Delia v AAI Limited t/as GIO
[2022] NSWPICMP 83
•12 April 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Delia v AAI Limited t/as GIO [2022] NSWPICMP 83 |
| CLAIMANT: | Diana Delia |
INSURER: | AAI Limited t/as GIO |
| REVIEW PANEL: | Member Susan McTegg Dr Neil Berry Professor Ian Cameron |
| DATE OF DECISION: | 12 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Compensation Act 1999 (MAC Act); medical review panel; permanent impairment; causation; gastro-oesophageal reflux disease (GORD); constipation; opioid medication; medication consumption: whole person impairment; the claimant suffered injury in a motor vehicle accident; assessment of permanent impairment under the MAC Act; the dispute related to the ingestion of analgesic medications, opioids Panadeine Forte and Palexia; long term use of opioid medication, both pre- and post-accident; increase in medication usage as a result of chronic pain caused by accident; Held- GORD caused by the accident; constipation caused by the accident; analgesic gastropathy and medication induced motility disorder not caused by the accident; 0% whole person impairment (WPI) as a result of constipation under clause 1.248 of the Permanent Impairment Guidelines; 2% WPI as a result of GORD under Table 2, page 239 AMA 4 Guides; injury to right ankle and hindfoot previously assessed at 4% WPI and injury to lumbar spine previously assessed at 5% WPI; new combined certificate issued certifying a combined impairment of 11%. |
| DETERMINATIONS MADE: | The Review Panel revokes the Combined Certificate of Medical Assessor Andrew Connolly dated 20 February 2020 and issues a new Combined Certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%: · right ankle and hindfoot – musculo-ligamentous strain; · lumbar spine – musculo-ligamentous strain, and · gastro-oesophageal reflux disease (GORD). REASONS This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Member Susan McTegg, Medical Assessor Neil Berry and Medical Assessor Ian Cameron and by Medical Assessor Mark Burns. Details of the assessments and full reasons are given in the following certificates: Assessment 1 Certificate of the Medical Review Panel dated 12 April 2022 The Review Panel revokes the certificate of Medical Assessor Kumar dated 3 June 2021 and issues a new certificate determining the following injuries were caused by the motor accident but give rise to a permanent impairment of 2%. · gastro-oesophageal reflux disease (GORD). The Review Panel finds the following injuries were not caused by the accident: · analgesic gastropathy, and · medication induced motility disorder. Assessment 2 Certificate of Medical Assessor Burns dated 13 May 2019 The permanent impairment in relation to the following injuries is 4% · right ankle and hindfoot – musculo-ligamentous strain. Certificate of Medical Assessor Burns dated 14 February 2020 The permanent impairment in relation to the following injuries is 5% · lumbar spine – musculo-ligamentous strain. Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the combined permanent impairment is 11%. |
STATEMENT OF REASONS
INTRODUCTION
Ms Diana Delia (the claimant) suffered injury in a motor vehicle accident on 1 February 2016 (the accident). Ms Delia was in the process of climbing into the passenger seat of a tradesman’s van when a utility which had been parked across the road reversed into her driveway colliding with the rear of the van.
This dispute relates to the assessment of upper and lower digestive tract impairments which Ms Delia asserts was caused by her use of medication following the accident.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Ms Delia under the Motor Accident Compensation Act, 1999 (MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Delia as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
BACKGROUND
Ms Delia asserts she sustained the following injuries in the accident:
(a) musculo-ligamentous strain of the right ankle and hindfoot;
(b) musculo-ligamentous strain of the lumbar spine;
(c) musculo-ligamentous strain of the right shoulder;
(d) psychological sequelae, including panic disorder and exacerbation of pre-existent depressive disorder;
(e) GORD;
(f) analgesic gastropathy, and
(g) medication induced motility disorder.
Ms Delia was admitted to the St John of God psychiatric hospital on 26 November 2018. She underwent right L2/3 to L5/S1 medial branch radiofrequency procedure at the Sydney Surgical Centre on 6 June 2019, following which she was admitted again to St John of God for psychiatric treatment.
Ms Delia asserts she developed gastrointestinal symptoms due to her medication usage including severe heartburn, acid reflux, dryness in the mouth, nausea, excessive burping, bad breath, disturbances with swallowing, disturbed sleep due to reflux and constipation.
On 13 May 2019, Medical Assessor Mark Burns issued a Certificate in which he determined that injury to the right ankle and hindfoot gave rise to 4% whole person impairment (WPI).
On 14 February 2020, Medical Assessor Burns issued a further certificate in which he determined that Ms Delia’s lumbar spine injury gave rise to 5% WPI.
On 20 February 2020, Medical Assessor Andrew Connolly issued a Combined Certificate confirming that Ms Delia’s physical injuries gave rise to 9% WPI, being not greater than 10% WPI.
On 10 February 2020, Ms Delia was assessed by Assessor Melissa Barrett in respect of her psychiatric injuries. Assessor Barrett issued a certificate dated 2 March 2020 in which she determined that Ms Delia’s psychiatric injuries gave rise to 8% WPI.
Ms Delia filed an Application for Further Assessment of Permanent Impairment Dispute on 23 April 2020 requesting a further assessment of the following gastrointestinal injuries:
(a) GORD;
(b) analgesic gastropathy, and
(c) medication induced motility disorder.
The relevant medical assessment was conducted by Medical Assessor Damodara Kumar on or about 12 April 2021.
MEDICAL EXAMINATION UNDER REVIEW
Medical Assessor Kumar issued a further certificate dated 3 June 2021.[2] The injuries referred for further assessment by Assessor Kumar were identified as:
(a) GORD;
(b) analgesic gastropathy, and
(c) medication induced motility disorder.
[2] Claimant’s bundle p 4.
He concluded Ms Delia had symptoms of GORD and symptoms of constipation. Assessor Kumar was of the view those conditions were not caused by the accident. He assessed a 0% WPI in respect of the upper digestive tract and a 0% WPI in respect of the lower digestive tract.
Assessor Kumar was of the view the failure of Ms Delia to undergo investigations of her gastrointestinal tract cast doubt on the diagnosis of gastro-oesophageal reflux and furthermore, he noted the medication she was taking, narcotic analgesics, is not causative of GORD. Assessor Kumar also noted Ms Delia had maintained her nutritional status which, he considered, was not consistent with her nutritional status being affected by the medication she was taking.
In relation to the referral for medication induced motility disorder Assessor Kumar concluded Ms Delia had straight forward constipation as a result of using excessive amounts of narcotic analgesics. He reported Ms Delia controls the constipation with the use of Chinese tea. He states cessation of the narcotic analgesics will relieve the condition and it should, therefore, not be considered as a permanent impairment.
REVIEW PROCEDURE
An application for review of the medical assessment of Assessor Kumar was lodged on 19 July 2021 within 28 days of the date on which the certificate of Assessor Kumar was made available to the parties.[3]
[3] Section 63(7) of the MAC Act.
On 14 September 2021, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 63(2B) of the MAC Act; claimant’s bundle p 13.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under clause 14A(1)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14F of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a “new decision-maker”. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made after 1 March 2021 the new review provisions apply.
The new review provisions provide that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Commission.[5] The President’s Delegate referred this application for review to the panel.
[5] Section 63(3) of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[6]
[6] Clause 1.2 of the Guidelines.
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.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[9]
[9] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 29 November 2021 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant filed a bundle of documents paginated from pages 1 to 994. The solicitor for the insurer filed a bundle of documents paginated from pages 1 to 539.
On 24 February 2022 the Panel agreed an examination was required.
EVIDENCE BEFORE THE REVIEW PANEL
Treating records
Ms Delia presented to Concord Repatriation General Hospital on 31 December 2007 with central abdominal pain with associated nausea/vomiting and diarrhoea. It was reported she had been taking Ducene and Panadeine Forte for body aches.[10]
[10] Claimant’s bundle p 737.
On 7 September 2011 Ms Delia was walking to a garbage bin adjacent to her work premises when she tripped over a small step and fell to the ground injuring her right wrist, right ankle and knees.[11]
[11] Insurer’s bundle p 453.
On 15 December 2011 Ms Delia attended Concord Repatriation General Hospital with left lateral foot pain following a fall the previous day.[12] An undisplaced transverse fracture of the base of the 5th metatarsal was diagnosed. Ms Delia was given a script for Panadeine Forte.
[12] Claimant’s bundle p 724.
On 24 December 2011 Ms Delia attended Concord Repatriation General Hospital with a right ankle injury following a fall the preceding night. Ms Delia had taken Panadeine Forte for the pain. No fracture was seen on X-ray and it was diagnosed as a sprained ankle.
On 20 July 2012 Ms Delia attended Concord Repatriation General Hospital with right sided back pain. At that time, she was taking Panadeine Forte (noting she had a supply from a previous foot injury).[13] She was advised to take Ibuprofen in addition to the Panadeine Forte for pain.
[13] Claimant’s bundle p 720.
Dr Scott Burne provided a report dated 16 November 2012.[14] He reported since the injury sustained to her right foot and ankle Ms Delia had experienced significant lower back flare-ups and also bilateral anterior knee pain.
[14] Insurer’s bundle p 448.
Ms Delia first saw Dr Newman, orthopaedic specialist on 9 April 2013 when she reported activity related pain in relation to the left midfoot which was mild compared to the anterolateral aspect of her right ankle. He stated she reported fluctuating swelling, some instability and together with ongoing bilateral knee pain and right lower back pain she required the regular daily use of Panadeine Forte.[15]
[15] Insurer’s bundle p 453.
On 10 April 2013 Dr Nathan Hartin, spine surgeon reported Ms Delia had suffered from increasing lower back pain for about 10 months, was taking Panadeine Forte, was having physiotherapy and had undergone a facet joint injection at L5/S1 on the right side.
Prior to the accident Stilnox sedatives were prescribed on 30 May 2013, 14 August 2013, 26 September 2013, 29 October 2013, 27 November 2013, 7 February 2014, 21 March 2014, 26 May 2014, 3 June 2014, 3 July 2014, 13 August 2014 and 11 February 2015, and 26 October 2015.[16]
[16] AD6 pp 5-19.
Valium was prescribed for anxiety on 14 August 2013, 29 October 2013, 7 February 2014 and 16 April 2014.
On 3 October 2013 Ms Delia underwent surgery, namely, right ankle peroneus brevis degenerative split tear repair under the care of Dr Scott Newman.[17]
[17] Claimant’s bundle p 915.
On 29 October 2013 Ms Delia saw Dr Lim for pain in the right knee and hip. Panadeine Forte, Stilnox and Valium were prescribed.
On 16 April 2014 Dr Lim’s partner recorded:
“Takes six Panadeine Forte per day, Stilnox at night and Valium. Tells me re Panadeine forte reduced dose. Has been supplementing with Valium. Valium taking 5 mg 1-2 per day she tells me. Yet last script her is 2 mg. Dr Lim away for two weeks. Advised I will only issue her with 24. Aware is addictive. Aware needs to begin reducing dose. Advised to see Dr Lim within the month.”
On 2 May 2014 Dr Newman reported Ms Delia continued to use regular Panadeine Forte and Valium and Stilnox nocte.[18] Ms Delia said she used Valium as a substitute for Panadeine Forte which upset her stomach. He stated:
“On presentation today Diana gave me the impression that she was being negatively affected by pharmaceuticals. She seemed inordinately vague and lethargic, and her behaviour was consistent with the effects of sedative or narcotic medication”.
[18] Insurer’s bundle p 451.
On 26 June 2014 Dr Lim increased the dosage of Panadeine Forte from four to six tablets per day.
On 30 June 2014 Ms Delia was assessed by an occupational therapist Ms Glynis Flanagan.[19] She provided a report dated 30 July 2014 in respect of the injury sustained on 7 September 2011. She reported Ms Delia was taking Panadeine Forte, two tablets, three times a day, Efexor 75mg per day, Valium 2mg, three times a day and Stilnox one at night. She also reported Ms Delia was vague during the assessment, required questions to be repeated, and frequently lost her train of thought. Ms Flanagan observed Ms Delia to be slow processing information and formulating answers to questions.
[19] Insurer’s bundle p 477.
On 10 July 2014 Ms Delia attended Concord Repatriation General Hospital with vomiting associated with diarrhoea. At that time, she had taken Panadeine Forte and Valium.[20]
[20] Claimant’s bundle p 731.
On 17 July 2014 the clinical record from Dr Lim’s surgery states:
“Four days ago admitted to hospital overdosing on Panadeine Forte and took Valium 10mg, not suicidal just wanted pain relief, self-discharged.”
On 17 July 2014 Dr Mastroianni, occupational physician reviewed the right ankle injury and also considered that due to abnormal weight bearing and the use of crutches Ms Delia had developed low back pain and right shoulder pain. She was using Venlafaxine, Panadeine Forte, Diazepam and Stilnox.
On 22 July 2014 Dr Newman reported Ms Delia “continues to have a problem with substance abuse which needs to be sorted out”.[21]
[21] Insurer’s bundle p 452.
Ms Delia was reviewed by Dr John Cummine who provided a report dated 4 August 2014.[22] He reported she was managing the pain in the right ankle with Panadeine Forte, up to six tablets per day, or Panadeine Forte and Valium.
[22] Insurer’s bundle p 498.
On 13 August 2014 Dr Lim prescribed Stilnox but reported:
“Patient ceased involvement with Pinnacle Rehab. patient needs rehab and psychological/psychiatric assistance. Dependent on analgesic and Stilnox.”
In a report dated 3 December 2014 addressed to Curwoods, Dr Robert Lewin psychiatrist stated[23]:
“At the present time, she takes between six and eight Panadeine Forte tablets per day. She reported typical side effects including constipation. She uses an aperient. She is aware of the need to cut down but reports she has not been able to do this. Ms D'Elia said, ‘I need it for the pain’. She is also troubled by daytime sedation and by dysphoria, both are common side effects associated with the use of codeine”.
[23] AD8 Report of Dr Lewin, 3 December 2014.
Dr Lewin also reported Ms Delia had been prescribed Efexor by Dr Lam, commencing the medication six months earlier and continuing to take 150mg on a regular daily basis.
On 11 February 2015 Dr Lim noted Ms Delia was taking four to six Panadeine Forte daily, over the counter Restavit for sleep and occasional Valium from her mother, one to two, twice a week together with Efexor 150mg.
On 28 May 2015, Dr Bassily, general practitioner (GP) noted that Ms Delia was “overdosing on Panadeine Forte for migraine”.[24] The doctor explained that her drug use was most likely causing her worsening headaches.
[24] Insurer’s bundle p 514.
Clinical notes of Abbotsford Family Medical Practice 30 May 2013 to 29 July 2019
On 5 February 2016 Ms Delia consulted Dr Colin Lim of Abbotsford Family Medical Practice. He reported she had ceased taking Lexapro, she had ongoing ankle pain and was overdosing on paracetamol. He suggested ceasing paracetamol and trialling Tramal. He also reported Ms Delia had been recently getting into a van when the van was struck by a car causing a twisting injury to the right hip and leg.
On 1 March 2016 Dr Newman in a report to Dr Lim noted he had not seen the claimant for 18 months when her major problems were substance abuse and right-sided sciatica. He noted that analgesic abuse remained an issue and reported “she tells me that she has been taking up to 10 Panadeine Forte tablets per day!”.
On 9 March 2016 Dr Lim reported Tramal was helping ankle and back pain and the aim was to reduce Panadeine Forte usage. He provided a prescription for Panadeine Forte 55 mg; 30 mg Tablet 1 prn and for Tramal SR 150, 150mg slow-release tablets 1 twice a day.[25]
[25] Claimant’s bundle p 900.
On 23 March 2016 Dr Lim reported Ms Delia was still complaining of right sacroiliac joint pain and right leg radiating pain. He provided a referral to Dr Cusi and prescribed Panadeine Forte 500mg; 30mg Tablet 1 prn.
On 11 May 2016 Ms Delia presented to Royal Prince Hospital with headache and vomiting. At that time, she had taken Panadeine Forte 2 tabs and Valium 2 mg.[26]
[26] Claimant’s bundle p 752.
On 22 June 2016 Dr Lim noted Ms Delia had seen Dr Cusi. He again prescribed Panadeine Forte 500mg; 30mg Tablet 1 prn.
On 10 August 2016 Dr Lim prepared a GP Mental Health Care Plan. He noted the cessation of the Tramal and increased the prescription of Panadeine Forte from one to two tablets per day. He also prescribed Stilnox 10mg Tablet 1 prn.
On 22 August 2016 Dr Esthel De Toffol, clinical psychologist reported Ms Delia had presented with severe anxiety and depression symptoms. She commented that in the past Ms Delia had self-medicated with pain medication and suggested her memory issues may have been caused by overuse of opioid medication.[27]
[27] Claimant’s bundle p 946.
Dr Cusi provided a report dated 31 August 2016.[28] He diagnosed bilateral sacroiliac joint (SIJ) incompetence, worse on the right side as a consequence of the accident. He also noted she was developing signs of depression.
[28] Claimant’s bundle p 815.
On 31 August 2016 Dr Lim reported Ms Delia was distressed and agitated. He prescribed Lexapro 20mg Tablet ½ daily for 1 week then 1 daily thereafter.[29]
[29] Claimant’s bundle p 901.
On 20 September 2016 the clinical notes of 6S Health reported:
“She reports not walking or doing her exercises. She has had a change in medications though these have made her feel sick, with nausea and vomiting.”
On 16 January 2017 Dr Lim ceased the Lexapro.
On 1 May 2017 Dr Lim noted the cessation of the Stilnox and prescribed Panadeine Forte 500mg; 30mg tablet two twice a day.[30]
[30] Claimant’s bundle p 902.
On 2 May 2017 Dr Harvey, orthopaedic surgeon recorded Ms Delia had been admitted to Westmead Hospital after an accidental overdose of Panadeine Forte in July 2014.
On 2 June 2017, Ms Delia was reviewed by Dr Newman who thought she had pathology affecting the sciatic nerve. He had the impression she was affected by either drugs or alcohol.
On 1 September 2017 Dr Lim reported Ms Delia was depressed and anxious about car travel since the accident. He prepared a GP Mental Health Care Plan and prescribed Lexapro 20mg tablet starting ½ daily for one week and then one daily thereafter and Nexium 20mg tablet one daily.
Ms Delia saw Dr M. Jonathan King, sports physician on 12 February 2018 for management of her low back pain and right ankle pain. He diagnosed weakness and dysfunction of stabilising muscles and right peroneal muscles together with SIJ dysfunction.[31] On review on 10 May 2018 he reported symptoms persisted, but function was improving and recommended continued exercise and assistance from a psychologist to improve Ms Delia’s mood.[32] He did not address medication usage at all.
[31] Claimant’s bundle p 909.
[32] Claimant’s bundle p 908.
On 7 August 2018 Dr De Toffol, stated Ms Delia was weaning off Panadeine Forte and managing her pain through Palexia. She continued to take Nortryptline with a side effect of nausea.
On 14 November 2018 Dr Lim, GP referred Ms Delia to Dr Leow, pain management specialist for her chronic pain.[33] At that time, he advised Ms Delia was taking the following medications:
• Aropax 20 mg tablet 3 tablets daily
• Nexium 20 mg tablet 1 tablet daily
• Panadeine Forte 500 mg, 30 mg tablet 2 tablets three times a day.
[33] Claimant’s bundle p 679.
Ms Delia was admitted to St John of God Hospital between 26 November 2018 and 28 November 2018 when she chose to continue treatment as an outpatient.[34] She was admitted for a major depressive relapse with anxiety/panic attacks in the context of chronic pain. The clinical notes of 26 November 2018 report the Paroxetine had been increased to 40mg daily by the GP three to six months ago after three months on 20mg daily. It was reported the plan was to increase that medication to 60mg due to ongoing panic attacks, noting Ms Delia had been on Lexapro previously, with no benefit. It was also reported Ms Delia had been on Venlafaxine XR in 2013-2014 but she could not remember if it helped. Ms Delia was using Panadeine Forte with partial relief of pain.
[34] Claimant’s bundle p 210, p 568.
Her medications at discharge on 28 November 2018 were:
• Paroxetine 20mg 3 mane;
• Panadeine Forte 1-2 TD (prn);
• Esomeprazole 40mg daily (prn), and
• Temazepam 10mg nocte (prn).[35]
[35] Claimant’s bundle p 570, pp 635-636.
On 11 December 2018 Dr Leow of Inner West Pain Centre provided a report to Dr Colin Lim.[36] He stated Ms Delia had presented with a five-year history of persistent low back pain following an initial right ankle inversion injury. He recorded the back pain was manageable until she was involved in the accident. He expressed concern about Ms Delia’s use of opioid based medications.
[36] Claimant’s bundle p 183.
On 6 June 2019 Ms Delia underwent a right L2/3 and L5/S1 medial branch thermal radiofrequency at Sydney Surgical Centre.[37]
[37] Claimant’s bundle p 691.
On 18 June 2019 Ms Delia consulted Dr Leow and reported following the thermal radiofrequency procedure she had needed some PRN oxycodone to help settle down her symptoms of worsening pain and numbness in the legs.[38]
[38] Claimant’s bundle p 653.
Ms Delia was again admitted to St John of God Hospital between 7 June 2019 and 28 June 2019 under the care of Dr Miah, psychiatrist.[39] The admission was for treatment/management of depression, anxiety, panic attack but mainly for medication review. The medications on discharge were listed as follows:
• Vitamin D 1000iu 1 midi;
• Diazepam 5mg 1 mane 1 midi;
• Nortriptyline 75mg 1 nocte;
• Oxycodone 5mg (406 hourly) (max 10mg/day) (prn);
• Zopiclone 7.5mg 1-2 nocte (prn);
• Panadeine Forte 1-2 2-4 hourly (max 6/day) (prn), and
• Diazepam 5mg six hourly (max 10mg/day) (prn).[40]
[39] Claimant’s bundle p 295, p 443.
[40] Claimant’s bundle pp 445, 538-549.
Ms Delia was again admitted to St John of God Hospital for anxiety, low mood and pain between 8 July 2019 and 11 July 2019.[41] During the admission possible codeine dependence was identified.[42] The discharge medications were listed as follows
[41] Claimant’s bundle p 368.
[42] Claimant’s bundle p 395.
• Nortriptyline 75mg 1 nocte;
• Turmeric 1g 1 mane;
• Esomeprazole 20mg 1 mane;
• Magnesium 500 1 mane, 1 nocte;
• Vitamin D 1000IU 1 mane;
• Panadeine Forte 2 mane, 2 midi, 2 nocte;
• Zopiclone 7.5mg 1 nocte;
• Endone 5mg (prn), and
• Metoclopramide 10mg (prn).[43]
[43] Claimant’s bundle pp 431-435.
On 23 July 2019 Dr Leow reported Ms Delia was using Oxycodone 5mg BD PRN (six a week), Panadeine Forte (six tabs a day), nortriptyline 75mg nocte and zopiclone 7.5mg nocte.[44] He stated Ms Delia admitted she was dependent upon the Panadeine Forte. Dr Leow indicated concern about the ongoing opioid dependence and suggested she cease Oxycodone and wean the Panadeine Forte.
[44] Claimant’s bundle p 175.
A PBS Patient Summary was provided for the period 2 January 2013 to 23 May 2017 showing the regular purchase of medication including Panadeine Forte.[45]
Medico-legal reports
[45] Insurer’s bundle p 536.
Dr Graham Vickery
Dr Vickery, psychiatrist assessed Ms Delia at the request of the insurer on 13 March 2017. He reported she was managed on Panadeine Forte, four to five daily, Zantax and Panadol Osteo, two prn. He concluded any psychiatric disorder was due to pre-existing injuries.
On 20 April 2020 Dr Vickery reported Ms Delia was managed on Nortriptyline, Palexia, Norspan patches 15mg, Pariet, Quetiapine 25mg, Zopiclone and Maxolon. He diagnosed a pre-existing panic disorder with Agoraphobia and Somatic Symptom Disorder.
George Haralambous,
Ms Delia was assessed by George Haralambous, clinical psychologist.[46] He provided reports dated 4 July 2017 and 8 April 2020. He reported she was taking approximately two or three Panadeine Forte tablets per day on average from the time of the 2011 injury and was taking up to eight Panadeine Forte tablets per day following the accident. She reported over the two days preceding the appointment with Mr Haralambous she had taken five Panadeine Forte tablets, and an additional 10 Panadol or Nurofen tablets, each day.
[46] Insurer’s bundle p 362.
Mr Haralambous reported a tendency to overstate, exaggerate and/or embellish, the negative psychological consequences from the accident. He concluded Ms Delia’s psychological condition was pre-existing and not causally related to the accident, including an Opioid Use Disorder that pre-dates the accident.
Mr Haralambous in a report dated 8 April 2020 noted that Ms Delia remained dependent on opioid based pain medications. He advised that her persistent use of opioid based analgesic medication over several years to date warranted consideration of an opioid use disorder with onset in 2011.
Associate Professor Michael Fearnside
Associate Professor Fearnside, neurological surgeon assessed Ms Delia at the request of her solicitor and provided a report dated 12 January 2018.[47] After describing the circumstances of the accident Associate Professor Fearnside noted Ms Delia had recently (before the accident) taken Panadeine Forte for symptoms from earlier injuries.
[47] Claimant’s bundle p 793.
At the time of his assessment Associate Professor Fearnside reported Ms Delia was being treated with Clofen 10mg three times per day day (baclofen for muscle spasm and anxiety), Panadeine Forte 607 tablets per day and Lexapro, an anti-depressant.
Associate Professor Fearnside concluded as a result of the accident Ms Delia had sustained injuries to her lumbar spine/right sacroiliac joint and an aggravation to her right ankle. He reported the injuries to the right knee and right shoulder had resolved. He reported Ms Delia presented with an abnormal affect and he formed the view she was significantly depressed and required formal psychiatric treatment.
Ms Delia was re-examined by Associate Professor Fearnside on 30 November 2018. He provided a report the same day.[48] Ms Delia presented in a highly distressed state. She reported her low back pain remained unchanged, her right ankle remained painful, she experienced minor pain in her right shoulder and her right knee was painful without medications. He noted medications included Panadeine Forte, eight tables daily, Aropax, Nexium and Voltaran Gel.
[48] Claimant’s bundle p 800.
Dr Richard Sekel
Ms Delia saw Dr Sekel, occupational physician at the request of the insurer. He provided a reported dated 15 February 2018.[49] Dr Sekel reviewed the available medical records at length. He reported Ms Delia continued to take Panadeine Forte at approximately the same rate as before the accident, that is, an average of six per day. He also reported for the past few months she had been taking Nexium for peptic symptoms.
[49] Insurer’s bundle p 226.
Dr Sekel concluded the accident did not result in any significant new injury and did not cause permanent aggravation of Ms Delia’s pre-existing medical conditions.
Ms Delia was reviewed by Dr Sekel on 29 March 2019.[50] In terms of medication he reported in recent months Ms Delia had increased her dose of Panadeine Forte from a tablet three or four times a day to two tablets three or four times a day. She was aware her GP referred to her medication usage as “substance abuse” and that her psychiatrist Dr Miah planned a further admission to St John of God Hospital to modify her anti-depressant medication and to reduce her reliance on Panadeine Forte.
[50] Insurer’s bundle p 271.
Dr Sekel review Ms Delia again on 23 April 2020.[51] He reported Ms Delia was taking one Nortripytline 75mg at night and one or two Seroquel per day in respect of her psychological condition. She had reduced her intake of Panadeine Forte to approximately two tablets per week but was also taking Palexia 50mg three times a day and had gradually increased her dose of Norspan narcotic patch from 5mg per week to 20mg per week.
[51] Insurer’s bundle p 286.
Dr Drew Dixon
Dr Dixon, orthopaedic specialist assessed Ms Delia at the request of her solicitors on 14 May 2018.[52] He reported past health included injury to the right ankle in 2011 and a history of depressive disorder.
[52] Claimant’s bundle p 785.
At that time Ms Delia was taking Panadeine Forte for pain relief and Aropax, an anti-depressant. Dr Dixon diagnosed inter alia injury to the right shoulder, to the low back, to the right hip, to the right sacroiliac joint and to the right knee as a result of the accident. He also considered Ms Delia had aggravated the previous peroneal repair at her right ankle.
Dr Stephen Allnutt
Dr Allnutt, psychiatrist assessed Ms Delia on 23 January 2018 and provided a report dated 14 March 2018.[53] He reported she was taking six to eight Panadeine Forte a day and Lexapro, one tablet per day.
[53] Claimant’s bundle p 805.
Dr Allnutt noted the earlier ankle injury and reported Ms Delia was taking about three Panadeine Forte tablets a day at the time of the accident, but no other pain or psychiatric medication. Following the accident Ms Delia had increased her use of Panadeine Forte and was taking between six and eight a day.
Dr Allnutt reviewed Ms Delia and provided a report dated 7 November 2019.[54] He reported she generally took Palexia, Nortriptyline, 100mg per day, and Zopiclone at night for sleep, as well as Panadol.
[54] Claimant’s bundle p 150.
Dr Allnutt concluded Ms Delia manifested a depressive and anxiety disorder and likely had a major depressive disorder with associated post-traumatic stress symptoms. He also concluded she had a Panadeine dependence disorder in early remission.
Dr Anthony Greenberg
Dr Greenberg, general and gastrointestinal surgeon reviewed Ms Delia on 14 January 2020 and provided a report dated 21 January 2020.[55] He noted he was required to assess the gastrointestinal tract. He reported Ms Delia was taking the following medications:
• Palexia 50 mg one tds;
• Panadeine Forte one daily;
• Seroquel (Quetiapine) 25 mg one to two daily;
• Nortriptyline (Allegron) 25 mg three nocte;
• Nexium 40 mg daily two to four per day, and
• Metoclopramide as required for nausea.
[55] Claimant’s bundle p 51.
Dr Greenberg obtained the following clinical history:
“Ms Delia reports that she had pain in the upper abdomen and pointed to the epigastrium. She said it feels like a severe heartburn. She described an acid-like feeling coming up behind the chest bone (retrosternal) into her neck (anterior neck) and into her mouth (oropharynx). She said her mouth is always dry and it makes her uncomfortable. Her taste is satisfactory. She is nauseous most days and often feels like she needs to throw up. Since taking medication she has noticed she has now been burping excessively, which she never did before. When she does belch, it brings the acid up into her throat and aggravates the reflux.
Ms Delia said that she is aware that she has developed bad breath (halitosis), particularly when she belches. When she swallows, she gets some disturbances swallowing in the upper neck (dysphagia). The reflux at night is a problem and wakes her three to four nights out of seven. When it wakes her up, she cannot go back to sleep. The reflux (GORD) is worse when she lies on her back. She is now sleeping in a hydraulic bed, so she tries to sleep propped up to avoid the symptoms. Eating can be a trigger, particularly foods like citrus foods, salad, and spicy foods, so she is now sticking more to a bland diet.
I asked Ms Delia to describe her symptoms between 0 and 10 where 0 is normal and 10 is the most severe. She rated her symptoms as 6/10 to 7/10. She concluded that her reflux symptoms are always there, and nothing seems to alleviate them.”
He reported before the accident and the need for medication, Ms Delia was normal and had no bowel problems, whilst she now becomes constipated and has been taking Chinese dieter’s tea which gives her some relief. She described her abdomen as bloated, distended, and sore to touch. She is often in the bathroom 30 minutes at a time and described incomplete evacuation. With the use of the Chinese tea Ms Delia rated her bowel symptoms as 3/10 - 4/10.
On examination Dr Greenberg reported Ms Delia’s abdomen was tender, but maximally in the epigastrium. He concluded on the balance of probabilities the symptoms described by Ms Delia were related to the medication she required due to her orthopaedic injuries since February 2016. He opined that Ms Delia’s symptoms were not associated with irritable bowel syndrome (IBS).
Dr Greenberg diagnosed:
• GORD;
• probable analgesic gastropathy, and
• medication-induced gastrointestinal motility disorder.
Unfortunately, Dr Greenberg referred to the AMA 5 Guides rather than the AMA 4 Guides in providing a combined assessment of 4% WPI based on the following assessments:
• for the upper gastrointestinal tract at 3%, and
• the lower gastrointestinal tract at 1%.
Dr Greenberg provided a supplementary report dated 12 June 2020 following his review of the report of Dr Sethi.[56] He noted Dr Sethi had obtained the same clinical history.
[56] Claimant’s bundle p 30.
Dr Greenberg said both Palexia and Panadeine Forte are classified as opioids. He undertook a literature review and reported that the long-term use of opioid medication influences gastrointestinal motility that can result in various gastrointestinal (GI) symptoms and findings which may present clinically as dyspepsia, abdominal pain, GORD, dysphagia and chronic bowel dysfunction.
Dr Greenberg stated that adverse effect of opioids on the GI tract can be broadly classified as opioid-induced bowel dysfunction (OIBD) and narcotic bowel syndrome. Dr Greenberg described the pathophysiology of OIBD and noted in the oesophagus opioids can decreases oesophageal peristalsis and change lower oesophageal sphincter function. Further, he stated physiologically, opioids impair normal oesophageal peristalsis and slow gastric emptying which may result in new or worsening symptoms of dysphagia and GORD.
Dr Greenberg noted that the cause of gastro-oesophageal reflux is multifactorial and investigation by upper endoscopy is not conclusive in persons with GORD. In fact, he stated a literature review suggested about two thirds of persons with symptoms of GORD have no visible endoscopic findings. Dr Greenberg said a diagnosis of GORD can be based on clinical symptoms alone.
Dr Greenberg reported the diagnosis and confirmation of gastroesophageal reflux is dependent on various investigations, the most accurate being PH monitoring. He reported gastrointestinal dysmotility can result in delayed gastric emptying. He stated it was common to have epigastric tenderness and discomfort which he documented when he examined Ms Delia on 14 January 2020.
Dr Greenberg noted that chronic constipation as described by Ms Delia is common and was consistent with a medication induced gastrointestinal motility disorder, although he reported she obtained some transient relief of symptoms after taking herbal tea.
Dr Greenberg disagreed with Dr Sethi’s comments as to weight loss stating in his experience persons with such symptoms have decreased mobility meaning they are more prone to weight gain than weight loss.
Dr Greenberg reported Ms Delia informed him her symptoms started after she commenced medication for pain relief after the accident and gradually became worse over time. He noted that taking Palexia and/or Panadeine Forte can cause gastrointestinal events and generally patients presenting to a medical practitioner with symptoms consistent with GORD or medication induced gastrointestinal motility are advised to stop taking opioids. However, he noted Ms Delia is unable to stop her medication due to her ongoing need for pain relief. Dr Greenberg also reported the use of Seroquel and Nortriptyline can cause adverse gastrointestinal events and either cause or aggravate Ms Delia’s symptoms.
Dr Siddarth Sethi
Dr Sethi, gastroenterologist and hepatologist provided a report dated 27 May 2020 after assessing Ms Delia at the request of the insurer.[57] He reported Ms Delia first began experiencing abdominal symptoms around one year after the accident including heartburn, reflux, dry mouth, nausea, excessive burping, belching and wind.
[57] Insurer’s bundle p 28.
He concluded that:
“Ms Delia has developed GORD and Irritable Bowel Syndrome (IBS). This has occurred entirely independently of her accident and the medications that she was prescribed. It would have occurred regardless of whether she was involved in the accident or not. The accident and analgesic medications that she was prescribed are entirely unrelated to her gastrointestinal symptoms.”
Further, he assessed a 0% WPI on the basis there were symptoms and signs of upper digestive tract disease. He found there was no anatomic loss or alteration, continuous treatment was not required, there were no systemic manifestations present, the claimant’s symptoms of colonic and rectal disease were infrequent and of brief duration, there was no limitation of activities, and weight and nutrition were being maintained at desirable levels.
Dr Sethi opined that Dr Greenberg gave undue importance to the medications prescribed and that, as Ms Delia had not had a gastroscopy, the diagnosis was invalid. Dr Sethi also disagreed with Dr Greenberg’s diagnosis of medication induced gastrointestinal motility disorder as Ms Delia’s symptoms were strongly suggestive of IBS and very unlikely to be from anything else. He opined that “without organic pathology being present, the diagnosis of 4% WPI is clearly incorrect.”
Dr Sethi provided a supplementary report dated 10 July 2020 in which he commented on the report of Dr Greenberg.[58] Dr Greenberg stated that opioids may impair normal oesophageal peristalsis and slow gastric emptying whilst Dr Sethi stated GORD is far more likely to be caused by intrinsic laxity of the gastro-oesophageal sphincter valve.
[58] Insurer’s bundle p 36.
Dr Sethi disagreed that the use of analgesic medications can be accompanied by nausea and vomiting and associated with delayed gastric emptying. Dr Sethi stated the effect of medications was likely insignificant and Ms Delia’s reflux was more likely to have been caused by laxity of the gastro-oesophageal sphincter valve. Dr Sethi stated constipation was more likely to result from IBS than from a medication induced gastrointestinal motility disorder. Dr Sethi stated it was not correct to assess 1% WPI for the lower gastrointestinal tract in the absence of organic pathology. He also reiterated his view that a diagnosis of analgesic gastropathy can only be made on gastroscopy.
Reports of Dr Harvey
Dr Harvey, orthopaedic surgeon provided a report at the request of the insurer on 2 May 2017[59]. He reported before the accident Ms Delia was taking Panadeine Forte for pain in the right ankle and right hip region at a dose of one tablet twice a day but since the accident she had started taking one table eight times per day. He concluded Ms Delia had a problem with dependence on Panadeine Forte which existed before the accident.
[59] Insurer’s bundle p 198
Dr Harvey, in a report dated 30 April 2020 advised that any injury sustained by the claimant in the subject accident would not still be causing pain requiring opioids some four years post-accident.[60] The opinion of Dr Harvey is at odds with the opinion of Medical Assessor Burns.
Medical assessment reports
[60] Insurer’s bundle p 224
Assessor Mark Burns
Assessor Mark Burns in his certificate dated 13 May 2019 reported Ms Delia was involved in a motor accident in the mid 1990’s sustaining an injury to the neck and back. In 2011 she fell and injured her right ankle and left foot and ultimately had surgery to the right ankle.
Assessor Burns reported Ms Delia was commenced on Panadeine Forte as well as an anti-inflammatory medication following the accident in February 2016.
Assessor Burns reported at that time Ms Delia was taking approximately six Panadeine Forte tablets per day as well as three Aropax (for depression and anxiety) tablets in the morning. Ms Delia was also taking Nexium 20mg daily.
Ms Delia was again assessed by Medical Assessor Burns in respect of injury to the lumbar spine on 12 February 2020. He issued a certificate dated 14 February 2020 in which he assessed a 5% WPI as a result of injury to the lumbar spine.[61] Assessor Burns reported Ms Delia complained of constant pain in her low back which she described as throbbing and which radiated down the right leg.
[61] Claimant’s bundle p 140
Assessor Burns reported Ms Delia was at that time taking Palexia 50mg three times a day and one Panadeine Forte tablet three times a day. She was no longer taking Aropax but was taking Nortryptyline. Ms Delia was taking Pariet for stomach problems.
Assessor Melissa Barrett
Medical Assessor Barrett provided an assessment as to Ms Delia’s psychiatric injury. She provided a certificate dated 2 March 2020.[62] She reported a previous fall in 2011 resulting in a fracture of the right ankle ultimately requiring surgery,
[62] Claimant’s bundle p 85.
In respect of past medical history Assessor Barrett reported prior to the accident Ms Delia was using Panadeine Forte on a prn basis but not daily.
As at February 2020 Assessor Barrett reported Ms Delia was prescribed Palexia 50mg slow release one tds, Panadeine Forte one daily, Voltaren gel, Panadol extra one to two daily, and Pariet two daily as well as Maxolon one daily.
At the time of the assessment Assessor Barrett noted Ms Delia appeared somewhat sedated and slurred in speech.
Assessor Barrett concluded that prior to the accident Ms Delia would have met the criteria for a Panadeine Forte dependence on the basis she was using more than the recommended doses for longer than the recommended periods despite recommendations by her treating doctors to reduce her usage.
On the basis her medical colleagues found the accident caused a new injury or an exacerbation of previous injuries Assessor Barrett was prepared to find that the resultant worsening of pain and physical restrictions would have caused an exacerbation of the pre-existing persistent depressive disorder. She also found the new onset of symptoms of anxiety, panic attacks which began after the accident. Assessor Barrett diagnosed the following:
• exacerbation of pre-existing persistent depressive disorder;
• Panadeine Forte dependence, and
• panic disorder.
SUBMISSIONS
The claimant’s submissions
The claimant provided submissions dated 19 July 2021 in support of the application for review.[63]
[63]Claimant’s bundle p 12.
The claimant submits that whilst she did previously require the use of analgesics her gastrointestinal symptoms did not commence until after she began ingesting the pain relief medication for the injuries sustained in the accident after which her medication changed and significantly increased.
The claimant submits it is permissible to diagnose GORD based on recognised medical practice in the absence of endoscopic findings as per Dr Greenberg.
The claimant relies upon the opinion of Dr Greenberg who opines, on the balance of probabilities, Ms Delia’s gastrointestinal condition is related to the medication she has required as a result of her accident-related injuries. The claimant also submits that having regard to the opinion of Medical Assessor Barrett as to the psychiatric injury caused by the accident that the claimant’s ingestion of Seroquel 25mg one to two daily and Nortriptyline 25mg three at night should also be considered as causative of her gastrointestinal condition.
The claimant argues it is not possible to argue that there is no assessable permanent impairment as “cessation of the narcotic analgesics will relieve the condition” where Ms Delia is unable to stop medication due to her ongoing need for pain relief.
In relation to the lower gastrointestinal tract condition the claimant argues that her constipation is not completely alleviated by the Chinese dieter’s tea and she has therefore, sustained an assessable permanent impairment.
The claimant also notes that Dr Greenberg argued the claimant’s gastrointestinal symptoms could be aggravated by her ingestion of Seroquel and Nortriptyline.
The insurer’s submissions in response to the application for further assessment
The insurer provided submissions in response to the application for a further assessment dated 20 May 2020. [64]
[64] Insurer’s bundle p 14.
The insurer submitted Ms Delia’s medication use and any symptoms arising from same are not related to injury sustained in the accident having regard to the following:
(a) the claimant has required the very medication that she is now alleging to be the cause of her gastroenterological complaints since as early as 2011;
(b) it is clear that the claimant was suffering side effects from her consumption of various medications prior to the subject accident, and
(c) the claimant’s ongoing use of opioid medication is not reasonably by way of treatment for any injury – rather, it is a product of her pre-existing substance abuse disorder.
In further submissions dated 30 June 2020 in response to the application for a further assessment the insurer submitted that the erroneous history relied upon by Dr Greenberg invalidated his causation finding insofar as it removes the temporal connection upon which he relied.[65] This is on the basis Dr Greenberg stated it was his understanding that Ms Delia had required medication since February 2016 and was not aware that Ms Delia was using medication such as Panadeine Forte and Palexia on a regular basis in the years leading up to the accident.
[65] Insurer’s bundle p 23.
The insurer also relied upon the opinion of Dr Sethi as to diagnosis, that is, that Ms Delia did not have a medication induced gastrointestinal motility disorder but was more likely to be suffering from symptoms of IBS.
The insurer’s submissions in response to the application for review
The insurer provided submissions dated 9 August 2021.[66] The insurer submitted that it was logical to infer that the failure of Nexium to suppress the symptoms of GORD means the symptoms were likely caused by something else.
[66] Insurer’s bundle p 44.
It is submitted that the failure to make a formal diagnosis of GORD in the absence of any evidence other than the symptoms reported by Ms Delia is consistent with the Permanent Impairment Guidelines which state that subjective symptoms alone “cannot be admissible unless there is supporting evidence”. Notably Dr Greenberg himself was only prepared to make a “presumptive diagnosis” of GORD.
The insurer submitted that the PBS history statement ending on 1 July 2017 together with the treating medical records evidenced Ms Delia’s use of various medications for years before the accident, supporting the finding of Assessor Kumar that the cause of the constipation clearly pre-dated the accident.
The insurer also submits that it is clear from chapter 10.5 of the AMA 4 Guides and clause 1.248 of the Guidelines that constipation alone in the absence of other factors and caused by narcotic analgesia must be assessed as giving rise to a 0% WPI. This was consistent with the opinion of Dr Sethi.
RELEVANT LEGAL AUTHORITY
Upper digestive tract injuries are assessed with reference to Table 2, page 239 of the AMA 4 Guides. Class 1 under Table 2 provides a range of 0%-9% WPI, however, clause 1.247 of the Permanent Impairment Guidelines provides that:
”Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0-2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides). Upper digestive tract disease caused by the use of anti-inflammatory medications resulting in severe and specific signs or symptoms must be assessed as a class 2 impairment according to Table 2 (page 239, AMA4 Guides).”
Causation of injury is addressed in the Guidelines:
1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
In Wingfoot Australia Partners Pty Ltd v Kocak Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error”.[67]
[67] [2013] HCA 43; (2013) 252 CLR 480, Wingfoot.
Adamson J in a recent decision of Hunter v Insurance Australia Ltd trading as NRMA Insurance considered the question of causation where a plaintiff made a claim for psychiatric injuries suffered as a consequent of an overdose of analgesia following surgery to treat injury sustained in a motor vehicle accident.[68]
[68] [2021] NSWSC 623, Hunter.
Adamson J after referring to the Guidelines set out above outlined the common law principles of causation as follows:
“16 The Panel was obliged to apply the PI Guidelines with respect to causation which, as set out above, incorporated common law principles of causation. It is well established at common law that for there to be a causal link between a consequence and a cause it is not necessary that the consequence be a direct consequence of the cause as long as it is reasonably foreseeable. This principle is illustrated by Mahony v J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522; [1985] HCA 37. In that case, a worker sued his employer for damages for personal injuries suffered by him in the course of employment. The employer cross claimed against the worker’s doctor, alleging that his negligent treatment of the worker had caused or contributed to the worker’s injuries and incapacity. The trial judge struck out the cross claim on the ground that it disclosed no reasonable cause of action. The Court of Appeal restored the cross claim. The doctor’s appeal to the High Court was dismissed.
17 The High Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ) held that if a plaintiff acts reasonably in seeking medical treatment for injuries sustained as a result of negligence, and is further injured by the medical treatment, the original tortfeasor will be liable for the consequences of the medical treatment. The original injury is regarded as carrying some risk that medical treatment administered by reason of it will be negligently administered.”
In Allianz v Francica[69] the Supreme Court stated that when determining issues of causation and identifying the nature of an underlying problem, medical assessors ought to corroborate assertions of symptoms with objective evidence, rather than simply accepting the history provided at face value.
[69] [2012] NSWSC 1577.
THE MEDICAL EXAMINATION
Assessor Neil Berry examined Diana Delia on behalf of the Panel on 24 March 2022.
Ms Delia presented early for her appointment. She stated that she was 56 years of age and dominantly right-handed.
Ms Delia stated she was injured in the accident on 1 February 2016. On that occasion, she was in the process of climbing into the passenger seat of a tradesman’s van when a utility vehicle reversed across the street into her driveway and collided with the rear of the van.
Ms Delia was thrown around and her body was twisted but she did not fall. She was aware of a strain to her right shoulder, right side of her neck, right side of her back and her right leg. After attending to the details of the accident, she proceeded to her partner’s place as planned.
Ms Delia found that over the next few days her symptoms became worse, and she therefore attended her GP. She was unable to remember what medications her GP prescribed but she was able to remember that she had been on Panadeine Forte for a right ankle injury which occurred in 2011. She was able to recall on that occasion, she left her office and went behind the building to empty the rubbish and tripped on the paving. She subsequently needed surgical intervention to the right ankle.
Ms Delia recalled that at the time of the accident, she had no gastrointestinal problems, and, in fact, these came on two years later in 2018. At that stage, she recalled there had been multiple medication changes and she had developed heartburn epigastric discomfort, but she had no vomiting and recalled that she was taking Nexium. Ms Delia also recalled that she suffered from constipation and suffered occasional bleeding from the bowel but had no pain.
Ms Delia did attempt to attend a clinic on several occasions but because of the pandemic her appointments were cancelled. She therefore started using a Chinese tea which controlled her constipation.
Current situation
Ms Delia confirmed that she continues to suffer from heartburn, burping, constipation and she has bleeding from the bowel approximately twice a year. She does not experience any anal pain and the discomfort in the upper abdomen comes and goes.
Current treatment
Ms Delia was able to tell me that she is taking:
· Panadeine Forte, one to three times a day;
· Seroquel, occasionally;
· Diazepam, two a night;
· Nexium 40mg, one daily;
· Maxolon, one daily, and
· she also takes sleeping tablets.
She has ceased taking Palexia.
Past history
Ms Delia confirmed the right ankle injury in 2011 and subsequent surgery in 2013 but she was left with ongoing pain. She has had no other injuries or illnesses.
Work history
Ms Delia came from Lebanon in 1970. She commenced work as a secretary but then completed a law degree. In 2014, she decided to move to Ettalong Beach, and subsequently in 2017 to Belfield.
Social history
Ms Delia told me that she has had the same partner since 2013 and they are living together. She has no children.
Physical examination
Ms Delia was 164cm in height and 69.5kg in weight.
Examination of the abdomen revealed that she was tender in the epigastrium. There was no guarding, rigidity or rebound and no palpable masses. Auscultation showed normal active bowel sounds.
With Ms Delia in the left lateral position, after offering her the presence of Assessor Berry’s secretary, Assessor Berry was able to carry out an anal inspection which showed that there were no external hemorrhoids or any other external anal pathology.
No other physical examination was conducted.
DETERMINATION
Diagnosis
The diagnosis is GORD. Both Dr Greenberg and Dr Sethi agreed Ms Delia suffered from GORD. This diagnosis can be based on clinical symptoms alone, and without investigations.
The Panel notes that opioids, Palexia and Panadeine Forte are analgesic medications but are not anti-inflammatory medications.
The Panel does not accept that the failure of Nexium to suppress the symptoms of GORD means the symptoms are caused by something else. The Panel agrees with Dr Greenberg that proton pump inhibitors, such as Nexium “though helpful do not resolve the upper gastro-intestinal symptoms and often give only temporary respite”.
The Panel noted that examination of the abdomen revealed Ms Delia was tender in the epigastrium consistent with the findings of Dr Greenberg. The symptoms of heartburn and burping complained of by Ms Delia are also consistent with GORD.
Dr Greenberg also reported symptoms of GORD including acid like reflux, dry mouth, nausea and halitosis (bad breath). Dr Sethi reported Ms Delia started to experience symptoms including heartburn, reflux, dry mouth, nausea and excessive burping around one year after the accident. Assessor Kumar reported Ms Delia had severe pain in the epigastrium when she presses her tummy or when she bends. He also reported complaints of heartburn, burping, acid reflex, nausea and dry retching. He reported Ms Delia takes Nexium or Pariet for heartburn and Maxalon for nausea.
Dr Greenberg concluded the claimant also suffered from medication-induced gastrointestinal motility disorder and probable analgesic gastropathy whilst Dr Sethi found that Ms Delia was more likely to suffer constipation as a result of IBS rather than from a medication induced gastrointestinal motility disorder.
The Panel agrees with Dr Sethi and Assessor Kumar that a diagnosis of analgesic gastropathy can only be made on a biopsy at endoscopy. Whilst the stomach might look abnormal a biopsy is required to exclude helicobacter infection, a common infection of the upper stomach which can lead to stomach cancer. A biopsy is required to obtain a histological diagnosis as to whether there has been damage or change to the muscosal lining of the stomach caused by the use of analgesia. The Panel is not satisfied Ms Delia can establish a diagnosis of analgesic gastropathy in the absence of diagnostic investigation.
The Panel is not satisfied there is sufficient evidence to establish Ms Delia has a medication induced gastrointestinal motility disorder. Whilst Ms Delia complains of constipation a person with gastrointestinal motility disorder also presents with bloating of the abdomen and an obstructive picture.
Dr Sethi diagnosed IBS which he described as a condition affecting around 15 to 20% of the general population. The symptoms of IBS include cramping, abdominal pain, bloating, gas, diarrhea alternating with constipation. The Panel was not satisfied that Ms Delia presented with symptoms of IBS. The Panel found Ms Delia presented with symptoms of constipation but no clinical signs of lower digestive tract pathology.
Ms Delia has taken a mixture of medications over many years sufficient to result in an impairment of the lower digestive tract. The Panel was satisfied Ms Delia suffered from constipation due to her ingestion of Palexia and Padadeine Forte.
Causation
To establish causation under the Guidelines it is necessary to take a two-step approach. Firstly, it is necessary to establish that the alleged factor, in this case, the alleged increased medication consumption, could have caused or contributed to a worsening of the impairment. Secondly, it is necessary to establish the alleged factor did cause or contribute to a worsening of the impairment.
In respect of causation the Insurer relies upon the opinion of Dr Sethi who stated:
“It is well described in the medical and scientific literature that GORD is caused by laxity of the gastro-oesaphageal sphincter valve. It is not caused by medications like ibuprofen or mobic. GORD is a very common condition in the general population. The symptoms that Ms. Delia describes of bloating, fullness, wind, constipation and reaction to certain foods is very strongly suggestive of irritable bowel syndrome. It is extremely unlikely to be from anything else. GORD is a very common condition in the general population. It is caused by laxity of the gastro-oesaphageal sphincter muscle. It is not caused by the medications that Ms. Delia was prescribed i.e., Panadeine forte, Norspan patches and Palexia”.
The Panel prefers the opinion of Dr Greenberg who states that opioids, such as Palexia and Panadeine Forte physiologically impair normal oesophageal peristalsis and slow gastric emptying which can increase symptoms of GORD. The Panel agrees with the conclusion of Dr Greenberg that the long-term use of opioid medication can result in various gastrointestinal symptoms and may result in new or worsening symptoms of GORD.
Having reached a medical decision that medication such as Palexia and Panadeine Forte could have caused or contributed to a worsening of the impairment the Panel is required to consider whether it did, in fact, cause or contribute to the worsening of Ms Delia’s impairment.
The insurer argues that the symptoms for which the claimant requires medication are not causally related to the accident. The Panel does not accept that submission.
Medical Assessor Barrett undertook a detailed review of Ms Delia’s medical history and noted:
“Although she denies persisting depressive symptoms in the period prior to the subject accident, the contemporaneous notes of the general practitioner revealed that she was still experiencing problems with persisting ankle pain, ongoing dependence upon Panadeine Forte, and depressed mood such that she was continuing to be prescribed the antidepressant venlafaxine in the period prior to the subject accident as documented as late as 26 October 2015, just over three months before the accident”.
Assessor Barrett concluded prior to the accident Ms Delia would have met the DSM-5 criteria for persistent depressive disorder and the criteria for a Panadeine Forte dependence. She reported as a consequence of the accident Ms Delia alleged there was an exacerbation of the pre-accident right ankle pain but also new onset pain in the right leg and lower back which caused significant and persisting pain.
Assessor Barrett stated if her medical colleagues considered the accident caused a new injury, or exacerbation of previous injuries, she would accept the resultant worsening of pain and physical restrictions would have caused an exacerbation of the pre-existing persistent depressive disorder.
Medical opinion certifying the accident did cause a new injury or exacerbation of previous injuries was provided by Medical Assessor Burns. In a certificate dated 13 May 2019 Medical Assessor Burns concluded Ms Delia had sustained a 4% WPI due to decreased movement in her right ankle and hindfoot and in a certificate dated 14 February 2020 he concluded Ms Delia had sustained a 5% WPI arising out of musculo-ligamentous injury to the lumbar spine.
In addition, Assessor Barrett also concluded Ms Delia met the criteria for panic disorder, noting there was no indication of panic attacks prior to the accident. Assessor Barrett assessed an 8% WPI and concluded the following injuries were caused by the accident:
· exacerbation of pre-existing persistent depressive disorder;
· panic disorder, and
· exacerbation of pre-existing chronic pain.
Whilst it is apparent from the available medical records that Ms Delia was taking excessive doses of Panadeine Forte prior to the accident the Panel finds Ms Delia’s increased ingestion of Panadeine Forte and Palexia since the accident was an attempt to cope with the exacerbation of her chronic pain since the accident.
In addition to the impact of Panadeine Forte and or Palexia the Panel agrees with Dr Greenberg that:
“It is recognised that Seroquel and Nortriptyline can have adverse gastrointestinal events and could be causal and/or aggravate Ms Delia’s gastrointestinal symptoms.”
Nexium is a drug prescribed to treat the symptoms of gastrointestinal reflux. It seems it was first prescribed on 1 September 2017. This is consistent with the report of Dr Sekel who noted on 15 February 2018 Ms Delia had been taking Nexium for the past few months for peptic symptoms. The Panel finds the need to take Nexium is consistent with Ms Delia’s developing gastrointestinal symptoms following the accident.
The Panel is satisfied there has been an increase in Ms Delia’s medication usage since the accident because of her attempt to control the exacerbation of her chronic pain caused by the accident. The Panel is satisfied that medication taken by Ms Delia since the accident has contributed to a worsening of her gastrointestinal condition, namely GORD and the symptom of constipation, although the Panel notes the claimant has been able to ameliorate the symptoms of constipation by the use of Chinese tea.
The Panel agrees with Dr Greenberg that generally patients presenting to a medical practitioner with symptoms consistent with GORD are advised to stop taking opioids. However, the Panel notes Ms Delia is unable to stop her medication due to her ongoing need for pain relief resulting in a permanent impairment of her upper digestive tract.
It is clear from the decision of Adamson J in Hunter[70] that if Ms Delia reasonably sought medical treatment for the injuries sustained in the accident and she is further injured by the medical treatment the original tortfeasor will be liable for the consequences of that treatment.
[70] [2021] NSWSC 623, Hunter.
PANEL DECISION
The Panel finds Ms Delia has sustained upper digestive tract disease, namely GORD as a result of the accident.
The Panel find Ms Delia has suffered the symptoms of constipation as a result of the accident.
There is no evidence of any rateable impairment in the lower digestive tract. Under clause 1.248 of the Guidelines an assessment of constipation alone results in a 0% WPI. Therefore, the Panel finds a 0% WPI for constipation.
The Panel assesses impairment of the upper digestive tract arising out of GORD in accordance with chapter 10 of the AMA 4 Guides.
The clinical examination revealed no evidence of weight loss in accordance with Table 1 (page 237, AMA 4 Guides).
The assessment of permanent impairment was undertaken in accordance with Table 2 (page 239, AMA 4 Guides). Ms Delia had signs of upper digestive tract disease and the clinical examination demonstrated mild epigastric tenderness but no other clinical signs in the abdomen. The anal examination showed no surrounding inflammation or evidence of external haemorrhoids. There is no evidence of nutritional impairment and Ms Delia was able to maintain her weight at a desirable level. The symptoms do not require constant treatment with Nexium.
The Panel finds Ms Delia meets the criteria for a Class 1 impairment and assesses a 2% WPI in respect of GORD caused by the accident.
Pre-existing/subsequent impairment
Clause 1.31 of the Guidelines provides:
“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”.
The Panel is unable to assess a pre-existing impairment in the absence of evidence of a clinical examination evidencing a pre-existing symptomatic impairment prior to the accident. Accordingly, no apportionment is made for a pre-existing impairment.
Effects of treatment
The panel makes no deduction for the effects of treatment.
CONCLUSION
The Panel finds Ms Delia has sustained a 2% WPI as a result of GORD caused by the accident.
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