Ford v QBE Insurance (Australia) Limited
[2023] NSWPICMP 344
•21 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ford v QBE Insurance (Australia) Limited [2023] NSWPICMP 344 |
| CLAIMANT: | Andrew Ford |
INSURER: | QBE Insurance Australia Ltd |
| REVIEW Panel | |
| PRINCIPCAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Chris Oates |
MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 21 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; injury on 24 February 2016 from rear end collision; dispute related to degree of permanent impairment caused by motor accident; claimant had recovered from recent L4/5 discectomy prior to motor accident with relief of left leg sciatica; post-accident MRI scan showed a significant disc protrusion at L4/5; motor accident caused further disc protrusion; claimant had a vulnerable disc owing to the previous and recent discectomy; insufficient time for the formation of scar tissue following the original back surgery and prior to the motor accident to protect the disc from reinjury; even though the accident was not severe, the claimant was suspectable to disc protrusion due to his underlying condition; aggravation of the L4/5 disc was a material cause of the need for the subsequent fusion surgery given the size of the protrusion shown in the October 2016 scan; the disc protrusion aggravated by the motor accident remained a material cause for the subsequent need for surgery as it caused subsequent back and radicular complaints; claimant assessed at Diagnosis Related Estimate (DRE) V due to ongoing radiculopathy; prior condition assessed at DRE II; Held – original assessment revoked; claimant assessed at greater than 10% |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the review panel under s 63(4) is as follows: The Panel revokes the certificate of Medical Assessor McGrath dated 22 October 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is GREATER THAN 10%: · cervical spine (resolved), and · lumbar spine. |
REASONS
BACKGROUND
Mr Andrew Ford (the claimant) was injured in a motor accident on 24 February
2016. Mr Ford’s vehicle was coming to a stop at red lights when the insured vehicle collided with the rear of his vehicle (the motor accident).[1][1] Claimant’s bundle, p 16.
The insurer insured the owner and driver of the vehicle for liability to pay Mr Ford any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Mr Ford claims that he suffered impairment of his cervical and lumbar spine. He ultimately came to lumbar spinal surgery in the form of fusion and decompression at L4/5 in January 2020.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
MEDICAL ASSESSMENT
The medical assessment was issued by Medical Assessor McGrath on
22 October 2022. The Medical Assessor found that the motor accident caused a soft tissue injury to the lumbar spine which was not causative of the subsequent lumbar spine surgery. The Medical Assessor opined that revision surgery is common without any incidental trauma, that it was doubtful that the claimant received optimal post-surgery care after the earlier operation and that the motor accident was unlikely to be more than a negligible contributor to the need for the spinal fusion.
PREVIOUS MEDICAL ASSESSMENT
Medical Assessor Wilding issued a certificate dated 5 March 2019. The Medical Assessor accepted that the motor accident caused low back pain resulting in radiculopathy and was assessed at 10% permanent impairment (DRE Category III) with a deduction of 5% due to the previous discectomy.
REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[5]
[5] Section 63(7) of the MAC Act.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 63(2B) of the MAC Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after
1 March 2021, the new review provisions apply.The new review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective bundles.
Further documents were provided following a further request by the Panel. However, the material provided did not correspond with the Panel’s request. Accordingly, a further direction was issued on 19 April 2023 which provided:
“1. The Panel previously requested the records of the GP for the period to early 2020. Further records only to 27 August 2018 were filed.
2. We note that the claimant was referred by Dr Lim/Workers Doctors (the GP) to Dr Singh who was first consulted on or about 25 January 2019.
3. The Panel requires the GP records in late 2018/ early 2019 associated with the claimant’s symptoms and the cause for the referral to Dr Singh. The records should include the referral to Dr Singh.
4. These records are to be filed by the claimant as soon as possible. If required, either party has liberty to list the matter before the Principal Member.”
The claimant then issued a direction which resulted in over 1,500 pages being produced by the Workers Doctors. The parties were invited to make submissions on the admissibility of and relevance of these documents.
The claimant’s submissions referred to certain material, but did not, as the insurer noted, say what the relevance was of that material.
The insurer referred to an email from the claimant to his GP dated 27 February 2019 when he requested that “if it is at all possible for you to document that I need/require the spinal fusion surgery as a result of the MVA”. The insurer submitted that the email supports a submission that:
“… on the balance of probabilities the pain and need for treatment at that time was not as a result of the mva. Otherwise, there would have been no need for the email from the claimant to Dr Singh at all.”
The insurer’s submission does not logically follow from the terms of the claimant’s email. Contrary to the suggestion in the insurer’s submission, there was a need for the email as the claimant was required to prove his case. All the claimant requested was support from a treating doctor concerning the causal relationship between the motor accident and the need for surgery. There was nothing improper with that request. The email was expressed in neutral terms and the claimant was entitled to seek such an opinion.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[11] In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
EVIDENCE
The parties filed bundles of documents in accordance with the initial Direction.
Further documents were requested by the Panel and produced by the claimant.
The Panel subsequently requested further records from the Workers Doctors. Approximately 1,500 pages were produced in response to a Direction for production.
Pre-accident material
There is a history of back pain whilst playing soccer many years previously and an episode of severe back pain in March 2007 when a chair collapsed beneath the claimant.[13]
[13] Insurer’s bundle, p 449.
Clinical notes in 2011 refer to a left knee injury from a sporting injury at 17 years.[14] The claimant underwent left knee surgery in October 2011[15] and continued to have conservative treatment in 2012.
[14] Claimant’s bundle, 71.
[15] Claimant’s bundle, 88.
A medical assessment certificate dated 14 May 2013 completed under the workers compensation legislation assessed an 8% permanent impairment of the left lower extremity.[16]
[16] Insurer’s bundle, p 267.
Achilles tendon repair of the right ankle was undertaken in 2013.[17]
[17] Claimant’s bundle, 137.
The MRI scan of the lumbar spine dated 24 November 2015 noted severe back pain with left lateral radiculopathy and showed a large central disc protrusion at L4/5.[18]
[18] Insurer’s bundle, p 112.
On 10 December 2015 the claimant presented to Gosford Hospital with severe back pain and left leg pain.[19]
[19] Insurer’s bundle, p 226.
The claimant underwent an L4/5 decompression and discectomy on
21 December 2015.[20] The relevant history was of low back pain and left leg symptoms since September 2015 after bending down to start a mower.[21] Another clinical note referred to the cause of the back pain from the mower incident as occurring on6 November.[22][20] Insurer’s bundle, p 40, p 44.
[21] Insurer’s bundle, p 44.
[22] Insurer’s bundle, p 152.
Hospital notes dated 25 January 2016 noted the claimant was “managing 8-hour days at work”[23] with no significant change to pain and walking most days up to 25 minutes.
[23] Insurer’s bundle, p 43.
On 29 January 2016 Dr Vasili, noted the claimant was six weeks post-surgery which had relieved the left sided sciatica. On physical examination the doctor noted “negative nerve root tensions signs and no neurological deficit”.[24]
[24] Insurer’s bundle, p 238.
Post-accident material
The clinical note dated 24 February 2016 referred to “right side low back pain and R side of neck”[25] with no radiculopathy. On 25 February 2016 the doctor noted neck, shoulder and low back pains.[26]
[25] Insurer’s bundle, p 426.
[26] Insurer’s bundle, p 427.
Hydrotherapy at Wyong Hospital commenced on 1 March 2016.[27]
[27] Insurer’s bundle, p 38.
Dr Lim provided a medical certificate dated 8 March 2016.[28] The doctor stated that the motor accident caused a cervical whiplash injury, lumbar spine aggravations, shoulder strains and acute anxiety.
[28] Claimant’s bundle, 21.
A medical report dated 29 November 2017 noted that the first medical attendance was on 25 February 2016 describing injuries consistent with the medical certificate referred to above. Dr Lim noted that the claimant was recovering from surgery undertaken on 21 December 2015 and was working 10 hours per week at the time of the motor accident and was now working fulltime.
The doctor opined that the motor accident had delayed the recovery and it was expected that he would have recovered from the surgery. Dr Lim opined that the motor accident had accelerated the “natural course of his spine” and that the back condition will deteriorate, and the claimant may ultimately require a spinal fusion.
On 25 October 2016, Dr Vasili, orthopaedic surgeon, noted the recent lumbar spine MRI scan showed a focal disc protrusion at L4/5 with severe right-sided back pain.
A report from the physiotherapist dated 31 October 2016 noted that the claimant was “making a good recovery from back surgery 3-4 months prior to his MVA” and that the lumbar spine symptoms had significantly worsened since that time.[29]
[29] Claimant’s bundle, p 30.
Further clinical records
The further clinical records produced by the Workers Doctors contain consultations for the period identified by the Panel as particularly of interest.
The clinical notes of Dr Lim during this period from mid-2018 onwards refer to ongoing back problems following the motor accident without reference to any intervening events.[30] On 4 December 2018 Dr Lim noted persistent issues which were not settling and for spinal surgeon review. Subsequent consultation notes refer to the claimant requiring surgery.
[30] Further bundle, p 161 and following.
On 17 January 2019 Dr Singh noted back stiffness and left sided sciatica with decreased sensation on the left S1 distribution and positive straight leg raising.[31]
[31] Further bundle, p 163.
Subsequent treating evidence
Dr Les Grujic, orthopaedic surgeon, provided a report dated 29 May 2018.[32] After noting the history of deteriorating lumbar spine symptoms following the motor accident, Dr Grujic opined that the left foot symptoms suggested a dermatomal distribution more closely related to the back.
[32] Claimant’s bundle, p 145.
Dr Bhisham Singh, orthopaedic specialist, provided a series of reports commencing on 25 January 2019.[33] In the first report Dr Singh noted left leg symptoms with pins and needles and numbness in the S1 distribution.
[33] Claimant’s bundle, p 201.
On 7 February 2019, Dr Singh opined that the recurrent disc protrusion at L4/5 was responsible for the symptoms and recommended spinal fusion.[34] On 9 May 2019 the doctor noted a repeat injury in the workplace whilst restraining a violent patient.[35]
[34] Claimant’s bundle, p 204.
[35] Claimant’s bundle, p 207.
In a report dated 13 August 2019[36] the doctor opined that the motor accident caused a recurrence of the disc herniation with the need for decompression and fusion from L4 to L5.
[36] Claimant’s bundle, p 163.
Hospital notes in January 2020 referred to a history of radiculopathic pain in the legs, left more than right with left foot weakness since the motor accident.[37]
[37] Claimant’s bundle, p 375.
The report dated 28 February 2020 noted improvement six weeks following L4/5 decompression and fusion.[38] Hospital clinical notes confirm the L4/5 anterior fusion and decompression undertaken in two stages in January 2020.[39]
[38] Claimant’s bundle, p 210.
[39] Claimant’s bundle, p 295, p 297, p 375.
Claim form
The claim form was completed by the claimant on 3 April 2016.[40] Mr Ford stated that the motor accident caused injuries to the neck, back, shoulder and psychological injuries.
[40] Claimant’s bundle, p 11.
Radiology
The X-ray of the lumbar and cervical spine dated 25 February 2016 showed no wedge fracture or aggressive lesion.[41]
[41] Insurer’s bundle, p 430.
An MRI scan of the lumbar spine dated 12 October 2016 showed a significant disc protrusion at L4/5.
A bone scan dated 28 October 2016 was reported as showing normal activity throughout the lumbar spine with mildly increased activity at the right anterior superior iliac spine that may represent enthesopathy.
An MRI scan of the left ankle dated 23 March 2018 showed a normal tarsal tunnel with minor achilles tendinopathy and planta fasciitis.[42]
[42] Claimant’s bundle, p 53.
An MRI scan of the lumbar spine dated 4 February 2019 showed the prior L4/5 laminectomy and a right paracentral L4/5 recurrent disc protrusion with contact and possible compression of the transiting right L5 nerve root.[43]
[43] Claimant’s bundle, p 162.
EMG studies dated 1 March 2021 showed underlying sensorimotor peripheral neuropathy affecting the upper and lower limbs and did not exclude a radiculopathy.[44]
[44] Claimant’s bundle, p 197.
Qualified evidence
Dr Uthum Dias, physician, was qualified by the claimant and provided a report dated
24 February 2017.[45] The doctor noted that an MRI scan performed on24 November 2015 showed a large disc protrusion at the L4/5 level. Surgery was performed by Dr Vasili on 21 December 2015.[45] Claimant’s bundle, p 33.
The doctor noted that the claimant was working 10 hour shifts at the time of the motor accident.
Dr Dias recorded that the symptoms of pain and stiffness in the neck and shoulders have largely resolved but that the claimant continued to experience significant pain and stiffness in the lumbar spine daily. Mr Ford reported intermittent pins and needles and numbness in the left thigh. Neurological examination was normal.
Examination of the shoulders and cervical spine was normal.
In a subsequent report dated 6 September 2017, Dr Dias opined that the motor accident caused a recurrence of the L4/5 disc protrusion.[46]
[46] Claimant’s bundle, p 55.
Dr Ben Teoh, psychiatrist was qualified by the claimant and provided a report dated
30 August 2016.[47] The doctor opined that the motor accident caused a chronic adjustment disorder with mixed depressed and anxious mood.[47] Claimant’s bundle, p 59.
Dr Michael Shatwell, orthopaedic surgeon, provided a report dated 5 April 2017[48]
Dr Shatwell opined that the claimant sustained a minor soft tissue injury to the cervical and lumbar spine which “would have settled within a matter of a few days or weeks at most”.[49][48] Insurer’s bundle, p 13.
[49] Insurer’s bundle, p 18.
Neurological examination was normal other than reduced straight leg raising which was positive on the right side to 30 degrees and negative to 40 degrees on the left. The slight ankle weakness on the right side was due to Mr Ford’s club foot.
Dr Shatwell appeared to partly justify this conclusion based on the claimant not seeking medical attention on the day of the accident but on attending his general practitioner on the following day. The doctor opined that the ongoing symptoms are related to the underlying lumbar spinal degenerative disc disease with the minor exacerbation having ceased.
In a further report dated 24 June 2019,[50] Dr Shatwell noted the claimant was working 10 hour shifts by early February 2016. The doctor noted that neurological examination on the previous occasion was normal.
[50] Insurer’s bundle, p 443.
Dr Shatwell noted that left leg symptoms had come on gradually in the left lateral calf and foot in the latter half of 2017 or early 2018 with no precipitating trauma.
Dr Shatwell opined that there was no urgency for surgical treatment because the claimant was managing his usual shift work and there was no sign of sphincter disturbance.
Dr Alex Apler, psychiatrist, provided a report dated 20 June 2017.[51] The doctor found no psychiatric condition caused by the motor accident.
[51] Insurer’s bundle, p 22.
Statement – Mr Andrew Ford
Mr Ford provided a statement dated 30 September 2020.[52] The claimant referred to the previous surgery to the low back performed by Dr Vasili in December 2015. The claimant stated that the almost immediate resolution of leg symptoms and there was a significant decrease in low back pain described as “90% better”.
[52] Claimant’s bundle, p 165.
By late January 2016 the claimant had returned to working four eight-hour shifts which then increased to four ten-hour shifts for about two weeks prior to the motor accident. At the time of the motor accident the claimant stated that did “not recall taking, or needing to take, any medication to control pain”.[53]
[53] Claimant’s bundle, p 173.
The claimant described the motor accident where his vehicle was shunted forwards about 2m even though he had his foot on the brake. He did not believe the insured vehicle had slowed and noted the extensive damage to both motor vehicles.
The claimant stated that he consulted his general practitioner on the following day and the pain levels gradually increased over the following days. The claimant stated that he returned to work because of “considerable financial strain” and within a month or so experienced left leg symptoms. He was taking strong painkilling medication including Tramadol, Lyrica and over the counter medication.
The claimant detailed how he was unable to properly perform his work duties and his employment was terminated in August 2016. He then detailed the various employments over the following years.
In January 2020 the claimant underwent spinal fusion in two stages. He has since noticed some improvement in leg symptoms and back pain.
SUBMISSIONS
Insurer’s submissions dated 21 November 2022[54]
[54] Insurer’s bundle, p 461.
These submissions were filed opposing the application to review the assessment.
The insurer submitted the reasoning of the Medical Assessor was clear and applied the correct test in concluding that the surgery undertaken in 2020 was not related to the motor accident.
Insurer’s submissions dated 19 May 2021[55]
[55] Insurer’s bundle, p 435.
These submissions were filed opposing the application for a further assessment. It submitted that the surgery undertaken by Dr Singh in January 2020 was not additional information as it was “not causally related to the effects of the accident”.[56]
[56] Insurer’s bundle, p 438.
The insurer referred to the surgical procedure undertaken prior to the motor accident following an incident in 2015. An MRI scan of the lumbar spine in November 2015 showed a large central disc protrusion at L4/5.
The insurer submitted that as of 25 January 2016 the claimant was working eight hours per week.
The insurer referred to the post motor accident records such as the X-ray showing no signs of injury. Physiotherapy continued at Wyong Hospital and hydrotherapy commenced on 1 March 2016 with the claimant reported as participating well with no issues.
On 11 March 2016 the general practitioner noted that the claimant went for a slow jog and pulled up well.
The insurer referred to the MRI scan dated 12 October 2016 which revealed significant central and right paracentral disc protrusion causing a reduction in central canal calibre and submitted that there was “no significant change seen between the pre and post-accident radiological scans”.
The insurer submitted that the 2020 surgery related to the pre-accident conditions in which he underwent the surgical procedure in 2015. The insurer otherwise relied on the opinion expressed by Dr Shatwell in April 2021 that the initial X-rays showed degenerative changes. The doctor also noted that the scans, post-accident scans showed signs of operative intervention and no sign of any acute injury.
Dr Shatwell opined that the motor accident caused an exacerbation of symptoms of short direction, which ceased after a few days or weeks.
The insurer referred to Medical Assessor Wilding’s opinion that the delay in onset of sciatica was unusual but that the claimant was assessed as DRE Category III as a result of the motor accident. The Medical Assessor made a deduction of DRE Category II due to the pre-existing disc surgery.
The insurer noted that if the matter proceeds, then these submissions be made available “with respect to the [issues of] injuries, causation and the lumbar procedure in January 2020”.
Claimant’s submissions dated 29 April 2021[57]
[57] Claimant’s bundle, p 155.
These submissions were filed seeking a further assessment following the previous assessment issued by Medical Assessor Wilding in March 2019. The basis of the further assessment included the decompression and fusion undertaken in January 2020 which resulted in an assessment of either DRE Category IV or DRE Category V for the lumbar spine.
Claimant’s submissions dated 17 November 2022[58]
[58] Claimant’s bundle, p 588.
These submissions were filed seeking a review of the Certificate issued by Medical Assessor McGrath.
The claimant submitted that the Medical Assessor was required to determine causation between the motor accident and the fusion surgery referring to cl 1.113 of the Guidelines. It also referred to the test of causation in cl 1.7 of the Guidelines.
The claimant submitted that the Medical Assessor did not appear to doubt or not accept the claimant’s history, and otherwise made inconsistent findings.
The claimant submitted that the Medical Assessor otherwise fell into error by not assessing at the time of the examination in accordance with cl 1.113 of the Guidelines.
RE-EXAMINATION
Mr Ford was examined by both Medical Assessors on 12 April 2023. The examination report is as follows:
“Mr Ford attended the PIC rooms on 12 April 2023 for examination by Medical Assessor Moloney and Medical Assessor Oates.
HISTORY
Pre-accident medical history and relevant personal details
He is married with two children and his wife works full-time in childcare. The children are aged 14 and 11.
At the time of the accident, he worked for Telstra SNP in a security control room doing 6.00pm to 6.00am shifts on a full-time basis forty hours per week.
In early infancy, he underwent the first of a series of operations to correct a right-sided club foot (talipes equino varus).
In March 2013, he tore the right Achilles tendon. This was repaired in April 2013. He was off work two months in all.
In July 2015, he was pulling the starter cord of the motor mower at home and developed acute back pain and left leg pain.
He had MRI scan on 24 November 2015 showing a large, left-sided L4/5 disc protrusion.
On 10 December he had a further two-day episode of severe low back pain and left leg pain. He attended Gosford Hospital ED. He subsequently underwent an L4/5 decompression and discectomy on 21 December 2015, performed by Dr Vasili, orthopaedic surgeon.
He returned to work 4-6 weeks after surgery on a full 40-hour week. He gained good relief from the left sciatica after surgery.
At specialist review, there was no longer any nerve root tension sign on examination and no neurological deficit.
He has type 2 diabetes mellitus, hypertension and hypercholesterolaemia and takes medications. He is also on medication for GORD (gastroesophageal reflux disease), Ventolin for asthma, Dymista for sinusitis, and Amitriptyline.
History of the motor accident
Mr Ford stated he is right hand dominant.
He said on 24 February 2016, he was the driver of a Holden Colorado utility with his three-year-old daughter in the back. He was slowing down in traffic and was rear-ended by a following vehicle whilst he was still moving at approximately 5kph. His utility did not hit the car in front, as it moved off when the traffic light turned green.
At the time of impact, he was thrown forwards and backwards in his seat, however, there was no impact injury recalled. No airbags deployed He was more concerned about the health of his young daughter but she was not hurt in the accident.
He rang the police but they did not attend. The driver’s exchanged details and after that Mr Ford drove his vehicle away, and it was subsequently repaired.
He resumed his journey and dropped his daughter off at her preschool.
He saw a GP, Dr Lim, on the day of the accident and was given analgesics.
History of symptoms and treatment following the motor accident
He was sent for an MRI scan and x-rays of the lumbar and cervical spine. He was certified unfit for work and given analgesics and Lyrica and referred to physiotherapy.
He returned to work after about six weeks, doing 10-hour shifts four nights per week. Subsequently, there was restructuring within the company and about six months after the accident, following a work interview, he was made redundant.
He obtained security work elsewhere.
In February 2022, after leaving his last security job, he became a disability carer for Koala Disability Care.
Because of continuing pain in the back and left leg, with pain, pins and needles and numbness in an S1 distribution following the motor vehicle accident, he was referred by his GP, Dr E Lim, to Dr B Singh, orthopaedic and spine surgeon, whom he first saw on 25 January 2019. He found weakness of left foot eversion with decreased sensation in the left S1 distribution, with depressed reflexes in the ankles and knee jerks equivocal, with a positive straight leg raise test on the left at 50°. He had an updated MRI scan of the lumbar spine on 5 February 2019 showing appearances of a prior L4/5 laminectomy, with current findings of a right paracentral L4/5 recurrent disc protrusion, with contact and probable compression of the transiting right L5 nerve root.
After reviewing the MRI scan, Dr Singh recommended decompression and fusion at L4/L5 to allow improvement in function and the return to work in his then job as a security guard at Northern Beaches Hospital.
When approval was obtained, he was admitted to North Shore Private Hospital on 6 January 2020 and underwent a two-stage procedure. Stage 1 was an L4/5 anterior to psoas interbody fusion, followed one week later by an L4/5 posterior decompression and fusion. He was discharged on 19 January 2020.
He said he had a good effect from the fusion surgery on both symptoms in the back and the left leg. He is left with what he describes as a knot in the distal left quadriceps area.
Details of any relevant injuries or conditions sustained since the motor accident
Mr Ford gave no history of any further injury or relevant condition relating to the lumbar spine occurring between the date of the accident and that of L4/5 spinal fusion surgery.
He had a subsequent injury whilst working as a residential homecare disability worker on 25 October 2022, when he had to move a large bag of a client’s personal effects and he developed acute onset of back pain and lateral left leg pain, radiating to the foot, with electric pulse feelings in both feet.
He stopped work after doing his remaining two shifts because it was difficult to get staff to replace workers, and then saw a GP at Wyong hospital on 31 October 2022.
He then saw his GP, Dr Tara Rawat, Wyong, and was given muscle relaxants and Panadeine Forte. He was no better and had an MRI scan of the lumbar spine in November 2022. He was told to urgently attend hospital by the GP for a suspected bone infection in the vertebra.
He was reviewed by Dr Singh who diagnosed an L3/4 disc protrusion and recommended L3/4 spinal fusion. He was initial uncertain about having further surgery, but his condition has not improved with time and rest, and he continues to be marked unfit and has not returned to work.
He saw an IME on 9 February 2023 who reported to EML, the insurer for workers compensation, and is awaiting a decision on liability on surgery.
Mr Ford told the PIC medical assessors that the insurer has accepted his injury as being work-related.
Current symptoms
He has pain across the lower back and down the lateral left thigh, as far as the knee, and sometimes pins and needles in this area. He no longer has the electric pulse feeling in his feet.
His neck and shoulder are fine following the subject motor vehicle accident.
His right leg is OK. He can walk for about 10 minutes but uses a walking stick. Sensation in the left foot comes and goes.
He can drive for 30-45 minutes limited by low back pain, and sleep is disturbed because of back pain.
Current and proposed treatment
Endone 5mg twice daily, Targin 10mg twice daily, Orphenadrine 100mg three times a day, Gabapentin 330mg one at night, Panadol Osteo as required.
He has physiotherapy and massage once a week.
He is awaiting a decision on whether he can proceed with an L3/4 spinal fusion, to be carried out by Dr Singh following the workplace accident of 25 October 2022.
CLINICAL EXAMINATION
General presentation
Mr Ford was of solid build with height 180cm and weight 92.1kg.
He ambulated with a walking stick used in the right hand.
He sat in discomfort from his low back.
Lumbar spine
Lordosis was flat. He removed a back brace from his lower back.
Flexion was less than one-quarter of normal range, extension less than one-quarter. Lateral flexion to the right two-thirds and to the left one-half. Rotation two-thirds of normal bilaterally. He was not able to squat or heel and toe walk.
His knee jerks were present with reinforcement but the ankle jerks were absent. He has had a right club foot repair and right Achilles tendon reconstruction, which may explain the absence of the right ankle reflex. Power was normal in the lower limbs but sensation was decreased in the lateral left thigh and dorsum of the left foot.
Supine straight leg raising on the right was 60° with complaint of low back pain and 60° on the left with complaint of right-sided low back pain.
There was muscle stiffness in the lower lumbar area bilaterally.
Thigh girth; right equals left equals 41cm.
Leg girth; right equals left equals 30cm.
Cervical spine
Normal contour. Full range of flexion, extension and rotation. Lateral flexion three-quarters of normal bilaterally. No spasm, guarding or tenderness.
Reflexes were of low amplitude but symmetrical. Power and sensation were normal.
Upper arm girth; right 29cm, left 28cm. Forearm girth; right equals left equals 26cm.
Scars
There was a 13cm longitudinal mid-line scar in the lower back. There was some contour defect with depression of the scar, but the scar was not adherent. There were also some hypertrophic changes in the upper scar and it was pale, causing some colour contrast with surrounding skin.
There was an additional 9cm scar over the left iliac crest and lower abdominal quadrant anteriorly.
Comments on consistency
The claimant presented in a straightforward consistent manner.
IMAGING
There was a CD of an MRI scan lumbar spine from 24 November 2015, predating the motor vehicle accident, but there was no mechanism to view the CD and there was no accompanying report.
Other imaging presented were post-accident, which are in the file of evidence already.
Impression
His lumbar spine condition is now medically unstable because of a subsequent unrelated injury, for which he is awaiting L3/4 spinal fusion. His cervical spine injury has resolved.
An assessment of permanent impairment related to the motor accident cannot proceed.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[59] and Insurance Australia Ltd v Marsh.[60]
[59] [2021] NSWCA 287 at [40], [41] and [45].
[60] [2022] NSWCA 31 at [11], [21], [64].
We adopt the joint examination findings of the Medical Assessors supplemented by the following further reasons.
Lumbar spine injury
There is a pre-accident history of lumbar pain resulting in surgery by way of discectomy on 21 December 2015. On 29 January 2016 Dr Vasili, noted that surgery had relieved left sided sciatica and “negative nerve root tensions signs and no neurological deficit”.[61]
[61] Insurer’s bundle, p 238.
The lumbar spine condition at the time of the motor accident was vulnerable given the recent surgery.
The MRI scan in October 2016 showed significant disc protrusion at L4/5. We conclude, given the successful surgery in late 2015 which relieved symptoms in the two-month period prior to the motor accident, that it is reasonable to conclude that the significant disc protrusion has occurred after 29 January 2016.
The claimant immediately complained of low back symptoms following the motor accident. We do not accept Dr Shatwell’s opinion that the effects of the motor accident were insignificant because the claimant chose to attend the general practitioner rather than attend at hospital. We consider that opinion one of generalisation without regard to the particular circumstances of a claimant. There are numerous reasonable explanations why a person would present to their general practitioner rather than attending the emergency department at hospital.
The claimant complained of ongoing lumbar spine symptoms following the motor accident. The clinical notes following the motor accident show that these symptoms were exacerbated by normal everyday activities such as sneezing on one occasion and for sitting too long on another. Those activities do not exacerbate a normal disc and show that the claimant was in a vulnerable position by reason of the motor accident following previous discectomy.
The Panel notes that there is some inconsistency in relation to complaints of radicular symptoms disclosed in the GP records. In August 2017 the GP noted no leg sensory symptoms. On 12 December 2017 the records state that there is persistent back pain and left leg radiation when the claimant was referred to Dr Vasili. Dr Vasili report of 8 January 2018 noted chronic low back pain and more recent left leg symptoms. An earlier report dated 19 September 2016 referred to right sided low back pain and examination showed normal light touch sensation in the lower limbs and sluggish, but not absent, reflexes.
The report of Dr Grujic dated 29 May 2018 referred to left lateral foot paraesthesia since early 2018 with tarsal tunnel excluded as the cause and the dorsal lateral foot sensation indicating a dermatomal distribution more closely related to the back.
The post motor accident MRI scan showed right sided L4/5 disc protrusion with no left sided nerve root involvement.
The varying complaints are not consistent.
The claimant had a vulnerable disc owing to the previous and recent discectomy. There was insufficient time for the formation of scar tissue following the original back surgery and prior to the motor accident to protect the disc from reinjury.
Even though the accident was not severe, the claimant was suspectable to disc protrusion due to the underlying condition.
The clamant did not refer to the injury to the low back whilst restraining a patient on 19 February 2019. The Panel became aware of that event when we were subsequently provided with the GP records. This work injury is mentioned in Dr Singh’s letter dated 9 May 2019.
The claimant is required to show that the injury caused by the motor accident was a material cause of the subsequent surgery. There was undoubtedly a pre-existing susceptible low back condition. The clinical notes preceding the motor accident show a general resolution of the low back disc protrusion and sciatica.
The motor accident then reaggravated the low back pathology as is evident from the post motor accident complaints and October 2016 MRI scan.
The clinical records of Dr Lim support ongoing lumbar spine symptoms. By early 2019 both Dr Singh and Dr Lim were recommending that the claimant undergo a fusion at L4/5. All of this pre-dated the subsequent work injury.
We otherwise note that the claimant’s case on causation is strengthened by some neurological signs reported in the period post the motor accident.
On 5 April 2017 Dr Shatwell reported a positive neurological sign as he noted a positive sciatic stretch on the right side.
We are satisfied that the motor accident aggravated the L4/5 disc resulting in the protrusion seen in the October 2016 scan. This conclusion is consistent with the opinion of Medical Assessor Wilding dated 5 March 2019 that the motor accident caused low back pain resulting in radiculopathy.
The aggravation of the L4/5 disc was a material cause of the need for the subsequent fusion surgery given the size of the protrusion shown in the October 2016 scan. There was no recovery by the claimant of that protrusion and thereafter he complained of varying and somewhat inconsistent radicular symptoms. However, the disc protrusion aggravated by the motor accident remained a material cause for the subsequent need for surgery given the protrusion caused subsequent back and radicular complaints.
Cervical spine injury
There is a contemporaneous history of injury to the cervical spine and complete recovery. This is consistent with the history recorded by Dr Dias and confirmed by the claimant to the Medical Assessors.
In light of the recovery of the cervical spine injury, there is no assessable impairment of that body part.
Pre-existing injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[62] concerning the issue of onus.
[62] [2022] NSWPICMP 66 at [118]-[120].
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment” where there is “objective evidence of a pre-existing symptomatic permanent impairment”.
There is obvious pre-existing pathology leading to spinal surgery by way of discectomy prior to the motor accident.
We accept that the claimant was DRE Category II prior to the motor accident based on the surgery and associated signs. On 29 January 2016 Dr Vasili recorded that there was no neurological deficit. Accordingly, the claimant could not be classified as DRE Category III as there were no objective signs of radiculopathy at that time.
Permanent impairment
The claimant must establish that the motor accident materially contributed to the surgery.[63]
[63] See [26] herein.
The claimant underwent a L4/5 fusion in January 2020. Based on the successful outcome to the prior discectomy recorded by Dr Vasili on 29 January 2016, the claimant’s reported history, a thorough review of the clinical records and the medical expertise within the Panel, we are satisfied that the motor accident was a material cause of the claimant undergoing the fusion surgery due to the causative role of the accident aggravating the L4/5 disc.
We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
The claimant is assessed at DRE category V which is 25% permanent impairment. This is because the claimant has undergone a fusion and is left with a left ankle jerk loss (loss of reflex) and left dermatomal sensory loss.
The claimant has recently undergone a fusion at L3/4 for an unrelated subsequent injury. There is no suggestion from the medical or lay evidence that the subsequent injury is causatively related to the prior medical condition.
However, the claimant remains DRE Category V as multiple impairments within the one spinal region must not be combined.[64] Further the claimant was already DRE Category V prior to the subsequent L3/4 fusion.
[64] See cl 1.132 of the Guidelines.
Accordingly, there is no deduction for the impairment resulting from the subsequent unrelated work injury resulting in the L3/4 fusion.
CONCLUSION
For these reasons we conclude that the assessment dated 22 October 2022 is revoked. The new certificate is attached at the commencement of these Reasons.
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