Eyles v AAI Limited t/as GIO
[2023] NSWPICMP 331
•14 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Eyles v AAI Limited t/as GIO [2023] NSWPICMP 331 |
| CLAIMANT: | Michael Eyles |
INSURER: | AAI Limited t/as GIO |
| REVIEW Panel | |
| MEMBER: | Senior Member Brett Williams |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 14 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment about treatment under section 7.26; whether proposed L5/S1 facet blocks are reasonable and necessary in the circumstances and relate to injury caused by the accident; Held – it is more probable than not that asymptomatic L5/S1 spondylolisthesis with chronic bilateral pars defects had been materially contributed to, by way of aggravation, as a direct consequence of the claimant’s altered gait that has resulted from his accident caused pelvic fractures; while the accident was not the cause of the L5/S1 spondylolisthesis with chronic bilateral pars defects, it could have been a contributing cause, which is more than negligible, and was a contributing cause, that was more than negligible; but for the accident, it is probable that the claimant would not have required the proposed L5/S1 facet blocks; the accident made a material contribution to the need for the treatment; the treatment relates to injuries caused by the accident; the treatment is reasonable and necessary in the circumstances. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificates of Medical Assessor Woo dated (a) the L5/S1 facet blocks that are to be provided to the claimant are reasonable and necessary in the circumstances, and (b) the L5/S1 facet blocks that are to be provided to the claimant relate to injury caused by the accident. |
STATEMENT OF REASONS
BACKGROUND
Michael Eyles (claimant) was involved in a motor vehicle accident on 23 December 2017 (accident). He made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as GIO (insurer).
Whilst there appears to be a dispute about when the request was made, at some time in either April or May 2021 the claimant sought approval from the insurer for L5/S1 facet blocks (treatment). On 25 May 2021, the insurer informed the claimant that it did not approve the treatment on the basis that it was not considered reasonable and necessary or causatively related to the accident.
The claimant sought an internal review of the insurer’s decision. On 4 June 2021 the insurer issued an internal review decision that affirmed the insurer’s decision about the treatment.
Whether the treatment is reasonable and necessary in the circumstances and relates to an injury caused by the accident for the purposes of s 3.24 of the MAI Act are medical assessment matters.[1] The disputes between the claimant and the insurer in relation to the treatment are medical disputes.[2]
[1] Sch 2 cl 2(b) MAI Act.
[2] Section 7.17 MAI Act.
The medical disputes were assessed by Medical Assessor Woo, who gave a certificate and reasons dated 23 July 2022. The Medical Assessor certified that proposed L5/S1 facet blocks do not relate to the injury caused by the accident and are not reasonable and necessary (assessment).
The claimant sought a review of the assessment in accordance with s 7.26 of the MAI Act. The President’s delegate found that there was reasonable cause to suspect that the assessment was incorrect in a material respect, accepted the review application, and referred it to a review panel.
The review of Medical Assessor Woo’s assessment was initially referred to a panel constituted by Senior Member Williams, Medical Assessor Dixon and Medical Assessor Curtin. Following objections by the claimant to Medical Assessor Curtin being a member of the Panel, the Panel was re-constituted with its current membership (Panel).
In undertaking the review of the assessment in accordance with s 7.26 of the MAI Act, among other things, the Panel is to conduct and determine the proceedings in accordance with procedures determined by the Panel. The Panel may determine the proceedings solely on the basis of the written application, and may inquire into matters that are relevant to the issues in dispute as the panel thinks fit.[3]
[3] Rule 128 PIC Rules.
DIRECTIONS TO THE PARTIES
On 13 June 2023 the Panel issued a report and directions to the parties. The Panel confirmed that it intended to proceed on the basis that the following represented the material relied on by the parties in the Review:
(a) claimant’s bundle;[4]
(b) insurer’s bundle;[5]
(c) claimant’s further submissions dated 1 December 2022,[6] and
(d) insurer’s submissions dated 7 December 2022.[7]
[4] AD1 (810 pages).
[5] AD2 (37 pages).
[6] AD3.
[7] AD4.
The parties were asked to notify the Panel on or before 16 June 2023 if they sought leave to rely on any other material in the Review. If so, they were directed to lodge applications to admit late documents containing the further material. Neither party advised the Panel that they sought to rely on further material, and no applications to admit late documents have been received.
The parties were notified that the Panel considered that a re-examination of the claimant was required, and that the examination would be conducted on behalf of the Panel by Medical Assessor Dixon via MS Teams on 23 June 2023.
STATUTORY PROVISIONS
The claimant is entitled to statutory benefits for treatment expenses incurred in accordance with s 3.24 of the MAI Act. No statutory benefits are payable for the cost of treatment to the extent that the treatment was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.[8]
[8] Section 3.24(2) MAI Act.
Whether any treatment to be provided to the claimant is reasonable and necessary in the circumstances or relates to the injury caused by accident for the purposes of s 3.24 are medical assessment matters.[9]
[9] Sch 2 cl 2(b) MAI Act.
The treatment has not been provided to the claimant. None the less, given the amendments to Schedule 2, cl 2 of the MAI Act to include the words “to be provided”, the Panel considers that it has the power to determine the dispute. Neither party has argued to the contrary.
ASSESSMENT UNDER REVIEW
As recorded earlier, Medical Assessor Woo certified that the treatment does not relate to the injury caused by the accident. He also certified that the treatment was not reasonable and necessary in the circumstances.
Medical Assessor Woo’s reasons contain a history that after the accident the claimant was immediately aware of pain from gravel graze to his back, knees and right hand. There was a full recovery from the grazes. He recorded that the claimant experienced severe pain in his hips and pelvis. An X-ray showed bilateral acetabular fractures and a sacral ala fracture. Open reduction and internal fixation of the acetabular fractures were performed. The reasons record that the claimant’s back settled down once the back graze healed up, and that he has been left with some mild ongoing low back pain and stiffness. There is a history recorded that the claimant’s general practitioner, Dr Amir Mashhadi, referred him to Dr Marc Coughlan, neurosurgeon, for ongoing lower back pain, that Dr Coughlan reviewed him on 30 March 2021 and recommended bilateral L5/S1 facet blocks.
Medical Assessor Woo expressed the opinion that L5/S1 spondylolisthesis is most commonly related to L5 pars defects, a constitutional condition which is very often asymptomatic and discovered after incidental injury to the back. He found that there was no evidence, from the medical records available to him, to show that the claimant suffered an acute fracture of L5 during the accident. The Medical Assessor concluded that the treatment was not causally related to the accident.
SUMMARY OF EVIDENCE
The Panel has before it the material referred to at [9 a. – d.]]. All the material has been reviewed and considered by the Panel.
Claimant’s statements
The claimant relies on his statements dated 31 October 2018 and 21 April 2022. The claimant’s statement of 31 October 2018 includes a description of the accident, addresses the injuries and disabilities he suffered as a result of the accident, his treatment, and his pre and post-accident work history.
The statement records that when the accident occurred the claimant was riding his motorcycle. The claimant states as follows at [8]:
“[8] As a result of me swerving, so as to avoid the vehicle which had completely moved into my lane, I ran off the road and came into contact with the gutter. I was then ejected from the bike over the handlebars, falling heavily to the ground landing on my back.”
He states that as he lay on the ground his body twisted so that he was facing the direction he had been travelling in. The claimant states that he suffered a number of injuries as a result of the accident, including injury to his back, a broken pelvis, fractured sacrum, and injury to both hips. He states that he continued to suffer from pain, discomfort and restriction of movement in the back and that he was “walking with a gait”.
The statement records that prior to the accident the claimant worked as an auto mechanic. He returned to light duties office work in September 2019. He had started to transition to light manual labour, described by him as “servicing work”.
In his statement dated 21 April 2022, the claimant again addressed the circumstances of the accident, his injuries and disabilities, together with his previous injuries and medical conditions. Details of his education and work history are provided. The claimant states that, as a result of the accident he experienced, and continued to experience, lower back pain that “resonates towards [his] neck, resulting in extremely bad headaches”.
The statement includes an account of the claimant’s post-accident treatment regime, and records that he continues to perform office work and light servicing work, such as oil and filter changes.
Medico-legal opinions
Dr Rosenthal, occupational physician, reported on 27 May 2020. He recorded complaints by the claimant of pain in both his “glutes”, pins and needles down both feet, pain around the pelvic region on both sides and the groin. He took a history that “[b]ack pain commenced recently in the last 4 months”. The doctor recorded that the claimant had trouble walking and that he limps on occasion. The doctor expressed the opinion that the claimant appeared to have developed secondary mechanical lower back pain.
Dr Rosenthal reported again on 31 May 2021. He noted the findings of the lumbar spine MRI scan dated 15 February 2021. The doctor expressed the opinion that the claimant’s back symptoms were related to the pars defect that, in his opinion, was a longstanding pre-existing congenital condition. The defect did not, in his opinion, represent acute fractures. The doctor did not believe that the claimant’s back symptoms were related to the accident. The doctor expressed the opinion that, because there was an over two year delay between the accident and the development of the claimant’s low back symptoms, there was no causal nexus between the two. The doctor “would have expected back symptoms at the time of the accident or immediately following the accident”. While the treatment may be indicated for the ongoing back problems, in the doctor’s opinion, any treatment related to the claimant’s lumbar spine, particularly his spondylolisthesis and pars defects, is not related to the accident.
Dr Dryson, occupational physician, reported on 21 October 2019. He did not diagnose a back injury in that report. Nor does his report record any examination findings in relation to the claimant’s back. His supplementary report of the same date does not contain an assessment of whole person impairment in relation to the back.
Dr Dryson reported again on 19 November 2021. The report records that since he last saw the claimant he had been experiencing neck and low back pain. Reference is made to the MRI of the lumbar spine dated 15 February 2021 and the finding of bilateral chronic pars fractures with grade I spondylolisthesis.
Dr Dryson took a history that the claimant developed low back pain and groin pain some 12 months prior to his re-examination. The report records that when the doctor examined the claimant in October 2019 he did not report any low back pain. The doctor recorded that pain is present all the time, ranging from 5 at its best up to 8 or 9 at its worst, utilising a pain scale of 0 to 10. In terms of function, the claimant reported that he could only sit for about 30 minutes at a time, stand for 20- 30 minutes at a time, walk for 15-20 minutes at a time, and drive for 30-40 minutes at a time.
Dr Dryson diagnosed a consequential aggravation to spondylolisthesis in the claimant’s lumbar spine that was secondary to an altered gait. In the doctor’s opinion the MRI scan of the lumbar spine carried out on 15 February 2021 showed pre-existing pathology, being pars defects. These, in his opinion, are congenital or developmental in origin. In the claimant’s case, they have led to a grade 1 spondylolisthesis, i.e., slippage of L5 on S1. This is a cause of lumbar pain. However, the doctor noted that the claimant sustained fractures to his pelvis in the accident, being an acetabular fracture and sacral ala fracture, and that the claimant required open reduction and internal fixation of the acetabular fractures.
Dr Dryson expressed the opinion that the grade 1 spondylolisthesis is the cause of the claimant’s low back pain. In his opinion, it is reasonable to conclude that the altered gait imposed by the pelvic fractures has aggravated the spondylolisthesis. On this basis, the low back pain is a consequential injury, that was secondary to the accident.
In Dr Dryson’s opinion, the L5/S1 facet blocks recommended by Dr Coughlan are an appropriate investigative procedure. In a supplementary report the doctor assessed a 5% whole person impairment with respect to the lumbar spine.
The claimant was referred to Dr Coughlan, neurosurgeon, by his general practitioner, Dr Mashhadi. The referral is dated 22 February 2021 and refers to a history of the accident, with a lumbar spine injury, persistent postural lower back pain, and lower limb radiculopathy. The findings of the MRI scan dated 15 February 2021 are referred to, and the scan report included with the referral.
In a report dated 13 October 2022, Dr Coughlan confirmed his recommendation that the claimant give consideration to bilateral L5/S1 facet blocks to be used as both a diagnostic tool and treatment for pain. In his opinion, considering the claimant was asymptomatic prior to the injury where he sustained significant injuries to his pelvis, sacrum and surrounding tissues, it is reasonable to expect he would have worsening back pain as a result of the impact of the accident, the resultant surgeries and recovery, and gait changes that are inevitable when one is in such severe pain.
Dr Coughlan expressed the opinion that the proposed treatment is both reasonable and necessary, as the mechanism of injury and subsequent symptoms are closely correlated with the imaging. The claimant was asymptomatic prior to the injury and his imaging shows he has spondylolisthesis and pars defects.
Medical assessments
Medical Assessor Hyde-Page gave a certificate and reasons dated 21 December 2020. The Medical Assessor recorded a history that, other than a left knee cruciate ligament reconstruction in 2004, prior to the accident the claimant was very fit and healthy, and gave no history of any significant pre-accident complaint affecting his musculoskeletal system. It is recorded that the accident occurred when the claimant was riding his motorcycle at about 55kmph. Following the accident he was aware of “a lot of pain from gravel rash on the left side of his back…and a lot of pain around his hips, [and] pelvis…”. The Medical Assessor recorded that the claimant’s “back settled down once the gravel rash healed up, but he has been left with some mild ongoing low back pain and stiffness”.
Medical Assessor Hyde-Page took a history that the claimant was discharged home from hospital in a wheelchair six weeks after the accident, and remained in a wheelchair for a further two months, after which he used crutches for two months. Some six months after the accident the claimant was able to walk unaided.
The Medical Assessor’s reasons record that the claimant experienced ongoing low back and sacral pain that could be aggravated by bending and lifting, and prolonged sitting. The pain may radiate into his buttocks. He experienced some pain around his sacrum and that area is uncomfortable to touch. He experiences some discomfort in his groin. The claimant reported that he had regained good movement and function around his hips and proximal part of his legs. It is recorded that “[h]e can walk normally now”.
Relevantly, the Medical Assessor determined that as a result of the accident, the claimant suffered soft tissue injury to his back and hips, and fractures of his sacrum and pelvis. In his opinion, the soft tissue injuries had resolved.
Clinical notes
Documents from axiom psych, including referral letters and a mental health treatment plan, are included in the claimant’s bundle. There are reports from Ms Kuoch, that do not relate to the claimant, and reports from Dr Banerjee relating to sleep studies. A report from Dr Freiberg also relates to the claimant’s sleep. There are records from
Dr Singh, ENT, related to issues with hearing. Documents from Dr Burneikis, orthopaedic surgeon, relate to treatment to the claimant’s right shoulder, including arthroscopic surgery. There are also records from Lullaby Sleep.
The Wyong Hospital notes have been reviewed and considered. The material includes radiological reports. The clinical notes record that the accident occurred at 50kmph and that the claimant slid into a gutter. The notes record a decision to transfer the claimant to John Hunter Hospital. The emergency department notes record that the claimant denied loss of consciousness. He had suffered abrasions to his right hand, left elbow and left flank. The notes contain a history that the claimant had not been hit by a car, that his bike had hit the gutter, and he hit the ground sliding. It is also recorded that the claimant had been seen the week before for an ankle injury. The triage notes record that the claimant had “significant gravel rash to L flank/back, elbows and ankle”.
The documents from John Hunter Hospital have been reviewed and considered. The claimant was transferred from Wyong Hospital. The discharge summary records a primary diagnosis of bilateral acetabular fracture and a secondary diagnosis of a sacral alar fracture. There is reference to the accident occurring at 30kmph and 50kmph.
X-rays of the claimant’s right shoulder, right hand/wrist, right knee, thoracic spine, and pelvis are contained in this material. The records confirm that a bilateral posterior acetabular open reduction and internal fixation was performed by Dr Balogh on
27 December 2017. The discharge summary records that the claimant was discharged home on 4 January 2018.
The clinical notes from Kanwal Wadalba Family Practice have been reviewed.
Dr Mashhadi has seen the claimant at this practice. The notes include, relevantly, the following references:
24 May 2018 still coping with back, hip pain
26 June 2018 coping with ongoing low back pain
23 October 2019 Acute exacerbation of back pain. History of MVA.
Radiculopathy to bilateral L3, L4 and L5 dermatomes. CT lumbar spine requested
18 November 2019 CT lumbar spine findings explained and discussed
20 November 2019 diagnosed chronic pain – lumbar back pain
Spondylolisthesis & Bilateral Pars interarticularis defect
22 January 2020 still coping with low back pain-positional
13 February 2020 significant increase in low back pain since
increasing working hours
17 March 2020 claimant still coping with severe back pain after work
quality of life is affected significantly
17 April 2020 claimant did not attend work due to severe pain in a
number of regions including his back
2 February 2021 MRI of the lumber spine requested
22 February 2021 history of MVA with lumbar spinal injury with
persistent low back pain (postural) and lower limb radiculopathy. His MRI is consistent with L5 on S1 spondylolisthesis with chronic pars defect/fracture and bilateral foraminal narrowing. Referred to Dr Coughlan
30 March 2021 specialist review - facet joint injection recommended
25 May 2021 had follow up with Dr Coughlan – referred to CT guided injection – awaiting approval
13 August 2021 more anxiety attacks in last 7 days. More back pain
since then.
Dr Russo’s[10] records include a report to Dr Mashhadi dated 9 May 2020 that records, relevantly, that the claimant’s persistent pain includes thoracic and lumbar pain and bilateral hip pain. In his opinion, the claimant presented with persistent widespread pain that was focal in nature, that he suspected may be related to some underlying traumatic arthritis. There were probably components of myofascial pain and/or neuropathic pain involved.
[10] Pain Medicine Specialist.
In a report dated 6 June 2020, Dr Russo states that the main component of the claimant’s pain is focal sided low back pain that was “almost certainly arising from the lumbar facet joint line”.
The claimant’s bundle includes records from his physiotherapist. This material contains a report to Dr Mashhadi dated 12 March 2020. Among other things, the report records that the claimant had trialled a return to full hours that had resulted in a two week flareup that required manual therapy to settle his hip flexors and lower back. A report dated 24 April 2020 records complaints of lumbo-pelvic and thoracic pain, which is exacerbated with sustained sitting or standing. There is a referral from Dr Mashhadi dated 13 August 2021 that refers to a history of a motor vehicle accident with lumbar spinal injury with persistent postural low back pain.
The physiotherapy treatment notes include the following entries:
13 February 2018 pain from buttock area to anterior hip “P+N at times
down bilateral posterior legs
4 April 2018 Lumbar spine full “rom”
24 May 2018 treatment lumbar spine
8 October 2018 Has been in pain since being back at full hours for the
4 weeks. Will stiffen up if he has worked all day
14 February 2019 back discomfort minimal
28 March 2019 “reports (R) side sciatic like pain. Reports some pain
last Wednesday – tried to catch spanner”.
11 July 2019 increase in pain through the back
17 September 2019 a bit tender through lower back
24 September 2019 reports back is a bit tender
29 October 2019 reports pain through the back. Referral bilateral legs
down to the legs
7 November 2019 reports some tenderness in the back. Impression L4/5
disc bulge central
12 November 2019 reports some pain in the lower back
27 November 2019 “Oswestry low back pain: 50% - severe disability
7 January 2020 the back is a bit tender
21 February 2020 some pain through the lower back three days ago that is
a dull ache and sharp stabbing pain on the left side
4 March 2020 Phone call to “Basil” “…questioning treatment of the low
back – explained that the back is closely linked to the pelvis and if subsequent movements are used to compensate through the hips, this can transition to pain through the lower back”.
5 March 2020 Had dull ache this am at the base of the spine, has
Settled
9 April 2020 reports flare up of pain through the back and hip flexors
4 June 2020 reports discomfort through the lower back + headaches
6 August 2020 reports hip flexor pain. Reports right shoulder and back
has flared
5 January 2021 reports lower back pain.
An allied health request dated 25 September 2018 refers to some pain in the lumbar spine. No back injury is recorded in the diagnosis section of the document. There is a request for a back class. An allied health request dated 16 January 2019 makes reference to ongoing lumbar pain from altered lumbopelvic stability. A request dated 13 March 2020 included a request for a back class. There is also a Oswesty low back pain disability questionnaire, and a Keele back screening tool, the contents of which are noted and have been considered.
The certificates of capacity have been reviewed, including the certificate dated 2 January 2018, as have the photographs.
Other material
The claim form dated 9 January 2018 lists, among other injuries, injuries to the claimant’s pelvis and sacrum.
The police report dated 1 May 2018 records, in the crash summary details, that the claimant told police at the accident scene that, after he had been thrown over the handlebars of his motorcycle, he “slid along the road for some 20 to 30 metres”. Reference is made to the claimant sustaining severe grazing to his back.
A report from NSW ambulance dated 23 December 2017 includes a “case description” that records, among other things, that the claimant was complaining of “pain to [his] left flank/hip/back area – large abrasion to this area…”.
An initial exercise report from Guardian dated 24 April 2020 records complaints of lumbo-pelvic and thoracic pain which is exacerbated with sustained sitting or standing.
Radiological investigations
A CT scan report of the lumbar spine dated 11 November 2019 makes reference to an “[a]cute exacerbation of back pain with radiculopathy to bilateral L3, L4, L5 dermatomes”. The report records that there is Grade 1 anterior spondylolisthesis of L5 over S1 with bilateral pars defects. The clinical notes record that the CT was requested by Dr Mashhadi on 23 October 2019, following a report by the claimant, when examined that day, of an acute exacerbation of back pain.
An MRI lumbar spine report dated 15 February 2021 recorded that there were bilateral chronic pars fractures with grade 1 spondylolisthesis of L5 on S1.
Claimant’s submissions
The claimant has provided submissions dated 1 December 2022 for the purposes of the Review. The submissions make reference to submissions dated 30 August 2022. The August 2022 submissions are directed to s 7.26 of the MAI Act, and address the bases upon which the claimant argued Medical Assessor Woo’s assessment was incorrect in a material respect.
The claimant’s bundle also contains submissions dated 18 June 2021. Attention is drawn to Dr Rosenthal’s opinion that the claimant had developed secondary mechanical lower back pain. Medical Assessor Hyde-Page’s reasons are referred to, in particular with respect to the circumstances of the accident and the complaints of lower back pain. It is submitted that the claimant did sustain trauma to the lumbar spine in the accident, and that the trauma has been exacerbated by the pelvic fractures and subsequent misalignment of the pelvis and vertebrae. It is argued that he sustained significant pelvic fractures which have caused gait derangement and altered bony structure, thereby leading to his secondary lumbar spine injury. It is submitted that a pars fracture is generally a stress fracture caused by repetitive stress, rather than acute injury, which aligns with the claimant’s submission that it was caused by his altered gait and overcompensation. The claimant points to the radiological reports, and the histories recorded by various doctors, both treating and medico-legal. It is submitted that the pelvic injuries had caused a misalignment of the pelvis and lumbar spine, which has placed stress on the lumbar spine, and specifically the L5/S1 joint. In these circumstances, it is submitted that the claimant’s lumbar condition is a direct consequence of the accident. He argues that the treatment is reasonable and necessary because it directly relates to the injuries sustained in the accident, is aimed at helping him get back to his usual activities, is appropriate for the type of injury, is to be provided by an appropriately qualified health professional, and is cost effective.
The claimant’s submissions of 1 December 2022, which have been provided for the purposes of the Review, draw attention to the summary of the accident recorded in the ambulance and police reports. The claimant argues that the ambulance report provides contemporaneous evidence that he suffered injury to the lumbar spine region as a result of the accident. Reference is also made to the discharge referral from John Hunter Hospital, that records the claimant suffered significant pelvic fractures that required surgery.
The submissions argue that, although there are clearly documented complaints of back pain following the accident, the full extent of the claimant’s injuries, particularly to his lumbar spine, were being masked by the strong medication the claimant was taking. In this regard, it is noted that the first set of imaging to investigate the claimant’s lumbar spine pain was performed on 15 February 2021, several months after he ceased Endone. The Panel notes that that is not correct; a CT scan of the lumbar spine was performed on 11 November 2019. The report records, in the clinical details, that there was a history of acute exacerbation of back pain with radiculopathy to bilateral L3, L4, L5 dermatomes. As recorded earlier, the CT was requested by Dr Mashhadi on
23 October 2019.
The submissions make reference to a finding, in the report of the MRI scan of the claimant’s lumbar spine dated 15 February 2021, of “[b]ilateral chronic pars fractures with a grade 1 spondylolisthesis of L5 on S1”.
The submissions note that after being discharged from hospital, the claimant was required to remain in a pelvic binder and, for at least two months post discharge, was required to remain in a wheelchair, and that it took a further six months for the claimant to begin walking unaided. It is argued, in these circumstances, that the claimant’s gait was altered for a significant period of time until he was capable of walking without aids. The submissions record that the relevance of this, and its connection with the claimant’s condition in his lumbar spine, is addressed by Drs Dryson and Coughlan.
Reliance is placed on Dr Dryson’s opinion that, given the pelvic fractures suffered by the claimant in the accident, it is highly likely that this has led to altered gait and over a period of time that in turn “… would have aggravated the previously asymptomatic spondylolisthesis”. Thus, in the doctor’s opinion, the claimant’s low back pain can be considered a consequential injury of the accident.
The claimant relies on Dr Dryson’s opinion that the L5/S1 facet blocks recommended by Dr Coughlan are an appropriate investigative procedure.
The claimant also relies on the opinion expressed by Dr Coughlan, in his report dated 13 October 2022, that the claimant was:
“…asymptomatic prior to the injury where he sustained significant injuries to his pelvis, sacrum and surrounding tissues. It is reasonable to expect [he] would have worsening back pain as a result of the impact of the [accident], the resultant surgeries and recovery, and gait changes that are inevitable when one is in such severe pain.”
The claimant submits that his lumbar spine issues are caused by a combination of factors; the first being the initial impact to his lumbar spine, and the second being the flow-on consequences from the pelvic injuries.
The claimant argues that had the accident not occurred, the pars defect would have remained asymptomatic. However, the claimant’s altered gait as a result of the pelvic fractures have led to a grade 1 spondylolisthesis (slippage of L5 on S1) being the root cause of his symptoms.
The claimant argues that, as there were no subsequent injuries to the lumbar spine, in the absence of an intervening event, the injury must be found to have been caused by the accident.
The claimant submits that, as other forms of conservative treatment have been ineffective in treating his symptoms, the proposed treatment has been supported and agreed upon by two physicians who consider the treatment to be both reasonable and necessary to assist his recovery.
Insurer’s submissions
The insurer relies on submissions dated 7 December 2022 for the purposes of the Review. These submissions record that the insurer relies on its primary submissions (for the purposes of Medical Assessor Woo’s assessment) and submissions in response to the review application (that address s 7.26), and that the December 2022 submissions are to be read in conjunction with the earlier submissions.
December 2022 submissions
The insurer submits that the treatment is neither causally related to the accident, nor reasonable and necessary in the circumstances.
The insurer argues that the claimant has not served any objective evidence that demonstrates that the pars fractures or the L5/S1 spondylolisthesis are causally related to the accident.
The insurer submits that Dr Dryson’s preliminary report did not provide a diagnosis relating to the claimant’s back or lumbar spine, did not make mention of any injury to the claimant’s back (in the context of a “flow on” injury), and did not comment on the need for facet joint blocks.
Reference is made to Medical Assessor Hyde-Page’s opinion that soft tissue injury to the claimant’s back had resolved. Reliance is also placed on Medical Assessor Hyde-Page’s findings on examination. The insurer submits that the examination would not support a diagnosis of bilateral chronic pars fractures with L5/S1 spondylolisthesis and that “mere ‘back stiffness’ does not indicate that the same diagnosis existed at the time of assessment nor is it sufficient to support the injury was sustained as a consequence of the … accident”.
The insurer points to the opinion expressed by Dr Rosenthal, in his report of
27 May 2020, that the claimant appeared to have developed secondary mechanical back pain. The insurer observes that “this was purely based on the subjective symptoms noted by the claimant”. The insurer also places reliance on the fact that
Dr Rosenthal did not suggest any further invasive treatment or surgery was necessary.
The insurer emphasises that there has been no diagnosis of bilateral chronic pars fractures with L5/S1 spondylolisthesis and/or confirmation that the claimant’s pain is emanating from same, save for the opinion of the claimant and Dr Mashaddi, so as to justify the L5/S1 blocks. The insurer submits that the L5/S1 chronic pars fracture and grade 1 spondylolisthesis diagnosed by Dr Mashaddi are degenerative in nature. In circumstances where the claimant sustained a soft tissue injury, the insurer submits that the L5/S1 block procedure is not reasonable and necessary.
The submissions point to the absence of “immediate complaint” of lumbar injury, together with the evidence referred to at [10] – [12] of its submissions.
Given the delay, the insurer submits that the accident could not have caused an acute injury to the lumbar spine sufficient to give rise to the need for L5/S1 blocks more than three years and six months after the accident.
The insurer argues that the L5/S1 spondylolisthesis with chronic bilateral pars defect/fracture and bilateral foraminal narrowing demonstrated in the lumbar spine MRI dated 15 February 2021 is degenerative in nature and that it is simply coincidental that symptoms relating to those changes have manifested, particularly given the functionality recorded by Medical Assessor Hyde-Page in December 2020.
The submissions repeat matters contained in Medical Assessor Woo’s reasons, and argue that his assessment “adequately addresses the treatment dispute and makes sound findings in relation to same”.
The insurer submits there is no objective evidence or “IME” opinion to support the assertion that the full extent of the claimant’s alleged lumbar pain was masked by pain medication. In this regard, the insurer notes that the claimant was able to identify pain in other areas notwithstanding his medication usage.
The insurer submits that the claimant’s submissions are internally inconsistent in relation to causation in terms of his need for treatment, in that they assert that his pain was initially masked by pain medication and that Medical Assessor Woo failed to consider the mechanism of the accident, but it was also the claimant’s altered gait which aggravated the pre-existing, asymptomatic degenerative pathology, which in turn created a consequential injury.
The insurer submits that the available evidence indicates the claimant’s lumbar pain remained asymptomatic despite the accident, and that the evidence, as verified by Medical Assessor Woo, demonstrates that any pathology is a consequence of a constitutional condition that was discovered incidental to the injuries sustained in the accident.
July 2021 submissions
These submissions were prepared for the purposes of the assessment undertaken by Medical Assessor Woo. The thrust, and much of the content, of these submissions is reflected in the December 2022 submissions.
The submissions argue that the need for L5/S1 blocks does not arise as a result of the soft tissue injuries caused by the accident. The insurer “urges the Medical Assessor to only accept the claimant’s subjective reporting of symptoms in circumstances where it is substantiated by objective medical evidence”. The submissions are said to address the “claimant’s grievances”, as recorded in his submissions. It is argued that,
“…[because] the claimant has suffered from ongoing spinal pain does not necessarily mean that the specific type of treatment proposed is warranted in the circumstances. To the contrary, … the insurer contends that the soft tissue pain does not give rise to the need for the L5/S1 blocks.”
The insurer argues that the claimant does not have any objective evidence to support or verify his argument that his pelvic injury caused gait derangement and altered bony structure, thereby leading to the lumbar spine injury, or that the pelvic injuries caused a misalignment of the pelvis and lumbar spine, placing stress on the lumbar spine, specifically the L5/S1 joint, thus providing the necessary causal link with the accident.
In short, the insurer maintains that the bilateral L5/S1 blocks recommended by
Dr Coughlan are neither causally related to the accident, nor reasonable and necessary in the circumstances.
September 2022 submissions
These submissions are focused on s 7.26 of the MAI Act, and were prepared for the purposes of meeting the claimant’s application for review on the basis that Medical Assessor Woo’s assessment was incorrect in a material respect. The insurer disputes that the claimant has demonstrated any material error in Medical Assessor Woo’s assessment and submits that the requirements of s 7.26 have not been satisfied.
RE-EXAMINATION AND FINDINGS
The claimant was examined on Microsoft Teams by Medical Assessor Dixon on
23 June 2023.
The claimant provided a history that he was involved in a motor cycle accident on
23 December 2017. He said he was riding at 55 kmph when a car knocked him sideways onto the median strip and he flew off his bike. He was wearing a helmet and protective gear. There was no head injury nor loss of consciousness, but he was thrown over the handlebars and landed on his back, with a gravel rash on the left hand side of his back, knees and right hand. He had pain in his pelvis, hips and right shoulder.
He was taken by ambulance to Wyong Hospital where, after triage and early investigations, he was transferred to John Hunter Hospital under the care of orthopaedic surgeon, Professor Zsolt Balogh. X-rays of his pelvis had shown fractures of the sacrum and both acetabuli and he was in traction for four days before having open reduction and internal fixation with plate and screws on the front of his pelvis to stabilise the pelvic ring and acetabulae. He did not need internal fixation for the back of his pelvis or sacrum.
The abrasions on his back, knees and right hand were treated with dressings and eventually settled.
He had symptoms in his right shoulder, and there was a minor fracture in his left ankle which was managed conservatively. He had transient symptoms in his neck with pain and stiffness but this resolved and, although his back settled down and the gravel rash healed up, he did report some back pain. His left shoulder settled down. After six weeks in John Hunter Hospital he was discharged in a wheelchair which he used at home for another two months and then had crutches for two months. He had follow up X-rays, assessment at the Outpatient Department at John Hunter Hospital, and had hydrotherapy and physiotherapy.
Six months after the accident, he was able to walk without assistive devices and returned to limited work part-time as a mechanic after seven months. Fortunately, his father owns the company and he is able to do selected duties without any heavy lifting or carrying, repetitive bending or stooping, squatting or crouching.
When he was reviewed by Medical Assessor Hyde-Page on 11 December 2020, he reported that his neck had settled well without radicular pain but he had ongoing low back pain and sacral pain aggravated by bending and lifting and prolonged sitting, with some pain radiating to his buttocks but no radicular pain down his legs. He had no ongoing problems with his left shoulder once his abrasion healed and maintained that his right shoulder came under the care of an orthopaedic surgeon, Dr Burneikis, who undertook right shoulder arthroscopic decompression and debridement in 2019. After this procedure, he regained better function and did not report any significant right shoulder problems thereafter.
At the re-examination, the claimant presented in a straight forward manner without embellishment. He indicated he had ongoing pain in both groins, more marked on the right where he had more stiffness than on the left. He reported a limp on the right, that has not required the use of a stick, and reported he was unable to jog or run. He reported pain across the back of his pelvis and sacrum and in the mid line, lower lumbar spine and stiffness of his lumbar segment with recurrent bending and stooping aggravating his back pain as well as heavy lifting and carrying. He reported difficulty taking full weight on the right and toe walking with a limp more marked on the right, and had difficulty with squatting.
He reported the surgical scars posteriorly at both hips were painful while sitting and are painful if accidentally bumped, impacting on his ADLs, and he remains aware of the surgical scars which he reported had been measured at over 20cm bilaterally. He remained conscious of the scars and finds it difficult to sit on the scars for prolonged periods of time. He reported a sitting tolerance of half an hour maximum and a driving tolerance of up to 45 minutes, but has to stop several times on long journeys because of pain in his buttocks and lower back. He has a walking tolerance of 20 minutes and, as noted above, is not able to jog or run. He reported that he continues with medication for pain relief. He had previously been on Palexia and Targin and used Norspan patches. He is now using Panadeine Forte for pain relief as well as medicinal cannaboids at night and Norflex for muscle spasm. He reports pain in both groins with stiffness in his hips, more marked on the right, and this impacts on his ability to squat.
He reports pain extending over the upper buttocks and sacrum area bilaterally and reports pain in the mid line of his lower lumbar spine. He reports that he had been trying to go to the gym to do core strengthening exercises but it was becoming more difficult to continue the program, and he was concerned that he may be exacerbating his symptoms, so he has stopped doing this now.
He has recently seen his trauma surgeon, who told him his up to date x-rays were satisfactory.
He reports mild residual stiffness of his right shoulder where he had arthroscopic surgery, with a fracture to the greater tuberosity, which has now healed clinically. He reports no gross difficulty with the shoulder at present.
The claimant had a serious motor vehicle accident with pelvic fractures involving both acetabulae and sacrum extending into the left sacroiliac joint. The acetabular fractures required open reduction and internal fixation following which he has experienced bilateral groin pain, more marked on the right, and the claimant felt there was stiffness in both hips, more marked on the right, particularly on rotation. He is conscious of residual pain in the upper sacral and posterior pelvic area, as well as lumbar stiffness with pain in the mid line, no radicular complaint such as sciatica, and no sensory disturbance such as paraesthesia in the lower extremities. It is noted that Medical Assessor Hyde-Page found no neurological abnormality nor wasting. Dr Rosenthal did find mild stiffness of both hips.
When asked about the delay in presentation for low back pain, the claimant said he was taking so much analgesia which included Palexia, Targin and Norspan patches, that there were areas of pain, particularly his pelvis and groin, that he did not report back pain until several months after the accident, when he was on lighter pain killers, such as Panadeine Forte, albeit with Norflex for muscle relaxation and medicinal cannaboids.
The CT scan showed the pars defect at L5/S1 with grade 1 spondylolisthesis but no gross disc protrusions and no facet osteoarthritis. The MRI on 15 February 2021 showed grade 1 spondylolisthesis of L5 on S1 with L5 pars defects of long standing. The spondylolisthesis with chronic bilateral pars defects and bilateral foraminal narrowing were not caused by the accident.
The pars defects are not a stress fracture caused by the accident but are a congenital or developmental lesion in the pars interarticularis; they are not traumatic or acute in origin. They are usually an asymptomatic condition, that remain so unless they are injured as a result of an acute injury with further displacement of L5 on S1.
It is possible that the L5/S1 spondylolisthesis with chronic bilateral pars defects could have been materially contributed to by the accident because it was established that when he fell and sustained the fractures of his pelvis, he also fell onto his back at the same time. It is possible that, because he was on strong opiates and medication to relieve his pain, he did not report his low back symptoms to the local doctor until several months after he ceased taking Endone.
However, it is considered more probable than not that the asymptomatic L5/S1 spondylolisthesis with chronic bilateral pars defects has been materially contributed to, by way of aggravation, as a direct consequence of the altered gait that has resulted from the claimant’s accident caused pelvic fracture. The aggravation has resulted in the pre-existing L5/S1 changes becoming symptomatic. The treatment has been recommended as both a treatment for pain and a diagnostic tool, in circumstances where the lower back symptoms are closely correlated with the imaging. In this way, and for these reasons, it is considered that the accident has made a material contribution to the need for the L5/S1 facet blocks.
As to whether the L5/S1 facet blocks are reasonable and necessary in the circumstances, it is considered that this treatment is appropriate because the facet blocks can be used as a treatment for pain and as a diagnostic tool. Liniments such as Voltaren gel would not penetrate the area sufficiently. The cost of the treatment can be contained by it being done by a radiologist as a CT procedure so that the claimant is not paying a facility fee. There is general acceptance by spinal surgeons that this treatment is appropriate and may be effective. Further, the treatment has been recommended by the claimant’s treating neurosurgeon, Dr Coughlan.
DETERMINATION
The two matters for the Panel to determine are:
(a) whether the treatment to be provided to the claimant is reasonable and necessary in the circumstances, and
(b) whether the treatment to be provided to the claimant relates to the injury caused by the motor accident.
For the accident to have been causative of the need for the proposed treatment, it would have to have made at least a material contribution to the need for the treatment. Further, the Panel is required to consider whether the proposed treatment would not have arisen but for the occurrence of the accident: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 at [29]. The Panel has also taken into consideration clauses [6.5] – [6.7] of the Motor Accident Guidelines, as they relate to causation.
The Panel adopts the precise examination findings of Medical Assessor Dixon and the conclusions of the Medical Assessor based on the examination of the claimant and specific findings pertaining to diagnosis, causation, and whether the proposed L5/S1 facet blocks are reasonable and necessary in the circumstances.
The Panel notes that Dr Dryson did not record or assess a back injury in his report of 21 October 2019. In his report of 27 May 2020, Dr Rosenthal recorded that back pain had commenced “in the last four months”, i.e. about January 2020. He also recorded that the claimant “has trouble walking” and limped on occasions. Dr Rosenthal thought that the claimant had developed secondary lower back pain. In his later report, the doctor expressed the opinion that there was no causal nexus between the back symptoms and the accident because of the delay in onset. When Dr Dryson reported again on 19 November 2021, he recorded a history of low back pain developing “some 12 months ago”, that is in late 2020. He thought that the altered gait imposed by the pelvic fractures has aggravated the spondylolisthesis.
Dr Mashhadi’s clinical notes record complaints of back pain in 2018, 2019, 2020, and 2021. A CT scan of the lumbar spine was ordered in October 2019, after a history of acute exacerbation of back pain was recorded by the doctor on 23 October 2019. The doctor’s notes on 26 June 2018 make reference to ongoing low back pain.
The clinical notes of the physiotherapist record complaints of lower back pain, or treatment for the lower back, in 2019 and 2020. An allied health request dated
16 January 2019 refers to ongoing lumbar pain from altered lumbopelvic stability.
On the basis of the clinical notes, the Panel is satisfied that the claimant has been experiencing lower back symptoms since at least June 2018, and has complained of symptoms in that region since that time. The Panel accepts the claimant’s evidence that he walks with a limp, and finds that, on the balance of probabilities, the limp is the result of the pelvic injuries caused by the accident.
The Panel finds that, on the balance of probabilities, the lower back symptoms are attributable to the L5/S1 spondylolisthesis with chronic bilateral pars defects, conditions that, while not caused by the accident, have been rendered symptomatic by the claimant’s altered gait that has resulted from the claimant’s accident caused pelvic fractures.
The Panel finds that, while the accident was not the cause of the L5/S1 spondylolisthesis with chronic bilateral pars defects, it could have been a contributing cause to the symptomatic aggravation of that pathology, which is more than negligible, and was a contributing cause to the symptomatic aggravation of that pathology, that was more than negligible. The Panel finds that, but for the accident, it is probable that the claimant would not have required the proposed L5/S1 facet blocks because the L5/S1 spondylolisthesis with chronic bilateral pars defects would not have been rendered symptomatic. The Panel finds that the accident has made a material contribution to the need for the proposed treatment that is to be provided to the claimant. Accordingly, the Panel finds that the treatment relates to injuries caused by the accident.
The Panel finds that the L5/S1 facet blocks that are to be provided to the claimant are reasonable and necessary in the circumstances for the reasons set out at [105].
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