Fisher v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 27
•21 February 2022
DETERMINATION OF REVIEW PANEL CITATION: Fisher v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 27 CLAIMANT: Julie Fisher INSURER: Insurance Australia Limited t/as NRMA Insurance REVIEW Panel: Member Belinda Cassidy
Medical Assessor Margaret Gibson
Medical Assessor Shane MoloneyDATE OF DECISION: 21 February 2022 CATCHWORDS: MOTOR ACCIDENTS- Motor Accidents Injuries Act 2017 (MAI Act); Medical Review Panel matter; claimant sustained injuries to her neck and back in a two-impact collision at a roundabout; claimant and insurer in dispute about claimant’s entitlement to non-economic loss; degree of whole person impairment (WPI) assessed at 10%; claimant applied for and was granted review under section 7.26 of the MAI Act; no dispute as to neck injury (5%); no real dispute as to current WPI of back injury (10%) but dispute about deduction for pre-existing impairment; claimant had pre-existing back symptoms and proceeded to surgery after the accident; dispute as to scarring in respect of the back surgery; Held- Certificate revoked and WPI assessed at 11%; consideration of clause 6.31 of the Motor Accident Guidelines regarding pre-existing impairment and best fit the table for the evaluation of minor skin impairment (TEMSKI) regarding scarring.
Issued under section 7.26 of the Motor Accident Injuries Act 2017
The Review Panel:
1.Revokes the certificate of Assessor Home dated 12 May 2021.
2.Certifies that the degree of Julie Fisher’s permanent impairment resulting from the injuries caused by the motor accident on 31 December 2017 is greater than 10%.
STATEMENT OF REASONS
INTRODUCTION
1.Julie Fisher was involved in a motor accident on 31 December 2017. She says she was driving through a roundabout when a car came into the roundabout colliding with the side of her car twice. The driver was apparently being chased by the police and was apprehended shortly afterwards, returning a high blood alcohol level.
2.Ms Fisher made a claim for statutory benefits against NRMA, the third-party insurer of the vehicle that Ms Fisher says caused her accident and in time she made a claim for damages.[1] NRMA has admitted liability for the damages claim.[2]
[1] The claim form for the statutory benefits claim can be found at page 15 of the insurer’s R2 bundle. The damages claim form is not before the Panel.
[2] Dated 13 November 2019 page 712 of the insurer’s R2 bundle. 3 Documents A22 – A26 in the portal.
3.There are some complexities in this claim as follows:
(a) the claimant had an earlier accident on 1 September 2017, made a claim in respect of that accident and pursued a medical dispute about whole person impairment (WPI) which is not before the Panel, and
(b) two medical assessment matters arising out of the statutory benefits claim were referred to and determined (in the claimant’s favour) by Medical Assessor Eugene Gehr on 19 January 2019 namely:
(i)that the claimant’s injuries from the motor accident were not minor injuries within the statutory definition; and
(ii)that certain lumbar spine surgery was reasonable and necessary and related to the injuries caused by the accident.
4.There are several letters before the Panel between the parties concerning requests for a concession that Ms Fisher has a WPI of greater than 10% and therefore an entitlement to non-economic loss3. The medical dispute about WPI progressed to internal review with a Dispute Resolution Consultant from NRMA issuing a certificate of Determination – Internal Review on 6 August 2020.[3] The claimant then lodged an application for assessment with the Personal Injury Commission (the Commission).
[3] The author of the decision is Trevor McAdam and the document can be found at page 7 of the insurer’s R2 bundle.
5.On 12 May 2021 Assessor Alan Home determined that Ms Fisher’s injuries sustained in the accident did not give rise to a permanent impairment that was greater than 10%.
The claimant has challenged that determination by lodging an application for Review of the Medical Assessment with the Commission.
6.The President’s delegate, determined on 2 September 2021 that there was reasonable cause to suspect an error in Assessor Home’s decision and a Review Panel (the Panel) has been convened by the President.
7.Pursuant to s 7.26(5A) of the Motor Accident Injuries Act2017 (the MAI Act) and Schedule 1, clause 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
LEGISLATIVE FRAMEWORK AND CASE LAW
Jurisdiction
8.The MAI Act provides a scheme for the compulsory third-party insurance of motor vehicles registered in New South Wales and a scheme of statutory benefits and damages for persons injured in motor accidents in New South Wales.
9.While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act there are limits to the amount and extent of benefits available. For example, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘minor’ injuries. That issue that was referred to Assessor Gehr for determination.
10.In a claim for damages, Part 4 of the MAI Act also provides limits and restrictions. For example, no damages are recoverable at all if the claimant’s only injuries resulting from the accident are ‘minor’ injuries[4]. Therefore, Assessor Gehr’s determination means that Ms Fisher has an entitlement to recover some damages.
[4] Section 4.4 of the Act.
11.Part 4 of the MAI Act provides caps and limits to the amount of damages for noneconomic and economic losses that can be awarded to Ms Fisher[5]. For example, s 4.11 of the Act provides that:
“No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the
injury caused by a motor accident is greater than 10%.”
[5] Section 4.6 limits the maximum amount that can be awarded for weekly loss of earnings past and future and section 4.13 limits the maximum amount of damages for non-economic loss that can be awarded.
12.Pursuant to Schedule 2, clause 2 of the MAI Act, various matters are declared to be medical assessment matters, including (a) “the degree of the impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.
Permanent impairment
13.Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the MA Guidelines).
14.The MA Guidelines are issued under Division 10.2 of the MAI Act and adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA4 Guides). Where there is any difference between the AMA4 Guides and the MA Guidelines, the MA Guidelines are said to be definitive.[6]
[6] Clause 6.2 of the Guidelines
15.The submissions from the parties took no issue with the cervical spine assessment or the assessment of the claimant’s current WPI for her lumbar spine (10%). The submissions were confined to the issue of the assessment of the claimant’s preexisting impairment and her scarring. Extracts from the MA Guidelines relevant to those two issues will be provided below.
Pre-existing impairment
16. In addition to Ms Fisher’s September 2017 accident, she had previous back problems dating back to at least 2015. The issue of whether she had a pre-existing impairment has loomed large in the Panel’s determination. The MA Guidelines provide:
“6.31 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.
6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-
existing condition. To quote the AMA4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' …
6.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”
Skin impairment
17.The claimant says she has sustained a scar in her back as a result of surgery she had following the accident. In accordance with the AMA4 Guides, scarring is assessed within the skin chapter and the skin section of the MA Guidelines.
18.Relevant provisions of the MA Guidelines are as follows:
“6.261 A scar may be present and rated 0% WPI.
6.262 Table 2 (page 280, AMA4 Guides) provides the method of classifying
impairment due to skin disorders. Three components - namely signs and symptoms of skin disorder, limitation of activities of daily living and requirement for treatment - define five classes of impairment. Determining which class is applicable is primarily dependent on the impact of the skin disorder on daily activities. The medical assessor must derive a specific percentage impairment within the range described by the class that best describes the clinical status of the injured person. All three criteria must be present.
6.264The TEMSKI (Table 6.18) is an extension of Table 2 (page 280, AMA4 Guides). The TEMSKI divides class 1 into five categories of impairment. When a medical assessor determines that a skin disorder falls into class 1, they must assess the skin disorder in accordance with the TEMSKI criteria. The medical assessor must evaluate all scars either individually or collectively with reference to the five criteria and 10 descriptors of the TEMSKI. The medical assessor should address all descriptors.
6.265The TEMSKI must be used in accordance with the principle of best fit.
The medical assessor must be satisfied that the criteria within the
chosen category of impairment best reflect the skin disorder being assessed. The skin disorder should meet most, but does not need to meet all, of the criteria within the impairment category in order to satisfy the principle of best fit. The medical assessor must provide reasons as to why this category has been selected.”
19.In summary, table 280 of the AMA4 Guides provides a method of assessing WPI due to skin disorders and defines five classes of impairment. The first class ‘minor impairment’ provides for a range of 0-5%.
20.The parties agree in Ms Fisher’s case that her skin impairment is a ‘minor impairment’ within the meaning of table 280. The MA Guidelines include a Table for the Evaluation of Minor Skin Impairments (TEMSKI), table 6.18 which the Panel must apply.
The review
21.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 the Panel[7].
[7] Section 41(2)(b).
22.The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it and may determine the proceedings solely based on the written application.
THE MEDICAL ASSESSMENT
23.Assessor Home was referred disputes about impairment arising out of both of the claimant’s accidents, that is the 1 September and the 31 December 2017 accident.
24.Causation was in issue as between the two accidents and also in regards to a preexisting condition. The claimant told Assessor Home she had a “past history of lower back pain with radiating pain into the left leg and intermittent numbness and weakness in that leg”. Assessor Home took a history of the onset of symptoms in 2015, treatment at Royal North Shore Hospital’s neurosurgical department and the consumption of medication before either accident.
25.Ms Fisher then gave a history of the September 2017 accident which she said resulted in mild neck pain and exacerbation of her pre-accident back pain and symptoms which then returned to the pre-accident level. She said she had physiotherapy and continued
with her medication.
26.The claimant gave a history of the December 2017 accident which she said occurred at speed and that the driver was evading police, was subsequently arrested and did not stop after the accident.
27.Ms Fisher said she felt immediate pain in the neck and the shoulder and lower back pain increased the following day. She said she was escorted home in her own vehicle and attended her general practitioner (GP) two days later and she said that more significant leg symptoms commenced thereafter.
28.The claimant had scans in January, April and May 2018 and was then referred to Dr Damodaran, neurosurgeon upon whom she attended in August 2018. Assessor Home refers to a dispute about treatment (which was also referred for medical assessment determined by Assessor Gehr). Ms Fisher then had an L5/S1 microdiscectomy to address her S1 radiculopathy (which it did) and she has returned to Dr Damodaran in relation to her neck pain.
29.The claimant complained of “intermittent neck pain, present most of the time” with numbness in three digits of the left hand. She complained of intermittent low back pain a few days a week radiating across the lower back but with no leg pain although she has intermittent numbness in three toes of the left foot with some weakness.
30.Assessor Home undertook an examination of the claimant’s neck, lower back including the scar to the claimant’s lumbar spine. He reviewed the documentation.
31.In terms of Ms Fisher’s neck injury, Assessor Home noted one episode of neck pain in 2016 and transient symptoms of left neck pain after the September accident. He found the mechanism of the current accident consistent with a whiplash disorder which he found had “non-verifiable radicular complaints in the left upper limb”.
32.In respect of the lumbar spine, Assessor Home noted a lengthy history of low back pain, the previous left S1 radiculopathy and nerve root treatment in 2015. In addition, he noted persisting back and left leg pain leading up to the December 2017 accident.
He was satisfied that the mechanism of the accident caused “an aggravation of the pre-existing and underlying L5/S1 discopathy leading to more persistent and intrusive symptoms of back and left leg pain”. He noted Ms Fisher ceased work after the December 2018 accident and developed “persisting signs of radiculopathy that were not fully present before the accident” and led to her need for surgery.
33.Three injuries were referred for assessment and he found they were all caused by the accident:
(a) skin – scarring lumbar spine;
(b) cervical spine - soft tissue injury, and
(c) lumbar spine - aggravation of underlying L5/S1 discopathy and left S1 radiculopathy.
34.Assessor Home found the cervical spine injury was consistent with a DRE II impairment rating in that there was spinal dysmetria but no-verifiable radicular complaints in the left upper limb. He found no sensory loss, no muscle wasting and no signs of increased dural tension, muscle wasting or myotomal weakness. He assessed the degree of WPI at 5%.
35.Assessor Home found the lumbar spine injury attracted a DRE III impairment rating due to the presence of radiculopathy. While he said four of the criteria were met, he listed five (loss of asymmetry of reflexes, positive sciatic nerve root tension signs, muscle atrophy, muscle weakness and reproducible sensory loss). DRE III attracts a WPI of 10% however Assessor Home then deducted 5% WPI for the pre-existing lumbar spine condition saying, “if examined just prior to the December 2017 accident, the claimant would have satisfied DRE Category II (5%)”.
36.When combined, the cervical and lumbar spine WPI resulted in a finding of 10% WPI.
37.In terms of scaring, the assessor referred to the TEMSKI scale and noted:
(a) the claimant was not conscious of the scar or skin conditions;
(b) there is good colour match with the surrounding skin;
(c) the claimant is able to locate the scar;
(d) there is no trophic change;
(e) suture marks are not visible;
(f) the anatomic location of the scar is not visible with usual clothing;
(g) there is no contour defect;
(h) there is no effect on any activities of daily living;
(i) there is no treatment, and
(j) there is no adherence.
38.Assessor Home assessed 0% WPI for the scarring which meant the claimant’s WPI resulting from the injuries sustained in the accident was 10% but not greater than 10%.
The claimant therefore had no entitlement to non-economic loss.
SUBMISSIONS
Claimant’s submissions
39.The claimant’s submissions lodged with the application for review[8] take issue with the assessment of the lumbar spine and the scarring.
[8] Page 1 of the claimant’s bundle of documents.
40.In terms of the scarring the claimant submits:
(a) the assessor’s observation was inconsistent with the scar and photographs have been provided;
(b) the claimant is conscious of her scar;
(c) there are definitive colour differences;
(d) the claimant is able to locate the scar;
(e) no trophic change is conceded;
(f) suture marks are visible in the top half of the scar;
(g) the scar is not visible with Ms Fisher’s usual clothing – but she does not wear a bikini and has trouble with jeans;
(h) there is a contour defect;
(i) the claimant does have her daily living activities affected (does not wear a bikini and has difficulty wearing jeans);
(j) creams are needed for the scar which constitutes treatment, and (k) no adherence is conceded.
41.The claimant says there has been a denial of procedural fairness in that Assessor Home did not examine the scar.
42.In terms of the lumbar spine assessment the claimant challenges the Assessor’s finding of a 5% pre-existing impairment which she says was made on an incorrect factual basis. She submits:
(a) she had previous symptoms, was advised she did not need surgery and it
got better by itself;
(b) the physiotherapist’s notes have been mis-recorded and do not document clinical signs of spinal dysmetria, and
(c) the claimant had left leg symptoms which were unrelated to her lumbar
spine.
Insurer’s submissions
43.NRMA lodged undated submissions with its reply[9] which are two pages long. At paragraph 2.2 of these submissions, NRMA does not dispute there should be a finding of 5% WPI in relation to the claimant’s neck.
[9] Identified as document R1 in the insurer’s bundle. These may be submissions lodged with the original application for assessment. 11 Identified as R2 in the portal.
44.The insurer notes (2.2(a)) the opinion of its expert Dr Anderson and while NRMA accepts the assessment of 10% for the lumbar spine impairment, it cavils with
Dr Anderson’s method of apportionment and suggests Dr Anderson’s assessment of WPI for the lumbar spine should have been 5% (10% – 5%).
45.At 2.2(b), the insurer also submits that its other expert, Dr Bentivoglio failed to apportion for the pre-existing impairment but otherwise appears to accept the cervical spine assessment of 5% and the current impairment of 10% from which the doctor should have deducted something for the pre-existing condition.
46.NRMA lodged other submissions, three pages in length11 in relation to the application for review. The insurer does not mention the cervical spine (previously conceded as causing a 5% WPI) and says Assessor Home did not err in his assessment of the lumbar spine.
47.The submissions dealing with the scarring begin with noting the claimant’s statement of 9 June 2021 in which Ms Fisher said Assessor Home did not look at the scar at all. The insurer says in order to record the findings he has recorded in his decision, he must have examined the scar.
48.The insurer goes through the 10 criteria in TEMSKI and Assessor Home’s findings.
There is a reference to photographs (page 2.14) and the insurer says the ‘best fit’ required by the MA Guidelines is 0%.
REVIEW OF THE EVIDENCE
Claimant’s documents
Claimant’s general practitioner reports and notes
49.There is a handwritten report from the claimant’s general practitioner Dr Ashby[10] to
[10] The electronic notes of the claimant’s various attendances on Dr Ashby and others have been provided at pages 336 to 441 but as they have no dates of the attendances they will not be considered further.
NRMA[11] dated 8 June 2018 noting:
(a) a medical diagnosis of “Lumbosacral disc protrusion and flare of chronic lower back pain”;
(b) clinical findings of pain in the lower back more so on the right but “chronic referred pain left leg”;
(c) pre-existing medical condition “L5/S1 disc extrusion and canal stenosis” which will “markedly” affect her recovery “as has chronic lower back problems”;
(d) “absolutely main problems since accident has been a marked aggravation of existing lower back pathology / symptoms and aggravation – exacerbation of soft tissues – stiffness pain”, and
(e) the claimant was struggling with day-to-day dressing and balance, difficulty with housework and was not able to return to work due to low back pain being aggravated by lifting and twisting.
[11] Page 86 of the claimant’s bundle. 14 Page 159 of the claimant’s bundle. 15 Page 485 of the claimant’s bundle.
50.A bundle of notes from the Long Jetty Physiotherapy practice have been provided and other documents are found in the GP’s notes. There is a referral dated 16 January 2018. In a letter to Dr Ashby dated 13 June 201814 Thomas Meere reports that the claimant’s activity levels were increasing and her neck, left shoulder pain and headaches were settling. He says, “her lumbar spine is now at the same level of discomfort as before her latest MVA”.
51.The claimant attended the Long Jetty Physiotherapy practice 35 times between
January and July 2018. The first handwritten entry15 says “L5 bulging disc last 2 years, physio until a few months ago, left leg and pain and numbness third, fourth and fifth toes. This pain has stayed the same after the MVA”.
Claimant’s treating specialist
52.Dr Damodaran (the claimant’s treating neurosurgeon and spinal surgeon) has provided his records including a letter to the claimant’s GP dated 10 August 2018. He noted the
MRI (of 10 May 2018) and diagnosed “left sided S1 radiculopathy due to an L5/S1 disc prolapse” and would require a microdiscectomy if her symptoms did not improve. A short report dated 27 March 2019 noted that conservative management had failed and she required surgery to improve her “severe neuropathic leg pain”.
53.Hospital notes from Concord Repatriation General have been provided confirming a left L5/S1 micro-decompression and discectomy were to be performed on 11 April 2019 (page 68).
54.A further letter to the claimant’s doctor dated 19 May 2019 from Dr Damodaran noted the success of the operation in that the claimant’s radicular pain had resolved although she had some “mechanical” back pain. A letter dated 13 July 2019 recorded more back pain with some leg symptoms but still no radicular pain.
55.In another letter from Dr Damodaran to Dr Ashby dated 10 October 2019[12] the claimant is reported to have continuing leg and back pain which varies depending on activity and he says he “would have expected her to have recovered fully by this stage”. He supported further physiotherapy and an occupational rehabilitation program.
[12] In the GPs notes at page 235 of the claimant’s bundle.
Previous assessments and medico-legal reports
56.Ms Fisher relies on the determinations of Assessor Eugene Gehr in respect of the disputes in her statutory benefits claim. He found that the claimant’s L5/S1 discectomy and rhizolysis was reasonable and necessary and caused by the accident. That decision has not been challenged. The claimant’s lower back scar is the scar created by that surgery.
57.Dr R L Thomson provided a medico-legal report[13] to the insurer in respect of the claimant’s first accident, and Ms Fisher relies upon it. Dr Thomson was of the view the claimant sustained “mild Musculo-ligamentous” strains of the neck, interscapular regions and lower back. He said she had fully recovered from the 1 September 2017 accident and was asymptomatic at the time of the second accident. Dr Thomson did not provide a WPI assessment in this report.
[13] The report, dated 13 March 2020 is found at page 44 of the claimant’s bundle.
Pre-accident treatment records
58.The Bay Village Medical Centre[14] notes include a referral to the Royal North Shore Hospital (RNSH) for low back and left leg pain in August 2015 and a referral for physiotherapy.
[14] The claimant’s long term GP practice. Dr Ashby is the claimant’s regular GP. 19 Page 503 of the insurer’s bundle.
59.On 14 September 2015 records19 indicate Ms Fisher was seen at Gosford Hospital with increasing pain in her back which was “normally controlled at home with Lyrica” but that there was “increased numbness down left leg into toes (not normal) but
normally up the leg”. The claimant was walking with a limp and given Panadeine Forte.
60.In the Bay Village Medical Centre notes[15] is a report dated 2 December 2015 from Dr Heath Frensh, registrar at the RNSH Neurosurgery clinic. He was given a history of
“six months left S1 pain” which was improving as she returned to activity. Ms Fisher was said to be thinking about getting back to work.
[15] Page 129 of the claimant’s bundle.
61.Ms Fisher also had a foraminal injection for her left sided sciatica in March 2016 and a report[16] of this suggests she had a good result but that she was getting leg pain while at work in the bakery. He said, “she is now complaining of some left lower arm numbness and neck pain”. She was reported as “waking with quite stiff and sore neck in the morning and some paraesthesia in the C7 C8 T1 distribution of her left hand” and he thought this may be coming from her cervical spine.
[16] Page 131 of the claimant’s bundle.
62.Before her car accidents, Ms Fisher was referred to East Gosford Physiotherapy[17].
[17] A bundle of documents is found at page 464 of the claimant’s bundle.
63.The first document is a letter to the claimant’s GP dated 28 March 2017[18] which identified goals of returning to running, netball, better perform duties at work without pain and discomfort and better perform all house duties. Also from this period is a patient registration document dated 21 March 2017 and a body pain chart which has noted upon it “rotator cuff strain painful 6 weeks ago” and “neck pain” and the lower back is shaded with both hips and both calves and a note “gradual build up”. There is a reference to the RNSH attendance and “a lot of pain” and “a lot of lifting, pulling and pushing with arms” at the bakery.
[18] Page 137 of the claimant’s bundle. 24 Page 140 of the claimant’s bundle.
64.A further letter, addressed to Dr Ashby and dated 31 October 201724 concerning low back pain and left leg pain with weakness and numbness was said to be due to the disc protrusion. Her job was important to her but involved heavy lifting and twisting.
65.It is recorded:
“On examination Julie has a straight leg raise limited at 60 degrees and stiff with all lumbar movements and restriction of her lumbar facets bilaterally particularly into extension. Her neuro testing is normal except for some weakness with left calf heel raising and her reflexes are present.”
66.The physiotherapist also says:
“I do believe this disc protrusion is starting to significantly affect her S1 nerve
root with evidence of weakness however I am not sure if this is just a general detraining as she has had this for such a long period of time.”
67.It appears at this time Ms Fisher had six treatments: two on 24 October 2017, 2 on 31 October 2017 and three on 14 November 2017.
68.The patient registration form from this period is dated 24 October 2017. It concerns an
“action plan regarding L4/5, L5/1 disc bulge with a goal of moving without pain”. The handwritten note[19] accompanying this includes the following:
[19] Page 468 of the claimant’s bundle.
(a) “Mechanism of injury:
-2 year ago LB started with running
-Lyrica for 2 years – 75x mm
-Stopped running – walking”
(b) “Current symptoms / History
-Lifting crate / tray of pies / bread – (?) pain in neck
-Tired at night – (?) leg
-Injection 2015 – better for 3 months”
(c) the claimant’s pain levels were said to “worse” in the morning and at the “end day after bakery”.
(d) a pain chart has the neck and shoulders circled with a notation of, “pain across shoulder spine” as well as a lot of shading at the lower to mid back on the right but pain on the outer side of the left leg and numbness noted on some of the left toes/foot.
69.The treatment notes confirm that all treatment was for the lumbar spine and no treatment was provided for any neck or shoulder symptoms.
Radiology
70.The claimant has had a number of imaging studies undertaken as follows:
(a) 5 August 2015 – MRI of the lumbar spine[20] - noted a 7mm L5/S1 disc extrusion with mild to moderate stenosis and impingement of the left S1 nerve. There was also a 3mm L4/5 disc protrusion traversing the left L5 nerve and potentially impinging;
[20] Pages 80 and 503 of the cliamant’s bundle
(b) 15 January 2018 – x-ray of the cervical and thoracic spine[21] with a clinical history of “ongoing neck and thoracic back pain”. Mild degenerative changes at C5/6 with slight disc space narrowing with multiple degenerative changes in the thoracic spine;
(c) 16 April 2018 – CT lumbar spine[22]. The history given was of ongoing chronic low back pain and radiation into the right buttock since the car accident of January 2018. L5/S1 disc herniation measuring 6mm x 8mm compressing the S1 nerve root and bilateral L5/S1 bony foraminal stenosis compressing both L5 nerve roots;
(d) 10 May 2018 – MRI of the lumbar and thoracic spine29 following complaints of chronic pain with radiation into the hip. While the disc bulge was seen at
L5/S1 and the annular tear at L4/5, the conclusion was, “no cause of the right hip pain identified”, and
(e) 21 May 2020 – MRI of three regions of the spine30 with a history of neck pain radiating to the right arm and right lower thoracic pain. While the thoracic spine was identified as normal, there were disc bulges identified at C3/4, C5/6 and C6/7 with some narrowing of the foramina on the right at
C3/4 and both side at C5/6. In the lumbar spine there were disc bulges at
L1/2, L4/5 and L5/S1. The final report concluded “degenerative changes in the cervical and lumbar spine … with disc bulging at multiple levels”.
[21] Page 81 of the claimant’s bundle.
[22] Pages 82 and 501 of the claimant’s bundle. 29 Pages 83 and 507 of the claimant’s bundle 30 Pages 78 and 84 of the claimant’s bundle. 31 Page 578 of the claimant’s bundle.
71.Medical Assessor Moloney notes that none of the radiological investigations were brought to the re-examination. The Medical Members of the Panel are not of the view that viewing the radiological images would affect their views in this matter bearing in mind the narrow scope of the matters in issue.
Claimant’s statement
72. The claimant provided a statement dated 9 June 202031:
(a) since 2016 she has worked at a bakery including stacking shelves and serving customers. She says that some of the work was light but “a fair amount of it was quite heavy in terms of lifting and carrying items, stock and the like” (paragraph 3);
(b) she acknowledged the previous issues and she confirms she attended
Dr Damodaran but says “The back seemed to basically get better by itself” (paragraph 5);
(c) she does not recall any pre-accident neck problems (paragraph 6);
(d) in her first accident, her car was “rear-ended” on 1 September 2017. She developed soreness in neck and shoulder blades and “I seemed to get better” (paragraphs 7–9);
(e) the accident the subject of the matter before the Panel occurred on New
Year’s Eve. She immediately felt back and neck pain and saw Dr Ashby a few days later with ongoing neck and back (paragraph 10);
(f) she says that the pain in her left leg “had come back much worse than before and was now going all the way down to the toes” (paragraph 13);
(g) in terms of her neck, she says she had significant ongoing pain in the neck and across the shoulders (paragraph 14);
(h) Ms Fisher details her treatment including physiotherapy for her neck and back before being referred back to Dr Damodaran for the surgery which she had in April 2019 (paragraphs 15-18);
(i) she says, “there is a scar from the surgery which I don’t like” (paragraph 17), and
(j) her neck pain seems to have deteriorated and she had right arm issues including numbness and tingling as well as pain which he has not had before. She had been referred back to Dr Damodaran with more recent scans (paragraph 19 and 23)[23].
[23] Presumably this is a reference to the 21 May 2020 MRI scan. No reports from Dr Damodaran beyond the end of 2019 are before the Panel.
Insurer’s documents
Medico-legal reports
73.Dr Anderson occupational and environmental physician has provided a report dated 19
May 2020. He refers to the accident as being “fairly violent”. He noted present complaints of neck pain radiating towards the right shoulder and low back pain at the thoraco-lumbar level towards the right side and numbness in three toes.
74.He notes the claimant’s previous back history and examined the claimant’s neck,
upper limbs, back and lower limbs. He remarked on her poor posture.
75.He diagnosed injuries to her neck and lower back with continued “dysfunction” at both levels. He suggests Ms Fisher’s previous lower back condition was “quite badly aggravated” necessitating the surgical intervention.
76.Dr Anderson assessed the claimant’s WPI at DRE II for the neck (5%) and DRE III for the lower back (10%) which he apportioned. He used the incorrect methodology to reduce it by one third for the pre-existing condition to give an allowance of 6% WPI.
77.In his supplementary report dated 12 August 2020, Dr Anderson addresses the records suggest previous neck and back issues noting that in the years before the accident the claimant had some reports of neck pain with symptoms toward the left rather than the right post accident. In terms of the back, he noted the previous condition suggested radiculopathy down the left side but that the claimant had been able to return to work and play sport. He did not wish to alter his opinions.
78.The insurer has also provided an “initial needs assessment report” dated 17 October 2019, two copies of a vocational assessment report dated 29 October 2019 and a “job closure report” dated 27 April 2020 noting the claimant had been provided with vocational assistance and should now start utilising the skills they have taught her “to locate and secure new employment”.
79.Dr Peter Bentivoglio provided a report to the insurer dated 21 April 2020. He notes the claimant’s back problem and took a detailed history of the development of these problems and her post-accident symptoms.
80.On examination, Ms Fisher’s neck movements were reduced by 70%, she demonstrated a full range of shoulder movements, he found no evidence of radiculopathy in the back / legs but some decreased sensation in the left foot in the S1 distribution.
81.Dr Bentivoglio was of the view the claimant’s back injury had been aggravated and she had sustained a muscle and ligament type injury to her neck and right thoracolumbar pain which needed to be investigated.
82.He considered the claimant had a 5% WPI for the neck and 10% for the back DRE III but did not apportion this.
Treatment records from the insurer
83.There are medical certificates from Dr Sarah Ashby and her practice which mention low back pain, low back injury and neck injury from 2 January 2018 to 31 January
2019.
84.Four allied health requests for physiotherapy treatment are included noting complaints of neck pain, left shoulder pain, rib cage pain and upper lumbar pain.
85.The clinical notes from the Bay Village Medical Centre, RNSH, Gosford Hospital and Long Jetty Physiotherapy are duplicated.
REVIEW PANEL’S DELIBERATIONS
Teleconference
86.Following the Panel’s first teleconference, the Panel issued a report and directions document to the parties. The Panel noted that neither party challenged
Assessor Home’s findings in relation to the claimant’s neck injury or the impairment assessment and that the Panel did not intend considering this issue further. The Panel proposed to the parties:
(a) it intended to limit its deliberations to the lumbar spine injury and the scarring, and
(b) Medical Assessor Moloney would re-examine the claimant.
87.The parties were directed to provide a response to its proposal and any final submissions by 17 December 2021 (Ms Fisher) and 21 January 2022 (NRMA).
88.On 11 January 2022 the claimant sent a message to the Panel advising that she had no submissions to make in respect of the way the Panel intended to proceed. The insurer responded on 9 February 2022 with no fresh submissions but that it relied on its submissions from the original assessment and the application for review.
Re-examination
89. On 9 February 2022, Medical Assessor Shane Moloney conducted a re-examination of the claimant on behalf of the Panel. His notes of the history and current symptoms are repeated below:
“History of motor accident – 31 December 2017
Ms Fisher confirmed the previous history of the accident when a car failed to give way to her and hit the driver’s side of her car and then re-hit her car in the roundabout. The other driver failed to stop and was later apprehended by the police when the front wheel fell off. Her daughter drove her home and she consulted her GP two days later.
At that time Ms Fisher experienced increased neck pain and low back pain was
worse the day after the accident. After this accident Ms Fisher states that she did not return to work. Her GP referred her for physiotherapy which was beneficial and she continues to do home exercises. Her GP referred her to Dr Damodaran, a neurosurgeon who did a left L5/S1 microdiscectomy on 11 April 2019 which was helpful in that it reduced the pain in the left leg. There was a follow-up cortisone injection to the neck in 2020 which gave minimal benefit.
Current symptoms
There is persistent neck pain more so on the right and persistent numbness in the left hand and the ulnar three fingers which has remained since the accident.
There is occasional lower back pain and constant numbness in the lateral three toes on the left foot and occasionally radiating up to the lateral calf and lateral thigh. She states that left foot shakes on rising in the morning with stiffness in the leg and this improves with walking. She has been unable to return to heavy work in the bakery but last year completed a TAFE course for medical receptionist.She intends to start work in this occupation in the near future.
Since the accident she avoids driving and her husband drove her to the interview today. Ms Fisher is able to do some light house duties but gets assistance from her two adult children who live at home.
Prior to the accident in December 2017, Mrs Fisher states that she was working full-time in the bakery which involve heavy lifting and although her left leg felt weak, she was playing netball with a team on a weekly basis and use the treadmill on a regular basis. She also states that she was actively walking around the lake near home on a regular basis.Pre-accident history
Mrs Fisher acknowledged her long-standing lower back pain with radiation to the left leg which started in 2015 and had been treated by spinal left S1 perineural cortisone injection at Royal North Shore Hospital in December 2015.
There was a previous motor accident on 1 September 2017 and Ms Fisher states that she experienced mild neck pain and exacerbation of her pre-accident backpain for one week.”
Assessment of Ms Fisher’s neck injury
90.All of the medico-legal experts relied on by the parties (Dr Thomson, Dr Bentivoglio and Dr Anderson) have assessed the claimant as having a neck injury related to the accident. Those that have provided a WPI assessment (Drs Anderson and Bentivoglio) have expressed the opinion that the neck injury attracts an impairment rating of DRE II and a 5% WPI.
91.The Panel notes that Assessor Home also assessed the claimant as having a DRE II and 5% impairment. While the insurer has challenged the assessment of the claimant’s lumbar spine there are no challenges to the neck assessment.
92.Having reviewed the documentation the Panel is comfortably satisfied that Ms Fisher sustained a soft tissue injury to her neck in this accident and that her clinical presentation to all those who have examined her is consistent with a rating of DRE II in the cervical spine which attracts a WPI of 5%[24].
[24] MA4 Guides page 104, table 3.
Assessment of Ms Fisher’s back injury
Re-examination and current impairment
93. Medical Assessor Shane Moloney records the following findings from his reexamination of Ms Fisher:
“Mrs Fisher walked with a normal gait and was able to walk on heels and toes and squat to 80% of the expected range but which was limited by low back pain. On testing range of movement of the lumbar spine, flexion/extension and side bending were all reduced to 80% of the expected range bilaterally with no asymmetry. Her straight leg raise, when lying was 60° on the left and 80° on the right but when seated was 80° bilaterally with a negative slump test.
There was a normal range of movement of the knees and ankles.
On neurological examination of the lower limbs, there was slight wasting of the left leg with the circumference of the lower thighs 37 cm on the right and 36 cm on the left (10 cm above the superior patella pole) and at the maximum circumference of the calves 32 cm on the right and 31 cm on the left.
On testing reflexes, both knee reflexes were normal. The left ankle reflex was absent but normal on the right. There was also decreased sensation over the lateral three toes left foot and lateral side of the foot.
There was normal power generally but on the left calf raise, there was definite weakness compared to the right.
When all of these findings are considered, in particular the absence of a left
ankle reflex, muscle wasting and weakness in the left calf raise as well as decreased sensation in the left S1 dermatome, there is evidence of radiculopathy in the left leg in a S1 distribution.”
94.The Panel notes that the two medico-legal practitioners who have examined the claimant for NRMA (Drs Anderson and Bentivoglio) and Assessor Home have all identified that the claimant had a current clinical presentation when examined consistent with a DRE III rating which attracts a WPI of 10%.
95.Having reviewed the documentation and noting the finding on re-examination by Medical Assessor Maloney, the Panel is comfortably satisfied that the claimant sustained a lower back injury in the car accident of 31 December 2017 that aggravated a pre-existing underlying lumbar disc protrusion causing an exacerbation of her symptoms resulting in lumbar spine decompression surgery. The Panel is of the view that Ms Fisher is assessed at DRE III which results in a WPI finding of 10%.
Should there be an apportionment for pre-existing impairment?
96.NRMA submits that the claimant should be assessed as having a pre-accident WPI of 5%. The claimant submits there should be no allowance for any pre-existing impairment because while she had symptoms before the accident, they had resolved, the physiotherapist’s notes do not document clinical signs of dysmetria and any pain, numbness or weakness in the left leg that may have been recorded by her physiotherapist are symptoms of a leg problem and are not non-verifiable radicular complaints.
97.The Panel notes that the claimant’s pre-accident medical records disclose lower back symptoms dating back to August 2015 which were investigated and necessitated a referral to a neurosurgeon at RNSH. The Panel notes the reports of the radiology of the claimant’s lumbar spine undertaken on 5 August 2015 and 14 April 2018 in particular both show a disc bulge of similar size and both suggest impingement of the
S1 nerve roots. While the Panel accepts the claimant’s statement and her evidence generally and notes her view that she had largely recovered, the Panel considers it noteworthy that the claimant attended East Gosford physiotherapy on 24 October and again on 31 October and 14 November 2017, seven weeks before her car accident.
98.The physiotherapist Mr Tuckerman recorded chronic left leg pain with weakness. A pictogram noted pain in the left leg with numbness over the lateral three toes which the Panel notes conform to a non-verifiable radicular complaint over the S1 dermatome.
The Panel also notes Mr Tuckerman’s reports to the claimant’s GP and Dr Ashby’s report to NRMA of June 2018. Dr Ashby has been the claimant’s long-term GP and would have an understanding of the progression of the claimant’s lumbar spine condition. She refers to the claimant having chronic leg symptoms and the Long Jetty physiotherapist has referred to the claimant’s symptoms returning to their pre-accident state. This suggests a level of symptomatology immediately before the accident.
99.While the claimant’s symptoms may have eased between 14 November and 31 December 2017, the whole of the medical evidence and in particular the radiology supported by the GP’s report and physiotherapy notes provide objective evidence of a pre-existing impairment as required by cl 6.31 of the MA Guidelines.
100.The Panel is satisfied that there is evidence of a non-verifiable radicular complaint in the left S1 distribution before the accident which is assessed as DRE II and attracts a WPI of 5%.
101.Therefore, the claimant’s degree of WPI for her back, resulting from the motor accident is 5% (10% for the current WPI reduced by 5% for the pre-existing impairment).
Assessment of lumbar scarring
102. Medical Assessor Shane Maloney records these findings following his re-examination of Ms Fisher:
“There is a 2 centimetre vertical surgical scar over the L5/ S1 vertebrae. Mrs Fisher is very conscious of the scar. When she sees it in the mirror it reminds her of the accident. She was easily able to locate it for me.
On palpation there are a minor trophic changes and at the upper end of the scar, suture marks are visible.
Ms Fisher states that she is unwilling to wear a bikini as it shows the scar. Since the surgery, she finds that she avoids wearing anything tight around the waist as it irritates the scar and tends to wear loose-fitting clothes as a consequence.There was no adherence to underlying structures and no treatment is required although Ms Fisher reports in her statement that she regularly rubs creams onto the scar.”
103.Medical Assessor Moloney shared a photograph of the claimant’s scar which the Panel has viewed. The Panel notes the submissions of the parties refer to other photographs.
104.Having considered Medical Assessor Moloney’s examination report and a photograph he has taken (attached to this decision), the Panel considers that the following criteria apply to the claimant’s scar:
CLAIMANT’S EVIDENCE ON EXAMINATION TEMSKI CRITERIA Ms Fisher is conscious of the scar 1% - injured person is conscious of the scar The left and top sides of the scar are slightly more pink than the surrounding skin. The scar itself is whiter than the surrounding skin 1% - some parts of the scar contrast with the surrounding skin as a result of pigmentary of other changes Ms Fisher was easily able to point out the scar to Assessor Moloney 2% - injured person is able to easily locate the scar There are minor trophic changes 1% - minimal trophic changes The top of the scar is a little puckered and the staple or suture marks are visible 1% - the staple marks or suture marks are visible The location of the scar, in the claimant’s lower back is not clearly visible with the claimant’s day to day clothing but would be visible when she wears a bikini 0% - anatomic location of the scar is not clearly visible with usual clothing There is minor contour defect particularly at the upper end of the scar 1% - minor contour defect The scar does not affect what the claimant does or does not do in terms of her activities of daily living but it affects the clothes she wears 0% - no effect on any activities of daily living While the claimant reports using creams, there is no evidence these are prescribed. There is no evidence in the material that there is any current treatment being provided by a medical or allied health practitioner for the scar 0% - no treatment, or intermittent treatment only required The scar is not adhering to any supporting structures 0% - no adherence 105.In accordance with the TEMSKI chart (table 6.18) of the MA Guidelines, the best fit (as required by cl 6.265) is 1% WPI because while 4 of the 10 criteria are rated 0%, 6 of them are rated 1% or more.
CONCLUSION
106. It therefore follows that the claimant’s WPI resulting from the motor accident on 31 December 2017 is assessed at 11%:
(a) cervical spine (neck) soft tissue injury – 5% as set out in paragraph 95;
(b) lumbar spine – 5% as explained in paragraph 105, and
(c) scarring – 1% as set out in paragraph 101.
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