Hamilton v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPICMP 91
•29 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Hamilton v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 91 |
| CLAIMANT: | John Hamilton |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL: | Member Susan McTegg Dr Margaret Gibson Dr Geoffrey Stubbs |
| DATE OF DECISION: | 29 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Motor Accident Compensation Act 1999; Medical Review Panel; whole person impairment; multiple vertebral fractures without radiculopathy; compression fractures; multilevel structural compromise; Held- Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | The Panel revokes the Certificate of Medical Assessor Bodel dated 22 June 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10%: · multiple vertebral fractures without radiculopathy. The Panel finds the following injury was not caused by the accident: · Lumbar spine – fracture of the transverse processes of L3 and L4. |
INTRODUCTION
Mr John Hamilton (the claimant) suffered injury in a motor vehicle accident on 20 August 2016 (the accident). Mr Hamilton was a passenger in a vehicle travelling south on Henry Lawson Way towards Grenfell when a kangaroo jumped onto the road. The driver of the vehicle swerved to avoid hitting the kangaroo, lost control and the vehicle fell off the side of the road colliding with a tree. Mr Hamilton was taken by ambulance to Orange Hospital where he was admitted until 23 August 2016.
NRMA Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Hamilton under the Motor Accident Compensation Act, 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Hamilton as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Section 57 and 58 of the MAC Act.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 the MAC Act. The relevant medical assessment was conducted by Medical Assessor James Bodel. He issued a certificate dated 22 June 2021.[2]
[2] Claimant’s bundle p 12.
In accordance with s 63(7) of the MAC Act the application for review was made within 28 days after the parties were issued with the certificate of Assessor Bodel.
On 19 August 2021, the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[3]
[3] Section 63(2B) of the MAC Act.
The Personal Injury Commission (Commission) commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
Under clause 14A(1)(a)(vii) of Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the PIC were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act.
Clause 14A(1) of Schedule 1 of the PIC Act defines a new decision-maker in relation to an unexercised right as the person, court or other body given the function on and from the establishment day of the PIC of dealing with the proceedings or the unexercised right instead of the original decision maker because of the amendments to, in this case, the MAC Act.
Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review .
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the PIC.[4] The President’s Delegate referred this application for review to the panel.
[4] Section 63(3) of the MAC Act.
The Motor Accident Permanent Impairment Guidelines effective 1 June 2018 (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[5]
[5] Clause 1.2 of the Guidelines
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 a panel reviewing a decision of a Medical Assessor.[6]
[6] 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 proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The Panel issued a Direction to the parties on 25 November 2021(the first Direction) which required each party to file an indexed, paginated bundle of documents. In response to this direction the solicitor for Mr Hamilton filed a bundle of documents paginated from pages 1 to 99.[9] The solicitor for the insurer filed a bundle of documents paginated from pages 1 to 303.[10]
[9] Claimant’s bundle (AD 13)
[10] Insurer’s bundle
On 20 December 2021 the Panel issued a report stating the Panel did not consider a re-examination was necessary where the assessment of whole person impairment (WPI) could be undertaken by a review of the relevant imaging. Neither party objected to the assessment being undertaken without re- examination.
The Panel also noted that clause 1.148 of the Guidelines prescribes the method to be used to assess the compression of the spine, involving measurement of the vertebrae directly above and below the affected vertebrae. The Panel noted the digital images of the X-rays performed on 9 September 2016 uploaded to the portal as AD5 were not clear enough to allow the vertebrae below to be clearly seen. This meant the images were not of sufficient clarity to permit the panel to undertake the measurements prescribed by clause 1.148 of the Guidelines.
Accordingly, Mr Hamilton was asked to provide either a hard copy or an electronic copy on a DVD accompanied by the relevant operating system of the following imaging:
(a) the MRI of the whole spine of 23 August 2016 performed at Orange Base Hospital;
(b) the CT scan of the cervical, thoracic and lumbar spine of 21 August 2016 performed at Orange Base Hospital, and
(c) the plain X-ray of the thoracic spine performed at Wagga Wagga Base Hospital on 9 September 2016.
After some delay arrangements were made for the imaging to be conveyed directed to Medical Assessor Stubbs and Medical Assessor Gibson for review.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Bodel examined Mr Hamilton and issued a certificate dated 22 June 2021.
He found the following injuries caused by the accident gave rise to a permanent impairment of 10%:
· Thoracic spine – superior endplate fracture at T11 vertebral body with anterior compression.
· Lumbar spine – fracture of the spinous process at L4 and transverse processes of L3 and L4 vertebrae.
Assessor Bodel reported Mr Hamilton lost consciousness at the time of the accident before becoming aware of his surrounding at the accident scene. He had chest pain and difficulty breathing with pain at the back at the thoracolumbar junction and also the lumbosacral region. He was taken to hospital and later had physiotherapy and remained under the care of his general practitioner (GP). Assessor Bodel noted he made steady progress but never fully recovered.
At the time of his assessment Assessor Bodel reported Mr Hamilton had pain at the thoracolumbar junction and the lumbosacral area. His pain was aggravated by prolonged sitting or bending, twisting or lifting.
Assessor Bodel reported tenderness and guarding at the thoracolumbar junction on the left side with slight restriction of lateral bending and rotation of the thoracic spine, mainly to the left. He reported asymmetry of movement and dysmetria.
Assessor Bodel reported tenderness and guarding at the lumbosacral junction on the left side. Mr Hamilton experienced backache when reaching forward in flexion with his hands to his knees and on extension with a restricted range of lateral bending to the right. He reported asymmetry of movement and reported straight leg raising was unimpaired at 80% degrees on each side. He found no neurological abnormality or clinical signs of radiculopathy in the lower limbs.
Assessor Bodel was provided with a copy of a Medical Assessment Guidance Note – No 11 dealing with the assessment of fractures in accordance with AMA 4 and the Motor Accident Authority Guidelines. He stated he was aware of the provisions and the well-known methodology which required a simple arithmetic assessment of the degree of wedge compression which he said he did. He noted the Guidelines also allow for minimally displaced fractures of the transverse processes or the spinous processes.
In relation to the radiological and medical imaging Assessor Bodel stated:
“I have viewed the CD which has been provided. The CD contains a plain x-ray of the thoracic spine dated 09 September 2016. I have carefully measured the clearly visible anterior wedge compression fracture at the T11 vertebral body and have obtained measurement of 24% wedge compression at that level. The films do not include the lumbosacral region but the documentation from the hospital confirms that there were minimally displaced fractures.”
MATERIAL BEFORE THE REVIEW PANEL
Orange Base Hospital records[11]
[11] Claimant’s bundle p 75.
Mr Hamilton was admitted to Orange Base Hospital following the accident until 23 August 2016. He complained of cervical and lumbar spine pain and abdominal pain on presentation. The discharge summary under the heading Progress During Admission includes the following:
“During the primary and tertiary survey the injuries that Mr Hamilton was found to have were old left T3 and T4 transverse process fractures and superior end T11 fracture.”
However, the ultimate diagnosis on the Discharge Referral was of stable T11 endplate fracture and left T3 and T4 transverse process fractures.
He underwent an MRI of the whole spine on 22 August 2016. The report concluded we had sustained wedge compression fractures of T9, T10 and T11. There was also evidence of trauma involving the L4 spinous process and the left L3 transverse process.
A CT scan of the cervical, thoracic spine and lumbar spine was reported to show:
“Superior endplate fracture of T11 with <20% loss of anterior vertebral body height. No involvement of the posterior cortex. This is a stable fracture. There are healing fractures through the left L3 and L4 transverse processes.”[12]
[12] Claimant’s bundle p 79.
X-Ray of the thoracic spine on 9 September 2016[13]
[13] Claimant’s bundle p 83.
Mr Hamilton underwent an X-ray of the thoracic spine on 9 September 2016 at Wagga Wagga Base Hospital. The radiologist reported:
“There is superior endplate compression fracture of T11 vertebra noted with loss of about 30% of the anterior vertebral body height. Otherwise, the thoracic alignment is preserved. The rest of the thoracic vertebral bodies, intervertebral disc spaces and pedicles are preserved.”
Medical certificate of Dr Awad
Dr Awad completed the medical certificate on 13 September 2016. He described the injuries as stable T11 end plate fracture and a wedge compression fracture of T9, T10 and T11.
Report of Dr Sheikh Habib[14]
[14] Claimant’s bundle p 92.
Mr Hamilton was assessed by Dr Habib at the request of his lawyers on 7 February 2018. At that time Mr Hamilton experienced back pain and stiffness and reported the low back pain radiated to the left buttock and the thigh.
Dr Habib diagnosed:
· anterior body compression (wedging) fracture of the thoracic 11 (T11) vertebral body, and
· fracture of the spinous process of L4 and transverse processes of L3 and L4 vertebrae.
He reported the long-term prognosis was fair only, whilst the fractures had healed he thought Mr Hamilton would have ongoing pain and stiffness.
He Habib assessed a total whole person impairment WPI of 19%. Dr Habib assessed at 15% WPI for DRE category III in respect of the thoracic spine on the basis of the MRI scan report which reported vertebral compression fraction of the order of 30%. Dr Habib did not view the films. He assessed a 5% WPI for DRE lumbar category II in respect of the transverse and spinous processes fractures of L3 and L4.
Certificate of Medical Assessor David McGrath dated 7 September 2018[15]
[15] Claimant’s bundle p 36.
Assessor McGrath issued a certificate dated 7 September 2018 in which he found the accident had given rise to a permanent impairment which is not greater than 10%. He found a 5% WPI in respect of the thoracic spine, namely a superior endplate fracture of T11 vertebral body with anterior compression. He also found a 5% WPI in respect of the lumbar spine, namely a fracture of the spinous process of L4 and transverse processes of L3 and L4 vertebrae.
The radiology was not available for review by Assessor McGrath. He noted that clause
1.148 of the Permanent Impairment Guidelines 2018 instructs assessors not to rely on radiology reports. He noted the significant difference between the report of the CT scan and the plain X-ray and concluded he could not accept the less than accurate “about” assessment for the degree of vertebral compression referred to in the X-ray report. He concluded the CT scan of 23 August 2016 was likely to be more accurate and noted the radiologist reported less than a 20% T11 compression fracture. On that basis Assessor McGrath found Mr Hamilton satisfied the criteria for DRE category II for the thoracic spine, which equated to a 5% WPI.
Mr Hamilton filed an application for a further assessment of the permanent impairment dispute on the basis the X-ray of the thoracic spine taken at Wagga Wagga Base Hospital on 9 September 2016 had become available and constituted additional relevant information which would assist an assessor to verify the reported finding of “about 30% loss of anterior body height of the T11 vertebrae”.
That application was accepted and resulted in the assessment by Assessor Bodel, the subject of this review.
Medical Assessor Guidance Note – Number 11[16]
[16] Insurer’s bundle p 294.
Both parties referred to this Guidance Note which relates to the assessment of compression fractures.
SUBMISSIONS
Claimant’s submissions
Mr Hamilton provided submissions dated 15 July 2921 in support of the review application. Mr Hamilton submitted that Assessor Bodel did not conduct his assessment in accordance with clause 1.148 of the Permanent Impairment Guidelines, in that he did not document his calculations in the impairment evaluation report and did not indicate which method he utilised in reaching his conclusion that there was a 24% compression finding.
Further Mr Hamilton submitted that Assessor Bodel failed to comply with his statutory duty to provide reasons[17] or set out the actual path of reasoning by which he reached his decision as per Wingfoot Australia Partners Pty Ltd v Kocak.[18]
[17] Section 61(9) of the MAC Act.
[18] [2013] HCA 43; (2013) 252 CLR 480, Wingfoot.
Insurer’s submissions
The insurer provided submissions dated 5 August 2021. Whilst it was conceded Assessor Bodel did not provide the calculation for the compression fracture at T11 it was noted that he stated he had taken the measurement.
The insurer relies upon the CT scan of the thoracolumbar spine taken at Orange Base Hospital which showed a “less than 20% loss of anterior vertebral body height” at the T11 vertebral body to assert that the injury was correctly assessed at DRE thoracolumbar category II resulting in a 5% WPI.
RELEVANT LEGAL AUTHORITY
1. Causation of injury is addressed in the Guidelines:
“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”.
The following clauses of the Guidelines are relevant to this dispute:
Clause 1.126 If unable to distinguish between two DRE categories, the higher of those two categories must apply.
Clause 1.148 Compression fracture: The preferred method of assessing the amount of compression is to use a lateral X-ray of the spinal region with the beam parallel to the disc spaces. If this is not available, a CT scan can be used. Caution should be used in measuring small images as the error rate will be significant unless the medical assessor has the ability to magnify the images electronically. Medical assessors should not rely on the estimated percentage compression reported on the radiology report, but undertake their own measurements to establish an accurate percentage using the following method:
1.148.1 The area of maximum compression is measured in the vertebra with the compression fracture.
1.148.2 The same area of the vertebrae directly above and below the affected vertebra is measured and an average obtained. The measurement from the compressed vertebra is then subtracted from the average of the two adjacent vertebrae. The resulting figure is divided by the average of the two unaffected vertebrae and turned into a percentage.
1.148.3 If there are not two adjacent normal vertebrae, then the next vertebra that is normal and adjacent (above or below the affected vertebra) is used.
The calculations must be documented in the impairment evaluation report.
THE PANEL’S REVIEW
Mr Hamilton was a rear seat restrained passenger in a car that ran off the road, rolled over, and then hit a tree. He was taken to the Orange Base Hospital where he was assessed and then sent to Wagga Hospital closer to his home. There is no dispute about the circumstances of his injury.
There is a dispute about the extent of the T11 vertebral collapse, whether the fracture of the transverse process at L3 is an old rather than a new fracture and whether there is an end-plate injury at T1.
The AMA 4 Guides and the Guidelines use the following methodology. The maximum compression of a vertebrae shown on a plain lateral X-ray is measured and compared to the average thickness of the vertebrae above and below the compression point. Plain X-rays are chosen since CT scanning was uncommon at the time AMA 4 was drafted. Conventional methodology is to measure the front and back heights of the vertebrae concerned and express this as a percentage. This is unreliable for the reasons given below and in accordance with AMA 4 and the Guidelines the Panel has not relied upon the radiology report but has undertaken its own measurements.
Lateral plain X-rays are not ideal for measuring the degree of vertebral compression. The vertebral endplate is diffuse in appearance on the plain X-ray as it requires a difference in X-ray absorption of 50% through the vertebral body to detect a void, or in Mr Hamilton’s case a central vertebral compression fracture. Vertebral bone is compressed rather than fragmented. The fracture line is only visible if the plane of the fracture corresponds with the plane of the X-ray beam. Compression fractures have multiple orientations. Plain X-rays are therefore unable to distinguish between recent and old fractures as they are not good at displaying fracture lines. Whilst the history may help to distinguish the situation it can be difficult to differentiate between new compression fractures and pre-existing osteopenic vertebral compression fractures. Osteopenic vertebral compression fractures may only cause transient backache or no pain at all.
CT scanning is now more readily available and is the preferred imaging modality for spinal fractures. Firstly, it will distinguish between old and new fractures. Most vertebral compression fractures consolidate by three months. The absence of fracture lines on scanning tells us the fracture is more than three months old and, less reliably, less than six weeks old. This is because the CT scan integrates the bony density over a series of slices usually of two to three millimetres in thickness resulting in some part of the fracture lines become co-linear within the imaging.
CT scans also show vertebral endplate fractures more clearly and usually the end plate fracture is more depressed than plain X-ray suggests. Further, the image of the vertebral canal may be of considerable assistance in fractures where there is retropulsion of fragments into the vertebral canal, which may not be appreciated on plain X-rays.
Fractures of the transverse processes are produced by tension injuries. They often do not appear to unite on imaging. However, they stabilise with fibrous tissue and become symptom-free. New fractures of the transverse processes have jagged irregular margins while old fibrous union is demonstrated by wavy smooth margins with regular spacing.
All compression fractures consolidate in the process of healing, so often the degree of compression at three months may be more than first measured.
MRI imaging can also show an increased T2 signal representing the marrow oedema that occurs with injury. Oedema may be present without overt fracture; it will disappear as the fracture heals.
Mr Hamilton presented some challenges on the measurement of his impairment based on the DRE grade of his fracture. Imaging undergone by Mr Hamilton following the accident was viewed and measured by Medical Assessor Stubbs.
Lateral chest X-ray, Wagga Wagga Base Hospital, 9 September 2016.
Measurements from the plain X-ray of the chest of 9 September are difficult to interpret because the apex of the diaphragm overlies the lower border of T12, so it is impossible to measure the equivalent height at T12. Clinically the degree of compression is about the same.
CT of the whole spine, Orange Base Hospital, 21 August 2016.
The reports describe a compression fracture at T11. Review of the sagittal CT scan of the thoraco-lumbar spine confirms a fracture at T11.
The CT scan was viewed using DICOM software eFilmLt which allows 200% magnification. The images can be copied using RadiAnt commercial DICOM software and are attached.
The coronal views give clear imaging of the right L3 transverse processes. The fracture margins are rounded and not jagged consistent with an old fibrous union. The fracture of the right L3 transverse process is not consistent with the accident.
A digital micrometre was used to take the measurements. Whilst the digital micrometre is very precise the measurements depend on placement of the jaws and the size of the images measured. The software package may not allow enlargement of the images, so the order of accuracy is more reasonably +/-0.5 millimetres.
Measured at 200% magnification on a 60 cm monitor with a digital Vernier calliper the measurements are:
65. T8 26.01mm
66. T9 24.52 mm
67. T10 26.23 mm and 27.02 (measured at different points) 68. T11 24.07 mm
69. T12 30.02 mm.
T10 was measured at different points for comparison as the maximum compression seen at T9 was at a different anteroposterior point from the maximum compression seen at T11. The corresponding anteroposterior point for each was measured at T10 to determine the relative compression for each vertebra.
The MRI scan Orange Base Hospital, 22 August 2016.
The MRI was useful in identifying marrow oedema at T9 and T10 (bright juxta endplate signal on theT2 weighted images) which indicates that these vertebrae had also suffered significant compression loads with minor endplate collapse at T9, not immediately recognisable on the CT scan, but found with close inspection, and a similar injury, but without any endplate collapse, at T10.
The MRI shows evidence of recent bony injury at T9, T10 and T11.
The MRI showed no increased T2-weighted signal at T1, meaning there is no bony injury at T1.
The MRI does not help in assessing the transverse process fracture at L3 as the coronal images are insufficient.
PANEL DECISION
The Panel finds the transverse process fracture at L3 was not caused by the accident.
The Panel finds there is no endplate fracture at T1.
The Panel notes the compression fracture at T9 and T11 and marrow signal at T10 was consistent with the mechanism of the accident and with the available medical records including imaging performed at Orange Base Hospital and later at Wagga Wagga Base Hospital.
It is apparent from the measurements set out in paragraph 65 above that there has been compression at T9. Using the methodology set out in clause 1.148 of the guidelines the vertical compression at T9 is calculated as follows:
26.12 (an average of the measurement at T8 and the lower measurement at T10) – 24.52 (the measurement at T9) = 1.60 divided by 26.12 (the average of the measurement at T8 and T10) converted to a percentage demonstrates a vertebral loss of 6.12% rounded down to 6%
The compression at T11 is calculated using the methodology set out in clause 1.148 of the guidelines as follows:
28.52 (an average of the higher measurement at T10 and the measurement at T12) – 24.07 (the measurement at T11) = 4.45 divided by 28.52 (the average of the measurement at T10 and T12) converted to a percentage demonstrates a vertebral loss of 15.60% rounded up to 16%.
Having regard to the measurement of the compression fractures calculated in accordance with clause 1.148 of the Guidelines and the changes apparent on the MRI scan the Panel is satisfied Mr Hamilton sustained fractures of more than one vertebra. Indeed, the Panel finds bony injuries at three levels, T9, T10 and T11.
The Panel finds Mr Hamilton sustained multiple vertebral fractures without radiculopathy at the thoraco-lumbar junction.
In accordance with clause 1.1424 multilevel structural compromise is to be interpreted as fractures of more than one vertebra.
Clause 1.143 of the Guidelines determines that multilevel structural compromise, or the fracture of more than one vertebra are to be found in DRE categories IV and V.
In accordance with the clause 1.151 of the Guidelines multiple vertebral fractures without radiculopathy are classed as DRE category IV.
In accordance with Table 74 of AMA4 DRE impairment category IV converts to a 20% WPI.
Pre-existing/subsequent impairment
There is no pre-existing or subsequent impairment.
Apportionment
Apportionment is not applicable where there is no objective evidence of a pre-existing symptomatic impairment.
Effects of treatment
The panel makes no deduction for the effects of treatment.
CONCLUSION
The Panel finds Mr Hamilton has sustained a 20% WPI as a result of injury caused by the accident.
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