dated 20 September 2016.[17] The injury in the motor accident was described to the low back with right leg pain.
[17] Claimant’s bundle, page 39.
Other statement evidence
The claimant’s mother-in-law provided a statement dated 1 August 2017.[18] Ms Ayyad stated that Ms Beydoun had complained of back pain since the motor accident which had “gotten worse over the last few months”.
[18] Claimant’s bundle, page 36.
Clinical notes
The clinical note of Riverwood General & Family Practice dated 27 July 2016[19] noted the motor accident on 31 May 2016 with the subsequent development of low back pain. Straight leg raising was negative and on examination there were no neurological signs.
[19] Claimant’s bundle, page 101.
Dr Iskander provided a certificate dated 27 July 2016 which referred to injury to the low back described as “whip lash type (soft tissue) injury lower back”.[20] The diagram on the certificiate indicated pain restricted to the low back.
[20] Claimant’s bundle, page 106.
Dr Iskander provided a report dated 21 October 2016 in relation to Ms Beydoun’s attendance on 27 July 2016.[21] The doctor stated that Ms Beydoun provided a history of a rear end collision which moved her suddenly “forwards and backwards on her seat”. Ms Beydoun had complained of persistent low back pain since the accident although “physical, musculoskeletal and neurological examinations were normal”. Dr Iskander stated that there was nil known pe-existing medical history or conditions and had only seen Ms Beydoun on one occasion at the time of report.
[21] Claimant’s bundle, page 120.
The clinical note from March 2017 noted a continuation of lower back pain with no radiation and nil paraesthesia. Neurological signs were described as normal and straight leg raising was negative.[22] The doctor referred Ms Beydoun for an x-ray.
[22] Claimant’s bundle, page 101.
Dr Nyunt provided a referral to Dr Kohan noting a two-year history of back pain following the motor accident.[23]
[23] Claimant’s bundle, page 63.
Treating evidence
Dr Saeed Kohan, neurosurgeon, provided a report dated 13 November 2018[24] noting a history of back pain following the motor accident which progressively worsened during the first pregnancy. Pain was reported to radiate to the posterior thighs to the ankles. The doctor opined that Ms Beydoun presented with longstanding discogenic back pain which at some stage was associated with S1 radiculopathy although current pain was mainly focused in the lower lumbar region.
[24] Claimant’s bundle, page 83.
In a further report dated 13 December 2018[25] Dr Kohan recommended surgery considering the follow up MRI scan.
[25] Claimant’s bundle, page 82.
In a further report dated 13 August 2019 Dr Kohan noting a history that the claimant had back pain radiating to the thighs following the motor accident.[26] Dr Kohan diagnosed discogenic back with right S1 radiculopathy due to the herniation at L5/S1. A follow up MRI scan in December 2018 confirmed the right sided L5/S1 disc protrusion.
[26] Claimant’s bundle, page 61.
Ms Beydoun underwent a right L5/S1 microdiscectomy in April 2019 and recorded significant improvement on 16 May 2019 with complete resolution of leg pain.
Qualified opinions
Dr Peter Conrad was qualified by the claimant and provided a report dated 3 April 2017.[27] The doctor noted a history of back pain following the motor accident. The examination noted ongoing localised back pain not radiating to the legs. Dr Conrad recommended an MRI scan in light of the chronic nature of the symptoms.
[27] Claimant’s bundle, page 64.
Dr Peter Giblin was qualified by the claimant and provided a report dated 28 November 2017.[28] The doctor recorded a history of low back pain following the motor accident. Current complaints were of pain in the low lumbar region and the tops of the buttocks.
[28] Claimant’s bundle, page 67.
Dr Giblin provided a provisional diagnosis of soft tissue injury to the thoraco-lumbar spine causally related to the motor accident and consistent with the MRI scan.
Dr Michael Fearnside, neurosurgeon, was qualified by the claimant and provided a report dated 31 October 2019.[29] The doctor noted a history of left sciatic pain radiating to the left foot after the motor accident.
[29] Claimant’s bundle, page 72.
Dr Fearnside noted back surgery in April 2019 with some ongoing low back pain. Neurological examination showed sensory loss in the S1 dermatomes bilaterally. The doctor opined that Ms Beydoun sustained an injury to the low back resulting in a prolapse of the L5/S1 disc in motor accident. He opined that there was no prior history, no subsequent history of injury and at the claimant’s age, the disc prolapse was most likely to be post-traumatic rather than constitutional or degenerative.
Dr Fearnside assessed the lumbar spine impairment at 10% and the scar at 1%.
Dr Nigel Menogue was qualified by the claimant and provided a report dated 17 November 2020.[30] The doctor note that there was no immediate medical attention and the initial attendance in late July 2016 with a complaint of low back pain only and no neurological signs. He concluded that Ms Beydoun suffered a soft tissue injury only and there were no symptoms or signs of in the periods following the motor accident consistent with a primary or isolated injury to the L5/S1 disc.
[30] Insurer’s bundle, page 60.
Radiology
An x-ray of the lumbar spine dated 29 March 2017 showed no abnormality.[31]
[31] Claimant’s bundle, page 89.
An MRI scan of the lumbar spine dated 8 May 2017 showed a L5/S1 central and right paracentral disc extrusion associated with AP canal narrowing and compression on the right S1 nerve root. Dr Dugal opined that the single level of abnormality and claimant’s age “significantly increases the likelihood of this is traumatic in aetiology”.[32]
[32] Claimant’s bundle, page 60.
An MRI scan dated 5 December 2018 showed the persisting L5/S1 disc protrusion compressing the right S1 nerve root.[33]
[33] Claimant’s bundle, page 86.
Documents relating to the motor accident
Photographs of the vehicles in the accident show the rear bumper of the claimant’s vehicle with the observation that there was no request to repair the damage.[34]
[34] Insurer’s bundle, pages 19 – 20.
A biomechanical report by Dr McIntosh dated 24 June 2019[35] estimated the speed of impact between 5 and 10 kilometres per hour based on the photographs which show damage to the vehicles. Dr McIntosh noted that the lumbar spine was well supported by the seat and less likely to suffer injury. He described the chance of injury in low speed rear-end collisions as “highly improbable”[36] and on balance would not have been injured in the motor accident and that lumbar intervertebral disc injury was “highly improbable”.
[35] Insurer’s bundle, page 21.
[36] Insurer’s bundle, page 52.
SUBMISSIONS
The parties have filed multiple submissions in the course of the medical assessments. The following is a summary of the submissions relevant to our determination.
At the outset we observe that this is a new assessment and there are various submissions directed to persuading the President’s delegate[37] that there was error. Some of the submissions are not particularly relevant to our task save that they assist in suggesting that the Panel refrain from repeating the same error.
[37] Or the relevant predecessor.
Claimant’s submissions dated 27 November 2019[38]
[38] Claimant’s bundle, page 1.
These submissions were made in response to the insurer’s application to review the certificate issued by Assessor Bodel dated 9 September 2019. She submitted that Assessor Bodel recorded an accurate history and that the period of pregnancy at the time of the injury had no effect on the Assessor’s findings.
The claimant submitted that Assessor Bodel confirmed he read all the material, provided a detailed analysis of the medical evidence and undertook a clinical examination with detailed reasons and analysis.
Claimant’s submissions dated 2 December 2020[39]
[39] Claimant’s bundle, page 10
The claimant submitted that she had properly lodged her MAS application and in the absence of a concession, must have that dispute determined by an Assessor (s 132 of the MAC Act). The treatment dispute did not determine the level of impairment and were limited to the matters of treatment raised in that dispute.
Claimant’s submissions dated 13 August 2021[40]
[40] Claimant’s bundle, page 13
These submissions were filed in support of the application to review the certificate issued by Medical Assessor Cameron.
The claimant submitted that it was insufficient to assert that he had considered the material. This was significant as the Assessor gave no consideration to the opinions of Dr Giblin dated 28 November 2017, Dr Conrad dated 3 April 2017, Dr Fearnside dated 31 October 2019 (x 2), and the clinical notes of Active Physiotherapy which “support the Claimant’s position on causation and impairment”.[41]
[41] Claimant’s bundle, page 15.
The Medical Assessor’s findings on the alleged causes of the post-accident symptoms and need for surgical intervention were “speculative” and not supported by the claimant’s treating and qualified opinions and radiological evidence.
The Medical Assessor has failed to undertake the required exercise prescribed by clauses 1.31 - 1.34 of the Guidelines and failed to demonstrate the objective evidence and/or failed to justify the attribution of the claimant’s current lumbar spine impairment to an alternate cause.
Further, there was a failure to put to the claimant “inconsistencies between the histories and findings made in the claimant’s medico-legal assessment reports and treating reports compared to the conclusions made by Assessor Cameron on page 6”.[42]
Insurer’s submissions dated 21 August 2020[43]
[42] Claimant’s bundle, page 18.
[43] Insurer’s bundle, page 1.
The insurer submitted that the application for permanent impairment assessment was misconceived and lacking in substance because a review panel in a treatment dispute held that the claimant only suffered a soft tissue injury, did not sustain a discal injury and the lumbar spine surgery was not reasonable and necessary consequential to the motor accident.
Insurer’s submissions dated 2 September 2021[44]
[44] Insurer’s bundle, page 4
The insurer submitted that Medical Assessor Cameron was a qualified expert and that the opinions of Dr Giblin, Dr Conrad and Dr Fearnside were simply alternate independent medical opinions. The Medical Assessor was required to form his own opinion.
It submitted that the claimant failed to identify the inconsistencies between the Medical Assessor’s findings and those recorded in the medico-legal assessments.
RE-EXAMINATION
Ms Beydoun was examined by Medical Assessor Berry. The examination report is as follows:
“I have performed an examination on Ms Batoul Beydoun.
Ms Beydoun attended on 17 March 2022 and confirmed that she is 24 years of age and dominantly right-handed. At the time of the accident, the claimant who has a childcare diploma had a placement at a childcare centre intending to work in childcare.
The motor accident occurred on 31 May 2016. Ms Beydoun confirmed that prior to the accident she had no specific problems and at the time she was four weeks pregnant, but was not aware of it. She was a front seat passenger in a Toyota Camry driven by her husband and both were wearing seatbelts. They were going to her mother’s place for dinner. They had stopped at a red light when their vehicle was hit from behind. Ms Beydoun was shaken and dazed by the accident and after details were exchanged they were able to travel onto her mother’s place. Police and ambulance did not attend the accident scene.
Ms Beydoun was aware of discomfort in the abdomen and pain in the back.
Ms Beydoun gave birth to her eldest daughter in January 2017 and after this she did experience an increase in back pain, but at no stage had any leg pain.
She then had a second child born in August 2018 and after the birth of that child, her back pain was much more severe and she consulted her general practitioner and was referred to Dr Saeed Kohan, Neurosurgeon. At that stage, she had developed pain in the left leg and eventually Dr Kohan performed a microdiscectomy on 5 December 2018. Ms Beydoun told me that the surgery immediately reduced her leg pain and also decreased her back pain.
She then had a third pregnancy and her baby boy was born on 18 August 2020. Ms Beydoun told me that after this, her back pain became somewhat worse.
Approximately a month ago, she twisted carrying out normal activities and felt a pop. After this, she has experienced pain and numbness in the right leg and to a lesser degree in the left leg.
Ms Beydoun is afraid that she will have to have further surgery and to avoid this she has been doing make-up artistry so that she can carry out employment which does not require any lifting or straining.
Clinical Examination
Examination today, was made somewhat difficult because the claimant had a double stroller with her two youngest children, the little boy was very noisy and difficult to control.
Ms Beydoun was noted to be in full Muslim attire including a burqa, however, she was quite happy to let me inspect her surgical scar on the back as I was a doctor. I offered her the presence of my secretary but she declined.
Lumbar Spine
I was able to see that her back was flattened and she was diffusely tender. There was a 2cm midline scar consistent with her previous surgery. The scar was pale and there was no depression or adherence and no particular tenderness.
Ms Beydoun demonstrated half the normal range of flexion, a third of the normal range of extension and normal rotation.
Lower Extremities
Ms Beydoun was able to sit on the side of the examination bed and reflexes were intact. There were no sensory changes and no unilateral muscle wasting. The claimant demonstrated 60 degrees of straight leg raising on both sides without a nerve root tension sign.
No other abnormality was detected.
Imaging
I reviewed her MRI Lumbar Spine dated 8 May 2017 and this showed an L5/S1 central and right paracentral disc extrusion but no other changes.
No updated MRI is available.”
REASONS
The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decision of the Medical Assessor. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[45] and Insurance Australia Ltd v Marsh.[46]
[45] [2021] NSWCA 287 at [40], [41] and [45].
[46] [2022] NSWCA 31 at [11], [21], [64]
The examination report provided by Medical Assessor Berry is adopted as part of the reasons of the Panel.
We accept that Ms Beydoun did not have lumbar spine symptoms prior to the motor accident.
We accept, despite the delay in reporting symptoms to the general practitioner, that
Ms Beydoun suffered low back pain following the motor accident. The delay in reporting the injury is unusual. Accepting Ms Beydoun’s version, the delay in seeking medical treatment does not suggest serious spinal injury.That conclusion is consistent with the notes of the general practitioner on 27 July 2016 that record no neurological signs and no restriction of straight leg raising. The doctor’s report of 21 October 2016, referable to the one attendance on 27 July 2016, reported normal physical, musculoskeletal and neurological examination.
The value of contemporaneous records and the fallibility of human recollection is emphasised in a number of decisions[47] and we give particularly weight to the report and clinical notes of the general practitioner.
[47] Coote v Kelly [2016] NSWSC 1447; Onassis v Vergottis [1968] 2 Li Rep 403 at 431; Gestmin SGPS S.A. v Credit Suisee (UK ) Limited [2013] EWHC 3560 (Comm) at [15] – [22]; Watson v Foxman (1995) 49 NSWLR 315 at 319.
The clinical note of the general practitioner in March 2017 again shows a consistent normal neurological examination. In April 2017 Dr Conrad noted localised back pain with no radicular symptoms.
Ms Beydoun provided a history to Medical Assessor Berry consistent with the above contemporaneous records. She advised the Medical Assessor that the back pain did not deteriorate until after the birth of the second child.
We find that Ms Beydoun did not have any neurological signs until over a year after the motor accident.
The opinion of Dr McIntosh is that a discal injury in this accident was “highly improbable” given the lack of damage shown on the photographs and the support provided by the seat to the lumbar spine.
The claimant stressed the opinions provided by Dr Fearnside, Dr Kohan and Dr Giblin. However, Dr Fearnside recorded a history of left sciatic pain radiating to the left foot following the motor accident. That history is suggestive of discal involvement in the motor accident because of the presence of sciatica. We do not accept the accuracy of that history as it is inconsistent with the contemporaneous version in the clinical note, the version provided to Dr Conrad and that provided to Medical Assessor Berry. That error alone greatly undercuts the value of the opinion as it is not based on a fair climate.[48]
[48] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
Similarly, Dr Kohan recorded a history that Ms Beydoun suffered from back pain radiating to the thighs following the motor accident. Although that history is more consistent with a discal history, we do not accept that it is accurate and undercuts the value of the doctor’s opinion.
Furthermore, the radiologist who examined the MRI scan suggested the findings were traumatic in aetiology. We give that opinion some weight although it is unclear from the report whether the doctor considered the correct clinical history and the minor nature of the motor accident.
The findings of the previous review panel are not, contrary to the insurer’s submission, determinative of causation in this dispute: Owen v Motor Accidents Authority[49]; Allianz Australia Insurance Ltd v Girgis[50]; Brown v Lewis[51] and Pham v Shui[52]. However, the opinion was provided by three medical experts in the matter and is an opinion which can be considered but is not determinative.
[49] [2012] NSWSC 650.
[50] [2011] NSWSC 1424
[51] [2006] NSWCA 587.
[52] [2006] NSWCA 373.
The Panel, comprised of two expert medical practitioners, is required to form its own opinion. In our view based on the clinical history recorded by the general practitioner, the absence of treatment following the motor accident, the opinion expressed by
Dr McIntosh, the clinical history recorded by Dr Conrad and the confirmation of absence of neurological symptoms following the motor accident in the history provided by Ms Beydoun to Medical Assessor Berry, the claimant did not sustain or aggravate the L5/S1 disc in the motor accident.As we noted, we accept Ms Beydoun’s account of low back pain following the motor accident. Whilst Dr McIntosh, considered any low back injury unlikely at the speed suggested by him, his opinion is not determinative. Our acceptance of Ms Beydoun’s account is based on the history recorded by the general practitioner which is consistent with that recorded by Dr Conrad in April 2017.
The surgical procedure undertaken by Dr Kohan was to treat the L5/S1 lesion and the associated radiculopathy. Our findings on injury are that the motor accident did not materially contribute to this pathology and that the surgery was unrelated to the motor accident.
Assessment of impairment
Clause 1.7 of the Guidelines relevantly provides that there is no simple test of causation but that “the accepted approach involved determining whether the injury (and associated impairment) was caused or materially contributed to by the motor accident”.
Based upon the findings of injury set out above and our conclusion that the injury did not cause or contribute to the L5/S1 disc lesion, our assessment of the lumbar spine demonstrated on examination would be based on non-uniform range of motion (dysmetria) which is assessed at DRE lumbosacral category II.[53] It is plausible, and we find, that the motor accident materially contributed to that condition.
[53] Table 7 of the Guidelines.
Ms Beydoun would otherwise be assessed as DRE lumbosacral category II if the surgery was related to the motor accident (see AMA 4 Chapter 3, page 102 and Table 7 of the Guidelines). The difference between this assessment and that provided by Professor Fearnside is that no radiculopathy was present in the examination undertaken by Medical Assessor Berry.
We note that radiculopathy is assessed under clause 1.138 of the Guidelines. We have adopted the examination findings of Medical Assessor Berry in our Reasons. The examination findings show that none of the criteria in clause 1.138 were satisfied. In this regard we note that there was restricted straight leg raising but without a nerve root tension sign.[54]
[54] Satisfaction of clause 1.138.2 requires a positive sciatic nerve root tension sign.
However, we do not accept the assessment of DRE lumbar category II based on surgery as it is unrelated to the motor accident.
The surgical scar is approximately 2 cm in length. Our findings explain why this does not result from the motor accident. However, for completeness the assessment of scar is based on Table 18 of the Guidelines and is assessed at 0% because:
· the scar is described as pale and colour contrasts with the surrounding skin (suggestive of a 1% rating);
· the claimant is barely conscious of the scar;
· the scar is not easily locatable;
· there are no trophic changes;
· there are no staple marks;
· the location of the scar means that it is not clearly visible with usual clothing, and
· the scar has no effect on the activities of daily living.
The surgical scar does not relate to the motor accident. In any event, the scar would be assessed at 0% based on the principle of best fit.[55]
[55] Page 58 of the Guidelines.
Our conclusion is that Ms Beydoun has a 5% impairment as a result of the motor accident. We consider that the impairment is permanent given the time since the accident.
CONCLUSION
Whilst our reasons are somewhat different to those expressed by Medical Assessor Cameron, we have reached the same conclusion on the medical assessment referred to the Panel, that is “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”. The claimant has not established that the permanent impairment as a result of the injury caused by the motor accident is greater than 10%. Accordingly, the certificate of the Medical Assessor is confirmed.
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