Dragas v Allianz Australia Insurance Limited
[2024] NSWPICMP 181
•28 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Dragas v Allianz Australia Insurance Limited [2024] NSWPICMP 180 |
| CLAIMANT: | Dusko Dragas |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 28 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Multiple treatment disputes; claimant involved in a motor accident on 18 November 2017; Medical Assessor (MA) Cameron determined that the proposed treatment did not relate to the injuries caused by the motor vehicle accident; Medical Review Panel attended re-examination; Panel certified that there was no ongoing causal relationship with the motor vehicle accident; the proposed treatment was neither reasonable or necessary in the circumstances; Held – Medical Review Panel affirmed the certificate of MA Cameron. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Medical Review Panel affirms the certificate of Medical Assessor Ian Cameron, dated |
STATEMENT OF REASONS
INTRODUCTION
Mr Dusko Dragas (the claimant) was involved in a motor vehicle accident on
18 November 2017.The insurer is liable to pay Mr Dragas any damages including the cost of medical treatment and domestic assistance, under the Motor Accidents Compensation Act 2019 (the MAC Act).
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 63 of the MAC Act, on review by a review panel.
The medical disputes set out in the referral to the Medical Assessor were:
(a) whether all physical injuries give rise to a need for domestic assistance from the date of accident to the date of assessment, and whether this assistance is causally related to the injury sustained in the subject accident;
(b) whether all physical injuries give rise to a need for domestic, from the date of assessment and for the balance of the claimant’s life expectancy being a further 0 - 32 years (and every year in between), and whether this assistance is causally related to the injury sustained in the subject accident;
(c) whether 0 - 6.77 hours per week (and every hour in between) of domestic assistance, from the date of assessment and for the balance of the claimant’s life expectancy being a further 0 - 32 years (and every year in between) is reasonable and necessary in relation to the injury sustained in the subject accident;
(d) whether 0 - 9.11 hours per week (and every hour in between) of domestic assistance, from the date of accident to the date of assessment is reasonable and necessary in relation to the injury sustained in the subject accident;
(e) whether twelve sessions of remedial massage for a period of one year is causally related to the injury sustained in the subject accident;
(f) whether weekly consultations with a general practitioner for a period of one year is causally related to the injury sustained in the subject accident;
(g) whether weekly consultations with a general practitioner for a period of one year is reasonable and necessary in relation to the injury sustained in the subject accident;
(h) whether twelve sessions of hydrotherapy for a period of one year is reasonable and necessary in relation to the injury sustained in the subject accident;
(i) whether twelve sessions of hydrotherapy for a period of one year is causally related to the injury sustained in the subject accident;
(j) whether twelve sessions of remedial massage for a period of one year is reasonable and necessary in relation to the injury sustained in the subject accident;
(k) whether twice-yearly consultations with a neurosurgeon for a period of five years is causally related to the injury sustained in the subject accident;
(l) whether twice-yearly consultations with a neurosurgeon for a period of five years is reasonable and necessary in relation to the injury sustained in the subject accident;
(m) whether twelve sessions of physiotherapy for a period of one year is causally related to the injury sustained in the subject accident;
(n) whether twelve sessions of physiotherapy for a period of one year is reasonable and necessary in relation to the injury sustained in the subject accident;
(o) an MRI scan to cervical and lumbar spines is causally related to the injury sustained in the subject accident and,
(p) whether an MRI scan to cervical and lumbar spines is reasonable and necessary in relation to the injury sustained in the subject accident.
The medical disputes were referred to Medical Assessor Cameron who certified that the following treatment:
(a) all physical injuries give rise to a need for domestic assistance from the date of accident to the date of assessment;
(b) all physical injuries give rise to a need for domestic, from the date of assessment and for the balance of the claimant’s life expectancy being a further 0 - 32 years (and every year in between);
(c) twelve sessions of remedial massage for a period of one year;
(d) weekly consultations with a general practitioner for a period of one year;
(e) twelve sessions of hydrotherapy for a period of one year;
(f) twice-yearly consultations with a neurosurgeon for a period of five years;
(g) twelve sessions of physiotherapy for a period of one year, and
(h) MRI scan to cervical and lumbar spines,
did not relate to the injury caused by the motor accident.
Medical Assessor Cameron further found that the following treatment relating to injuries caused by the accident:
(a) 0 - 9.11 hours per week (and every hour in between) of domestic assistance, from the date of accident to the date of assessment;
(b) 0 - 6.77 hours per week (and every hour in between) of domestic assistance, from the date of assessment and for the balance of the claimant’s life expectancy being a further 0 - 32 years (and every year in between);
(c) twelve sessions of remedial massage for a period of one year;
(d) weekly consultations with a general practitioner for a period of one year;
(e) twelve sessions of hydrotherapy for a period of one year;
(f) twice-yearly consultations with a neurosurgeon for a period of five years;
(g) twelve sessions of physiotherapy for a period of one year, and
(h) an MRI scan to cervical and lumbar spines,
were not reasonable or necessary in the circumstances.
THE REVIEW
Mr Dragas requested referral to a Review Panel (the Panel) on the basis that there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties filed bundles of documents in accordance with the initial Direction.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act. In Raina v CIC Allianz Insurance Ltd Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the panel… to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
MATERIAL BEFORE THE REVIEW PANEL
The Review Panel had all the material that was before the Medical Assessor and also had access to the material in the Bundles of the insurer and claimant, dated the 31 January 2024 and 24 January 2024, respectively.
The Review Panel reviewed such materials to the extent that they were relevant.
Qualified opinions
Dr Robin Mitchell, consultant occupational health physician, noted that Mr Dragas had developed pain in the neck, right shoulder, mid back, and lower back with radiation to the lateral upper right leg, and also pain in each knee, after a motor vehicle accident on
18 November 2017, when he hit the dashboard with both knees.
The doctor acknowledged that Mr Dragas’ pain continued, and in February 2018, he was referred to orthopaedic surgeon, Dr Medhat Guirgis, who diagnosed mechanical derangement of the cervical spine, causing right C6/7 radiation and impingement into the right shoulder, and mechanical derangement of the lumbar spine causing left proximal L5/S1 radiation.
Dr Mitchell found Mr Dragas’ symptoms appeared to be of a soft tissue nature, in the absence of any apparent significant underlying injury, either clinically or radiologically.
The doctor further noted that there were no lasting injuries caused by the subject motor vehicle accident and that work in a full-time capacity, would not have any potential to aggravate his symptoms.
Medical assessment by Medical Assessor Ian Cameron
Medical Assessor Cameron undertook a clinical examination of Mr Dragas.
He noted that the cervical spine was moderately and symmetrically reduced in range of motion in all planes, without muscle spasm, guarding, dysmetria or non-verifiable radicular complaints present.
Medical Assessor Cameron found that at both shoulders there was inconsistent movement, which Mr Dragas said was due to variable pain. The maximum observed movements at both shoulders were abduction 170 degrees, adduction 40 degrees, flexion 150 degrees, extension 40 degrees, external rotation 70 degrees, internal rotation 80 degrees.
Medical Assessor Cameron found a full range of motion at other upper extremity joints.
At the thoracic spine, there was moderately and symmetrically reduced range of motion in all planes, without muscle spasm, guarding, dysmetria or non-verifiable radicular complaints present.
At the lumbar spine, he found there was markedly and symmetrically reduced range of motion (to 50% normal) in all planes, without muscle spasm, guarding, dysmetria or non-verifiable radicular complaints present.
Other areas he examined were unremarkable.
As to the inconsistent movement at both shoulders, Mr Dragas said this was due to variable pain from both shoulders.
Medical Assessor Cameron determined that in the motor accident, Mr Dragas sustained multiple soft tissue injuries, but no substantial disabilities had resulted.
In consequence, domestic assistance and the ongoing treatment listed in the descriptions of the multiple disputes was not causally related.
Domestic assistance is required only when there are very severe injuries such as spinal cord injury, severe traumatic brain injury or multiple fractures. Ongoing treatment is not causally related because the extensive treatments were not required in the context of injuries sustained.
Given that causation had not been established, he concluded that the treatments were not reasonable and necessary.
Claimant's submissions of 23 October 2023
Mr Dragas’ solicitor provided submissions, which the Panel briefly summarises.
These submissions sought a review of the medical assessment certificate of Medical Assessor Cameron.
Mr Dragas submits that the certificate of Medical Assessor Cameron is incorrect in a material respect under s 63 (2) of the MAC Act, due to his failure to consider a very significant amount of medical evidence and subsequent erroneous reasoning.
The Motor Accident Permanent Impairment Guidelines 2018 (The Guidelines) paragraphs 1.18 and 1.18.1 state that a review and evaluation of all the available evidence including "medical evidence", which cites all manner of health reports, medico-legal reports are the first stage of an assessment.
The certificate discloses a clear failure to review and evaluate that medical evidence, including various reports of Dr Guirgis, as well as multiple MRI scan reports of the cervical and lumbar spine which were directly relevant to Medical Assessor Cameron's erroneous reasoning and conclusions.
Mr Dragas submits that in contrast to Medical Assessor Cameron's conclusion that the cervical and lumbar spine MRI scans were "not indicated". Mr Dragas’ complaints of pain and restriction in these areas, and the significant pathology that these scans disclose, make it more than obvious that the MRI scans were indicated, necessary, and disclosed significant injury related to the motor vehicle accident.
Insurer’s submissions in Reply of 8 November 2023
The Medical Assessor confirmed that he had considered all documentation that had been provided to him. The Medical Assessor is not required to specifically list or reference all of the material he considered. The absence of a specific reference to material does not independently establish an error.
Mr Dragas submits that Medical Assessor Cameron has failed to have regard to various reports of Dr Guirgis and MRI scans of Dr Ganeshan. However, Medical Assessor Cameron had acknowledged that all material included in the application and reply together with additional late material were considered. In any event, it is the insurer’s position that Medical Assessor Cameron’s decision is based on his clinical examination of the claimant.
Re- examination by the Medical Review Panel
Mr Dragas was examined by Medical Assessor Stubbs on 14 February 2014 at 1pm.
Mr Dragas travelled to the Personal Injury Commission’s rooms from his home in Liverpool with his wife. Mrs Dragas did not take part in the interview and examination but was requested to assist Mr Dragas dressing at the end of the examination.
Background
Mr Dragas was born and grew up in Croatia, moving to Australia in 1994 with his family.
At the time of the accident, he was 49 years old. He had two grown children who lived with him and his wife in rented accommodation. They have since moved to a four-bedroom rental home in Liverpool. Mrs Dragas was not working at the time of the accident but has undertaken work in the last six months. Mr Dragas was working as a self-employed gyprock subcontractor. He had done this for several years. He said that he was formerly well, and still played social soccer in an amateur league. He had a past history of having suffered a fractured leg in 2014, playing soccer.
On 18 November 2017, he was returning from work in a Triton utility. It was stationary when hit from behind. Both drivers were able to self-extricate. Neither police nor ambulance were called, and the vehicles involved in the accident were driven away. The Triton was repaired and is still in use.
Mr Dragas went to see his usual general practitioner (GP), Dr Zaki, the next day and was assessed. At that stage he had right shoulder, neck and back pain, and injuries to both knees.
He did not continue treatment with Dr Zaki but transferred to Dr Todorovic for further management.
Subsequently, he was assessed by orthopaedic specialist, Dr Guirgis, who wrote a report to his solicitor.
Initially he was given a certificate for light duties only. He returned to work and stated that he was very incapacitated, but he in fact continued working as a gyprock subcontractor on light duties for 18 months. He then ceased work, made claims on a personal income protection policy and then went on to Centrelink benefits. The family rely on the income from his wife and two children.
He alleges that he has ongoing problems, including both knees, both shoulders neck and low back.
He is seeking assistance as he says he is very reliant on his wife for activities of daily living.
He needs help dressing, showering and can do no housework though he can still drive his automatic utility. He is taking a mixture of Panadeine Forte and Celebrex prescribed by the Dr Todorovic and has undergone a number of investigations.
He has not had any surgery but has had injections into both shoulders. He sees a specialist surgeon, Dr Nair, who said that he needs a spinal operation, and he has seen another surgeon, who says that he will need a knee replacement on the right side within five years.
The dispute includes the need for facet joint injections into the spine, bilateral knee arthroscopies and surgery to the cervical and lumbar spines.
Clinical examination
Medical Assessor Stubbs considered that Mr Dragas was a fit looking man of 177cm, weighing 85kg.
He had a normal standing posture and gait and tiptoed, and heel toe walked comfortably.
He was noted to be able to undress without assistance to his underpants and climb on and off the examination table without difficulty.
He had a very athletic build for a 50-year-old male.
He was very lean and had excellent muscle definition is all muscle groups.
Mr Dragas had good standing balance. He was unwilling to move either his neck or low back in any direction. To the extent that he moved, such movements were symmetrical and there was no reflex spasm or guarding. The movement was voluntarily restricted and when this was pointed out to Mr Dragas that he was moving much more freely when speaking with the interpreter and undressing, Mr Dragas stated that moving further would cause pain.
Medical Assessor Stubbs noted other inconsistencies in the informal examination and a lack of voluntary movement in the clinical examination.
Medical Assessor Stubbs bought these two matters to Mr Dragas;’ attention and he made a similar comment that he was frightened that any movements would cause him pain.
On cervical and lumbar spine examination, there was a voluntary restricted symmetrical reduction in the range of motion. Mr Dragas complained of pain, diffusely over the whole of the back, neck, and both shoulders, including the upper part of his low back, from the neck and across the small of his back, equally on both side into the buttocks. When sitting he could lean forward across the edge of the table and fully extend both knees individually and together from this position without discomfort. The slump test was therefore negative.
When lying, he could flex his knees to only 80 degrees. Straight leg raising was voluntarily resisted at 30 degrees. Nerve root traction tests were therefore negative.
Sensory mapping did not follow dermatomal distribution.
Noting as before, that Mr Dragas’ upper and lower limb muscles were well defined, it was further noted that his legs had thigh circumference of 55 cm, mid patella circumference of 38 cm and calf circumference of 38 cm in both legs. The equivalent forearm measurements are 37 cm mid arm, forearm right equals left.
There was diffuse but not localised pain complained of on palpation of the shoulders.
Reflexes, biceps triceps and supinator jerks in the arms and knee and ankle jerks in the lower limbs were of modest amplitude but are quite symmetrical.
Lower limb, hip and knee movements were voluntarily limited.
In the knees, there was normal temperature, no effusion on either side, no bony prominences or spurs and no crepitus. In short, the lower limb examination was normal and there were no clinical signs of knee injury on either side.
Upper limb shoulder movements were voluntarily restricted.
In summary, there were no noticeable abnormalities in the upper limbs.
Investigations reviewed
Medical Assessor Stubbs then proceeded to list the medical investigations.
He noted that on 19 November 2021, an MRI of the lumbar spine with T1 and T2, was a normal MRI study in a 50-year-old male, without evidence of injury. The comments made by the radiologists did not indicate injury and were best considered as normal age-related changes.
He commented on the MRI scan of the lumbar spine of 5 March 2018 and observed that the radiological features were identical to the MRI features of one year later. The conclusion is the same i.e. normal age-related changes.
Medical Assessor Stubbs commented on the MRI of the left knee, ordered by Dr C Guirgis, that the pigmented villonodular synovitis was an inflammatory condition not caused by the trauma. There were some minor changes to the articular cartilage of the patellofemoral joint which were consistent with normal wear and tear in a physically active male of age 50.
With respect to the MRI of the right knee of 17 May 2018, the findings were old cruciate ligament with early secondary degenerative changes of the right knee joint. This was not a new injury and probably reflected the fracture of 2014. There were no signs of recent injury that could have been caused by the motor vehicle accident.
The MRI of the cervical spine and right shoulder of 15 March 2018, requested by Dr M Guirgis, showed some thickening and some reactive marrow oedema around the right acromioclavicular joint. There was mild bursitis and some tendinosis of possible intrasubstance tears in the superior rotator cuff and distal ganglion cyst. The radiological signs were not of an acute injury, but consistent with heavy use and commonly found in manual labourers.
With respect to the MRI of the cervical spine, there were no radiological features of acute injury.
Medical Assessor Stubbs also referred to the MRI cervical and lumbar spine and right shoulder of 13 September 2022, requested by Dr M Guirgis. There was only limited viewing available and that of the right shoulder showed essentially the same features as those recorded on 15 March 2018. There was also similar access to the MRI cervical and lumbar spine. The official report was in keeping with the changes seen on the MRI lumbar spine of 2018-19.
Discussion:
The Review Panel made their assessment based on the history of the accident, as given by Mr Dragas.
This was a low energy rear end impact with a small vehicle imparting energy to a larger vehicle. Both parties were able to exit the vehicles and drive them away.
The mechanics of the accident for Mr Dragas would have been relative rearward motion of the pelvis and trunk, into the seat squab and some extension of the cervical spine as far as the head restraint allowed. His knees would have moved away towards the dashboard, and there would not have been any significant steering input, as there was no secondary collision.
It was plausible that there was a soft tissue injury to the cervical spine caused by the accident, such injuries are commonly reported, but it is not at all likely that there would have been injuries to the lumbar spine, both shoulders and both knees.
Further, the claimant gave a history of continuing to work for 18 months on light duties after the motor vehicle accident.
The Medical Review Panel also considered the available clinical signs. Some signs are quite unequivocal indications of prior injury. These include muscle wasting, bony distortion and thickening, joint swelling with redness and crepitus and chronic vascular changes, pigmentation, and scarring. Mr Dragas had none of these findings.
Mr Dragas also lacked the findings in provocative tests such as, nerve root tension signs.
Note was made of the absence of nerve root tension signs and the normal slump test is performed by straightening the knees whilst sitting bending forward and a marked resistance to straight leg raising.
Tension and compression tests needed to be consistent if they are to indicate tissue injury.
There were a number of inconsistent findings in the clinical examination. Firstly, was the apparent ease with which the claimant undressed on the examination table compared to the marked reluctance he showed to undertake active movement in any of the joints examined. This inconsistency was pointed out to Mr Dragas. Note is made of cl 6.50.4, that for inconsistency in range of motion (or testing of muscular strength) then range of motion should not be used as a valid parameter of impairment evaluation. This was the case with
Mr Dragas.
Given the lack of unequivocal positive confirmation of injury on clinical examination the Review Panel could not find evidence of continuing injury from the accident. On clinical examination, the Review Panel would conclude that the injuries resolved, and Mr Dragas appears to be, a fit, physically active male.
Further, there was the evidence presented on the basis of medical imaging. The Review Panel noted the Guidelines, including cl 6.121 concerning the use of the imaging studies and the assessment of the spine. This clause notes that many people have imaging studies that show normal age-related changes so then the diagnosis cannot be made on the imaging studies, they only have value in supporting information found in the clinical examination.
The Review Panel considers that this principle should also extend to other joints, where there were known findings such as tendinitis, acromioclavicular degeneration and so forth, in the shoulders found in healthy subjects without symptoms.
The imaging studies did not support the concept that there had been lasting injury caused by the motor vehicle accident in either the neck or back, nor either shoulder or either knee.
There were some abnormal findings of note in both knees on MRI that did relate to the motor vehicle accident. For instance, the finding of chronic anterior cruciate ligament injury in the right knee and probable villonodular synovitis in the left knee. Arthroscopy may help establish the diagnosis that in both cases the indication was not related to the motor vehicle accident. There was a possible recent injury to the cervical spine seen in the 2022 MRI however this was not disclosed during the history taking.
Conclusion
The imaging studies taken after the motor vehicle accident did not show changes of recent injury in the cervical or lumbar spine.
The changes reported were consistent with normal ageing and are typical changes in a 50-year-old asymptomatic male.
The changes seen on the MRI of the right shoulder were typical changes in a 50-year-old manual labourer. They may not be the cause of symptoms and they are not changes one would expect with a motor vehicle accident.
The changes seen in the right knee were consistent with a chronic anterior cruciate ligament, and early osteoarthritis. There was considerable fluid seen in this joint, not present on the clinical examination. The knee had improved, and no effusion was detected clinically. These changes were not due to the motor vehicle accident but represent long-term effects of a prior injury and some early osteoarthritis.
On the present clinical examination, there was a positive anterior draw sign confirming the anterior cruciate ligament but no signs of present joint distress. The synovial fluid seen in 2018 was not present.
The changes seen on the left knee MRI was also synovitis with the likely diagnosis of villonodular synovitis. This was not a traumatic condition either. There are new changes on the CT of the cervical spine performed in September 2022, not seen on the prior MRI of the cervical spine. These were consistent with a new injury, but Mr Dragas did not give a history of this.
Finally, when these issues were considered together, the Review Panel concluded that there was no ongoing injury from the motor vehicle accident in any area of the body. These were likely soft tissue injuries which had resolved.
There was no ongoing causal relationship with the motor vehicle accident.
The proposed treatment did not relate to the motor vehicle accident. It was neither reasonable, nor necessary in these circumstances and would not produce any clinical improvement.
Added to this, is the request for various forms of assistance. These were unnecessary and unreasonable requests, given the findings at physical examination.
Determination
The Medical Review Panel affirms the certificate of Medical Assessor Ian Cameron, dated
19 August 2023.
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