Bowers v QBE Insurance (Australia) Limited
[2024] NSWPICMP 242
•18 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bowers v QBE Insurance (Australia) Limited [2024] NSWPICMP 242 |
| CLAIMANT: | Stuart Bowers |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 18 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of medical assessment; assessment of treatment and care - causation; claimant sustained non-threshold injuries; motor vehicle accident led to increase of symptoms which could give rise to further surgical treatment; lumbar spinal fusion; review of determination; no realistic expectation of improvement; need for re-examination of body parts injured; lumbar spinal surgery; Held – certificate confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The following treatment and care – |
STATEMENT OF REASONS
INTRODUCTION
Stuart Bowers (the claimant) was involved in a motor vehicle accident on 27 February 2019. The vehicle which he was driving was struck from behind by the insured’s vehicle. Thereafter he was taken home and attended Coffs Harbour Hospital the following day. The claimant lodged a claim with the insurer and sought a concession from the insurer that the claimant had sustained non-threshold injuries in the accident. The insurer did not make this concession and accordingly an application was made to the Personal Injury Commission (Commission) to determine this issue. In a certificate dated 23 February 2022. The claimant confirmed, as did the material considered by the Panel, that he had a history of long-standing back pain for about two decades prior the subject motor vehicle accident. The material included multiple radiological investigations and frequent referral to pain management services in respect to his chronic low back pain. The question the Panel confronted was whether or not the motor vehicle accident led to an increase of his symptoms which could give rise to a need for the further surgical treatment.
It is the Panel’s view that an objective assessment of his history, including his pre-accident activity levels, lack of paid employment and general incapacity for activities of daily living prior to the accident does not support any contention that the motor accident caused anything other than a temporary worsening in his low back symptoms.
The claimant says that there is an increased level of symptoms and reported diminished level of physical activity following the motor vehicle accident. Whilst this is likely to be the case following the surgery he has undergone, there is no corroboration of these assertions. His imaging studies both before and after the motor vehicle show widespread spinal degenerative changes which had progressed as he has aged. The imaging studies do not show any evidence of a new spinal injury or even give any indication as to what level the long-term pain arises from. The Panel is aware that any temporary worsening of symptoms can return to the usual level of symptoms in time. That is, that there has not been any lasting deterioration of the low back pain in medical terms, and accordingly his post-accident symptoms of low back pain ought not be considered an aggravation of the prior condition. If there is perceived increase in pain and disability it is more likely from the natural progression of the underlying spinal ageing. That is, the accident has not caused any acceleration of lasting deterioration of his chronic back condition.
The Panel is also of the view that the material does not support any contention that the requirement for surgery was caused or materially contributed to either motor accident.
The pre-accident imaging, going back to 2002, identifies disc bulging at L2/3, L3/4, a central disc protrusion within impression upon the thecal sac at L4/5 and a minor disc protrusion at L5/S1 without definitive evidence of nerve root compression.
By 2015 the MRI scan, dated 29 December 2015, again identified generalised disc bulge and degenerative changes to his lumbar spine. The radiological and medical imaging which postdates the accident confirms moderate to severe disc degeneration of the lumbar spine but does not support any finding that there has been further trauma to the claimant’s lumbar spine which could have been caused by the subject motor vehicle accident.
The claimant has confirmed that his chronic pain has been managed by long term opiate medication which pre-dated the motor vehicle accident.
The Panel is not satisfied that either the claimant’s history or the radiological material supports the contention that the motor vehicle accident has caused any deterioration to the claimant’s lumbar spine condition. The motor vehicle accident has not caused or contributed to the worsening of the impairment nor was it a contributing cause to the claimant’s subsequent surgical procedure.
The Panel notes that the surgeries performed at four levels of the lumbar spine including an intervertebral disc replacement and three anterior intrabodies fusion. The outcome is poor. The claimant’s own assessment is that the surgery has made his pain worse not better.
It was determined that the claimant had sustained non-threshold injuries consequent on the motor vehicle accident.
This certificate post-dated the lumbar fusion surgery which the claimant underwent at the hands of Dr McEntee on 2 June 2021. After undergoing the surgery the claimant, on
25 January 2022, requested the insurer reimburse him for the cost of the surgery. This was declined. A request for an internal review was made. On 22 March 2022 the insurer affirmed its original decision that the surgery was not reasonable and necessary.
Following the obtaining of a medico-legal report from Dr Dixon dated 8 August 2022 the claimant again requested that the insurer reimburse him for the cost of the surgery. Again, the insurer declined this determination. A further review was sought and, following this further review, the insurer confirmed that they did not consider the surgery to be reasonable and necessary and causally related to the subject accident.
Following this, the claimant lodged an application with the Commission for a certificate under s 723(1) of the Motor Accident Injuries Act 2017 (the MAI Act) that the surgery performed to the lumbar spine was reasonable and necessary in the circumstances. The claimant was examined by Medical Assessor Alan Home on 20 July 2023 who, in a certificate dated
24 July 2023, determined that the surgery performed to the lumbar spine is not reasonable and necessary in the circumstances. Medical Assessor Alan Home considered the material provided to him, in particular, the claimant’s past history of chronic low back pain prior to the subject accident. He determined that the requirement for surgical management does not relate to the injuries sustained in the motor accident but rather the surgery was required to manage his pre-existing chronic lumbar spinal condition. Accordingly, as the requirement for surgery was not caused by the accident it was not considered reasonable and necessary.
The claimant sought a review of this determination and in a certificate dated 9 October 2023 Presidential delegate, Jeremy Lum, determined that he was satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. This seemed to turn on a view of the Medical Assessor Alan Home that the claimant experienced an increase in the severity of his back pain following the subject accident, which had been diagnosed as a soft tissue injury. The President’s delegate considered that without clarifying reasons from the Medical Assessor as to whether the increase in the severity of the claimant’s back symptoms following the accident had ceased and there was a sense of unease sufficient to satisfy him with reasonable cause to suspect that the causation decision is incorrect in the material respect.
The matter was then referred to this Review Panel.
STATUTORY PROVISIONS/GUIDELINES
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the 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 provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
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.
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.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
As to the threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
After a comprehensive review of the accompanying documentation the panel find only one pertinent reference. This is in the operating neurosurgeon’s initial consultation where he notes that both ankle jerks are absent (but the test is asymmetry of the reflexes) but otherwise he finds there is no sign of radiculopathy. Further the surgery is performed at four levels of the lumbar spine including an intervertebral disc replacement and three anterior interbody fusions. The outcome is poor, Mr Bowers own assessment is that the surgery has made his pain worse not better.
In determining whether the surgery was reasonable and necessary the panel has to assess what indications are present for the surgery and what are the known outcomes of spinal surgery in persons of the claimant’s circumstance, compensation claim following injury.
On the first point the panel note that the indications for surgical intervention in chronic back pain are very limited. These include intractable radiculopathy which is treated by a intervertebral disc decompression (discectomy) at the level that matches the clinical presentation of the radiculopathy with confirmation on investigations of specific pathology at this level. The second indication the development of spinal canal stenosis which is treated by widespread removal of the posterior bone of the spinal canal (laminectomy). This is a progressive degenerative condition. The final indication is demonstration of local instability between one of the spinal levels (spinal fusion). This can be suggested by the clinical history and physical examination but does require demonstration of abnormal movement on the imaging. The claimant has had this imaging performed but there is no demonstration of instability. These criteria are uncommon, only about 15% chronic low back pain will fulfil the criteria. If present then the simpler the surgery the better. Discectomy gives better results to laminectomy which give better results than spinal fusion.
Surgery for chronic back pain has generally poor outcomes if the above criteria are not confirmed. Surgery has been compared with nonoperative comprehensive rehabilitation without demonstrating any evidence of superiority on objective criteria such as: reduction in opiate medication, return to work, increased self-sufficiency and a higher level of activities of daily living. The claimant meets none of these criteria.
The Panel’s view was that there is no realistic expectation of improvement as none of the objective criteria are met and the surgery is not worthwhile.
The Panel’s opinion is therefore this: there is no demonstrated indication of specific spinal pathology that might be corrected surgically. The prognosis for improvement is bleak and the best outcome Mr Bowers might expect it is to be no worse. The surgery is neither reasonable nor necessary.
Re-examination
Mr Bowers attended the Medical Suites at the Commission on 13 March 2024. He was unaccompanied.
Pre-accident history
Mr Bowers stated that he had a right hip replacement about four months prior to the accident but since the surgery had returned to surfing on a short board. He was divorced and then remarried and his present wife had a cleaning business which he occasionally did some part-time cleaning. Prior to this he had worked as a welfare officer in school three days a week and as a Scripture teacher. He also did voluntary work at his local church. There was a history of chronic low back pain prior to the accident which was managed by his general practitioner, Dr Watterson, and the pain clinic at Lismore Hospital. His last attendance prior to the accident was on 11 October 2018. He states that this was mainly to get approval for his painkillers. He had been approved to have Endone 5 mg twice a day and Panadeine Forte one to two per day and an occasional anti-inflammatory. He states that on this regime there was reasonable control of the low back pain. Prior to the accident there was a central low back pain with a mild numbness in the left lateral thigh.
History of motor accident
Mr Bowers was driving his car, a small Hyundai sedan, on the freeway and estimates was travelling at about 95-100kmph when he was hit from the rear by a car travelling much faster. The collision was a slight angle to the driver side which compressed his car and pushed it up into the two front wheels and then back to the four wheels. He felt shocked at the time and the police and ambulance officers attended the scene of the accident. He was driven home by the tow truck driver.
History of subsequent treatment
The day after the accident he attended Coffs Harbour Hospital with increased back and neck pain. He was prescribed analgesics and discharged. Two weeks after the accident he attended his regular general practitioner, Dr Watterson, at Evans Head. He was sent for a CT of the lumbar spine and physiotherapy was organised.
His general practitioner then referred him to Dr McEntee, an orthopaedic surgeon.
Dr McEntee repeated the CT of the lumbar spine and recommended surgery. Mr Bowers waited a year so that his private health insurance would cover the operation. On 2 June 2021 at Gold Coast Hospital, Mr Bowers had L2/3 disc replacement and L3/42 L5/S1 anterior lumber interbody fusion. This was complicated by an infection to the wound and he states that he was in hospital for 25 days. After this he went with his wife to Harrington to do some housesitting.
Since the surgical procedure, Mr Bowers states that has been no improvement in the pain in the lower back and he now has increasing pain in the upper medial thigh region.
Current symptoms
Mr Bowers has pain in the mid thoracolumbar region and persistent low back pain. There was a slight numbness in the medial thighs bilaterally. He has not sciatic pain radiating into the legs at present. The opening increase in neck pain with no radiation.
He continues to walk and goes fishing on a regular basis and is able to do some housework. He is able to drive but avoids this at night and gets anxious when trucks are driving him. He continues to have nightmares about the accident.
Current treatment
Present medication is Targin 30 mg, Endone and Panadeine Forte. No manual therapy is being undertaken at present and massage therapy was declined by the insurer.
Clinical examination
Mr Bowers walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. His height was measured at 168cm without shoes and weight of 83kg.
Cervical spine
On testing range of movement, flexion/extension side bending rotation were all 80% of expected range with no asymmetry and no guarding was noted on palpation. Reflexes were equal with normal power and no sensory changes noted in the upper limbs.
Lumbar spine
Mr Bowers walked with a normal gait and was able to walk on his heels and toes. Squatting was limited to 75% of expected range due to low back pain. On testing range of movement flexion/extension was 50% of expected range and side bending was 60% of expected range bilaterally. Straight leg raise was 60° bilaterally with limitation due to low back pain but 90° when seated with negative sciatic nerve root tension signs. On palpation there was tenderness over the lower lumbosacral spine region and paravertebral muscles in the lower lumbar region.
On neurological examination of the lower limbs reflexes were equal bilaterally with normal power and slight decrease in sensation over the upper medial thighs bilaterally. No muscle wasting was apparent with the circumference of the lower thighs 42cm bilaterally (10cm above the superior patella pole) and at the maximum Circumference of the calves 36cm bilaterally.
There was a prominent surgical scar on his anterior abdomen committed 23cm in length with some separation, raised contour defect and trophic changes with pigmentary changes.
Mr Bowers is very aware of this scar and is easily able to locate it. There is some adherence to underlying structures but no treatment is required.
Mr Bowers had a CT of his lumbar spine dated 20 January 2020. This showed disc pathology with bulging and compression at all the lumbar levels. There are no other films for comparison to be made with.
Comments
Mr Bowers had significant chronic low back pain prior to the accident which required continued analgesics at a level that needed to be prescribed by the pain clinic. However, he states that he was reasonably active and was surfing on a small board immediately prior to the accident.
Since the accident he has increased pain in his view and the surgical procedure has given him no benefit. In fact he was very critical of the level of care from the orthopaedic surgeon who he says went on holidays straight after the surgery and was not interested in any follow-up for treatment.
Conclusion
Surgery to the lumbar spine
Whether the surgery performed to the lumbar spine was reasonable and necessary and related to the injury sustained in the motor vehicle accident
I do not find the requirement for surgical management relates to the injuries sustained in the motor vehicle accident.
Therefore, as the requirement was not caused by the accident, it was not reasonable and necessary.
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