Clarke v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 739
•25 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Clarke v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 739 |
CLAIMANT: | Michael Clarke |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 25 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether the injury to the lumbar spine sustained in the motor accident was a threshold injury; causation; motorcycle versus car accident; whether the motor accident caused a left L5/S1 disc herniation or an aggravation of pre-existing pathology at L5/S1; re-examination by the Medical Review Panel (Panel); Held – Medical Assessment Certificate revoked; new certificate issued under sections 7.26(7) and (9); Panel determines that the injury to the lumbar spine (left L5/S1 disc herniation with radiculopathy caused by the motor accident) is not a threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.26(7) and (9) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination 1. The Review Panel revokes the certificate of the Medical Assessor Christopher Harrington dated 2 May 2023. 2. The Review Panel determines that the injury to the lumbar spine caused by the motor accident is not a threshold injury for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
BACKGROUND
On 28 November 2019, the claimant, Michael Clarke, was involved in a motor accident when a vehicle insured by NRMA, collided with his motorcycle on a roundabout.
As a result of the accident, the claimant claimed that he sustained injuries to his left hip, lower back, left shoulder, neck, left knee, left ankle, left foot and the loss of a tooth. He also claimed that he developed a psychological injury.
The insurer accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks.
According to the MAI Act those benefits cease after 26 weeks if the claimant’s injuries are found to be threshold injuries”[1] Further, if the claimant only sustained threshold injuries in the accident, he cannot recover common law damages.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
The issue in dispute in this matter is about whether the claimant’s physical injuries resulting from the accident are threshold injuries for the purposes of the MAI Act.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. Accordingly, any reference in these reasons to a “minor injury” or “minor injuries” will be a reference taken from a document that existed prior to 1 April 2023.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
On 3 December 2021, the insurer issued a post-26 weeks liability decision, finding that the claimant sustained only minor injuries in the accident. On 14 December 2021, the claimant requested an internal review. On 11 January 2022, the insurer affirmed its original decision.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (the Commission) pursuant Division 7.5 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
The dispute was referred at first instance to Medical Assessor Christopher Harrington for assessment. The only injury that was referred to the Medical Assessor for assessment was an “injury to the lumbar spine requiring multiple surgeries”.
On 2 May 2023, Medical Assessment Harrington issued a certificate finding that the claimant’s injury to the lumbar spine is a threshold injury.
THE REVIEW APPLICATION
On 25 May 2023, the claimant made an application to the President of the Commission to refer the medical assessment to a review panel for review. The application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Michael Couch, Medical Assessor Drew Dixon and Member Maurice Castagnet (the Panel).
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.[4]
[4] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[6]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[6] Section 7.26(6) of the MAI Act.
The MAI Act
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on 1 December 2017 to 31 March 2023. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions.
(b)a review of all relevant records available at the assessment.
(c)a comprehensive description of the injured person’s current symptoms.
(d)a careful and thorough physical and/or psychological examination.
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines 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 when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[7]
Causation of injury
[7] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[8]
[8] See s 3B(2) of the Civil Liability Act 2002.
It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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.
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:
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 judgment.
6.7 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.”
MEDICAL ASSESSMENT UNDER REVIEW
The Medical Assessor considered that the clinical records of Gosford Hospital made no mention of back pain until June/July 2020 when the claimant presented at the hospital after a basketball game.
The Medical Assessor believed that the claimant had pathology at L5/S1 but the question was whether that pathology was causally related to the accident.[9]
[9] Page 7 of the Certificate of Determination.
The Medical Assessor was of the opinion that the available evidence suggests the spinal pathology was “not substantially related to the subject motor accident” and that the accident may have aggravated pre-existing pathology at L5/S1.[10]
[10] Page 7 of the Certificate of Determination.
The Medical Assessor’s conclusion was that the lumbar spine injury caused by the accident was “a soft tissue injury and aggravation of pre-existing pathology at L5/S1” and thus, the injury was a threshold injury for the purposes of the MAI Act.
MATERIAL BEFORE THE PANEL
The following documents were before the Panel:
(a) the certificate of Medical Assessor Harrington dated 2 May 2023;
(b) the claimant’s paginated and indexed bundle of documents that was before the Medical Assessor (954 pages);
(c) the insurer’s paginated and indexed bundle of documents that was before the Medical Assessor (938 pages);
(d) various photographs depicting the claimant’s helmet that were before the Medical Assessor as additional documents;
(e) the claimant’s submissions dated 2 May 2023 to the President’s Delegate;
(f) the insurer’s submissions dated 15 June 2023 to the President’s Delegate;
(g) various photographs depicting damage to the claimant’s helmet and motorcycle submitted by the claimant on 25 September 2023;
(h) a medical chronology submitted the claimant on 25 September 2023, and
(i) the certificate of Medical Assessor Matthew Jones dated 7 December 2023, in relation to an assessment of threshold injury - psychological.
SUBMISSIONS
Claimant’s submissions
The claimant’s primary submission was that the single Medical Assessor applied the wrong test for causation in concluding that the spinal pathology at L5/S1 “was not substantially related to the subject accident.” The appropriate test would be in accordance with clauses 6.6 and 6.7 of Part 6 of the Guidelines.
Insurer’s submissions
The insurer submitted that while the Medical Assessor concluded that the lumbar injury was not substantially related to the accident, he believed that the accident may have aggravated pre-existing pathology. The Medical Assessor’s conclusion was that the aggravation injury to the lumbar spine caused by the accident was a soft tissue injury and therefore a threshold injury for the purposes of the MAI Act.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel relating to the matters under review, may conveniently be summarised as follows.
Pre-accident medical records
According to the clinical notes of the Royal North Shore Hospital (RNSH), the claimant presented to the emergency department on 5 July 2008 with sacral back pain after falling off a ladder and landing on his right buttock the night before. The reported pain was in the sacral/coccyx area. A large haematoma was observed over the right buttock. A plain X-ray did not reveal any fracture. The claimant was discharged with some Panadeine Forte and Nurofen. He was reassured that he should get better but should follow up with his general practitioner in two to three days.[11]
[11] Page 632 of the insurer’s bundle.
There is no evidence before the Panel about any subsequent treatment or complaints for the condition.
The claimant’s statements
In an email at 3.14am on 11 January 2020 to GIO (the property damage insurer), the claimant stated the following:
“I apologised for not answering the phone. To be honest I’m so embarrassed and frustrated and it’s becoming a bigger and bigger issue so much that my family are constantly expressing their concern about me.
Basically I hated my teeth as kid [sic] and had a bit of speech issues whilst I was younger…over the years I developed into a very happy healthy active fit and energetic person who was always smiling always found outdoors or in the garage working on my bike.
In the accident the full force of a car hit the side of my motorcycle and I was looking to my left at the car Mr Shepherd had driven no more than 300 meters from his bed in his retirement village located on Karalta Rd Erina. The left side of the bike frame and my left knee took a significant part of the impact along with a deep deep [sic] cut to my ankle a broken left toe and tremendous amount of lower back and shoulder neck pain.”[12]
[12] Page 183 of the claimant’s bundle.
In his application for personal injury benefits dated 6 October 2020, the claimant described his injuries as follows:
“Back (diffuse disc bulge causing L5/S1 nerve impingement) lost tooth, knees, L side, L hip, exacerbation of anxiety/depression.”[13]
[13] Page 6 of the claimant’s bundle.
In a statutory declaration made on 7 December 2020, the claimant stated that [in January 2020], he held the belief that GIO would be handling his compensation for both the damage to his motorcycle and the injuries he sustained in the accident.[14] He stated that in the accident, he sustained injuries to the left side of his body including his left ankle, left knee, hip and back and he lost a front tooth. He stated that he was “unable to walk properly for about 6 weeks after the accident”.[15] He stated that over time, his back progressively got worse, and on or about 18 July 2020, he was unable to get out of bed and he was unable to walk as a result of back pain. He was taken to Gosford Hospital by ambulance.[16]
[14] Page 14 of the claimant’s bundle.
[15] Page 13 of the claimant’s bundle.
[16] Page 14 of the claimant’s bundle.
Post-accident records
The general practitioner (GP) records of Erina Medical Centre recorded the following:
(a)28 November 2019 – on a visit by the claimant on the day of the accident, Dr Greg Au recorded the following:
“right here in erina fair; at Jax roundabout; pt was turning right; then T boned by 'elderly driver' who didn't see him; says neither of them was doing over 8 km/hr; pt was wedged in by front of car and his left knee caught by car and motorbike; c/o pain+++ to left knee; walked in; no effusion; good rom knee; no obvious # but send x-ray; also very sl pain to right neck but due to distracting pain send c spine.
Review interval: with films; UL; cl chest abdo soft pelvis ok; no bony pain in cervical thoracic or lumbar sp”;[17]
(b)12 December 2019 – consultation with Dr Au; complaining of severe pain; says he feels like he has aged a lot in two weeks since the accident; still complaining of left knee pain and left neck pain; send for MRI, and[18]
(c)23 December 2019 – consultation with Dr Au; reason for visit: depression; has been upset by accident; lost front tooth; now triggered by little events is life; got splinter in foot, very upset.[19]
[17] Page 255 of the claimant’s bundle.
[18] Page 255 of the claimant’s bundle.
[19] Page 256 of the claimant’s bundle.
The GP records of Hope Medical Care recorded the following entries:
(a) 3 December 2019 – consultation with Dr Aamer; hit by a car at Erina Fair on Thursday last week; the car has hit the left side of his body; complained of soreness. On examination no bruising or swelling noted; restricted and pain range of movement; X-rays of the cervical spine, shoulder, pelvis, left knee requested; prescribed Mobic and Targin;[20]
(b) 18 December 2019 – consultation with Dr Aamer; says his front teeth were damaged when he had the accident; crown fell out of his teeth; mouth is sore; worried that something will go wrong if dentist put a new crown;[21]
(c) 24 December 2019 – consultation with Dr Youanis Nash; left knee pain; conservative measures discussed, and[22]
(d) 4 August 2020 – consultation with Dr Aamer; had surgery last Wednesday and discharged on Saturday; L5/S1 lumbar discectomy; was advised to seek wound review in two weeks; was advised to avoid opiates; requested Palexia for immediate release for pain; prescribed Palexia.[23]
[20] Page 170 of the insurer’s bundle.
[21] Page 171 of the insurer’s bundle.
[22] Page 171 of the insurer’s bundle.
[23] Page 172 of the insurer’s bundle.
The GP records of Reliance Medical Practice recorded the following entries:
(a) 23 December 2019 – Consultation with Dr John Ibrahim Gabra; the following notes were recorded by Dr Gabra:
“…he came late; as the ambulance service was with him; as he fainted at home; checked him and was given something to help calm him down; ECG was done and apparently was within normal; as was advised to check with his GP; by history he has MVA 3 wks ago; was riding a bike and crushed his helmet; he stated didnt do any brain scan?; some xray over pelvic and LL –stated fine; looks confused; slurred speech; denied any elicited drugs; no other alarming neurological symptoms.”[24]
(b) 2 January 2020 – consultation with Dr Mario Fam; he had an accident on 28 November 2019; saw Dr Greg Au in Erina but is on holidays; ended up with injured left knee; lost his left second front tooth; flared up his anxiety; soft left shoulder; teary; blaming everyone for the accident; due to his way of communication, the consultation was ended and assistance with compulsory third party (CTP) claim was refused.[25]
[24] Page 360 of the insurer’s bundle.
[25] Page 361 of the insurer’s bundle.
Gosford Hospital
The clinical notes of Gosford Hospital recorded the following entries:
(a) 18 July 2020 – assessment by emergency department; claimant complained of left sided sciatic pain with associated pins and needles; no trauma; pain(?), tenderness along left buttock; severe left lower limb reticular pattern pain;[26]
(b) 19 July 2020 – onset of acute pain on Thursday (16 July 2020); noticed similar pain a few weeks before after playing sport but this resolved quickly; no actual recent trauma/injury he can think of; however did have a “motor bike v car accident” in the past and has had some back pain with this “on/off”; by Saturday (18 July 2020) pain was unable to get out of bed, so he called an ambulance; he described the pain as burning/shooting travelling from left side of the back down to the left buttock into the left leg, and[27]
(c) An MRI of the lumbar spine performed on 20 July 2020 revealed a diffuse disc bulge with left paracentral and subarticular disc protrusion at the L5/S1 with impingement of the left S1 traversing and left L5 existing nerve root.[28]
[26] Pages 303-304 of the claimant’s bundle.
[27] Page 304 of the claimant’s bundle.
[28] Page 291 of the claimant’s bundle and page 117 of the insurer’s bundle.
Royal North Shore Hospital
The clinical notes of the Royal North Shore Hospital recorded the following entries:
(a) upon transfer from Gosford Hospital on 28 July 2020, Dr Siobhan Stone recorded the following:
“pt reporting pain as radiating from left hip; shooting in nature; as if lightning rushes across hip; hook in his back; radiates down back of leg to knee; nil sensation or pin/needles in foot”.[29]
[29] Page 664 of the claimant’s bundle.
(b) Later, on 28 July 2020 Dr Bethany Kathleen Smith recorded the following:
“38yo male with left L5/S1 disc hermiation with severe S1 radiculopathy awaiting discectomy 29/7/20; Currently in pain crisis;
…
November 2019 involved in MBA (states he was knocked off his motorbike) leading to some back pain but managed by paracetamol and diclofenac; 2 weeks ago after playing basketball which he plays regularly he went to bed and woke up in agony which prompted presentation to GOS Hospital; Denies being intoxicated, drug use or having a long lie;
…
Describes: sharp shooting pain down left buttock to posterior left knee; numbness with pins and needles in left foot; states unable to move left leg however when asked would slightly move hip and knee but would not move ankle or toes.”[30]
(c) On 29 July 2020, an operative procedure by way of L5/S1 discectomy was performed by orthopaedic spine surgeon, Dr Sean Suttor.[31]
(d) On 25 January 2021, Dr Sutton reviewed the claimant and believed that he had ongoing L5 radiculopathy secondary to the foraminal stenosis rather than recurrent disc herniation(?).[32]
(e) On 4 June 2021, Dr Suttor performed a left L5/S1 revision decompression.[33]
(f) On 3 June 2021 – a progress note by Dr Jane Senior recorded that the claimant had a history of chronic back and sciatic pain since the accident (eight months ago when he was t-boned on his motor bike. Since then, he has had a spinal discectomy which helped the pain but since January 2021, the pain has worsened.[34]
[30] Page 662 of the claimant’s bundle.
[31] Pages 512-513 of the claimant’s bundle.
[32] Page 577 of the claimant’s bundle.
[33] Page 693 of the claimant’s bundle.
[34] Page 712 of the claimant’s bundle.
Medico-legal evidence
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant.
In a report dated 17 February 2022, Dr Bodel expressed the opinion that as a result of the accident, the claimant sustained multiple injuries, including a lower back injury and disc rupture at the lumbosacral junction requiring two surgical procedures and a contusion to the left hip.
Dr Bodel believed that on the available evidence, the injuries were caused by the accident because the claimant was asymptomatic at the time of accident with no prior problems in any of these injured areas and that there were no signs of pre-existing pathology or injury.[35]
[35] Page 117 of the claimant’s bundle.
Statutory declaration of Aileen Clare White
In a statutory declaration made on 6 November 2022, Ms White, a retired solicitor and General Insurance Manager for Cochlear Limited stated that the claimant was her nephew and that he was living with her from January 2017 to March 2021.[36]
[36] Page 16 of the claimant’s bundle.
Ms White stated that when the claimant began living with her up to the time of the accident, the claimant was a fit young man who assisted her with cleaning, general maintenance of her house and who would bring her shopping bags, running up the stairs, with two or three bags in each hand. She observed that the claimant kept his weight to 75kg by being diligent with his fitness, riding long distances on his bicycle and playing basketball. He was undertaking referee certifications and coaching his younger brother’s team.[37]
[37] Page 16 of the claimant’s bundle.
Ms White stated that the help around the house continued until the accident.[38]
[38] Page 16 of the claimant’s bundle.
RE-EXAMINATION
The claimant was examined by Medical Assessor Couch on behalf on the Panel on
11 October 2023.
Relevant Personal Details
The claimant grew up in Pymble and completed his Higher School Certificate at Barker College. He described a varied career since then. He obtained a Diploma in Human Resource Management at TAFE and subsequently, a Certificate IV in Accounting and Financial Services. He worked at the Mona Vale Hotel where he was the manager of functions for about five years. He then spent some time working and studying in the Philippines. He partly completed a degree in architecture and indicated he would need to study for another 18 months in Australia to complete the degree. Subsequently, he worked on the Top Gear Festival for about three years.
The claimant eventually did a road trip by motorcycle to Cooktown, in northern Queensland, and on to Darwin. When his motorcycle was stolen in Darwin, he flew back to Sydney.
In 2017, the claimant commenced a degree in Education at Open University (through Curtin University, Perth). At the time of the accident, he had two academic units to complete the course requirements followed by a practical period. He said that because of the injuries he sustained in the accident, he was unable to complete the practical part of his education degree.
At the time of the accident, he was living with his aunt in Green Point and was helping her. At the time of the examination, the claimant was living with his grandmother.
Pre-accident medical history
The claimant recalled sustaining a fractured patella in his right knee while doing a high jump at school whilst in year 6. This was treated with open reduction and fixation and there was a full recovery.
The claimant said his only previous major health problem had been a period of chronic pancreatitis attributed to gallstones. This went on for about three years. He recalled taking a Targin for pain at that time up until he underwent a cholecystectomy (which had apparently been deferred for some months for medical reasons). He had not had any flare-ups of pancreatitis since then and he had stopped taking Targin. He said after the accident, he avoided opiates for his low back pain and commented that he was upset at some of the insurer’s references to his alleged opioid use.
Pre-accident activities
The claimant said that he had been very physically active before the accident and that he had maintained his weight at around 73-75kg, which remained the same since he left school. He rode a mountain bike at least twice a week and enjoyed swimming. He did board surfing about twice per week. He was a regular volunteer with the Avoca Surf Life Saving Club. He estimated that he was exercising for at least an hour every day and considered himself to be extremely fit prior to the accident.
History of the motor accident
The claimant said that on 28 November 2019 he was riding his Kawasaki 1000cc motorbike and was turning right at a roundabout into the carpark of the Erina Fair Shopping Centre. He recalled that there was a speed bump ahead of him. A car was approaching the roundabout from his left. He thought the car was slowing down to give way to his motorcycle. However, it suddenly sped up and collided with his motorcycle.
The claimant recalled seeing a female front seat passenger in the car and that she looked upset at the situation.
The claimant said that the car hit him on the left hip, and he was pinned between his motorcycle and the car. He recalled being scared that the driver would move in the wrong direction. He banged on the car crying out: “don’t move, don’t move”. When the car eventually moved off, his motorcycle landed on top of him.
The claimant said that some workers at nearby Jax Tyres heard the noise and came to lift the motorcycle off him. He recalled that he ended up sitting on the kerb for a long period.
Symptoms and treatment since the accident
When asked about his initial symptoms, the claimant replied:
“…huge amounts of pain – I kept saying to the doctors that it was the whole of the left side of my body – I couldn’t sleep or work properly.”
He recalled that he had low back pain immediately after the accident, explaining:
“I said my pelvis – I didn’t realise that it was related to L5 or S1 and therefore the insurance company said I haven’t hurt my back.”
The claimant said that in the months after the accident he felt very frustrated that he was not getting any help. He recalled severely disturbed sleep. He recalled that in the first half of 2020, he was really struggling. He recalled:
“I tried to go to so many GP’s to see what it was so I could start to help myself. I couldn’t study. I had problems with my aunt as I was in bed a lot and was just peeing in a bottle. Very depressed. Didn’t see friends – in a hole – I went from a mid-life crisis to an end-of-life crisis.”
When asked when he recalled first getting useful help for his back pain, he said a nine-day admission to Gosford Hospital in July 2020. He has then had two operations by orthopaedic spinal surgeon, Dr Sean Suttor, at RNSH as a public patient. Prior to the first operation, he recalled being transferred from Gosford Hospital to RNSH with a diagnosis of an L5/S1 disc protrusion causing nerve root compression. He recalled that the first operation (L5/S1 discectomy) seemed to be mainly because of low back pain. When asked if this procedure helped, the claimant replied:
“I’d love to say yes – it seemed to help a bit – I wasn’t getting a dead leg for three hours so I could get out of bed.”
The claimant said that, subsequently, his symptoms became worse. He recalled a lumbar spinal injection in about May 2021 without benefit, and he underwent a further decompression procedure by Dr Suttor in June 2021. The claimant recalled:
“Dr Suttor wanted to do a fusion, but I was scared and reluctant, so he did a decompression.”
He said that he continues to be reviewed by Dr Suttor at the RNSH spinal clinic about every three months. When asked, the claimant did not think that the second procedure had helped much.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant did not report any such injuries or conditions. He did describe severe depression and self-harm secondary to his persistent severe pain. The Panel notes that there are records of at least two psychiatric attendances at the Gosford Hospital Emergency Department in 2021. Scars on his wrists from self-harm were noted by the medical examiner of the Panel.
Current symptoms
When asked about his current status, the claimant replied “shithouse!”. He was asked what area of his body troubled him most and he said it was his low back. He described pain, pointing to the upper left buttock, radiating down the posterolateral thigh to the anterior part of the left knee and the posterolateral left leg and into the lateral three toes of the left foot. He said that this area felt “completely numb, dead – I can’t feel my toe.” When asked if he had pain in this area, he said he did not, and it just felt numb.
He described pain as constant, stating “I’d do anything for three hours’ sleep.” On questioning, he denied having a position in which he could get reasonably comfortable. He said that during the day he would typically sit for about 15 minutes, then stand and then walk around. At night he needs to get up every hour and often walks around the dining room table in the night.
Unlike some patients with low back pain, he denied effective relief from lying down and said that he gets stabbing and jolting in his back, “like an electric shock” – this can wake him from his sleep.
He always uses a stick in the right hand outside the home and sometimes uses it around the home, which is on one level. He estimated his walking tolerance as less than one kilometre and said that he could not run.
He described his bowel habit as constipated. He said he is unable to urinate standing up and must sit down. He occasionally has some leakage. On questioning, the claimant said he had not had a girlfriend since before the accident. He described loss of libido with no current interest in sex. He said he no longer has any erections, including morning erections, although he did in the past.
Present activities
The claimant said he was living with his 90-year-old grandmother, whom he described as a “pocket rocket – she’s up at 8 and doesn’t sit down till 4.” She does apparently get some domestic assistance, and he tries to help a bit around the home, but only does this for very brief periods. He mainly goes out to various appointments, perhaps four times a week, and drives his grandmother to the shops.
The claimant said he was studying full-time at the time of the accident and was not working then. He had been receiving Job Seeker benefits. He said he was now in receipt of the Centrelink Disability Support Pension (DSP) and described no significant difficulty in being approved for this.
Current treatment
The claimant said that he takes one Ibuprofen and one Paracetamol about twice a day. He avoids all opiates. He applies Voltaren Gel to his low back with some benefit. He was also currently taking Lyrica (Pregabalin, a drug for neuropathic pain) 300mg daily. He said this helped his left lower limb pain to some extent, taking it from “excruciating to not so bad.” He said that he also uses several TENS units, with some benefit.
Lifestyle factors
The claimant said he was an ex-smoker and drinks a very occasional glass of wine.
Physical examination
The claimant presented as a tall 41-year-old man wearing a hoodie, t-shirt, shorts and slip-on sandals. He walked into the examination room slowly and stiffly, using a stick in his right hand. During the long interview he stood on and off, apparently for relief of low back pain. He gave a generally convincing and straightforward presentation. He was quite talkative and seemed to have been distressed by some of his experiences since the accident. He presented his history in a somewhat rambling and discursive manner, giving a lot of detail, and the examining member of the Panel formed the impression that he might not present very well to doctors, particularly in shorter appointments.
During the physical examination he showed good effort, with no suggestion of self-limitation, abnormal pain behaviours or inconsistency. Height was 180cm, and he weighed 93.4kg. This gives a calculated body mass index (BMI) of 29 – i.e. in the overweight range. He said he had put on about 20kg since being less physically active since the accident. His reported pre-injury weight of 75kg gives a BMI of 23 – in the middle of the healthy weight range. As noted above, he walked slowly with an antalgic gait and limp. He was able to undress and redress for examination but moved slowly when climbing on and off the examination couch. When I asked him to lie prone on the couch, particularly to test his medial hamstring reflexes, he appeared to be in significant pain – he said that he preferred to sleep on his back with a pillow behind his knees to keep them flexed.
Lumbar spine
There was a 4cm, well-healed midline scar over the lumbosacral spine from previous surgery. There was slight to moderate tenderness on palpation over the distal lumbosacral spine, in the midline and to the left. There was definite spasm over left lumbar paraspinal muscles – when he stood and slowly moved his body weight from one foot to the other, the right paraspinal muscles relaxed while standing on his right foot, but they remained tense while balancing on the left foot.
Active range of movement (AROM) of the lumbosacral spine was observed with the claimant standing with knees straight: it was very limited. He could only reach forward with fingertips to the mid-thighs to about one-quarter of normal range. He could not manage any active extension, and lateral flexion bilaterally was about one-quarter of normal. Clinically he appeared to have a very stiff, painful lumbosacral spine.
Upper limbs
Hands were clean and soft with no callouses, consistent with his history of little recent physical work. There was a fine tremor of the outstretched hands, consistent with his apparent somewhat anxious state. There were scars over the volar aspects of both wrists from a previous episode of self-harm since the accident.
Lower extremities
Both thighs measured equally in girth at 47cm, 10cm proximal to the patella. The right (dominant side) calf measured 38cm and the left 37 (this could represent minor wasting of the left calf but could also be attributed to right side dominance). Straight-leg-raising was almost normal on the right at 50 degrees and pain-free. On the left it was restricted to 30 degrees with definite evidence of neural tenson. On sciatic stretching by passive dorsiflexion of the left ankle, pain was reproduced in the left buttock and down the lower limb.
Knee jerks were brisk and symmetrical. The right ankle jerk was brisk but the left, although present, was definitely depressed compared with the right. Both medial hamstring reflexes (L5 nerve roots) were preserved and symmetrical.
Power of extensor hallucis longus (L5 nerve root) and ankle eversion (S1 nerve root) was full on the right (Grade 5/5). Power of left extensor hallucis longus was definitely weak (Grade 4/5) – this was confirmed with repetitive testing. Effort of left ankle eversion was initially somewhat limited by pain/apprehension but was not convincingly reduced. Light touch sensation was absent, and pinprick blunted over the left lateral calf, dorsum of the foot and left lateral toes. (Thus, there was definite evidence of left L5/S1 radiculopathy, with positive nerve root tension, equivocal wasting of the calf, depressed ankle jerk, weakness of extensor hallucis longus and corresponding sensory loss.)
Causation
At the re-examination, the claimant presented in a convincing manner over a period of 1 hour and 45 minutes. He appeared to be quite disabled by chronic low back pain, with a very stiff, painful lumbar spine on examination and convincing signs of left L5/S1 radiculopathy.
He described a quite varied career since leaving school. There was a past history of longstanding opiate use while he had chronic pancreatitis prior to cholecystectomy.
The claimant presented his history in a somewhat rambling and discursive manner. The Panel notes that the claimant had injuries to multiple areas of his body and was profoundly distressed as a result of his injuries. He seems to have presented poorly during briefer medical appointments, so much so that, on 2 January 2020, the Reliance Medical Practice declined to further assist him.
The claimant gave an account of what appears to have been a significant car versus motorcycle accident. Photographs showed damage to the front left of the insured vehicle and the claimant’s helmet.
There is no doubt that the claimant now has a serious back condition. Had there been a pre-existing back condition, it is likely that, he would have drawn attention to it.
Based on the available evidence, the medical members of the Panel concur with Dr Bodel’s finding that the claimant was asymptomatic at the time of the accident with no signs of pre-existing pathology or injury. The members of the Panel concludes that on the balance of probabilities the L5/S1 disc pathology was caused by the accident.
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injury to the lumbar spine, whether the injury was caused by the motor accident and whether it was a threshold or non-threshold injury as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen[39] and Insurance Australia Ltd v Marsh.[40]
[39] [2021] NSWCA 287 at [40], [41] and [45].
[40] [2022] NSWCA 31 at [11], [21] and [64].
The Panel finds that the claimant’s lumbar spine injury – left L5/S1 disc herniation with radiculopathy was caused by the accident and this is not a threshold injury.
CONCLUSION
The following injury caused by the motor accident:
· lumbar spine injury – left L5/S1 disc herniation with radiculopathy is not a threshold injury for the purposes of the MAI Act.
The Panel revokes the certificate of Medical Assessor Christopher Harrington dated
2 May 2023 and issues a replacement certificate that is attached to these reasons.
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