MOTOR ACCIDENTS – Review of certificate of Medical Assessor McGrath dated 10 December 2023; claimant injured in a rear-end collision on a country highway on 26 November 2021; assessment by the Medical Review Panel (Panel) of whether the claimant suffered a threshold injury to his lumbar spine and an annulus tear at the T12/L1 level; claimant did not have an MRI scan of his lumbar spine until 9 February 2022, shortly after he had suffered an assault by way of a push to his back in a shopping centre car park; no tear discovered; claimant had his next MRI scan on 23 June 2023 which demonstrated a posterior annulus tear at T12/L1; possibility that claimant may also have suffered an injury to his spine during course of lifting heavy materials at work; Held – a T12/L1 injury is a thoracic injury under the Motor Accident Guidelines; Panel was not satisfied that the claimant suffered a low thoracic disc lesion in the accident or an annulus tear at T12/L1; Panel satisfied that MRI scan findings of 9 February 2022 indicate that endplate irregularities at T10/11 and T12/L1 reflect a developmental condition being Scheuermann’s disease and an annulus fissure that exists in the area of developmental change is considered to be an incidental finding in this case; certificate of Medical Assessor McGrath affirmed.
DETERMINATIONS MADE:
CERTIFICATE OF DETERMINATION
DETERMINATION
1. The Panel affirms the certificate of Medical Assessor McGrath dated 10 December 2023.
2. The Panel is not satisfied that the claimant suffered a T12/L1 posterior annular tear as a result of a motor vehicle accident on 26 November 2021 and that this was a non-threshold injury pursuant to the Motor Accident Injuries Act 2017.
3. The claimant has suffered a threshold injury as a consequence of the accident on 26 November 2021.
STATEMENT OF REASONS
INTRODUCTION
This is a review of the decision of Medical Assessor McGrath (the Medical Assessor) of 10 December 2023 about a threshold injury and not his first certificate of 24 April 2023.
The claimant makes an application for review of the certificate and reasons of Medical Assessor McGrath dated 10 December 2023. The claimant submitted that this application for review was made pursuant to s 63 (1) of the Motor Accidents Compensation Act 1999. However, the application for review is made pursuant to s 7.26 of the Motor Accident Injuries Act 2017 (the Act) with the accident having occurred on 26 November 2021.
Initially, there was a dispute between the claimant and the insurer about:
· whether any treatment and care relates to an injury caused by the accident under Schedule 2, s 2(b) of the Act;
· whether any treatment and care provided is reasonable and necessary in the circumstances…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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The case of Greco v AAI Limited t/as GIO involved the claimant, Mr. Greco, who was injured in a rear-end motor vehicle collision on 26 November 2021. The claimant sought to have the Panel assess whether he suffered a threshold injury to his lumbar spine and an annulus tear at the T12/L1 level, among other injuries. The Medical Review Panel was tasked with determining the nature and extent of the injuries Mr. Greco suffered and whether these injuries arose from the motor vehicle accident.
The primary legal issues before the court were whether Mr. Greco's lumbar spine injuries and the annulus tear at the T12/L1 level constituted a threshold injury under the Motor Accident Guidelines, and whether these injuries were a result of the motor vehicle accident or other incidents. The court had to evaluate the MRI scans and medical evidence to ascertain if the injuries were linked to the accident or pre-existing conditions or other incidents.
The Panel reviewed the MRI scans and found that the endplate irregularities at T10/11 and T12/L1 reflected a developmental condition known as Scheuermann’s disease. This condition, which is usually asymptomatic, was considered to be the cause of the observed structural changes rather than the motor vehicle accident. The Panel concluded that the claimant's complaints of low back pain did not correspond to the level of the imaging findings on the MRI scans. The Panel determined that the claimant did not suffer a low thoracic disc lesion in the accident or an annulus tear at T12/L1. The MRI scan findings from 9 February 2022 indicated that the annulus fissure in the area of developmental change was an incidental finding. The Panel was satisfied that the claimant suffered a threshold injury to the lumbar spine, but not the specific injuries he claimed.
The court affirmed the certificate of the Medical Assessor, concluding that Mr. Greco did not suffer the specific injuries he alleged and that the MRI findings did not support the claim of an annulus tear at T12/L1 as a result of the motor vehicle accident. The court's decision hinged on the interpretation of the MRI scans and the medical evidence provided, leading to the conclusion that the claimant's injuries did not meet the criteria for a threshold injury under the Motor Accident Guidelines.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The medical examination report follows;“Mr Greco was accompanied to the assessment by his partner, Mr Matthew McKay. The history was obtained directly from the claimant.BACKGROUNDMr Greco states that he has no past history of back pain. He confirms a history of psychiatric disorders, for which he remains under the care of a psychiatrist.At the time of the accident, he had commenced a practical placement in order to obtain work as a nursing assistant. He was born in Italy and immigrated to Australia in 2005.DETAILS OF MOTOR ACCIDENT Mr Greco states that he was involved in a motor vehicle accident on 26 November 2021. He was coming home from a work placement experience when the accident occurred. He said that he became aware of an obstruction, due to a traffic crash ahead. He was slowing his Mercedes sedan when his vehicle was struck from behind by a utility vehicle at speed. He recalls rear end damage. His partner Matthew was sitting by his side and he had another male friend in the rear. He recalls that following the impact, he was able to alight from the vehicle. Police attended the scene. After discussion with the police, his male friend drove him to his home in Wellington. From there, he was taken by ambulance to the local Wellington Hospital in Bindawalla. There he was assessed and recalls that he received an analgesic injection. He was discharged home to the care of his general practitioner. TREATMENTSubsequently, he attended Dr Morakinyo in Dubbo. He was referred for physical therapy. He was prescribed analgesic and anti-inflammatory medications. He confirms that he attended the Wellington Hospital on several occasions over the next three months due to persisting lower back pain. Due to persisting lower back pain, he underwent MRI scans of the lumbar spine, performed on 9 February 2022. He underwent an epidural injection to the lower back on 9 March 2022, but this caused him to experience lower limb paraesthesia and increased back pain for two or three days, with the additional symptoms thereafter settling. During the post injection period, he attended the Wellington Hospital emergency department on two occasions. Thereafter, he received further treatment with physical therapy. This ceased after approximately six months. He was given home exercises. There has been no other treatment. He confirms that he underwent further MRI scans of the lumbar spine in June 2023. He reports the current use of Endone 5mg to 10mg daily. He also takes paracetamol and Clonazepam. He applies heat packs to his back on a regular basis. CURRENT SYMPTOMS Mr Greco reports symptoms of midline lower back pain. He indicates the lower lumbar region as the maximum site of pain. The pain extends laterally out towards the right hip and frequently radiates anteriorly into the right groin. He describes further pain in the left anterior chest wall.He reports intermittent pain shooting down the right leg extending to the posterior and lateral aspect of the right calf. There is occasional further radiation of pain to the foot and the right hallux. He describes exacerbation of leg pain with prolonged sitting, standing and walking. FUNCTIONAL CAPACITY AND REPORTED TOLERANCESHe reports a sitting tolerance of up to an hour, a driving tolerance of 30 minutes and a walking tolerance of 20 minutes, all limited by back pain. Stair climbing exacerbates his back pain. He is independent for activities of self-care but his partner helps him to dress in underwear and socks. He wears slip on shoes. He limits lifting to a few kilograms. SOCIAL HISTORYHe lives with his partner in a house in Wellington, New South Wales. He smokes up to 12 cigarettes daily. He helps out with light bench height domestic chores including most of the cooking, loading of the dishwasher and bench-height cleaning. His partner performs the laundry tasks and the heavier domestic chores. He denies current active hobbies. VOCATIONAL HISTORYHe did not pursue work as a nurse or paramedic after the subject accident. PHYSICAL EXAMINATIONOn examination, the claimant is a 32 year old standing 176cm and weighing 120kg. Thoracolumbar spine On examination of the thoracolumbar spine, there is normal spinal curvature. There is no muscle spasm. Lumbar flexion was performed to 3/4 normal range, there is smooth lumbar deflexion back to an erect posture Extension is also performed to 3/4 normal range, lateral flexion is performed to the right to 3/4 normal range and on the left to 1/2 normal range. There is pain in the lateral chest wall declared during extreme lateral flexion. Straight leg raise is performed to 70° on the right and 80° on the left. Lasegue’s sign is positive on the right.The neurological examination of the lower extremities reveals normal myotomal power in all muscle groups. There is normal sensibility throughout the lower extremities. The deep tendon reflexes are symmetrically preserved. There is no local muscle wasting in the right lower extremity. The circumference of the right thigh is 2cm larger than the left and the calf is 1cm larger than the left, consistent with right leg dominance. Tenderness is elicited to palpation overlying the lowest two lumbar segments. DIAGNOSIS AND CAUSATION The claimant suffered an injury to the lumbar spine in a rear-end motor vehicle crash. There is early documentation of lower back pain in the medical record. The claimant’s diagnostic imaging demonstrates no disc abnormality in the lower lumbar regions corresponding with his level of pain. The Panel note an L4/5 epidural was performed which caused temporary aggravation of his existing lower back pain. The claimant reports referred symptoms to the right calf and foot, roughly corresponding to an L5 dermatomal pattern.However, the clinical signs required for a diagnosis of radiculopathy in accordance with Clause 5.8 of the SIRA Guidelines are not met. The Panel found the following clinical sign:· positive sciatic nerve root tension signs The panel found no evidence of the following clinical signs:· loss or asymmetry of reflexes · muscle atrophy and/or decreased limb circumference. · muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution · reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. The Panel concludes that that there are non-verifiable radicular complaints in the right lower extremity. The Panel has carefully considered the imaging findings. The medical Panel Members reviewed the MRI scan imaging findings of 9 February 2022.The finding of endplate irregularities at T10/11 and T12/L1 reflect a developmental condition, Scheuermann’s disease. This is a developmental abnormality found in many asymptomatic individuals. Whilst the precise cause of Scheuermann’s disease is not known, it appears to develop during the growth phase in adolescence due to discordant vertebral endplate mineralization and ossification during growth. This refers to a problem with the processes by which bones harden and form. These bone development issues lead to the alteration of their shape and may resulting in abnormal curvature of the spine or local lesions called Schmorl’s nodes.These nodes are areas where the disc between each vertebra pushes through the bone at the bottom and the top of the vertebra.Scheumman’s disease most commonly affects the lower thoracic and upper lumbar vertebrae. It is diagnosed when three intervertebral segments demonstrate end plate and intervertebral disc changes, as in this case. It is usually asymptomatic, as in this case. The disc bulge documented at T12/L1 on the lumbar MRI scan imaging of 9 February 2022 is considered to be part of the Scheuermann’s disease, which extends over the segments above and below the T12/L1 segment. The medical Panel Members reviewed the further lumbar MRI scan findings of 23 June 2023.The Schmorl’s nodes at T11/12 and L1/2 and a low grade disc bulge with posterior annulus fissure at T12/L1 are, as for the previous imaging, considered to be features of Scheuermann’s disease. There is an evident typographic error in the Lumus report of 23 June 2023, which refers to ‘low grade despite this’, should read ‘low grade disc bulge’.An annulus fissure that exists in an area of developmental change is considered to be an incidental finding in this case.The Panel find that the claimant’s complaints of low back pain, which are localised to the lowest two lumbar segments (L4/5 and L5/S1), do not correspond to the level of the imaging findings (T11 to L1) on the MRI scans. The claimant does not report symptoms at the thoracolumbar junction.The Panel concludes that the imaging findings at T12/L1 have not arisen as a consequence of the subject motor vehicle accident. At the level of the claimant’s symptoms in the lower lumbar region, there is no structural abnormality on imaging. The Panel is satisfied the injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. Further, there are insufficient findings of lumbar radiculopathy to satisfy the criteria in Clause 5.8 of the motor accident guidelines.The Panel acknowledges the reasoning in David v Allianz Australia Ltd (2021) NSWPICMP 227 at (84)-(104), that radiculopathy can be present at any time to establish that the injury is not threshold for the purposes of the Act. However, the Panel is not satisfied that any time after the accident there were two a more clinical signs of radiculopathy being found on examination. The Panel has found that there is insufficient medical evidence that the injury is not a threshold injury for the purposes of the Act from the time of the accident up to the time of the assessment.Therefore, the Panel find that the claimant did suffer a threshold injury to the lumbar spine.The Panel finds that the following injury caused by the motor accident:· Lumbar spine – soft tissue injury to the lumbar spine, non-verifiable radicular complaints in right lower extremity is a threshold injury for the purposes of the Act.”
