Bunce v QBE Insurance (Australia) Limited
[2023] NSWPICMP 43
•13 February 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Bunce v QBE Insurance (Australia) Limited [2023] NSWPICMP 43 |
| CLAIMANT: | David Bunce |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW Panel | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 13 February 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Compensation Act 1999; assessment of permanent impairment; the claimant suffered injury in a motor vehicle accident; the dispute related to the ingestion of anti-inflammatory medications; Nurofen; Medical Assessor (MA) Berry assessed 0% whole person impairment (WPI); symptoms but no clinical signs; no endoscopy or histological findings; Held – clause 1.247 of Motor Accident Permanent Impairment Guidelines Version 1 (Effective 1 June 2018) states upper digestive tract disease must be assessed as 0 – 2% WPI class 1 impairment; gastrointestinal symptoms caused by use of anti-inflammatory medications has resulted in 0% WPI; certificate of MA Berry affirmed. |
| DETERMINATIONS MADE: | Medical Assessment –Permanent Impairment Review Panel Certificate Issued under Part 3.4 of the Motor Accident Compensation Act 1999 following a review under s 63 as to 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 Panel affirms the Certificate of Medical Assessor Berry dated 23 June 2022 |
REVIEW PANEL REASONS FOR DECISION
BACKGROUND
Mr David Bunce (the claimant) suffered injury in a motor vehicle accident on
15 September 2017 (the accident). The claimant sustained injury to the lower back, right hip, right knee and right foot. As a result of ongoing pain, the claimant has required medications for pain management which he asserts has resulted in gastric side effects.QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
A number of disputes as to permanent impairment were filed in the Personal Injury Commission (the Commission) pursuant to s 60 of the MAC Act. Those disputes were referred for assessment and certificates issued by Medical Assessor Rosenthal, Medical Assessor Sidarov and Medical Assessor Berry.
It is the certificate of Medical Assessor Berry which is the subject of this application for review.
Medical Assessment Certificates
Certificate of Medical Assessor Rosenthal
Medical Assessor Thomas Rosenthal issued a Certificate dated 16 May 2022 certifying a 9% whole person impairment (WPI) in respect of the following injuries caused by the accident:
· foot - crush injury to right foot and ankle, causing damage to tendons, ligaments and nerves, plus fractures;
· knee - musculoskeletal injury to right knee;
· lumbar spine - musculoskeletal injury to lumbosacral region of spine, and
· hip - musculoskeletal injury to right hip.
Certificate of Medical Assessor Sidarov
Medical Assessor Sidarov assessed the claimant on 1 April 2022 and issued a certificate dated 19 April 2022. He found the claimant had sustained injury, namely, post-traumatic stress disorder caused by the accident and giving rise to a 17% WPI.
Certificate of Medical Assessor Berry
Medical Assessor Neil Berry undertook an assessment on 23 June 2022 and issued a Certificate dated 28 June 2022.[2] He found the following injuries were caused by the accident but gave rise to a permanent impairment of 0%:
· stomach – gastric inflammation secondary to Nurofen intake.
[2] AD1 p 12.
Medical Assessor Berry found the claimant’s symptoms came on after the use of Nurofen.
Mr Bunce has not undergone an endoscopy to determine the presence or absence of gastritis and to exclude Helicobacter pylori. He concluded the use of Nurofen relieved
Mr Bunce’s symptoms of persistent headache and persisting pain in the back and down the right leg, but found it disturbed his gastrointestinal tract.On examination Medical Assessor Berry reported:
“The hands, mouth and tongue were normal.
Examination of the abdomen revealed that there was diffuse tenderness to palpation. There was no guarding, rigidity or rebound and no palpable masses.
Auscultation revealed normal bowel sounds.
In the left lateral position, inspection of the anus revealed no evidence of inflammatory changes, no fistula or fissure formation and there was no evidence of haemorrhoids. Internal examination, was not indicated.”
Medical Assessor Berry referred to Table 1 on page 237 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) and noted at 177 cm in height and 87 kg in weight Mr Bunce was above his desirable weight range indicating there is no evidence of nutritional impairment. He assessed the upper digestive tract by using Table 2 on page 239. He found Mr Bunce had symptoms but no clinical signs and no endoscopy or histological findings to support the diagnosis and considered he would be placed in Class 1 and had a 0% WPI.
Combined Certificate of Medical Assessor Rosenthal
Medical Assessor Rosenthal issued a Combined Certificate dated 29 June 2022 certifying a permanent impairment of 9% in respect of physical injuries caused by the accident.
REVIEW PROCEDURE
The present application is a review pursuant to s 63 of the MAC Act of the medical assessment certificate of Medical Assessor Berry dated 28 June 2022.
Clause 16.3.3 of the Medical Assessment Guidelines requires an application for review of an assessment by a single Medical Assessor in a permanent impairment dispute assessed by more than one Medical Assessor to be lodged within 30 days after the date on which the combined certificate was sent to the parties.
An application for review of the medical assessment of Medical Assessor Berry was lodged on 26 July 2022 within the 30-day timeframe of the date on which the combined certificate was sent to the parties.
On 7 September 2022, the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 63(2B) of the MAC Act.
The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under cl 14A(1)(a)(vii) of Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s delegate referred this application for review to the Panel.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the AMA 4 Guides. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 3 November 2022 the Panel decided a medical examination was required.
MATERIAL BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 12 September 2022 (the first Direction) which required each party to file an indexed, paginated bundle of documents.
In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 884 and marked AD2. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 868 and marked AD1.
On 9 February 2023 the insurer with the consent of the claimant uploaded to the portal an Application to Admit Late Documents seeking to rely upon the clinical notes of Maroubra Medical Centre. Those records are marked AD3.
The Panel notes that there are extensive medical records addressing the claimant’s physical and psychological injuries. The Panel has read the entirety of the medical records but only proposes to reference those records which are relevant to the dispute pertaining to the gastrointestinal injury.
Statement
The claimant provided a statement dated 18 March 2021.
Mr Bunce is 52 years of age and was 47 years of age at the date of accident.
In 1997 he injured his back playing rugby and underwent an L4/5 discectomy. He subsequently worked as a hospital orderly until he strained his back lifting a patient in about 2001. He states he returned to playing rugby and continued to do so until his mid-40s. He reported ongoing back pain which from time to time required hospital attendance for treatment.
In about 2006 the claimant commenced working in traffic control. On 15 September 2017
Mr Bunce stated a forklift hit him in the back causing him to fall to the ground and he then watched the forklift run over his right foot. He sustained a crush injury with five fractures as well as tendon, ligament and damage to his right foot. With time and as his activity level increased Mr Bunce developed pain in the right lower back, his right hip and knee in addition to pain in his right foot and ankle.He states he initially took Panadeine Forte but ceased when it made him feel very sick. He also took Endone for pain which also made him feel sick.
Mr Bunce states until the end of 2019 he was taking two Nurofen tablets twice a day four times a week. He found he alternated between having diarrhoea and being constipated. He took Imodium for the diarrhoea, but it did not always work. In 2020 Mr Bunce reduced his intake of Nurofen to two tablets twice a day twice a week. As a result, the diarrhoea lessened, and the constipation lessened to once or twice a fortnight.
On 19 June 2020 whilst working another worker knocked a prop weighing about 30 kg onto his back resulting in fractures of the transverse processes of the left L1, L2 and L3 vertebra. Mr Bunce says he has made a good recovery from that injury.[4]
[4] AD1 p 759.
The claimant provided a statement dated 12 May 2021 where he stated:
“I get constipated once or twice a fortnight. When this happens, I don’t go to the toilet for a couple of days. The constipation makes me feel uncomfortable. Eating a diet with lots of fruit and vegetables helps my constipation a bit but it only really improves when I stop taking the Nurofen.
When I take the Nurofen, I get a dull pain in my stomach. The pain lasts from 10 minutes to half an hour. I have to take the tablets with milk instead of water. The milk helps a bit, but it doesn’t stop the pain.”[5]
Treating medical records
[5] AD2 p 33.
Maroubra Medical & Dental Centre
Workcover Certificates dated 15 October 2017 and 13 November 2017 includes Panadeine Forte as treatment whilst a Workcover certificate of 17 December 2017 refers to Endone. The Workcover Certificate of 17 January 2018 and 28 January 2018 only refers to Cam boot and physio. The Workcover Certificates of 25 February 2018, 28 March 2018 and
29 April 2018 reference Nurofen. Workcover Certificates thereafter do not mention medication until the Certificate dated 17 March 2019 refers to “Nurofen as needed”. Workcover Certificates dated 21 April 2019, 26 May 2019, 19 June 2019, 30 June 2019,
21 July 2019 and 25 August 2019 all refer to Nurofen.On 21 February 2018 Dr Horng Lii Oh, orthopaedic surgeon reported on the claimant’s continued recovery having ceased the use of the CAM boot. He also noted Mr Bunce was no longer taking any analgesics but recommend he continue physiotherapy.[6]
[6] AD2 p 366.
On 28 May 2019 Dr Gotleib reported Mr Bunce was not taking medication except occasional Nurofen.[7]
[7] AD1 p 328.
On 19 June 2019 Dr Ian Lee reported Mr Bunce had experienced emotional turmoil with a difficult separation suggesting he was suffering from depression and anxiety. He prescribed Temaze 10 mg.
On 30 June 2019 Dr Simon Symeou reported Mr Bunce still had pain in right foot. Mr Bunce was to continue to use Nurofen and he added Endep 10 mg.
On 31 July 2019 Dr Michael Kinchington, podiatrist noted Mr Bunce was taking pain medication on a daily basis to assist with day-to-day activity.
On 18 August 2019 Dr Ian Lee reported Endep was only partially effective but Mr Bunce did not want to take Nurofen.
Records of Maroubra Medical Centre for the period 11 November 2021 and 16 November 2022 contain an entry on 11 November 2021 following a fall off a bike, and an entry on 29 March 2022 following a fall on stairs when Mr Bunce hit his lower back and left hip. The records do not make any reference to gastrointestinal symptoms.
A Prince of Wales Hospital Discharge Summary relates to an attendance on 14 October 2022 when Mr Bunce presented with acute lower back pain after bending down to pick up a heavy object at work on a construction site.
Medico-legal reports
Dr James Bodel, orthopaedic surgeon
Dr Bodel examined Mr Bunce on 16 December 2019. He reported his current complaints were right sided lower back pain, right hip pain over the greater trochanter, pain on the front of the right knee and pain and stiffness in the region of the right foot and ankle.
He concluded Mr Bunce had sustained a crush injury to his right foot with multiple fractures, tendon, ligament and nerve damages and consequential right hip and knee pain and an aggravation of his previous back pathology due to his abnormal gait pattern. Dr Bodel reported Mr Bunce was taking Nurofen intermittently. His recommendation for future treatment included analgesic medication.
Dr Richard Powell, orthopaedic surgeon
Dr Powell assessed Mr Bunce and provided a report dated 29 April 2021.
Dr Powell reported Mr Bunce remains symptomatic in relation to the right lower leg, reporting a constant dull ache over the dorsal aspect of the foot radiating from the medial arch across to the lateral border. The pain is localised, and the intensity varies. Mr Bunce also reported intermittent knee pain and right flank pain extending around into the right groin.
Dr Powell diagnosed a crush injury of the right midfoot. He recommended the intermittent use of analgesics and anti-inflammatories to assist in symptom control.
Dr Peter Anderson, psychiatrist
Dr Anderson reviewed the claimant on 21 October 2021. He reported:
“He took Nurofen medication but got stomach problems and diarrhoea and has greatly limited the intake of Nurofen. Last week he had four and this week no Nurofen tablets. He takes no other analgesia.”
Dr Siddarth Sethi, gastroenterologist and hepatologist
Dr Sethi assessed Mr Bunce and provided a report dated 6 June 2022.
Dr Sethi reported Mr Bunce was prescribed analgesia including Panadeine Forte and Endone but after developing mental fogginess he ceased those medications and uses Nurofen instead.
He reported gastrointestinal symptoms started one month after starting Nurofen;
“Bowel habits began tending towards diarrhoea where he passes around 6 to 10 loose bowel motions daily. No blood or mucus was seen. He felt abdominal soreness, cramps and faecal urgency where he had an urgent need to rush to the toilet to pass stools. There was abdominal bloating, gas and distention.”
He noted Mr Bunce had not undergone any investigations or treatment for his gastrointestinal symptoms.
On examination Dr Sethi reported Mr Bunce was 177 cm tall and weighed 87 kg equating to a body mass index of 27.8 (normal range 20-25). The abdomen was soft and nontender and there were no masses or organomegaly.
Dr Sethi concluded Mr Bunce had developed irritable bowel syndrome (IBS) which was independent of the accident and the medications prescribed. His reasons for that conclusion were as follows:
“Mr. Bunce’s description of diarrhoea passing around 6 to 10 loose motions daily with abdominal cramps, faecal urgency and bloating is strongly suggestive of IBS. This is a common condition affecting around 15-20% of the general population. It is caused by visceral hypersensitivity of the gastrointestinal tract. This is accepted widespread medical and scientific opinion.
The analgesic medications that Mr. Bunce was prescribed do not reasonably account for his symptoms of diarrhoea. Nurofen does not cause diarrhoea. The gastrointestinal symptoms that Mr. Bunce has experienced are not reasonably explained by the analgesic medications that he was prescribed.
Mr. Bunce is overweight with a BMI of 27.8. Raised BMI is well described in the medical and scientific literature to be associated with an increased risk of developing IBS.
Mr. Bunce previously smoked cigarettes. Cigarette smoking is well described in the medical and scientific literature to be associated with an increased risk of developing IBS.”
Dr Sethi rated WPI of the upper gastrointestinal tract as 0%, noting symptoms were present, continuous treatment is not required and weight can be maintained at a desirable level.
He assessed WPI of the lower gastrointestinal tract as 0% noting symptoms of colonic and rectal disease are infrequent and of brief duration, no systemic manifestations were present and weight and nutritional status can be maintained at desirable levels.
Nicola Ross, occupational therapist
On 4 October 2022 Mr Bunce was assessed by Ms Nicola Ross occupational therapist. She reported Mr Bunce managed his pain by taking Nurofen but noted his intake was limited due to the side effect of diarrhoea.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 18 March 2021 in support of the application for permanent impairment. In relation to this dispute the claimant refers to his statement dated 15 March 2021 where he refers to the gastric side effects experienced with pain medication required due to his foot injury.
The claimant provided submissions dated 25 July 2022 addressing the assessment of Medical Assessor Berry. The claimant submits Medical Assessor Berry found the claimant had the following symptoms of upper digestive tract injury:
“Mr Bunce told me that he tried to avoid taking Endone and changed to Nurofen, particularly to relieve his headache. He found that when he took Nurofen he would suffer abdominal cramping and diarrhoea, alternating with a degree of constipation. He has tried to reduce the amount of Nurofen he takes but this is the only thing that relieves his headaches.”
And further:
“He told me that since he has reduced his Nurofen intake, his stomach pain is not as severe, but he finds that he is affected by spicy foods and tomatoes and he passes soft stools but is not diarrhoeic.”
The claimant submits even if there were no “signs of upper digestive tract disorder that does not preclude a finding of WPI and suggests having regard to the Guidelines the impairment could be anywhere in the range of 0% to 2%”.
Furthermore, the claimant notes Medical Assessor Berry found “signs” of upper digestive tract disorder, namely the “diffuse tenderness” noted on clinical examination.
The claimant also submits it is not necessary to have endoscopy or histological findings to support the diagnosis to assess WPI under Table 1.
Insurer’s submissions
The insurer provided submissions dated 23 August 2022. The insurer notes that Medical Assessor Berry determined Mr Bunce had symptoms but no signs of upper digestive tract disease and correctly identified that the impairment would fall within Class 1 of Table 2 on page 239 of the AMA 4 Guides.
The insurer also notes that cl 1.247 of the Guidelines provides that “Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0-2% WPI class 1 impairment”.
The insurer refers to paragraph 1 on page 238 of the AMA 4 Guides which documents that the symptoms and signs of impairment pertaining to the stomach and duodenum include the following:
“nausea, vomiting, pain, bleeding, obstruction, diarrhoea, weight loss, certain types of malassimilation, such as defective digestion or absorption, and nutritional deficiencies that may include hematologic and manifestations.”
Further on page 239 of the AMA 4 Guides the symptoms and signs of impairment for the small intestine comprise of the following:
“abdominal pain, diarrhoea, steatorrhea, bleeding, obstruction, and weight loss, which often are associated with general debility and other extraintestinal manifestations.”
The insurer notes Dr Sethi assessed the gastrointestinal track injures at 0% WPI and noted there were relatively normal findings observed across all metrics in terms of the gastrointestinal tract and reported that:
“On examination, Mr Bunce was 177cm tall and weighed 87kg. This equates to a body mass index (BMI) of 27.8 (normal range 20-25). The abdomen was soft and nontender. There were no masses or organomegaly.”
The insurer submits even if “tenderness to palpation” is a clinical sign the upper digestive tract impairment would still fall within Class 1.
The insurer also notes the lack of clinical signs of upper digestive tract disease recorded by Medical Assessor Berry upon his clinical examination:
“The hands, mouth and tongue were normal. Examination of the abdomen revealed that there was diffuse tenderness to palpation. There was no guarding, rigidity or rebound and no palpable masses. Auscultation revealed normal bowel sounds. In the left lateral position, inspection of the anus revealed no evidence of inflammatory changes, no fistula or fissure formation and there was no evidence of haemorrhoids. Internal examination, was not indicated.”
RELEVANT LEGAL AUTHORITY
Causation of injury is addressed in the Guidelines:
“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.”
In Norrington v QBE Insurance (Australia) Ltd [8] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[8] [2021] NSWSC 548, Norrington.
EXAMINATION
Mr Bunce was assessed by Medical Assessor Gibson at her rooms at St Leonards on
3 February 2023.The reasons for the assessment were explained, and Mr Bunce was advised the body region to be assessed was the digestive tract (stomach).
Pre- accident medical history/relevant personal details
Mr Bunce was born in New Zealand. He said he had worked in pharmaceutical manufacturing, as a hospital orderly, anaesthetic technician and as a stevedore.
He came to Australia in 2004 and since arrival, he has worked in the construction industry. He was initially employed as a labourer on various construction sites. Then, for a 10 to 12 year period, leading up to the accident, he was working as a traffic controller.
He said that following the accident, he was off work for two and a half years. He then returned to work as a labourer with Nass Excavations. However, he has been off work for the last five months. When asked why this was, he said it was because of his back, his stomach and his anxiety.
Mr Bunce lives with a male flatmate. His daughter stays with him every second week. He prepares his own meals at home, particularly when his daughter is visiting. But he added that he orders a lot of take-away food by Uber Eats.
He described a fairly standard diet with salads, steak, fish, chicken and sourdough bread. He avoids pasta, foods containing tomato and spicy foods, as these tend to cause gastric irritation in the form of epigastric cramping and discomfort.
History of the accident and subsequent symptoms
Mr Bunce confirmed the accident occurred on 15 September 2017 when he was working as a traffic controller. He had been struck by a forklift and sustained multiple physical injuries which were initially assessed at St Vincent’s Hospital.
As a consequence of his physical injuries, he was prescribed a variety of narcotic analgesics including Endone and codeine, but over time these were making him feel unwell. He said he eventually ceased all of these stronger medications, and since then only took the anti-inflammatory ibuprofen (Nurofen) on a regular basis. He indicated no other medication had provided any help for his pain. He had taken paracetamol earlier on following the injury, but ceased this as well, as it didn’t seem to help with the pain.
Current and past treatment
Mr Bunce takes CBD oil and flower (medicinal cannabis) to assist with sleeping. He takes between four to eight ibuprofen tablets most days. He said he had been taking this medication on a regular basis for several years, he estimated about four and a half years. When asked, he said that he would buy two 24 tablet packs of ibuprofen each week. Again when asked, he said that he always takes some milk or food when he consumes the ibuprofen.
He added that he is scheduled to see his general practitioner Dr Gottlieb (Maroubra Medical Practice) this afternoon to discuss these issues. He had last visited the doctor a few weeks ago when his back “went”. I understood that he had not previously mentioned his gastrointestinal symptoms to Dr Gottlieb, and that the doctor had been in the practice for approximately 12 months. He said that he visited various other general practitioners at the practice, but he could not recall discussing his gastrointestinal problems with these doctors apart from Dr Lee, now retired, and this was over 12 months ago. He said he hopes that
Dr Gottlieb will arrange for him to visit a gastroenterologist to obtain further investigations of his digestive system issues. To date he has not been referred to any treating gastroenterologists, general surgeons, or had any form of gastrointestinal investigation.
Past medical history
Mr Bunce denied any prior history of gastrointestinal symptoms, investigations, or treatment. He said that he had been taking no medication at all prior to the accident. He had no history of any digestive symptom conditions.
He ceased smoking over five years ago. He has not consumed alcohol for over a year and he does not use recreational drugs.
He had a lumbar discectomy in the early 1990s. He had repair surgery to his right biceps tendon on two occasions approximately 10 years ago. He had an appendicectomy about 20 years ago. He had repair of the left middle finger tendon approximately 30 years ago.
He had been diagnosed with rheumatic fever as a child and has been advised to use antibiotic prophylaxis prior to dental procedures.
Relevant injuries sustained following the accident
Mr Bunce said had suffered a back injury approximately two years ago. At the time he had been at work on-site at the Opera House. A 40 kg aluminium prop had fallen from a height and struck him on his back.
He was initially assessed at Sydney Hospital prior to transfer to St George Hospital. He was diagnosed with multiple lumbar spine fractures. He was subsequently off work for five months. He said it had taken five to six weeks for the fractures to heal and he had had physiotherapy treatment for four months. He had made a 100% full recovery.
When asked, he said he had not taken any pain relief following this injury, apart from ibuprofen and paracetamol, and there was no increase in the dosage.
He agreed when he visited Medical Assessor Berry on 23 June 2022, that he had temporarily reduced his ibuprofen intake. He estimated that he was taking only about four tablets per day at that stage.
When asked about Medical Assessor Berry’s history in relation to his symptoms at the time, he said that his symptoms had worsened in subsequent weeks.
Current complaints
Mr Bunce suffers with intermittent cramping epigastric discomfort. He said he notices this occurs 20 minutes to two hours after taking ibuprofen and following consumption of certain foods containing tomatoes, spicy food, fruit or chocolates. He said these symptoms started over 12 months ago and have been more severe over the last five to six months.
There was constant epigastric pain varying in severity from a background “niggle” to more severe pain. He estimated this had been present for three and a half to four years. He also described an intermittent sharp stabbing periumbilical pain which has been present for six months and occurs “every so often”. He estimated 15 episodes lasting 10 minutes over the last six months.
He said he has been suffering with heartburn over the last few weeks. Nevertheless, he has not consulted any doctors, nor has he taken any over-the-counter antacids, in other words, he has sought no treatment for these symptoms. He said he had some nausea this morning for the first time although he denied vomiting.
Mr Bunce added that there had been “on and off” diarrhoea ever since the accident, and particularly so over the last 12 to 18 months. He estimates the symptoms come on 20 minutes to 2 hours after taking ibuprofen. He estimated the symptoms had commenced a few months after the accident. There was no history of blood in the stool, or melena. However, there was occasionally some bright blood on the toilet paper from excoriation due to repetitive wiping.
He estimated up to five loose stools a day although yesterday and the day before he had loose stools on three occasions. He said the stool was runny and rarely formed. He said he will pass stool on waking in the morning and because of this, he feels unable to leave home before 9 am. He also described one recent episode of faecal urgency. However, the loose stool seems only to occur in the morning.
He was asked why, given these multiple and worsening symptoms which he attributes to the ibuprofen, why he continues to choose this medication to treat his pain. He said that he “does not like taking anything” and this was the only medication which had proved helpful in the longer term. Paracetamol had been unhelpful, and the narcotic agents had made him feel unwell, and it would appear no other medications, in particular agents of less gastric irritation had been trialled nor had he visited the general practitioner to obtain such advice.
Physical examination
Mr Bunce was 53 years of age and was 172 cm tall (he said he had his shoes on at other assessments with a substantial supportive heel, due to his foot condition) and he weighed 87 kg (BMI = 29.4).
The oral cavity was unremarkable.
On examination of the abdomen, there was diffuse and non-localising tenderness. There was no guarding or rebound. Bowel sounds were normal. No organomegaly was palpable.
An anal examination was not undertaken.
A musculoskeletal examination was not undertaken.
Imaging
Mr Bunce brought no imaging with him to the assessment. There was no relevant imaging on file.
SUMMARY AND OPINION
Mr Bunce is a 53-year-old man who was involved in the accident on 15 September 2017. He reports multiple and increasing gastrointestinal symptoms, which he attributes to a fairly constant intake of ibuprofen.
The physical examination revealed no relevant clinical findings. There was diffuse, non-localising tenderness. In other words, physical examination revealed no specific pathology.
There were no relevant investigations.
His weight was in the desirable weight range.
The Panel notes there were subjective complaints but no investigations and no definite diagnosis. The symptoms may be consistent with upper gastrointestinal disease.
Clause 1.247 of the Guidelines specify that upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0 - 2% WPI class 1 impairment according to Table 2, AMA 4 Guides page 239.
Referring to Table 2, AMA 4 Guides page 239, Mr Bunce has symptoms but no objective clinical signs. There were no endoscopy or histological findings. Of note, Medical Assessor Berry had described diffuse tenderness to palpation, similar to the findings of Medical Assessor Gibson on behalf of the Panel.
Having regard to Table 2 the Panel considers 0% WPI to be an appropriate assessment of permanent impairment because:
(a) his symptoms were not of such severity that Mr Bunce had sought significant medical attention to address them;
(b) the symptoms were increasing despite no apparent sustained change in the medication;
(c) there were other possible causes for Mr Bunce’s subjective complaints outside the scope of the assessment;
(d) no trial had been undertaken to explore whether elimination of the medication would cure the symptoms;
(e) in the absence of investigations, it was difficult to establish that Nurofen was causing the symptoms;
(f) Mr Bunce has not explored other analgesic options available;
(g) Mr Bunce has maintained his weight and there was no evidence of nutritional impairment, and
(h) whilst Mr Bunce asserted his symptoms were increasing the Panel notes at the time of the assessment, he had not sought medical attention, and other than the suggestion he had tried Imodium for diarrhoea there is no evidence of over-the-counter preparations or alternative agents being sought or prescribed.
PANEL’S FINDINGS
The Panel finds any gastrointestinal symptoms caused by the use of anti-inflammatory medication, namely Nurofen, is a class 1 impairment under Table 2 of the AMA 4 Guides, page 239 and has resulted in a 0% WPI.
0
1
0