Choucair v AAI Limited t/as AAMI
[2024] NSWPICMP 363
•6 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Choucair v AAI Limited t/as AAMI [2024] NSWPICMP 363 |
| CLAIMANT: | Abdallah Choucair |
| INSURER: | AAMI |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 6 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of Medical Assessment; whole person impairment; abdominal fascia leading to umbilical hernia; pre-existing condition; epigastric stomach pain; diagnostic material; no evidence of direct injury; previous spinal fusion; temporal nexus to accident; Held – certificate of Medical Assessor Cameron revoked; claimant has rupture of the abdominal fascia leading to umbilical hernia; 5% permanent impairment. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Cameron dated 26 October 2023 and issues a new certificate determining that the claimant has: · rupture of the abdominal fascia leading to umbilical hernia. 2. The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%: · cervical spine – soft tissue injury; · lumbar spine – soft tissue injury; · abdomen – umbilical hernia; · left shoulder – soft tissue injury, and · right shoulder – soft tissue injury. 3. This is a dispute between the claimant and the insurer about the degree of whole person impairment under s 2 of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Abdallah Choucair (the claimant) is a 68-year-old man who was injured in a motor vehicle accident on 3 November 2019. The claimant’s vehicle was struck from behind and pushed into a third vehicle in front of the vehicle he was driving.
A claim for personal injuries was made and the claimant sought a concession that he sustained non-threshold injuries. The insurer did not make this concession and thereafter a certificate of Medical Assessor Truskett dated 4 June 2021 determined that the injuries to the cervical spine, lumbar spine, right shoulder and left shoulder were minor injuries but the injury listed as abdomen-tear in muscle wall/facial, causing umbilical hernia was not a minor injury.
Thereafter the claimant applied to have the degree of permanent impairment caused by the accident assessed and, on 10 October 2023, was examined by Medical Assessor Ian Cameron. He determined that the claimant sustained soft tissue injuries to the cervical spine, lumbar spine, left shoulder and right shoulder and an abdominal injury being an umbilical hernia. The umbilical hernia gave rise to a degree of permanent impairment of 4% and accordingly issued a certificate that the claimant had sustained a 4% whole person impairment. The claimant sought a review of this determination on the basis that the Assessor made material errors by failing to adequately apply the guidelines and provide reasons.
The insurer submitted that there had been no material error and that, should the matter be referred to a Medical Review Panel, the late report of Dr Garvey dated 26 April 2023 and clinical records in relation to the claimant’s pre-accident treating doctor, Dr Youssef, be admitted.
The matter was considered by the President’s delegate, Jeremy Lum, who, in a decision dated 15 January 2024, accepted that there is a reasonable cause to suspect that the assessment was incorrect and accordingly the matter was referred to this Review Panel (Panel).
The Panel met on 14 March 2024 and noted that the material which was before Medical Assessor Cameron had not been uploaded to the portal and accordingly directions have been issued to the parties to provide this material. The Panel also considered the Application to Admit Late Documents and noted that the President’s delegate was of the opinion that the material which clearly a document the insurer relies upon given that the matter is proceeding to a Review Panel. I note the insurer’s request that the material be uploaded being the report of Dr Garvey dated 26 April 2023 is admitted with the material which was before Medical Assessor Cameron to be considered by the Panel.
The Panel has been constituted by the President of the Personal Injury Commission (the Commission) to conduct the Review of Medical Assessor Ian Cameron’s assessment dated 26 October 2023 (the Review).
Pursuant to cl 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel “is to conduct and determine the proceedings in accordance with procedures determined by the panel”.
Documents considered
All material which was before Medical Assessor Cameron together with the late documents which were being admitted in this matter were available to and considered by the Panel.
Details of who attended the assessment
The claimant attended the Commission Medical Suites on 15 May 2024 and was assessed unaccompanied by Medical Assessor Oates on behalf of the Panel as arranged. A NAATI qualified Arabic interpreter was present for the duration of the assessment.
HISTORY
Pre-accident medical history and relevant personal details
The claimant came from Lebanon in 1981. He lives in Sydney with his wife. He has five adult children and nine grandchildren.
He did packing work after coming to Australia and injured his back in 1987. He had a lumbar spinal fusion around that time.
He was next in the workforce with his own take-away shop, which he ran for a few years, but he can’t recall how long. Thereafter, he went onto the disability support pension from approximately 1994 because of continuing back problems.
He had a motor vehicle accident in 2012 where he injured his right shoulder and lower back. He was treated with medications and physiotherapy. His shoulder settled but his back remained a bit worse after this motor vehicle accident. He doesn’t recall any further accidents thereafter.
He has had gastrointestinal problems and had a gastroscopy sometime before 1987 and was told he had a gastric ulcer. He noticed if he ate some spicy food, he would get severe burning pain in the upper abdomen (epigastric area) centrally. He doesn’t recall any retrosternal pain. He was put on Losec and had 60-70% benefit with this, but he still avoided certain spicy foods on a long-term basis. He didn’t have any vomiting or diarrhoea. His appetite was intact and his weight was steady at approximately 87kg.
He does not drink alcohol but smokes about 25 cigarettes a day.
Details of the accident
The claimant said on 3 November 2019, he was the seat belted driver of a Toyota Camry. While stationary in traffic, he was hit from behind by a following vehicle and his car was shunted into the vehicle in front, moving 2-2.5m. He was stationary behind a Jeep which was waiting to turn right. The airbag did not deploy.
At the time of impact, he felt tightness across the abdomen from pressure against the seatbelt. He doesn’t recall any impact injury and was not knocked out. The driver’s door was stuck closed.
Police, ambulance and fire brigade attended and the door was cut off and pushed back by the fire brigade.
He was taken by ambulance to Liverpool Hospital and kept in hospital overnight. He complained of immediate abdominal pain. He also had some right trapezial shoulder girdle pain and pain to the upper chest from the seatbelt but doesn’t recall any other pain.
He had X-rays and scans but there was no fracture. He was given painkiller injection.
Symptoms and treatment following the accident
He came under the care of his general practitioner (GP), Dr Mapa, Yagoona. He continued to have central abdominal pain, which he said was below the level of his previous “ulcer” pain in the epigastrium. He was treated with analgesics for musculoskeletal injuries.
He was referred for an ultrasound scan which showed an umbilical hernia. He was referred to Dr Hanna, general surgeon, Liverpool, a week or two later. He suggested surgery to correct the umbilical hernia.
At this point, he caught a COVID infection. He then did not proceed with surgery, as he became afraid of having operation. Dr Hanna had suggested medication. He took a course of this but it didn’t help, so he ceased it. He cannot remember what it was called.
The file record indicates he saw Dr Hanna’s locum, Dr Emerak, on 31 March 2020 complaining of instantaneous umbilical pain at the time of the accident, with a recent ultrasound showing a reducible, fat containing umbilical hernia and that he did not have any burning discomfort consistent with heartburn or reflux, with stable weight and regular bowel habit.
There was a reducible ventral and umbilical hernia and doctor suspected the pain was related to the hernia or injury from the motor vehicle accident, and he suggested a trial of Pantoprazole, and if his pain worsened he would require a surgical review.
Over time, the hernia stayed the same size and he would feel severe pain around the umbilicus after eating any food at any time of the day, such that he got into the habit of only eating once a day at 4.00-5.00pm. Through a change of diet, he lost 7-8kg and has not put this back on again. Somac did not help this pain. He could not find anything to help it.
Dr Mapa closed the practice and he now sees Dr Mona, a GP in Punchbowl. He also saw another GP, Dr Salem, in Punchbowl, who suggested he be reviewed by a specialist in Bankstown regarding surgery, but he did not go as he is scared of having an operation. He is scared when he is driving now. He says he has no other current problem from the accident.
Relevant injuries or conditions sustained since the accident
He said he had had no further accidents. He had an episode of prostatitis and attended Canterbury Hospital in January 2020. He was given medications and the condition settled down. He has not had any other health problems or surgery.
Current symptoms
He has not taken Somac or Losec regularly for the last 15 years, which was previously prescribed for the epigastric pain of gastric ulcer. He does notice central abdominal pain if he eats a large amount. He avoids heavy activity, which he has done ever since having the chronic back pain from injury. He waters the garden, helps with the shopping and other light tasks.
Current and proposed treatment
He takes Somac when required but only every one to three weeks. He has Panadol Osteo two tablets per day and will take diclofenac when he gets some right shoulder pain but minimises this as it tends to irritate his epigastric stomach pain. As mentioned, he has not found any medication which helps his umbilical pain.
Umbilical hernia pain is usually exacerbated by activities which increase intra-abdominal pressure, such as heavy lifting, frequent bending, straining at defecation or urination, prolonged coughing, or eating a meal large enough to cause abdominal distension.
Mr Choucair has avoided heavy exertion for many years, since having a back injury followed by lumbar spinal fusion and is able to control the amount he eats to avoid abdominal bloating and exacerbation of umbilical pain.
EXAMINATION
General presentation
Mr Choucair is left hand dominant. I measured his height at 163cm and weight was 75.4kg.
Doctor’s name Date Height (cm) Weight (kg) Youssef 23/07/2002
Pre-MVA166 79 Post-MVA Greenberg 8/09/2020 167 87 Truskett 4/06/2021 169 82 Berry 16/08/2022 168 82 Frommer 24/08/2022 167 84 Garvey* 26/04/2023 163 74.2 Cameron* 10/10/2023 169 86 Oates for MRP* 15/05/2024 163 75.4
There is quite a marked variation in both his height and weight measurements across different medical assessments. This is particularly notable in the three most recent assessments.
Abdomen
1cm diameter, easily reducible umbilical hernia present with a positive cough impulse. There was no swelling or cough impulse evident in right or left inguinal regions. Divarication of the recti was evident in the upper abdomen. There was no liver, spleen or kidney enlargement palpable. There was no abdominal bruit. Percussion note was normal. Bowel sounds were normal.
There was some tenderness about the umbilical hernia but no abdominal tenderness elsewhere.
Cervical spine (cervicothoracic)
Flexion and extension were two-thirds of normal. Lateral flexion was two-thirds of normal bilaterally. Rotation was two-thirds of normal to the right and left, with complaint of discomfort at the base of the neck on the right-hand side at the end of rotation to the left.
No guarding. No focal tenderness. No non-verifiable radicular complaints.
Reflexes and power in the upper limbs were normal. Sensation to light touch and pin prick was said to be reduced in the medial right upper arm and forearm.
Lumbar spine (lumbosacral)
Full range of movement in flexion, extension and lateral flexion.
There was full range of movement in thoracic rotation bilaterally.
There was no guarding, no dysmetria and no non-verifiable radicular complaints.
Reflexes were normal in the lower limbs, with plantar responses both flexor (downgoing). Power and sensation in the lower limbs were normal.
Thigh girth; right equals left equals 47cm at 10cm above superior patellar pole.
Leg girth; right equals left equals 35cm at maximal circumference.
Right and left shoulders
Active range of movement measured with a goniometer.
Range of Movement of Shoulders Movement Right shoulder ROM Left shoulder ROM Flexion
180°
180°
Extension 50° 50° Abduction 180° 180° Adduction 40° 40° External rotation 90° 90° Internal rotation 90° 90°
There was some complaint in the right upper trapezius at the end of right shoulder flexion.
There was full range of movement at right and left elbows and wrists and hands.
Scarring
There was a large curvilinear transverse scar across the lower lumbar spine from previous fusion.
Consistency of presentation
Mr Choucair showed no inconsistency in his presentation.
MEDICAL IMAGING
On 9 November 2019 – ultrasound abdomen – there was a small to moderate-sized, partially reducible umbilical hernia containing omental fat with the neck of the sac up to 19mm.
On 24 June 2021 – urinary tract ultrasound – mild prosthetic enlargement with a 34ml urine residual after voiding, which is considered within normal limits for a starting volume of 462ml of urine.
Therefore, it is unlikely that prostate enlargement would have contributed to the onset or worsening of an umbilical hernia.
DETERMINATIONS – PERMANENT IMPAIRMENT
Diagnosis, causation and reasons
The diagnosis is umbilical hernia, soft tissue injury to cervical and lumbar spine, with radiation of cervical spine symptoms to the upper trapezii, towards both shoulder girdles.
Based on the evidence available, the accident was a cause of these injuries.
The umbilical hernia was not evident on the CT scan abdomen done in hospital but was evident on ultrasound examination a few days after the accident. The accident is therefore found to be a cause of the umbilical hernia, because of this temporal nexus.
There was no evidence of direct injury to the left or right shoulders, rather these parts were affected by symptoms radiating from the cervical spine.
Permanency of impairment
Cervical spine
The clinical findings indicate diagnosis-related estimate (DRE) Cervicothoracic Category I with 0% whole person impairment.
There was some symmetric restriction of active range of motion, with discomfort at the base of the neck on the right side, towards the right upper trapezius, at the end of range of rotation.
There was also no dysmetria, no non-verifiable radicular complaints, and no guarding. There were not two or more signs of cervical radiculopathy to justify a higher DRE category.
Lumbar spine
There is a history of previous spinal fusion, giving a pre-accident DRE Lumbosacral Category IV with 20% whole person impairment.
This is due to a pre-existing condition. The accident caused a soft tissue injury to the lumbar spine with temporary exacerbation of symptoms, but no verifiable increase in impairment beyond DRE IV, that is no evidence of radiculopathy.
The whole person impairment attributable to the subject motor vehicle accident therefore is 20% - 20% = 0%.
Upper extremity
There was full range of movement of right shoulder and left shoulder, hence no assessable permanent impairment.
Abdomen
At the abdomen, there is an umbilical hernia, in other words a palpable defect in the supporting structure of the abdominal wall, with protrusion at the site of defect with increased abdominal pressure, as manifested when I asked the claimant to lift his shoulders off the couch whilst lying supine, which also brought the divarication of the recti into focus. The umbilical hernia is readily reducible.
There is occasional mild discomfort at the site of defect. There is none of his usual activity precluded, as he was already on long-term restrictions against heavy physical activity from an unrelated chronic lumbar spine condition.
His symptoms fit into Class 1 and I would place him in the mid-range of this class at 5% whole person impairment.
His total whole person impairment from injuries attributable to accident is 5% WPI.
His symptoms of umbilical pain after eating are readily manageable by eating smaller and less frequent amounts. He has declined surgery to repair the umbilical hernia because he is afraid of surgery. Nevertheless, he is able to effectively manage his symptoms by modification of his meal schedule.
Because the pain can be circumvented by adherence to eating small amounts, this does not justify a Class II permanent impairment because he does not have frequent discomfort when he modifies his eating habits.
His weight loss versus his current height gives him a body max index (BMI) of 28, which is in the overweight range, whereas on 8 September 2020 his BMI was 31 in the obese range, hence he is now in a healthier BMI range and I note he told me he had had normal blood tests when the cause of weight loss was investigated, thus ruling out potential sinister causes of weight loss.
The weight loss would therefore be most likely attributable to his change in eating habit.
I have commented above on the likely non-contribution of prostate problems to the aetiology or aggravation of his umbilical hernia.
CONCLUSION – PERMANENT IMPAIRMENT
Degree of permanent impairment caused by the motor accident
The degree of permanent impairment caused by the motor accident is 5%
Permanent impairment ratings take your symptoms into account, however the percentage permanent impairment is not a direct measure of disability. A finding of 5% permanent impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides and Guidelines rate the associated impairment at 5%.
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