CIC Allianz Insurance Limited v Auckburally

DETERMINATION OF REVIEW PANEL
CITATION:	CIC Allianz Insurance Limited v Auckburally [2024] NSWPICMP 635
CLAIMANT:	Amode Auckburally
INSURER:	CIC Allianz Insurance Limited
REVIEW PANEL
LEGAL MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Clive Kenna
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	9 September 2024
DATE OF AMENDED DECISION:	13 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Assessor determined claimant’s whole person impairment (WPI) as a result of the accident was 22%; Held – on re-examination claimant’s WPI is 22% arising from the injuries to the lumbar spine and scarring; Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Dixon dated 18 December 2023 to certify that the injuries caused by the accident and referred to the Panel gave rise to a whole person impairment of 22%.

STATEMENT OF REASONS

INTRODUCTION

Amode Auckburally (Mr Auckburally), the claimant, was born in 1960.
On 28 March 2018, he was injured in a motor vehicle accident (the accident). Further details of the accident are set out below.
He brought a claim for common law damages.
CIC Allianz Insurance Limited ABN 56 094 802 801 (the insurer) is the insurer.
A medical dispute about the degree of Mr Auckburally’s whole person impairment (WPI) has arisen. This is a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accidents Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Drew Dixon for assessment.
On 18 December 2023, Medical Assessor Dixon determined that Mr Auckburally had a WPI of 22%. He issued a certificate under s 7.23(1) of the MAI Act.

REVIEW PROCEDURE

Mr Auckburally sought a review (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).
The review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of an agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 12 June 2024, the Panel informed the parties that it required a re-examination of Mr Auckburally. Arrangements were made for him to be re-examined by Medical Assessor Lahz on 16 August 2024.

LEGISLATIVE FRAMEWORK

General provisions

Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mr Auckburally’s claim and entitlement to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 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:
(a)The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)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.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Dixon examined Mr Auckburally on 14 December 2023 and issued a certificate under s 7.23 of the MAI Act.
Medical Assessor Dixon was referred the following injuries for assessment:
(a) skin scarring – lumbar spine, and
(b) lumbar spine – lumbar discogenic pain at L5/S1 for which the claimant underwent a microdiscectomy.
At [3] and [4] in his reasons, Medical Assessor Dixon considered both parties submissions.
At [8], he took a pre-accident history. He noted that Mr Auckburally has previously worked as a chef. He took up limousine driving in 2016 and was in this role when he was involved in the accident.
At [9] Medical Assessor Dixon took a history of the accident:
“He was driving through the Eastern Distributor, having taken a client to the airport and was travelling in the left land when a large truck on his right side changed lanes, pushing his BMW 7 seater into the wall and spun around and then the truck hit his vehicle again and pushed the vehicle to the right. It was written off. He was wearing a seat belt at the time. He was unable to self-extricate and the Police arrived and cut him out of the car and he was taken by ambulance to St Vincent's Hospital complaining of back pain and numbness in his legs. He had some neck and right shoulder pain.”
Medical Assessor Dixon took a further history of the symptoms and treatment following the accident:
“He was assessed at St Vincent's Hospital as an in-patient for one day and then was discharged to the care of his GP who referred him back to his spinal specialist, Dr Michael Donnellan, who he saw three days later. He was referred for an MRI scan and conservative treatment with analgesia and Botox injections and physiotherapy which did not give sustained benefit. He underwent surgical microdiscectomy and decompression at L5/S1 on 22 August 2018. This did not provide adequate relief and he had several falls in 2019.
He subsequently had L4/5 intervertebral disc replacement and L5/S1 fusion (ALIF) on 29 May 2020 and posterior lumbar interbody fusion (PLIF) at L5/S1 on 3 June 2020.
He was an in-patient for a fortnight and for the first week his back pain had improved but there was subsequent deterioration with loss of feeling in his lower extremities with swelling and weakness.
He was subsequently referred to a pain specialist and had several injections and ultimately had a dorsal column stimulator inserted with the battery at his left buttock.
He had some difficulty mobilising and used a walking frame and had a Moon boot on the left foot as he took most of his weight on that side and used a quadropod stick. He occasionally used a wheelchair.”
Medical Assessor Dixon completed a medical examination:
“14. General presentation
He walked with a quadripod stick slowly. He was 155cm tall and weighed 96kg. He reports he has lost weight.
He presented in a straightforward manner. There was no embellishment.
15. Lumbar spine (lumbosacral)
On examination of his lumbar spine there was marked stiffness with flexion decreased by one half and extension by three quarters and lateral flexion decreased by one half bilaterally. He had tender scars posteriorly with an 11 cm scar which was hypertrophic and pigmented in the mid line and a 5cm right paralumbar scar, also pigmented and hypertrophic and a 4cm left paralumbar scar, also pigmented, hypertrophic and a transverse scar at the top of his left buttock of 6cm, which is also pigmented and hypertrophic. All scars were tender and there was some tethering of the lower lumbar scar in the mid line.
He also had a long 18cm lower abdominal longitudinal scar which was irregular with colour contrast with pigmentation, hypertrophic with distal tethering and loss of contour and was tender and he was able to readily localise it. He finds all the scars disfiguring, particularly the anterior one.
The scars impact on his ADLs as they are tender when bumped and remain itchy. He uses sunblock when out in the sun.
Straight leg raise on the left was 50 degrees and associated with left sciatica and there was a positive sciatic nerve root stretch test. Straight leg raise on the right was 60 degrees and
associated with low back pain and the sciatic nerve root stretch test was positive. His knee jerks were present and his medial hamstring jerks depressed and his ankle jerks were unable to be elicited. He had sensory alteration down the lateral right leg onto the dorsum of his right foot and sensory alteration in the medial and lateral leg extending to the heel and the medial arch of his foot. His power of flexion extension of the left knee was grade 4 out of 5 and that on the right was grade 4 plus out of 5. Dorsi flexion of his left foot was grade 4 out of 5 as was dorsi flexion of his great toes. Inversion was grade 4 out of 5 as well as eversion. Plantar flexion was grade 4 plus out of 5. On the right dorsi flexion was grade 5 out of 5, as was plantar flexion and inversion was grade 4 plus out of 5 and eversion grade 5 out of 5 and dorsi flexion of his toes grade 5 out of 5.
His Babinski signs were negative. There was wasting of his left thigh and calf, with the left thigh measuring 49cm, 10 cm above the knee, and 51 cm on the right. The calves measured 41 cm on the left and 42cm on the right, 10cm below the knee. He had pes planus and had great difficulty toe standing and made a modest arch only. His gait was very slow using his stick and he was unable to toe or heel walk and squat testing was associated with low back pain and left sciatica.”
Medical Assessor Dixon made the following diagnosis and reasons at [19]:
(a)    L4/5 disc lesion and L5/S1 disc protrusion and initially had lumbosacral discectomy followed by L4/5 disc replacement and arthroplasty and L5/S1 ALIF (anterior lumbar interbody fusion) followed by posterior stabilisation with percutaneous pedicle screws and rods;
(b)    loss of motion segment in the lumbar spine with L4/5 and L5/S1 radiculopathy most marked on the left, and
(c)    impaction of his spinal condition on his sex life.
Medical Assessor Dixon discussed causation and reasons:
“The back strain injury was caused by the subject MVA which was severe and the vehicle was written off. Despite having lumbosacral discectomy he had recurrent radicular complaint and this eventually led to stabilisation of his lumbar segment. Unfortunately, his radiculopathy has recurred, particularly on the left. He has not been able to overcome the severity of the accident and with ongoing radicular complaint and low back pain, he has required a dorsal column stimulator.
The reason for his back strain injury was the triple collision of his vehicle that was hit by the truck and then pushed into the left wall of the Eastern Distributor and then spun and then re-impacted by the same truck causing him to be trapped within the vehicle with extreme low back pain and numbness in both lower extremities.”
Medical Assessor Dixon concluded that the following injuries were caused by the accident:
(a)    lumbar spine – lumbar discogenic pain and L5S1 disc protrusion;
(b)    L4/5 disc protrusion;
(c)    radiculopathy, and
(d)    impact on his sex life.
Medical Assessor Dixon certified a WPI of 22%.

SUBMISSIONS

CIC Allianz’s submissions, dated 5 February 2024

The insurer asserted that there was more than a reasonable cause for suspicion that Medical Assessor Dixon’s assessment was vitiated by the material errors:
(a)    failure to adequately consider the relevant material at all;
(i)the insurer submitted that Medical Assessor Dixon has failed to consider the treating report of Dr Donnellan.
(b)    Failure to adequately consider or address a substantially made argument in relevant submissions made on behalf of the insurer regarding the relevant material and failure to consider the relevant material amounting to a failure to afford procedural fairness.
(c)    Failure to provide adequate reasoning with respect to causation and,
(i)there was clearly a significant medical controversy regarding the lumbar spine injury which required Medical Assessor Dixon to provide a more expansive explanation and express consideration revealing the use the assessor made of the information provided.
(d)    Failure to provide adequate reasons and adequately disclose pathway to permanent impairment findings.
(i)the reader was left devoid of reasoning and consequently was required to fill in the gaps as to how Medical Assessor Dixon concluded the claimant’s lumbar spine was stable prior to the subject accident and resulted in diagnosis-related estimate (DRE) category I impairment classification and with respect to the claimant’s impairment for scarring in accordance with table for the evaluation of minor skin impairment (TEMSKI).

Mr Auckburally’s submissions

Mr Auckburally submitted there was no reasonable cause for suspicion that the certificate of Dr Drew Dixon is incorrect in a material respect.
The injured person, Mr Amode Auckburally was involved in a serious motor vehicle accident on 28 August 2018. This was evidenced by a wealth of evidence including the photographs provided in this application. He attended the assessment in a wheelchair for which he now requires to use due to the motor vehicle accident.
The Medical Assessor embarked upon his required function correctly. Based upon his clinical assessment and findings and the documents before him, he was of the view that Mr Auckburally’s injury overcame the threshold of WPI entitling the claimant to obtain non-economic loss damages.
The Medical Assessor provided clear and logical reasons for his findings. He referenced documents where required. The Medical Assessor was not required to reference every individual document.
So too did the original Medical Assessor, Dr Wijetunga, who on 9 November 2021 found that the physical injuries caused by the motor vehicle accident were caused by the motor vehicle accident gave rise to a permanent impairment greater than 10% WPI (16% WPI).

Reports of Dr Michael Donnellan,

The Panel considered the following material by Dr Donnellan.
Dr Donnellan reviewed Mr Auckburally on 22 November 2011 and wrote the following report:
“Clinical history: Back injury at work in 2000. Has had lumbar disc prolapse and left sciatica. Findings:
At L1… At L4/5 there is a left sided disc herniation compressing the thecal sac and involving the left nerve root. The herniated disc has a calcified fragment.
At L5/S1 there is a disc bulge impressing on the theca but probably not involving the nerve roots at this level.
On the sagittal reformatted images, the vertebrae are not compressed. The facet joints show no significant spondylitic change and the SI joints are normal. There are no pars interarticularis defects or evidence of spondylolisthesis.”
On 19 September 2013, Dr Donnellan reported that:
“…left sided sciatica after a fall at work. He had a significant background history in that he has required cardiac stents for 3 episodes of myocardial infarction. He currently takes Lyrica, Digesic, Motilium, Panadeine Forte, Plavix, Somac and Tramal. He also takes Lipitor. He tells me that on the 15/05/2013 he was working as a chef when he slipped on a wet floor. He felt pain in his back instantly but he had finished his shift. When he went home and sat down he found that he couldn’t stand up because of the pain. He saw his local doctor the next day who organised an MRI. He has currently got severe low back pain on the left. The pain then radiates into the lateral aspect of his left thigh, lateral calf and into his lower lateral toes. He finds that he can’t work for more than 2 hours at a time before he needs to have a rest. The pain in his buttock is quite sharp in nature but is burning below the knee. It is associated with numbness and paraesthesia. He is still at work but finds it difficult to get through his day. On examination he has got diffuse weakness through his whole left leg but I think it is mostly due to pain. However he does seem to have significant weakness with knee flexion and extension. He also has significant mild weakness in the left dorsi flexion. He has got normal knee jerks and normal ankle jerks on the right but his left ankle jerk is absent. He has no clonus. He has altered sensation on the left L4, L5 and S1 dermatome. The MRI scan which accompanied him shows an acute disc injury at the L4/5 and L5/S1. The L4/5 disc injury associated with disc herniation is migrating inferiorly under the L5 nerve root. There is also an incidental finding of a small 3 mm lesion associated with a nerve root. This could be a schwannoma or there is a remote possibility it could be a drop metastases…”

Clinical records of Dr Donnellan – MRI cervical, thoracic and lumbar spine, MRI brain:
“Clinical Details: ? small schwannoma at L5. ? neurofibromatosis or drop lesion. … Findings: The ventricles and surface CSF spaces are normal in size and appearance. Signal return from cerebral grey and white matter is normal apart from non-specific small foci of white matter high signal consistent with chronic microvascular ischaemia. There is no evidence of an extra-axial collection, intracranial haemorrhage or space occupying lesion. The tiny nodule associated with right L5 nerve root is again noted and unchanged. No new nodules are identified. The cord is normal in colour by contour and signal.”
On 28 November 2013, Dr Donnellan wrote:
“(The claimant) has a significant L4/5 intervertebral disc prolapse which is causing significant compression of his left L5 nerve root. He has exhausted conservative measures and I think he would be a candidate for a surgical decompression and removal of this fragment.”
On 24 February 2014, Dr Donnellan reported:
“Since my last review (the claimant’s) sciatica has continued to progress. He has also developed 4 out of 5 weakness in his left dorsiflexion. He is getting increasing numbness in his left leg. He has had two peroneal injections which gave him temporary relief despite this his sciatica has progressed. Given he is developing weakness in his left foot is an indication for surgical intervention is now even more imperative. If this treatment is significantly delayed, he is at risk of developing chronic neuropathic pain or a permanent motor deficit in his left foot which could leave him with a foot drop. Unfortunately his insurer does not adhere to my advice and has rather taken the advice of an interstate neurosurgeon who specialises in forensic neurosurgery.
Unfortunately his opinion is a conflicted one. I don’t think he has the interests of the patient in mind when he recommended that he should be treated by a psychologist and a pain specialist. In my opinion this advice is not only negligent and unethical but fraudulent. He is proposing an opinion that he knows is not a standard of care and has likely led to injury to the patient in order to attract more consultations from the insurance industry. Therefore it is my advice that his opinion should be considered in that light. If (the claimant) is damaged neurologically by delaying his treatment, it will be the insurance company that would be liable and not the independent medical examiner nor his treating doctors. Hopefully common sense will prevail and (the claimant) will get approval soon so that he can have a surgical decompression of his left L5 nerve root via a laminoforaminotomy and microdiscectomy.”
On 31 January 2017, Dr Donnellan further reported:
“… (The claimant) who has had some recurrent left sided sciatica for the past 3 weeks (The claimant) has recovered fairly reasonably from his previous surgery, a L5/S1 microdiscectomy. His back pain is manageable and he had only slight residual left sided sciatica. Although he has been dismissed from his previous employer, he is now working intermittently as an Uber driver. Three weeks ago he started having burning pain down the posterior aspect of his thigh and calf. It doesn’t go into the foot but stops at the ankle. He has brought with him an MRI scan today which shows the previously documented L5 intradural lesion is slowly increasing in size. Although it is starting to efface a cauda equina, it is not causing overt neural compression yet. It will have to be removed in the next 12 months. He does have an acute annular tear at L5/S1 which is causing compression at the left S1 nerve root. We have had a frank discussion today about where he goes from here. Given the fact he has recurrent lesions at both L4/5 and L5/S1, there is a case for him having something more definitive like a two level anterior procedure to replace the discs. The other alternative is for him to have a course of injections or another re-exploration of the left S1 nerve root. He elected to have another injection.”
On 22 August 2018, he wrote:
“…It is approximately 6 weeks since he underwent a left L5/S1 microdiscectomy and removal of L5 intradural tumour…. The good news is that his right leg pain has resolved. He does have a patch of numbness on the lateral aspect of his thigh. This could either be from his position on the table but more likely from the nerve root that had the schwannoma attached. I was able to preserve the nerve root so hopefully this will resolve over the next 6 months. …He does not have much in the way of back pain. He does have some significant left buttock pain radiating to the lateral aspect of his thigh to his knee. Thankfully he has no more symptoms below the knee.”
On 19 February 2020, Dr Donnellan wrote:
“…as you know, Dr Shetty and I both agree that (the claimant) is suffering from a combination of discogenic back pain and foraminal stenosis. Further decompressive surgery with stabilisation is futile. The procedure that is most likely to give him long term relief of his systems and return to the workforce is an L5/S1 ALIF and then a L4/5 arthroplasty for anterior procedure. 5 to 7 days after that, he should undergo a percutaneous augmentation of his L5/S1 with pedicle screws.”
On 5 April 2022, Dr Donnellan wrote:
“…I did not think his pain was due to the schwannoma, but at the rate of growth that I had been watching the lesion, I recommended that he should have it excised over the next 12 months. His exacerbation I thought was due to another tear at L5/S1 which was causing some minor compression of the left S1 nerve root. I did discuss disc replacement surgery at L4/5 and fusion at L5/S1 but we elected to continue conservative measures at that point in time. Basically, he was then lost to follow up until 30 May 2018. He had continued with his conservative management that we had recommended and was working so hard that he actually missed his two appointments that I had arranged for him. The fact that he could not come to my office for follow up after his conservative management would suggest that he had improved with that treatment regimen and was actually doing quite well.”

Medical assessment certificate by Medical Assessor Rosenthal

In his certificate of 19 September 2019, Medical Assessor Rosenthal made the following comments:
“The statement of Dr Conrad is clearly not true as the surgery for the Schwannoma had already been planned prior to the motor vehicle accident, as noted in Dr Donnellan’s report of 2016. I was unable to confirm any changes between pre and post accident MRI’s. Dr Conrad did not view any MRI’s post the subject MVA. The ambulance report was noted noting Mr Auckburally was complaining of C-spine neck pain and tenderness altered sensation to both legs, left leg feels worse, complaining of moderate lumbar back pain around region of previous spinal fusions.
A report from Dr Donnellan dated 6 February 2019 noting he had deteriorated since his last review.
He wanted to repeat his MRI with contrast.
The General Practitioner notes of Dr Shiner as Dr Joseph Cassamento were seen noting on the 23 January 2017 he was getting recurrent pain left side and burning down the left leg. Has been driving more as an Uber driver, bad seat. Can drive for
12-15 hours probable cause of exacerbation. He is worried re W/C suing him. On the 13 February 2017 it states had call from insurance company who have filmed and caught him driving and also lifting carry-on luggage so for final cert return to work. On 6 November 2017 it stated, clearly in pain, reason for visit low back pain rad left leg. On the 6 December 2017 he was complaining of, weakness of the whole legs no falls, commenced while bending of wash basin on Monday morning. He was prescribed Targin, Imovane and Lyrica amongst other drugs. On the 8 January 2018 it was noted he was travelling to his nephews funeral. (Apparently, he went back to Mauritius in January 2018). He was not seen again until the 5 April 2018 when he presented following the motor vehicle accident, also again noting left leg sciatica and left weakness. He subsequently presented with right leg pain, all of leg worsening and numbness on the 24 April 2018. He subsequently had further surgery from Dr Donnellan in July 2018.
References were particularly made to an MRI of 27 October 2016 which was done pre-accident and MRI dated 20 February 2019 done post-accident and post-surgery. Disc protrusion at L4/5 impinging on the L5 nerve root was already present in 2016. Apparently another MRI was done after the motor vehicle accident as noted by Dr Donnellan in his report 6 June 2018, which apparently showed a moderate disc herniation recurrent at L4/L5 but the intradural lesion (Schwannoma) at L5 has also enlarged. Comment was; that he has a L5/S1 disc herniation at the left with the progression of his intradural tumour. He went on to say that the intradural procedure cannot be delayed any further. MRI dated 20 February 2019 does record interval reduction of postsurgical epidural enhancement otherwise unchanged appearance no evidence of neural impingement.
The MRI lumbar spine report dated 7 November 2016 indicates, ‘interval enlargement of intrathecal
enhancing nodule at L5 level this is most likely to represent Schwannoma, there is no cyst, there is no spondylodiscitis. Interval progression of disc protrusion at L4/5 with increasing narrowing of the left subarticular recess and possible recurrent impingement from the L5 nerve root here’.
CT brain and CT cervical spine and CT chest abdo and pelvis were done by St Vincent’s Hospital with a history of driver of car hit by truck 80 km per hour loss of consciousness. They found abnormality of the spleen. The x-ray was done on the 23 March 2018.”

Medical Assessment Certificate by Medical Assessor McGrath

In his certificate of 19 September 2019, Medical Assessor McGrath drew the following conclusion:
“Mr Auckburally is a 60-year-old man who was involved in an MVA on 28 March 2018. In this accident, pre-existing pain from his lumbar spine and left leg sciatica increased. His first surgery was in 2014.
It is reported for the first time he experienced right leg radicular type symptoms.
He has since proceeded to two further surgeries and received a spinal fusion. He does not report any radicular pain in the legs on current examination. He does have bilateral swelling of both legs and dysaesthesia and hypoesthesia in a stocking distribution. It is likely that leg swelling is due to inactivity as he is fearful of any form of exercise and his weight has increased since his surgery.
In his second surgery, a benign spinal tumour was removed. It is clear from the correspondence that the second surgery intended to remove the benign tumour and left sided radiculopathy. It is also clear that the surgeon believed surgery was inevitable for the tumour.
With respect to the legislation, there is no mention of surgery, although surgical findings could be used as observations to conclude that the criteria had been met. In other words, a MVA which is followed by surgery does not necessarily imply non-minor.
All clinical observations post-surgery cannot be used to determine minor/non-minor classification.
Surgery is a significant structurally changing event, intended to correct the original negative changes generated by the MVA or other causes. This implies that criteria generally need to considered prior to and at the time of surgery before any surgical changes are made. Surgery has the potential to make the clinical situation better or worse.
Given the above, MRI imaging studies and clinical observations post-surgery are not relevant in deciding non-minor.
The pre and post MVA investigations, but pre-surgery, of importance are:
• MRI 7/11/2016 which demonstrated left sided herniations at L4/5 and L5/S1 and progression of tumour
• MRI 7/5/18. ‘At L5/S1 there is a moderate broad-based left subarticular disc protrusion, larger than on previous imaging... the left S1 nerve root is in contact and mildly displaced in the subarticular recess’ The tumour had also enlarged.
These investigations do not support a non-minor injury under the ACT. They do indicate a progression of pathology, unlikely to be related to the MVA.
The issue of radiculopathy is more difficult. We know he had left sided radiculopathy as late as 2017 with a needle procedure reported. Left sided sciatica symptoms were reported by his GP and surgeon. Both doctors agree that right sided symptoms appeared after the MVA. Dr Donnellan reports that right leg symptoms and signs resolved after the second surgery with removal of the tumour. This suggests that right sided radiculopathy as recorded by Dr Donnellan was the outcome of his spinal tumour and not a musculoskeletal injury.
In summary, there is no convincing evidence that either left or right radiculopathy pre-surgery was the result of a musculoskeletal injury incurred through the MVA.
The MVA increased symptoms from pre-existing and worsening pathology as imaged by serial MRI's. The MVA is not the cause of his second and third spinal surgeries.”

Medical Assessment Certificate by Medical Assessor Wijetunga

In his certificate of 9 November 2021, Medical Assessor Wijetunga summarised the following post-accident documentation.
“Statement of Amode Auckburally, 4 May 2018:
·        He reports that he was driving to pick up a customer, when without warning, a truck collided at high speed with the right side of his car, causing impact to the wall and spinning out of control. Then the car struck him a second time on the driver’s side. Police rescue squad came to the scene and he was trapped in the car and was unable to get out.
·        He was taken to St Vincent’s Hospital, where he was an inpatient overnight.
·        He had pain in right shoulder, neck, lower back and sustained injuries to lumbar spine and right shoulder.
·        He had internal bleeding on the left side of the abdomen.
·        At the time of the accident, he was employed as a full time limousine chauffeur for Chauffeurs Australia.
·        He is considered not fit to drive as a chauffeur again.
·        He had a previous accident in 2000, while he was working as a pastry chef.
Police report, 28 March 2018:
·        Describes major traffic crash, where he was conveyed to hospital.
Ambulance report, 28 March 2018:
·        Nil visible chest injury. Complained of neck pain tenderness, tender sternum to palpate, altered sensation in both legs, left feeling worse, lower back pain around region of previous spinal fusions.
Discharge summary referral, 28 March 2018:
·        He was noted to have T1 to T2, T7 to T9 and L2 to L5 midline tenderness.
Personal Injury Claim Form, 12 April 2018:
·        Continuous headache, constant pain in lower back, both legs, severe pain in abdomen.
Star injury management reports, May, July 2018 are noted.
·        At that time it was noted that he had provision of a walking stick, long handed sponge.
…
Peter Conrad, 11 February 2019:
·        He presented with ongoing back pain radiating down back of both legs. Left leg is substantially more affected than the right. He finds it difficult to walk any distance without walking stick.
·        He had back problems in 2013 which was work related. He was off work for a year, but made significantly good recovery to work as a limousine driver doing about 50 hours per week.
·        At the time of assessment, there was severe hyporeflexia with virtually absent knee and ankle jerks on the left side.
·        It reports that he sustained a severe injury involving disc protrusion at L5/S1, leading to decompression operation of laminectomy and discectomy by Dr Donnellan and the removal of an incidental L5 Schwannoma.
·        He did have a previous work injury, however, the MRI scan at that time showed discal injury at L4/5 which is a higher level and the subsequent MRI scan following the motor vehicle accident showed no evidence of significant discal problems at that level.
·        He had fairly minimal symptoms only following the work accident in 2013.
·        He assessed him as having 13% with activities of daily living being given 2%.
Dr Shetty, pain medicine:
·        It reports that spine range of movement is restricted in both flexion, extension, rotation. He has moderate degree of paraspinal allodynia. Neurological screen was unremarkable.
·        11 May 2019 – he was starting work with physiotherapy.
·        16 July 2019 – he had Botox injections with some improvement of his current pain level, but his symptoms have since returned to 8-10/10.
·        26 November 2019 – at that time, he had noted motor signs emerging with a couple of falls and there was consideration suggested of decompression and stabilisation.
·        4 February 2020 – he strongly supported Dr Donnellan’s plan of stabilisation.
·        2 June 2020 – he had an L4/5 arthroplasty and L5/S1 ALIF on 29 May 2020 and PLIF on 3 June 2020. He had progressed quite well with surgery with some mild bowel motility issues.
·        19 June 2020 – he had a significant flareup of his pain with admission to Prince of Wales Hospital on 16 June 2020.
·        He reports that whilst climbing down stairs, he missed a step and jerked his left leg, which flared up his lower back pain. He was recommended for a CT and further MRI, but the MRI did not show any neurological deficits or instability of the hardware. There was a suggestion of mild left S1 nerve encroachment.
·        14 July 2020 – he was organising a caudal epidural steroid injection.
·        17 August 2020 – he reports that complex regional pain syndrome in his left leg was emerging with significant degree of hypersensitivity.
·        22 September 2020 – noted prominent degree of leg swelling whilst mobilising, but sensitivity in the left foot and ankle were improved. He reported that his complex regional pain syndrome symptoms seemed to be improving.
·        October 2020 – reported that he may have features of right peroneal nerve compression neuropathy, which may have happened with prolonged periods in bed with an awkward leg position. He wanted to quantify this with nerve conduction study and EMG.
·        26 January 2021 – it showed ongoing swelling prominent in both legs, left leg tending to be hot and sweaty on occasions with good degree of temperature changes as compared to the right side.
·        23 February 2021 – his left leg complex regional pain syndrome had stabilised.
Dr Bodel, 29 January 2021:
·        He complained of lower back pain primarily in left leg with intermittent right leg pain.
·        He had tenderness generally on the lower back and he had dysmetria of the lumbar spine with atrophy of the calf of 1.4cm smaller than the right.
·        He suffered serious injury to back with bilateral sciatic pain and two surgical procedures.
·        He diagnosed disc rupture at lumbosacral junction involving L4/5, L5/S1.”

THE PANEL’S EXAMINATION

Mr Auckburally attended the appointment punctually.
He presented in an extremely disabled state carrying a quad stick and walking very slowly. He had taken a taxi from his home in Botany where he lives with his wife and two sons. Mr Auckburally reported that he has not driven since the accident.

Background

Mr Auckburally is 64 and was born in Mauritius. He has lived in Australia since 1994, having migrated from France. He left Mauritius at age 19 where he had only done a few years of manual work, for France where he worked as a chef for 19 years. He continued work as a chef after arriving in Australia.
He has a history of ischaemic heart disease, with placement of multiple stents over 10 years ago (2008, 2009 and 2012). He ceased smoking over 30 years ago.
He initially developed (non-radiating) low back pain in 2000 after lifting a packet of pastry at work. He had five months off work although his back improved with conservative treatment and he could later resume work, reportedly working uneventfully until a work fall in 2013.

He could not remember exactly when, although likely around 2012, he decided to change careers from commercial cookery to limousine driving. He was still driving limousines at time of the accident.
In 2013, he had been at the airport in the catering section when he tripped on a salad leaf, his back hitting a large bench wheel. There was onset of severe (once again, non-radiating) low back pain.
Not long afterwards, he was referred to Dr Donnellan whom he thought arranged “injections” (nature unspecified). He said his main complaint was low back pain and on specific enquiry, when asked about left leg pain, he did not clearly recall this. The Medical Assessor told him that Dr Donnellan writes very clearly about left sciatica in those records 2013-2014. He said it was such a long time ago now that he was unable to remember. He understood that scans then showed a problem with the L4-5 disc although he could not provide further information.
He was essentially unable to provide a history of symptom trajectory, remaining steadfast that from 2013-2018, the main issue for him had been non-radiating low back pain. He did not clearly recall any symptoms in the left leg such as weakness or pain. He conceded that “sometimes” the low back pain might have spread as far as the left thigh.
Eventually, Dr Donnellan told him that he needed a lumbar spine operation, which he thought was in 2016. The latter operation was an L4-5 microdiscectomy and hemi laminotomy to relieve pressure on the left L5 nerve root (per the medical records).
Medical Assessor Lahz asked him about the symptoms which motivated him toward that initial spinal surgery (2014-2016). Again, he said that it had been low back pain and did not remember any significant symptoms in the left lower limb, even when the medical assessor put to him the content of Dr Donnellan’s notes and correspondence, stating otherwise.
Post operatively, Mr Auckburally reported that he made an excellent recovery. He felt “great” and able to resume limo driving. He said that although there was still some back pain (requiring small doses of Targin and Lyrica), he could sit comfortably in the vehicle for hours at a time and also been able to lift heavy suitcases.
From 2016-2018, he said he did not return to consult Dr Donnellan because there was no need. His lower back symptoms were well under control and he denied the presence of any left lower limb symptoms. He said that he in fact felt so well that he could travel to Mauritius for a holiday in January 2018, a few months before the accident.
Medical Assessor Lahz drew to his attention entries in the general practitioner (GP) records from November-December 2017 indicating back pain radiating to the legs associated with generalised lower limb weakness. According to the GP records, these symptoms developed after he had leant over a washbasin although he did not specifically remember any symptoms during late 2017. The records indicated that the GP increased the Targin dose slightly. There were no further references to low back pain until the initial entry 5 April 2018 after the accident.

History of the accident

On 28March 2018, he had been en route to the airport (restrained by seatbelt) to pick up a media celebrity and in the Harbour Tunnel when a truck, the driver of which, alleged not to have seen him, hit the driver’s side of Mr Auckburally’s BMW vehicle Series 7. The latter vehicle was then propelled into the tunnel wall before rebounding with further impact of the truck versus the driver’s side, and in turn another impact with the wall of the tunnel.
When the BMW came to rest, Mr Auckburally used the SOS button to call in the emergency services. “Everyone” police and ambulance attended. Mr Auckburally’s vehicle was written off. He explained that there was cabin intrusion by the driver’s side door and he was trapped in the vehicle for an hour whilst sitting very awkwardly with a rightward lean.
On being extracted from the vehicle, he complained of severe midline low back pain and of reduced sensation in (he said) both legs as well as lower limb pain R=L. The ambulance took him to St Vincents Hospital where he remained for just one night. He said that little was done for him and he could not remember if any scans were performed or not, despite “horrible” low back pain with radiation to the legs.
The next day, he said he saw his GP to complain of L>R leg pain although Medical Assessor Lahz noted the records indicated that he saw the doctor a few days later and the doctor in fact recorded R>L leg pain. Medical Assessor Lahz put this to him; again he explained, given that it has been such a long time, he could not clearly remember.
The Medical Assessor drew to his attention the contents of the post motor vehicle accident GP records and also those of Dr Donnellan referring to new weakness and sensory loss in the right leg, not present before the accident.
He was sent for a lumbar spine MRI which was undertaken on 7 May 2018. According to Mr Auckburally this showed increased bulging of a disc (Dr Donnellan’s report 30 May 2018 refers to the L45 disc although the formal report of the same MRI actually refers to an L5-S1 disc herniation versus the left S1 nerve root.)
Dr Donnellan’s report dated 30 May 2018 refers to worse low back pain with bilateral sciatica R>L on a background of persistent pain from L4-5 and L5-S1 disc disease. He also refers to new pain, sensory disturbance and weakness at the right leg.
His medico-legal report (2022) refers to the development of right ankle dorsiflexion/plantarflexion weakness after the accident. Dr Donnellan also referred to left hip flexion weakness due to pain after the accident.
According to Mr Auckburally, he only learned about the L5 nerve root “tumour” after the 2018 motor accident. Medical Assessor Lahz pointed out to him that Dr Donnellan had been monitoring this L5 schwannoma before the accident (with view to possible surgery) to which he responded “Well, he might have known about it, although I did not”.

History of symptoms and treatment after the accident

After the accident, Mr Auckburally explained that he developed unpleasant feelings of “heat” in both legs. He said that scans showed something “bad” and on 7 July 2018 he proceeded to a second spinal operation being left L5-S1 microdiscectomy and removal of the L5 schwannoma.
He explained that he felt a little better after this surgery. The symptoms in the lower back and legs were possibly a little better. He also described an ongoing “heat” sensation in both legs L>R.
He underwent a further MRI in August 2018 which he said also demonstrated “bad” findings. The formal report 28 August 2018 of the latter, refers to presence of known left L45 hemilaminectomy and left L5S1 moderately sized broad based disc protrusion associated with mild left subarticular recess narrowing without nerve root compression. There was some nerve root enhancement consistent with the recent spinal surgery.
Dr Donnellan’s correspondence 5 October 2018 indicates that following the July 2018 lumbar surgery, the left leg pain decreased although it later recurred. In addition, he developed new right lateral thigh numbness.
Medical records 26 September 2018 refer to burning sensations of the right lateral thigh. On 17 October 2018 Dr Donnellan refers to ongoing numbness at the right lateral thigh as well as left leg weakness/sciatica. There was mention too of sexual dysfunction and left L5 sensory change. Physiotherapy was recommended to improve lower limb strength.
By 23 October 2018 Dr Donnellan noted left L5 pain and episodic left leg giving way. He suggested a steroid injection.
On 22 November 2018, Mr Auckburally received a steroid injection to the LFCN (lateral femoral cutaneous nerve) and there was mention of right-sided low back pain++.
By 27 November 2018 there was generalised left leg pain as well as right leg numbness extending to the knee. By December 2018, the left leg was still reportedly weak and giving way.
Mr Auckburally struggled to remember the course of events at this stage although there were possibly further lumbar spinal injections undertaken, nature/specific location unspecified. He also did not recall specifically the burning sensation affecting the right lateral thigh which developed after the July 2018 spinal surgery.
The 2018 medical records essentially indicate persistent left leg pain and right lateral thigh sensory change (dysaesthesia).
Mr Auckburally underwent further investigations on 20 December 2019 with MRI indicating reduced nerve root enhancement, previous left hemi laminotomy at L5, mild L45 disc bulge and broad based bulge at L5/S1, annular fissure and mild subarticular recess narrowing without nerve root compression. A bone scan also done 20 February 2019 was wholly unremarkable, not showing any significantly active spinal osteoarthritis.
Dr Donnellan on 6 February 2019 referred to Mr Auckburally’s “deteriorating” symptoms inclusive of right lateral thigh numbness, left L5 numbness and left sciatica although he referred to “good power” in the lower limbs. Nonetheless, Mr Auckburally reported to him that his legs could give way and consequently, there had been falls. At this stage, he advised Mr Auckburally to consult with pain physician Dr Shetty whom he started seeing in February 2019.
Dr Shetty on 26 February 2019 refers to low back pain radiating to the left leg and intermittent right leg pain associated with paraesthesia of the lateral leg, posterior thigh and buttock. There had been three falls although he described the clinical examination of Mr Auckburally as neurologically normal. Specifically, he found no objective clinical signs of cauda equina injury.
The falls due to recurrent lower limb giving way continued throughout 2019.
Mr Auckburally said Dr Shetty’s main interventions involved prescription pain medications and application of various creams. There were also a few spinal injections. The Medical Assessor asked Mr Auckburally about the (pelvic) Botulinum Toxin injections referred to in the notes although he had no recollection of this. He recalled that he did develop intense itchy sensations in both feet. He thought his symptoms at the time remained bilateral leg pain L>R.
Dr Shetty on 12 March 2019 referred to low back pain with radiation to the left leg, associated with burning feelings in the sole of the left foot as well as various throbbing and shooting sensations.
On 4 September 2019, Dr Donnellan noted worsening low back pain with left sciatica which he ascribed to worsening issues at L4-5 and L5-S1 discs.
By 10 September 2019, he noted that the claimant was under consideration for lumbar fusion and disc replacement.
MRI 9 October 2019 showed no residual L5 schwannoma. There was mild narrowing of the L4-5 subarticular recess. There was some enhancement at left L5-S1 in the L4-5 and L5-S1 subarticular recesses. There was mild narrowing of the L4-5 subarticular recess.
Dr Donnellan arranged a CT guided discogram on 22 October 2019 which indicated the L45 disc as the driver of the right lower limb radiculopathy whereas the L5-S1 disc was the source of left lower limb radiculopathy.
On 13 November 2019, Dr Donnellan discussed the abovementioned findings, noting that in addition to the right lower limb radiculopathy at L4-5 and left lower limb radiculopathy from L5S1, there was also discogenic back pain from both L4-5 and L5-S1. He recommended either left L45 and L5S1 two level posterior fusion or alternatively L4-5 disc replacement and L5S1 ALIF with pedicle screw augmentation. He referred again to the claimant’s reported sexual dysfunction and referred him to a urologist.
Mr Auckburally came to a two-stage lumbar spine procedure in May-June 2020. The first operation occurred from the front ALIF whereas the second (L4-5 disc replacement) from the back.
On 25 September 2020 Dr Donnellan referred to the recent lumbar fusion noting that both low back pain and left sciatica had reduced although Mr Auckburally complained of unpleasant sensations in the left leg as well as right leg pain/weakness. Overall, he referred to grade 4/5 bilateral lower limb weakness and grade 2-3/5 right ankle dorsiflexion weakness.
Dr Shetty (late 2019) referred to Mr Auckburally’s chronic pain with central sensitisation and recommended rehabilitation. An MRI would be arranged due to the delayed right leg weakness since lumbar fusion. There was also reference to “progressive right footdrop” lower limb swelling and weakness.
Mr Auckburally told Medical Assessor Lahz that he initially felt not “too bad” after the lumbar fusion surgery although pain again recurred within just a few months, with L>R leg pain now associated with numb/tingling sensations in the feet R=L where there were also stabbing sensations. At some stage not long after the lumbar fusion procedure, he also developed marked right ankle weakness “footdrop” for which he was referred to rehabilitation. He said he spent two weeks in hospital for inpatient rehabilitation and provided with a right-sided AFO (ankle foot orthosis) which he wore until it broke.
By August 2020, Dr Shetty was suggesting a diagnosis of CRPS (complex regional pain syndrome) characterised by swelling and allodynia of the left leg as well as worsening right leg weakness.
CT lumbar spine 22/10/20 showed displacement of the left L5 nerve root in the subarticular recess. A plain X-ray also 22 October 2020 showed intact L4-5 disc replacement and L5-S1 ALIF. There was ongoing right footdrop with frequent falls from giving way of the left leg.
The MRI of the lumbar spine dated 1 February 2021, was reportedly unchanged.
By mid-2021, Dr Shetty’s records indicate that Mr Auckburally was under consideration for lumbar blocks to help with CRPS. He also referred to possible implantation of a spinal column stimulator (SCS). Bone scan showed no pathology in August 2021. Dr Shetty highlighted central sensitization which had developed since the lumbar fusion, as a pain driver and thought he was a good candidate for SCS.
Mr Auckburally explained that by late 2021 there was ongoing low back pain into both legs and persistent right footdrop. The left leg was prone to giving out and there were recurrent falls. Dr Donnellan was on leave so at this stage, he was referred to Dr Ralph Mobbs, another neurosurgeon although no surgery was advised because “everything had already been done”. Instead, he was then referred to Dr Yu, a pain specialist who implanted a spinal column stimulator which conferred approximately 50% benefit on symptoms. He still uses this device.
At one stage, he was taking around 50 tablets, many for pain, although in the finish, these were gradually tapered amid concerns for his cardiac wellbeing.
Mr Auckburally’s current medications are Palexia 50mg qid, Panadol Osteo eight tablets daily, Lyrica 150mg bd-tds and 75mg nocte, Coloxyl, Telfast (for itch) and various steroid creams and a special shower gel for pruritis. He also takes Cartia, Betaloc, Atorvastatin and Ramipril (for cardiac issues and blood pressure) as well as vitamin D and magnesium. He uses Cialis as required for erectile dysfunction.
He is still receiving physiotherapy twice weekly comprising gentle exercise, stretches, functional exercises and spinal massage. The physiotherapist also organised special supportive ankle boots/orthotics which are very comfortable, and he still uses.
Dr Shetty still manages his pain medications and sees Mr Auckburally six monthly, being due for review September 2024.
Dr Yu also reviews him six monthly and manages the SCS and was due to review him in two weeks.
He sees his GP for regular Workcover Certificates. Mr Auckburally has been completely unfit for any work since the date of the 2018 accident.
He is still seeing Dr Donnellan, most recently two weeks before. Mr Auckburally has very recently undergone a bone scan and a myelogram, and will very soon be seeing Dr Donnellan for the results. He said that Dr Donnellan is contemplating whether more spinal surgery might be necessary although Mr Auckburally has no idea of what kind of surgery is being proposed.
The insurer funds a home cleaning service and mowing/yard work. The insurer has also funded home modifications and equipment to reduce falls risk including grab rails, walking stick, wheelchair, walking frame, non-slip flooring, shower chair, toilet aid, bed rail etc.
Mr Auckburally reported inability to complete any chores or yard work. He needs help with personal care due to poor mobility.
He rarely goes out and spends the day reading (often religious texts) because he is a devout Muslim, watching Youtube videos or else lying down.

Current symptoms

Mr Auckburally complains of pain in the lower back and both legs, the intensity at the lower back equating with that of the lower limbs. Moreover, he said that in the last two weeks, the lower back symptoms had spread to the left shoulder, and he had also developed numbness in the left ring and little fingers.
The Medical Assessor asked him to shade in various symptom diagrams for pain, pins and needles, weakness and numbness. The diagrams show that the distribution of the latter symptoms is widespread throughout the lower limbs.
There are various symptoms including pain, diffusely involving the lower back, buttocks and lower limbs.
On a diagram he indicated numbness over the left lateral calf and foot dorsum, right foot dorsum, soles of the feet and left lateral leg from hip to foot.
On a separate diagram he indicated diffuse pins and needles involving both feet as well as hands.
On yet another diagram he recorded burning sensations in both feet (dorsum and soles) and also fingers.
On a further diagram, there are stabbing sensations below the knees anteriorly and posteriorly inclusive of the feet.
He complains of weakness bilaterally below the knees most noticeable at the left leg and the right ankle where there is persistent footdrop.
He reported frequent 10/10 intensity low back pain reduced to 5-6/10 by use of the SCS.
At the left leg, he reported frequent 7-8/10 pain and at the right leg 4-5/10 pain with catching nature.
He referred to various burning and boiling sensations in his legs especially at the feet. At other times, there are also cold, freezing sensations affecting the lower limbs.
He also referred to lower limb swelling and the need for adjustable footwear.
He can only walk very slowly for about 15 minutes, using the stick and must wear continence pads because he cannot reach the toilet in time. He feels comfortable when sitting or else lying down. (He appeared to sit comfortably for the 60 minutes or more of the clinical interview.)
Similarly, there have also been episodes of bowel incontinence due to difficulty reaching the toilet in time.
He complains of constipation and haemorrhoids for which he takes aperients causing his bowel motions to be runny.
There is ongoing sexual dysfunction. He can obtain an erection although he cannot ejaculate. (He feels stressed about this because he reported that his wife is much younger than he.)
He also referred to various other symptoms including headache, sinus issues and breathing problems.
He still falls over although he reported that this is occurring less often now due to home modifications and equipment.
There is extensive surgical scarring over the lower back and abdomen. He reported that the scarring is very itchy.

Examination

There was central adiposity/obesity.
Height was 171cm and weight 102kg.
There was loss of the lumbar lordosis with tenderness of the lower lumbar spine without muscle spasm or guarding. Lower back movements were very restricted, virtually no flexion, 20 degrees of extension (extension better than flexion) and lateral flexion 50% normal range to either side.
There was complex surgical scarring, a 6cm horizontal brawny scar at the superior buttock, bilateral vertical 4cm scars at the superior buttocks, a midline lumbar longitudinal scar measuring 12cm with an obvious divot (contour defect). Anteriorly, there was another brawny, widened scar running longitudinally from the umbilicus measuring 17cm. He is conscious of all the scars and easily able to locate them. All scars were mobile, brawny and easily distinguishable from surrounding skin. There were trophic changes without adherence. He applies various moisturisers, and the scars as noted are very itchy and slightly affect activities of daily living (ADL) in that he should avoid exposure to the sun and some fabrics causing greater itch. The scars are not visible in ordinary clothing.

He could sit on the side of the bed with the right leg extended, equating with 80 degrees of straight leg raise (SLR). On the left, there was less easy lower limb extension, the equivalent of 70 degrees with complaint of pain in the left buttock, lateral thigh and sole of the foot.
Gait was slow and wide based, tending to throw out the right lower leg due to footdrop, with tendency to walk on the outer border of that foot. He used a quad stick.
He could balance on the heels with difficulty and support from the examiner (greater difficulty on the right). He could also balance on tiptoe with support from the examiner.
There was no measurable wasting of the thighs (43cm) 10cm above the superior borders of the patellae or calves at maximal mid girth 38cm. The ankle circumferences were also symmetrical 24cm.
Ankle jerks were absent bilaterally even with facilitation manoeuvres. The left knee jerk was present as was the right knee jerk although the right knee jerk was depressed. Hamstrings jerks were bilaterally absent even with facilitation manoeuvres.
In supine, there were 35 degrees of bilateral SLR with reported ipsilateral buttock pain.
There was generalised sensory loss to light touch in both lower limbs, worst at the left thigh (L123), left lateral calf, right lateral calf (lesser extent), right knee, left foot dorsum (more affected than right), right foot dorsum, left foot sole (more affected than right), right sole, posterior calves L=R and posterior thighs (left worse than right).
He reported global reduction of pinprick in both legs in most areas he said he could not perceive anything sharp. The left-sided pinprick sensation was generally worse than the right.
There was reduced left great toe position sense whereas right great toe position sense was intact.
In supine, the left lower limb was weaker around the hip and knee (grade 4/5) compared with the right with concurrent complaint of buttock pain. On the couch, there was mild weakness worse at the left ankle than the right ankle despite the fact that on walking, there was greater weakness at the right ankle. He complained of generalised left lower limb pain, accounting for his reluctance to move the left ankle in the supine position. Toe curling was poor bilaterally. There was giving way weakness bilaterally on great toe extension.
There was no lower limb allodynia or hyperalgesia. He did not flinch on light stroking of his lower limbs.
No X-rays/scans were brought to the appointment.

Consideration of the parties’ submissions

The Panel resolved it was necessary to conduct a re-examination.
The insurer submitted that Medical Assessor Dixon failed to consider the documentation of Dr Donnellan, in particular, where he was directly questioned about the connection between the subject accident and the condition identified, stating:
“As I previously stated the motor vehicle accident exacerbated his previous injury. (The claimant’s) case is very complex but I would estimate that the portion of causality was 60% from his workers compensation injury and tumour at 40% from the subject motor vehicle accident.”
The Panel in fact considered all of the material reproduced above, including the material from Dr Dixon and the Medical Assessors referred to above.
The insurer further submitted that Medical Assessor Dixon failed to provide adequate reasons with respect to causation of injuries, which was put in issue by the insurer.
In this respect, the insurer relied upon the opinions of Dr Donnellan (60/40% split) and Medical Assessor Rosenthal and Medical Assessor McGrath, who declined causation of the claimant’s lumbar spine fusion and ongoing pathology.
The insurer submits there was clearly a significant medical controversy regarding the lumbar spine injury which required Medical Assessor Dixon to provide a more expansive explanation and express consideration revealing the use the assessor made of the information provided.
The insurer further submits that the reader is left devoid of reasoning and consequently is required to fill in the gaps as to how Medical Assessor Dixon concluded the claimant’s lumbar spine was stable prior to the subject accident and resulted in DRE category I impairment classification and with respect to the claimant’s impairment for scarring in accordance with TEMSKI.
The Panel agrees that Mr Auckburally’s presentation is complex.
He reported to have been functioning well despite intermittent low back pain with spread to the left leg before the 2018 accident. He emphasised to Medical Assessor Lahz that low back pain had been the main problem and in the two years before the accident, he did not recall much in the way of either left leg pain or else sensory change.
He had been working as a limousine driver, able to lift heavy bags, sit for prolonged periods and had travelled to Mauritius for holidays before the 2018 motor accident. He attributes his good condition to successful surgery on the L4/5 disc in approximately 2015-2016.
From the time of the 2018 accident, there have been relentless complaints of low back pain, into both legs. It appears he did develop right sciatica after the accident although there was also left sciatica. There was possibly some weakness at the right ankle as well (though this became more prominent later after the lumbar fusion procedure.)
He came to surgery on the L5/S1 disc in July 2018 as well as removal of the known L5 Schwannoma although this did not greatly assist him. The Panel noted that, the MRI at the time refers to L5/S1 disc pathology whereas Dr Donnellan in his correspondence refers to enlargement of the L4/5 disc. The operation was done on the affected L5/S1 disc in accordance with the MRI finding.
In mid-2020 there was L4/5 disc arthroplasty and L5/S1 ALIF and his course from thereon in, had been relentlessly downhill. He developed worsening bilateral lower limb pain L>R, global left lower limb weakness with giving way and frequent falls and right foot drop requiring splintage.
The clinical findings were not straightforward with the various pain/symptom diagrams indicating widespread involvement of lower back, buttocks and lower limbs by various symptoms. The pattern was not dermatomal. There were pins and needles and burning sensations diffusely in both feet.
He has a chronic pain state in the context of a multiply operated back, with central (neural) sensitisation as noted by Dr Shetty. (Neural sensitisation is a phenomenon by which there is aberrant neural activity so that typically non-painful activities/sensations are perceived as painful.)
Symptoms partially respond to high frequency stimulation using the SCS.
There were reflex abnormalities and there was weakness about the right ankle most apparent walking during which he is throwing out the right lower leg and tending to walk on the side of the right foot due to a footdrop.
In summary, at Medical Assessor Lahz’s examination there were findings consistent with right L5 radiculopathy given there was right footdrop and absent ipsilateral hamstring jerk. Given the various MRI findings of mostly left-sided narrowing from the time of the motor accident, Medical Assessor Lahz could not relate the right-sided clinical findings at the ankle to the scan findings. At the same time, there was left lower limb weakness (generalised) with proneness for falling associated with complaint of left lower limb pain from very soon after the accident, which in turn initiated the chain of events leading to surgery in July 2018 on the L5-S1 disc and then again in 2020 with the L4-5 disc replacement and L5-S1 ALIF.
In the context of the multiply operated back, he could have incurred some degree of nerve root injury giving rise to the abovementioned reflex changes and right ankle weakness.
The Panel is unsure whether Mr Auckburally had undergone any nerve conduction studies.
The Panel on the balance of probabilities finds that his current lumbar spine condition was initiated by the injuries from the accident culminating in two further spinal operations and the development of a chronic pain state.
In respect of causation of the lumbar spine injury, the Panel had considered the contemporaneous onset of symptoms, the significance of the motor accident, radiological and medical imaging, and the clinical records of treating practitioners.
For the Panel to determine whether or not there were clinical signs justifying a determination that the injuries referred to the Panel were caused by the accident in accordance with the guidelines, it took into account the examination of Mr Auckburally which confirmed signs of radiculopathy to the lumbar spine.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

WPI assessment

There was pre-existing WPI 5% on the basis of lumbar decompression surgery without clinical evidence of left-sided lumbar radiculopathy (Table 6.7, page 103 Medical Assessment Guidelines (MAG) previous spine operation without radiculopathy). The Panel found no evidence in the voluminous pre-motor vehicle accident documentation that the claimant demonstrated the two necessary signs of lumbar radiculopathy, as set out in the State Insurance Regulatory Authority (SIRA) Guidelines.
Whole person impairment for lumbar fusion and radiculopathy (DRE V) is 25% WPI (page 102 AMA 4 Guides).
If there was objective evidence of pre-existing symptomatic WPI at the time of the accident, then its value can be subtracted from the current WPI i.e. 25-5=20% due to the motor accident (paragraph 6.31, page 88 MAG)
Referring to the TEMSKI, Mr Auckburally was conscious of the multiple scars, there was noticeable colour contrast, he could easily locate the scarring, trophic changes were evident to touch, staple marks were not visible, anatomical location is not usually visible with usual clothing, there is a contour defect visible, there was minor limitation of ADL due to itch (sun, type of fabrics causing more itch), treatment was required (moisturising) and there was no adherence. Best fit was 2% WPI for scarring.
20% WPI for the lumbar spine is combined with 2% WPI for scarring, giving 22% WPI due to the accident.

Determination

The Review Panel affirms the certificate of Medical Assessor Dixon dated 18 December 2023 to certify that the injuries caused by the accident and referred to the Panel gave rise to a whole person impairment of 22%.

[2024] NSWPICMP 635

9 September 2024