Hartman v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Hartman v QBE Insurance (Australia) Limited [2024] NSWPICMP 534
CLAIMANT:	Farideh Hartman
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Adeline Hodgkinson
DATE OF DECISION:	2 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI); claimant alleged injuries to neck, back and head; Medical Assessor found no evidence of a head injury based on continued headaches and brain MRI; claimant relied on opinion of Dr Abraszko; insurer said Dr Abraszko is not an authorised health practitioner and her evidence is not admissible; President’s delegate had determined evidence of Dr Abraszko not allowed; claimant re-examined; Medical Review Panel (the Panel) accepted forces involved in the collision could have caused injury to head, neck, lower back; claimant did sustain injury to head, neck and lower back; claimant had laminectomy but not fusion which the Panel did not accept was related to the accident but to the claimant’s underlying degenerative lower back disease; head injury did not result in assessable brain injury impairment; no evidence of current impairment due to occipital nerve injury and no impairment assessable; headaches had been thoroughly investigated and due to whiplash neck injury, which cannot be assessed separately; Held – Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate issued by Medical Assessor Cameron dated 30 December 2022. 2. Confirms that the degree of Farideh Hartman’s whole person impairment resulting from the injuries sustained in the accident of 27 March 2019 is 5% and therefore not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Farideh Hartman was involved in a rear-end motor accident on 27 March 2019.
Ms Hartman says she injured her neck, back and head in the accident. Ms Hartman made a workers compensation claim, as the accident occurred during the course of her employment, and later she made a claim for damages against QBE, the third-party insurer of the vehicle that hit the taxi she was travelling in.
A medical dispute about the degree of Ms Hartman’s whole person impairment (WPI) has arisen in connection with the damages claim and Ms Hartman referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 30 December 2022, Medical Assessor Cameron determined Ms Hartman had a WPI of 5% which is of course not greater than 10%.
The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 16 March 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review and the President’s delegate convened a Panel to conduct the Review.
On 7 May 2024 a fresh Panel was convened comprising the two medical members of the original panel plus Member Cassidy.

LEGISLATIVE FRAMEWORK

Ms Hartman’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.

Dispute resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect” a material error then the President arranges to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B).
The review is not necessarily confined to the issues raised in the application (or the reply) but is, subject to s 7.24 of the MAI Act and any agreement reached between the parties, “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
In the context of this dispute, s 7.52 of the MAI Act is relevant. This section restricts health practitioners who can give evidence in proceedings before the Commission and says:
“(1) In any proceedings before a court for damages or in connection with a merit review under Division 7.4, a medical assessment under Division 7.5 or the assessment of a claim under Division 7.6, evidence given by a health practitioner in relation to a medical matter concerning an injured person is not admissible unless—
(a) the practitioner is a treating health practitioner of the injured person, or
(b) the practitioner is authorised by the Motor Accident Guidelines to give evidence in the proceedings.”
Clause 8.3 of the Guidelines provides that a health practitioner is authorised to give evidence in proceedings by:
(a)    agreement between the parties for the health practitioner to conduct a joint examination, or
(b)    appointment by the Authority to its list of authorised health practitioners, or
(c)    appointment by the Authority for a specific purpose and duration on application by a claimant or insurer.
Clauses 8.3 and 8.5 appear to restrict authorised health practitioners from providing treatment advice or services to those injured persons for whom they are providing expert evidence.

Permanent impairment assessment

The degree of an injured person’s permanent impairment is assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides and Chapter 4 neurological conditions are relevant.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined the claimant on 13 December 2022 and issued his certificate on 30 December 2022. He confirms at section [2] of his reasons that he was asked to assess Ms Hartman’s cervical spine, lumbar spine and head injury.
The claimant was almost 57 years of age at the time of the accident and 60 when she was examined by Medical Assessor Cameron. She had worked in the aged care sector for some time. He takes a history at [8] from her of relatively good health, some back pain with cortisone injections in 2015 and 2017 and several unrelated surgeries.
Medical Assessor Cameron records at [10] that she saw her general practitioner (GP) after the accident, has had physiotherapy and has seen two neurologists and a neurosurgeon since the accident.
The claimant’s current symptoms are documented at [12] as back pain, significant headache, head pain and there has been a psychological impact. The Panel notes Medical Assessor Cameron does not record complaints of neck pain in this section. The claimant was currently being treated by an exercise physiologist and was taking Mobic, Allegron and Circadin every day and seeing her GP, Dr Ho in Chatswood.
On examination:
(a)    the claimant was measured at 165 cm in height and with a weight of 93 kg.
(b)    she gave a clear history with no evidence of cognitive impairment although she was psychologically distressed;
(c)    there was no sensory deficit over her scalp;
(d)    there was said to be, in the cervical spine:
(i)“asymmetrically reduced range of motion in the spine” as there was 60% reduction generally (including flexion) but only 50% in extension,
(ii)no muscle spasm, guarding or dysmetria;
(iii)no non-verifiable radicular complaints, and
(iv)nerve root tension signs were negative,
(e)    in the shoulders there was a full range of motion (with pain at the extremes) normal range of motion in the upper limbs otherwise and no neurological abnormalities;
(f)    in the thoracic spine there was moderately but symmetrical restriction of motion, no spasm, guarding or dysmetria and no non-verifiable radicular complaints;
(g)    at the lumbar spine there was marked but symmetrical reduction in motion, no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable symptoms and no nerve root tension signs;
(h)    the knees were normal as were the other joints in the legs and no neurological signs were found in the lower limbs, and
(i)    the claimant was said to be consistent.
Medical Assessor Cameron diagnosed at [18] and [20] soft tissue injuries to the cervical and lumbar spine but no “specific injury to [her] head” and found there was no injury to the right greater occipital nerve but referred symptoms in the head from the cervical spine.
He assessed 5% WPI in the cervical spine due to the presence of asymmetry of movement (DRE category II) but DRE category I (0% WPI) in the lumbar spine.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant says at paragraph [1] of her submissions on review that the Medical Assessor has taken a history of no head injury when the claimant’s statement and the history from

Dr Abraszko provides a history of the claimant hitting the headrest of the passenger seat in front. The claimant says at [2] it was a high impact collision causing a forcible impact with the headrest.
The claimant says at [3] she has had severe and debilitating headaches since the accident recorded in her GP notes and referred to in reports of her treating neurologist Dr Mobbs.

Ms Hartman also says at [4] the claimant recalled feeling dizzy and unwell and at [5] she has had symptoms of nausea and headache on the day. The claimant points at [6] to pathology in the claimant’s brain based on an MRI of 15 April 2019.
The claimant says at [8] – [10] that Medical Assessor Cameron reported there were no imaging studies to review yet there were four imaging studies attached to the original application.
The claimant submits at [16] that Dr Abraszko refers to tenderness over the right greater occipital nerve, a trigger point and altered sensation. The claimant suggests at [17] that Medical Assessor Cameron has not examined the head.
The claimant relies extensively on Dr Abraszko’s opinion and diagnoses of an aggravation of pre-existing migraines and right sided greater occipital neuralgic pain.
In terms of the claimant’s neck injury, the claimant takes issue at [22] with the diagnosis of a soft tissue injury which she says does not appear to take into account the findings of the MRI from May 2020. So too in the lumbar spine the claimant takes issue at [24] with the finding of a soft tissue injury noting radiology has found a disc bulge. The claimant says the Medical Assessor’s finding of no radiculopathy was inconsistent with the finding of Dr Abraszko of pins and needles and numbness in the legs.

Insurer’s submissions

Submissions in reply to the review

The insurer submits that the Medical Assessor has obtained a correct history of a rear end collision.
The insurer submits that Dr Abraszko is not an authorised health practitioner and her report should not have been in evidence before Medical Assessor Cameron.
The insurer says the Medical Assessor has dealt with the evidence and the history and found no head injury arose.
The insurer makes a point about the distinction between reports of radiology (imaging reports), and the radiological or imaging studies themselves that is the X-ray films or scans, and notes that the Medical Assessor had no studies to review because they were not attached to the application or reply but he did have the reports of the studies.
The insurer refers to the reliance by the claimant on Dr Abraszko’s opinion and refers to its expert, Dr Fitzsimons whose evidence is permitted.
The insurer notes the submissions concerning the cervical spine and says the Medical Assessor has considered the documents and examined the claimant and found a soft tissue injury that attracts a WPI. The insurer has also addressed the lumbar spine submissions and in particular notes that at the time the Medical Assessor examined the claimant there were no signs found to warrant a finding of radiculopathy.

Submissions in reply to the application for assessment

The insurer’s submissions suggest at [17] that the accident was minor in nature, that police and ambulance did not attend, and that the claimant’s trip continued.
The insurer summarises the evidence in relation to the cervical spine injury and appears to be suggesting the claimant had a whiplash injury which has aggravated pre-existing degenerative changes and that “any injury to the cervical spine caused in the subject accident has likely resolved.”
In the lumbar spine, the insurer notes the claimant’s pre accident lumbar spine problems and that it was 11 months after the accident before the claimant’s first record of lower back symptoms. The insurer submits “the claimant’s lumbar spine injury and symptoms are related to her long-standing degenerative condition and arthritis”.
In terms of the claimant’s headaches and head injury, the insurer says there is no evidence of any “acute or traumatic head injury” and that the claimant appears to be alleging that “her migraines are a result of whiplash.” The insurer refers to cl 6.162 of the Guidelines and says “there is no evidence of any permanent impairment related to any migraines or right occipital neuralgia experienced by the claimant”.

Procedural matters

The previously constituted Panel had issued directions to the parties for a joint bundle of documents. This was provided and consists of more than 1,100 pages of documents.
The current Panel issued directions to the parties on 10 May 2024:
(a)    confirming at [5] the Panel would be considering the cervical spine, lumbar spine and head injury including the allegation of headaches and occipital nerve injury;
(b)    observing at [7] that the insurer relied on reports from Drs Fitzsimons and Vickery but that the claimant’s expert, Dr Abraszko’s report had not been allowed (as she was not an authorised health practitioner) and it was therefore not in the joint bundle. The Panel noted there were no other medico-legal reports from the claimant in the bundle, and
(c)    requesting at [8] copies of any up to date treating specialist reports and advised the parties of the medical examination date.

Final responses

The claimant provided an additional 470 pages of up to date clinical records. The insurer provided 72 pages of further physiotherapy records not already provided.
On 1 July 2024 the Panel caused this message to be sent to the parties:
“The claimant's bundle includes records from Dr Parkinson which suggests he recently performed an L4/5 laminectomy. The operation report at page 29 is not complete but appears to confirm a laminectomy was done with no fusion. The Panel requests the claimant enquire of Dr Parkinson whether there is a completed operation report. The Panel would also ask the parties to advise who paid for the surgery. While the Panel has read the insurer's submissions in the original assessment, the insurer is requested to advise whether the insurer agrees or disputes that any impairment relating to the surgery is an impairment resulting from the injuries caused by the accident.”
The Panel was advised by the claimant that there was no further operation report. The parties confirmed the claimant’s workers compensation insurer paid for the surgery. The insurer said in a message to the Panel on 2 July 2024:
“The insurer confirms that it did not pay for the surgery referred to. The claimant has an ongoing entitlement to workers compensation benefits. No treatment requests are provided to the CTP insurer for consideration.
The insurer refers to the original submissions contained within its PIC Reply to the claimant’s original application. In particular regarding the lumbar spine, the insurer submitted as follows:
42. The insurer submits the claimant’s lumbar spine injury and symptoms are related to her long-standing degenerative condition and arthritis.
43. The insurer submits any symptoms currently experienced by the claimant is related to a natural progression of her pre-accident pathology, rather than the result of any traumatic injury related to the subject accident.
The insurer maintains this position. The insurer submits that any surgical procedure undergone by the claimant to the lumbar spine is not causally related to the subject accident, and so any resulting impairment is not attributable to the subject accident.
The insurer does acknowledge that if the Panel is of the view that the surgical procedure did arise from an injury sustained in the subject accident, then the resulting impairment would form part of the permanent impairment to be assessed by the Panel, even though this is contrary to the insurer’s submission above.”
The Panel met on 24 July 2024 to discuss the re-examination findings and in order to make decisions and finalise the Review.

REVIEW OF THE EVIDENCE

The Panel has received over 1,600 pages of documents from the parties. The Panel notes that Justice Basten in Rahman v Insurance Australia Limited t/as NRMA Insurance[5] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[5] [2022] NSWSC 1079.
While the Panel has considered all of the material uploaded by the parties, the Panel will not be referring to all of it but only those documents relevant to the issues in dispute.

Claim form and claim documents

The claimant reported the accident to the police on 28 March 2019, the day after the accident. The police did not attend the scene of the accident however the report by Constable Richards of North Shore Police Area Command is quite detailed. It begins by identifying the scene of the accident and where the claimant was sitting in the vehicle. The report goes on to note “vehicle 1 collided into the rear of vehicle 2 at a slow speed causing whiplash to the injured person’s neck”.

The police note details were exchanged and the taxi continued on to drop the claimant off but that later in the day the claimant had a sore neck and attended her local doctor. Her doctor apparently told her to go to the police and report the accident.
The police said that they spoke to the driver of the offending vehicle who said the vehicle the claimant was in accelerated from the intersection then braked suddenly which is why they collided.
The claimant lodged an application for personal injury benefits on 29 March 2019, two days after the accident.
The claimant describes the accident in her form as follows:
“…our taxi got hit from the back while sitting stationary at the traffic lights … I was thrown forward hit my head to the head rest in front of me where the passenger was sitting … immediately I felt sick [and] within half hour I felt light head [and] dizzy.”
The claimant described her injuries as follows:
“I was feeling like throwing up almost straight after the impact. Within half an [hour] I’ve started to feel light headed and dizzy, my head started to feel foggy, then follow with headache, my lower back started with this sharp pain when I was walking. I was out with a clinet … I couldn’t carry on with the rest of my shift …”
The claimant identified a previous injury in her late 20’s when she injured her coccyx but said otherwise, she was in good health at the time of the accident.
The claimant provided a statement dated 23 November 2020. She documents her previous lower back pain and treatment and headaches since she was 18.
Ms Hartman gives a consistent history of the circumstances of the accident and says she was forced forward and her head hit the headrest of the passenger seat and the seatbelt engaging and pulling her back. She says she was in shock.
After exchanging details, she says the taxi drove the claimant and the passenger to their original destination and that, “there was no substantial damage to the taxi.” The claimant then says after she got out of the car and while she was at the department store, she started to feel dizzy however as the day carried on, she felt like being sick and developed “an immense headache”. After 30 minutes she said she could not work and had to return.
Ms Hartman says she attended Chatswood Medical Centre and saw a GP and she went home with an intense headache and pain in her neck and lower back.
The claimant then documents her treatment and the development of further symptoms including psychological symptoms.
The claimant says:
(a)    she has severe headaches nearly every day with pressure on the right side of her head and she feels like blacking out;
(b)    she experiences neck pain when she moves her neck with pain radiating down her right arm, and
(c)    she has pain in the middle of her lower back.
Ms Hartman gave a further statement in support of her claim on 8 October 2021 which appears focussed on her damages claim.
The claimant documents how her injuries have affected her and the medications she has been taking. She says after a lumbar puncture she was left with pain in her back and numbness down her left leg and the back of her foot. She says she gets pins and needles in both her legs and her hands.
Dr Ho wrote the medical certificate in support of the motor accident claim on 27 March 2019. He diagnosed whiplash injury cervical spine, lower back pain and noted the presence of headache, dizziness, lower back spasms and neck stiffness. Dr Ho signed a certificate of fitness on 3 April 2019 which refers only to neck and back pain.
Dr Chehelnabi wrote a certificate of fitness on 16 April 2019.[6] He diagnosed “whiplash and soft tissue injury, microhaemorrhages and MRI changes some time dysphasia since accident”. He said there were no pre-existing factors which may be relevant to the condition. The diagnosis remained on several certificates of fitness until 28 November 2019 when

Dr Artinian changed the diagnosis to “head injury”.[7]
[6] Page 307 of the joint bundle.
[7] Page 353 of the joint bundle.
Dr Ho completed a certificate of fitness dated 2 March 2020[8] diagnosing “whiplash and soft tissue injury lumbar spine.”
[8] Page 364 of the joint bundle.

Correspondence concerning Dr Abraszko’s evidence

The claimant’s solicitor apparently wrote to the insurer on 26 November 2021 seeking a concession that the claimant had a WPI of greater than 10%. In its response dated

8 November 2021[9] the insurer noted that Dr Abraszko is not an “approved health practitioner” and that her evidence is not “admissible” in accordance with s 7.52 of the MAI Act. As the insurer was of the view there was no evidence to support the assertion that the claimant had a WPI of greater than 10%, the insurer rejected the claimant’s invitation to concede entitlement to non-economic loss.
[9] Page 11 of the joint bundle.
There was email correspondence which followed.
The insurer’s submissions dealt at paragraphs [4] – [15] with Dr Abraszko’s report and submitted (in bold underlined text) that it “is not admissible for consideration in the current dispute”. It does not appear that this was dealt with by the Commission, as Medical Assessor Cameron assessed the matter with the report of Dr Abraszko in the file that was before him.
The Panel notes the President’s delegate’s decision of 16 March 2023 which says:
“[11] A review of the list of authorised health indicates that Dr Renata Abraszko has not been authorised for the purposes of section 7.52(1)(b). It follows that her report dated 19 February 2021 is not admissible in all proceedings under Division 7.5 (medical assessment) of the Act.
[12.] Dr Abraszko’s report should not have been provided to the Assessor.
[13] Dr Abraszko’s report is not admissible in the proceedings before the Review Panel.”
While the report of Dr Abraszko is referred to in Medical Assessor Cameron’s report and in the submissions, the report has not been included in the joint bundle and therefore the Panel has not considered it.

Treating medical records and reports

Pre-accident records indicate:
(a)    issues of stress and anxiety surrounding the claimant’s separation from her husband with cardiac symptoms emerging in May 2014 and attendance at Royal North Shore emergency department.[10] Stress, depression and anxiety continued in 2015 with referrals provided for counselling;
[10] Page 407 of the joint bundle.
(b)    carpal tunnel syndrome in October 2014 were investigated and revealed mild median neuropathy at the left wrist;
(c)    lower back pain was investigated, and Ms Hartman referred to the orthopaedic clinic in November 2015 – she had lower back pain radiating to the left leg with pins and needles. A cortisone injection had not improved the condition;
(d)    thyroid issues leading to a total thyroidectomy in October 2015. Dr Delbridge, her surgeon on 11 November 2015 noted “non-specific symptoms of dizziness”;[11]
(e)
referral to the orthopaedic department of Royal North Shore Hospital for left leg dysesthesia in an S1 dermatomal distribution which “had an insidious onset” in October 2015.[12] A medical certificate was given for lower back pain and cortisone injection and certificate saying she was unfit for heavy lifting on

10 October 2016;[13]
(f)    cardiac investigation occurred for pain on exertion and other symptoms of chest pain requiring referral to a cardiologist in April to August 2017[14] and again in July 2018 and April 2019, and
(g)    on 20 February 2019, Dr Chehelnabi wrote a certificate which says, “this is to certify that [the claimant] is not for heavy lifting til further notice”[15].
[11] Page 458 of the joint bundle.
[12] Page 465 of the joint bundle.
[13] Page 281 of the joint bundle.
[14] Page 285, 295 and 304 of the joint bundle.
[15] Page 300 of the joint bundle.
The claimant saw Dr Ho at the GP practice on 27 March 2019. The doctor has a history of the vehicle being hit from the back by a truck and that she was propelled forward but “did not hit head”. The claimant had lower back pain, some neck stiffness, nausea but was said to have no headache. The claimant was referred for physiotherapy.[16]
[16] The referral is to Vincent Cagliostro and is at page 303 of the joint bundle.
On 16 April 2019, Dr Lau the claimant’s cariologist wrote to the GP noting the claimant’s concern of recent chest pain which he thought was probably not due to any cardiac issues, but he arranged further tests. He had a history of the car accident. The claimant had a stress test on 18 June 2019 which was normal from a cardiac perspective, but she had shortness of breath on exercise.
On 24 April 2019 the claimant was referred to Dr Mobbs[17] with a presenting problem of “funny sensation and speech problem and ‘right’ sided headache” since the car accident. The Panel notes Ms Hartman denied to Professor Fitzsimons ever having any problems speaking after the accident.
[17] Page 52 and 325 of the joint bundle. The claimant was also given a referral to Ronald Joffe, neurologist at the same time in the same terms.
The claimant attended on Dr Mobbs, neurologist on 26 April 2019 and reported a history of a jolt forward with immediate pain affecting the middle of her back as well as nausea. The claimant reported after walking for 30 minutes she felt unstable with more nausea and generalised headache. Dr Mobbs thought the features identified on the MRI were unlikely to be related to the accident and her view was the claimant was likely experiencing “whiplash exacerbating headache with likely migrainous as well as tension features”.
Dr Mobbs saw the claimant on 8 May 2019 and reported that the claimant said that for days and weeks after the accident she had “dermatomal sharp, neuropathic pain, paraesthesia and numbness which fortunately has settled”. She diagnosed radiculopathy.

Dr Mobbs also noted “chronic daily migraine secondary to whiplash” and requested approval for Botox injections.
Mr Gospodarek, physiotherapist reported to the claimant’s GP on 17 August 2019 that the claimant’s progress was slow with the claimant complaining of severe neck and head pain and nausea when attempting to move her neck. He thought she had musculo-ligamentous strains of the neck with possible disc pathology and C2/3 and right sided radiculopathy in the shoulder. On 31 August 2019, Mr Cagliostro, physiotherapist noted issues of stress associated with the claims process and suggested Dr Ho arrange counselling.
On 26 June 2019 Dr Mobbs reported the claimant’s headaches (likely of migrainous nature) were complicating her whiplash injury.
On 16 July 2019, the claimant had a right occipital nerve injection and on 23 July 2023 a left occipital lobe injection.[18]
[18] Pages 49 and 50 of the joint bundle.
On 31 August 2019 the claimant was referred to a psychologist for “anxiety since had injury and problem at work.”[19]
[19] Page 340 of the joint bundle.
On 4 November 2019 the claimant was referred by Dr Mobbs to Dr Selby who had an interest in headaches.
The claimant attended Ms Chen, exercise physiologist on 22 November 2019 and was given exercises to do at home. She noted limited range of motion and pain when completing right lateral lumbar flexion.
On 1 and 2 December 2019 the claimant had ambulatory blood pressure monitoring with normal readings.
On 8 October 2019 the claimant was referred to a sleep centre due to “obstructive sleep apnoea” and noting chronic headaches after the car accident. The claimant reported having Botox injections for the headaches and sleep disturbance since the car accident. Her blood oxygen levels were 94% but dropped to as low as 70% and it was advised she start CPAP immediately. In a subsequent report dated 29 October 2019, CPAP therapy had not helped as the claimant felt the headgear associated with it made her headaches worse and she stopped using it.
The claimant attended Royal North Shore Hospital on 8 November 2019. She was said to have had an acute exacerbation of a chronic headache. The headache improved “dramatically” with metoclopramide and Endone.
On 26 February 2020 Dr Mobbs has a history of the claimant experiencing “significant” lumbar pain which had been present since after the injury but not pursued due to the other more serious symptoms.
On 30 March 2020 the claimant was referred to Dr Selby, neurologist for a second opinion as her “migraine not better on analgesic”.[20]
[20] Page 366 of the joint bundle.
On 16 June 2020 Dr Mobbs reported an exacerbation of the claimant’s lumbar spine condition. Ms Hartman had left more than right lumbosacral pain which was non-tender and with no radiation. The claimant complained of her left hand being worse with numbness and paraesthesia. Migraines had reappeared. The claimant wanted a second opinion and

Dr Delcourt or Dr Selby were recommended.
On 6 July 2020 Dr Mobbs wrote to the GP noting the headaches were responding to Botox and that the headaches had a pressure element. The claimant had “diffuse and variable paraesthesia which do not correlate to the neuroimaging of possible radicular compression at the left C5/6”. She also noted lumbar spine symptoms “with no persisting sciatic features”.
Mr Cagilostro, physiotherapist wrote to Dr Chehalnabi on 16 August 2020[21] noting that the claimant was still troubled by neck and lower back pain with constant headaches. The claimant was also anxious and stressed and he suggested further referral to a psychologist.
[21] Page 673 of the joint bundle.
Ms Hartman was referred to a psychologist on 17 August 2020 for “anxiety due to chronic pain and work injury seeing physio advice needed”.
The claimant was referred to Ms Mullane for further physiotherapy on 7 September 2020 as “work injury, back, neck and shoulder pain has been going to physio not better”. In an email to the physiotherapist on 15 September 2020 Ms Hartman said, “within 3 hours after seeing you I’ve started getting this excruciating pains in the back, none of my pain killers I took helped, it’s even worse this morning to point I want to throw up from the pain.” The claimant was told to stop the exercises.[22]
[22] Page 685 of the joint bundle.
On 25 September 2020, Dr Cho referred the claimant to the emergency department of Royal North Shore as the claimant “has been under significant stress” and their appeared to be concern over her cardiac state.
Ms Mullane’s notes records that the claimant’s lumbar and neck pain flared up after treatment but settled. The physio records “stress due to finances, pain” and that Ms Hartman attributed her pain to her stress. She complained of headaches and “regularly has to put herself to bed in dark room”. The claimant had been having panic attacks. The claimant was asked to complete an activity diary but did not “as it gives her anxiety” and while advised to walk for 30 minutes a day the claimant refused as she feared a flare up.
Ms Mullane wrote to the claimant’s GP on 16 November 2020 advising that she was treating the claimant for cervical and lumbar spine complaints and gave her “pain education, pacing strategies and basic mobility exercises”. The claimant then reported that any new exercise program or activity aggravated her symptoms.
On 2 December 2020, the claimant had a CT guided interventional lumbar puncture at L4/5 which revealed a normal range of pressure, and a small amount of fluid was extracted for testing.
On 4 December 2020 the claimant was referred by Dr Chehalnabi to Dr Saravanja (orthopaedic surgeon) for lower back pain.
On 8 December 2020 Dr Mobbs reported that the claimant’s chronic migraine symptoms were persisting, and the lumbar puncture revealed no abnormality. Dr Mobbs recommended Emgality / Enerumab injections per month and that she have ongoing physiotherapy.
The claimant was referred to Dr Parkinson, neurosurgeon on 10 December 2020 for “opinion and management of her chronic neck and back pain due to an accident and whiplash injury”.
On 14 December 2020, the claimant attended Royal North Shore Hospital. The discharge summary[23] indicates the claimant presented with chest pain and was discharged the next day. The document says she had “worsening back pain, left leg pain and numbness” after the lumbar puncture 10 days ago. On examination there was midline tenderness at L3/4 and normal neurology in both legs. Radiology showed degenerative changes at L4-5 but possible infective changes at L4 on the left side however a neurologist considered them degenerative.
[23] Page 802 of the joint bundle.
In February 2021 the claimant saw a reconstructive dentist who detailed the claimant’s dental issues and a change in plan due to the claimant’s chronic pain following the accident. The claimant did not injure her teeth in the accident, but needed the removal of two upper teeth in order to have a full denture fitted. As a result of her apparent chronic pain issues, the removal of teeth was delayed and a partial denture fitted instead.
On 11 August 2021 the claimant had diagnostic medical branch blocks at L4/5 and L5/S1 but had an episode of significant dizziness and unsteadiness and the efficacy of the nerve blocks could not be evaluated.

Additional medical records

Records from Sydney North Neurosurgery includes a number of letters from Dr Parkinson to Dr Ho and records as follows:
(a)    1 February 2021 – the claimant attended for the first time complaining of pain in her neck, headache with pain throughout the entire right side of her body. He noted the diagnosis of Dr Mobbs but felt there was a ‘structural component with neck pain and neuralgia’. He recommended a cortisone injection but thought she might be best advised to see a pain specialist and recommended Dr Holford. He requested an MRI and bone scan.
(b)    15 March 2021 – the MRI confirmed there was no structural pathology. The cortisone injection flared up her symptoms but then produced some relief. He recommended pain management saying, “Farideh was also mentioning the lumbar spine today and she has predominantly back pain with very few leg symptoms.” He considered the pain management specialist should be involved with the lumbar spine.
(c)    17 December 2021 – the claimant attended “with a new problem today being classic clinical carpal tunnel syndrome in the left hand” which had been confirmed by nerve condition studies. He recommended surgery and was going to write to her workers compensation insurer.
(d)    6 March 2023 – the claimant returned complaining of mechanical lower back pain. He reviewed an MRI which showed an annular tear at L4/5. He requested an updated MRI and bone scan and review by a pain specialist.
(e)    16 June 2023 – the MRI revealed lateral recess stenosis at L4/5 and foraminal stenosis at L5/S1 affecting the left side and he requested steroid injections before considering surgery.
(f)    11 September 2023 – the claimant was unsure about the benefit of the steroid injection and Dr Parkinson wished her to have sacroiliac injections.
(g)    17 November 2023 – the claimant had L5 pain, and the MRI showed significant lateral recess stenosis and an annular tear “suggesting injury” and he recommended a laminectomy and would seek approval from the workers compensation insurers.
(h)    25 March 2024, the claimant had some left leg pain after the surgery which has abated but she has some left sided numbness. The claimant complained of dizziness after her surgery which may have been medication related but she was to see a neurologist.
(i)    13 May 2024 – the claimant’s leg pain was said to have completely settled but she still had some L5 pattern numbness. The claimant’s vertigo was being further considered and there is reference to an updated MRI of the brain having been requested.
Updated records from Sharp Neurology (Dr Sutherland) include the following letters to Dr Parkinson:
(a)    25 October 2022 – the claimant attended with sharp central chest pain which started after the most recent injection. The claimant was referred to emergency as a result of this chest pain.
(b)    16 December 2022 – violent migraines were said to have returned. Botox provided no relief at all. Aimovig helped but iCare would not fund it, “there has been incredible psychological stress regarding her insurance claim.” She recommended a pain rehabilitation program.
(c)    7 June 2023 – the claimant described left hemispheric sensory change present for more than 12 months now involving the left side of the face (with pain around the left side of the mouth and numb chin). The claimant reported her dentist says her teeth are fine. Dr Sutherland wanted to repeat the MRI of the brain and was to review the claimant.
(d)    2 August 2023 – the MRI had shown no progress of the white matter disease, and the trigeminal nerve was normal. The claimant reported a tingly feeling in the lips on both sides which sometimes moved to the tongue and up the nose “this distribution is quite unusual”. Dr Sutherland noted knee reflexes were present and normal.
(e)    13 April 2024 – the claimant had her spinal surgery and had three weeks in rehabilitation and additional care at home. While at rehabilitation the claimant suddenly felt lightheaded as though she might faint and this has become “more vertiginous” and episodic when she gets up or when sits from lying. “Today it occurred as she bent to put her shoes on.” It was happening two to three times a day. Dr Parratt suggested a Holter monitor for 24-hour blood pressure monitoring, blood tests, neurotology assessment and an MRI of the brain.

Lane Cove physiotherapy records provided by the parties include:
(a)    a multitude of AHRR forms including one from 4 April 2022 which refers to whiplash, bulging disc at L4/5, occipital neuralgia and chronic pain with left wrist carpal tunnel issues. Pre-existing knee and spinal osteo-arthritis is mentioned with persistent chronic pain since 2015;
(b)    the most recent AHRR was number 26 and dated 4 June 2024. There were 196 treatments provided to date and the claimant was reporting dizziness and she was waiting for approval for a brain MRI and the author of the form says, “I can confirm that it is not vertigo or cervical spine related”, and
(c)    a letter from Mr Silsby to Dr Ho dated 25 October 2023 noting the claimant had an ongoing whiplash disorder with low back pain and that she had recently had a L4/5 laminectomy with left sided leg pain since the accident. The claimant movement had improved and she was doing hydrotherapy.
Records from Allied Health Chatswood relate to the claimant’s psychological complaints. Treatment commenced in November 2019. An AHRR was completed on 3 June 2022 and correspondence of 22 July 2022 suggests that anxiety and depression associated with work stress was the issue. On 29 May 2023 the claimant was having panic attacks and at that stage 30 counselling sessions had occurred. The last attendance was on 17 June 2024 and the claimant advised Ms Chan her dizziness was being investigated and that her sons have booked her a flight to London in October.

Radiology

Pre-accident lumbar spine

A CT of the claimant’s lumbar spine was undertaken on 30 October 2015.[24] The history given was of lower back pain radiating down the left leg. There was a bulging of the discs at L4/5 and L5/S1 causing “high grade neural foraminal stenoses and compression of exiting L4 and L5 nerve roots and contact of descending L5 and S1 nerve roots”.
[24] Page 184 of the joint bundle.
Another CT scan of the lumbar spine dated 8 December 2017[25] with a clinical history of low back pain. The same findings were made with the comment “overall appearances have deteriorated since the prior study”. A right L5/S1 facet joint injection was undertaken.
[25] Page 210 of the joint bundle.

Post accident

Ms Hartman had an MRI of her brain on 15 April 2019.[26] This showed “non-specific white matter changes probably related to small vessel disease. There were also a number of “small susceptibility artefacts in the basal ganglia” on both sides consistent with areas of microhaemorrhages.
[26] Page 53 of the joint bundle.
On 2 May 2019, the claimant had an MRI of her cervical spine due to “left arm paraesthesia”. The conclusion was there were degenerative changes with osteophytic narrowing of the left neural foramina at C4/5 and C5/6 with the appearance of nerve root compromise on the left of C5 and C6.
On 5 February 2020, an MRI of the lumbar spine was done due to “low back pain”. There was a minor bulge at L4/5 and L5/S1 with an annulus tear at L4/5. The discs are described as “degenerative disc disease”.
On 7 July 2020 the claimant had the following studies[27] done:
(a)    MRI of the brain which compares a previous MRI of April 2019 and notes sinus issues not present before, non-specific white atter changes unchanged and asymmetry of the lateral ventricles unchanged;
(b)    MRI of the cervical spine showing a minor disc protrusion at C2-3, degenerative changes at C5-6 with possible left C6 nerve root compromise unchanged since May 2019 and high signal intensity within the cord at C4 and C5/6, and
(c)    MRI of the lumbar spine showed a generalised annular bulge at L3/4 but with no nerve root compression, a small tear of the disc and small protrusion at L4/5 with degeneration and some left L5 and left S1 nerve root involvement, unchanged since February 2020.
[27] Page 86 of the joint bundle.
The claimant had a further MRI of the cervical spine on 16 September 2020 which showed “no disc herniation or canal stenosis is seen” but there was left facet joint degenerative features without foraminal stenosis or nerve root compression. “No cord lesion or signal abnormality is seen.”
On 25 January 2021 the claimant had a bone scan and Gallium scan at the request of

Dr Mobbs.[28] The history was given of the car accident, back pain, the lumbar puncture and pain in the left leg and back, worse since lumbar puncture. The findings were of arthritis at the end of both sacroiliac joints, facet joint arthritis at L5/S1, and minor inflammation in the right L3/4 and left L4/5 facet joints. There were also low-grade arthritic change in the left superior acetabular lip and minor patchy facet joint inflammation in the upper cervical spine.
[28] Page 806 of the joint bundle.
An MRI of the cervical spine dated 5 March 2021 showed degenerative changes at C2/3, C3/4 and C4/5 on the left with no focal cord abnormality but mild compromise of the neural foramen a C3/4 on both sides and on the left at C5/6.
An MRI of the lumbar spine was performed on 26 March 2021 at the request of Dr Parkinson which showed degeneration at L4/5 and L5/S1 discs with moderate central canal and lateral recess stenosis at L4/5 due to a broad-based posterior disc protrusion.
On 15 May 2023 (page 3 of claimant’s additional bundle) the claimant had a bone scan due to “pain since December 2020 following MVA worse after previous lumbar puncture and cortisone injection”. It was compared to the previous bone scan of 25 January 2021. Findings were of active arthritis in the sacroiliac joints right worse than left which was unchanged. Also active right L5/S1 facet joint arthritis and mild to moderate facet joint arthritis in the right L3-4 and left L4-5 also unchanged.
Ms Hartman had a brain MRI on 14 June 2023 due to numb chin symptoms (page 15 of the claimant’s additional bundle). There were white matter hyperintensities “most likely related to microangiopathy” which had not changed since 2020 and the general conclusion was of an unremarkable scan.
On 2 August 2023 (page 14 of claimant’s additional bundle) the claimant had a CT guided lumbar spine foraminal injection due to left leg pain and on 4 October 2023 a further injection (page 461 of the additional bundle) due to “low back pain with some radiation to the lower limbs”. A further MRI of the claimant’s lumbar spine was undertaken on 14 November 2023 with a history of “ongoing back pain after Cortisone injection. Some loss of bladder function which has resolved. Paraesthesia down the right leg”. A comparison was made with the MRI of 26 March 2021 which noted, “there is increasing spondylosis centred upon the L4/5 level where increasing disc protrusion with annular defect as was a right facet joint synovial cyst contributes to moderate to severe canal stenosis and right lateral recess stenosis”.
On 8 December 2023 the claimant had an MRI of her cervical spine at the request of

Dr Parkinson due to C8 nerve distribution symptoms. This showed minor degenerative changes at C4/5 and C5/6 with mild bilateral foraminal stenosis with covertebral osteophytosis at those level.
On 6 May 2024 the claimant had another MRI of her brain with a clinical history of episodic dizziness both presyncope and vertigo which was worsening. The report found “mild white matter signal change, most compatible with minor background microangiopathic disease with no acute intracranial pathology or space occupying lesion”.

Specialist and medico-legal reports

Within the insurer’s bundle of records from Dr Mobbs is a letter to the workers compensation insurer dated 17 April 2020.[29] This report:
(a)    diagnoses “severe chronic migraines secondary to whiplash”;
(b)    the current symptoms are of “classic features of chronic migraine complicating head and neck trauma” including the dizziness and feelings of nausea, slurred speech (dysarthria) and sensory disturbance;
(c)    the Botox injections had not reduced symptoms greatly and further Botox was suggested, and
(d)    “a portion of patients do not improve despite management”.
[29] Page 768 of the joint bundle.
Dr Parkinson, neurosurgeon wrote to Dr Khalesi on 1 February 2021. He has a history of neck pain, headache and pain through the entire right side of her body. He considered there was a structural component to the neck pain and occipital neuralgia noting tenderness over the right C1/2 joint. He suggested a cortisone injection.
He suggested the claimant see Dr Holford for pain management.
On 15 March 2021, Dr Parkinson expressed the opinion there was no structural pathology in the cervical spine, and no leg symptoms in respect of the lumbar spine. He thought she should be cared for by Dr Holford and pain specialists.
The insurer has provided a report from Dr Holford of the Northern pain centre to

Dr Chehelnbai dated 30 March 2021.[30]
[30] Page 815 of the joint bundle.
He has a history of two main areas of pain, the neck and headaches and the lower back. He notes the radiology of the neck and that the claimant had Botox and was being treated by

Dr Mobbs. In relation to the back this “has become a more significant issue for her in recent months”. While the claimant had complained of increased pain after the lumbar puncture this was settling down, but her pain levels were aggravated by activity.
He noted the complexity of the presentation and the involvement of “a compensable motor vehicle accident”. He considered the migraine headaches may have been cervicogenic involving pain from the right C1/2 lateral joint or upper cervical facet joints. He noted however they were well controlled and did not think additional treatment should be pursued at that time but wanted to wait until after the claimant’s third Botox injection.
In terms of her back pain he thought the sacroiliac joints are the most likely sources of her pain which “are commonly injured in motor vehicle accidents”. He wanted to trial diagnostic blocks of the lower lumbar facet joint.
Dr Mobbs wrote to Dr Chehalnabi on 12 April 2021 referring to the claimant’s “pain syndrome”. She was planning lumbar injections and ongoing physiotherapy and rehabilitation for the neck.
Dr Singer from Dr Holford’s practice wrote to Dr Ho on 30 November 2021 she recounts a history of hitting her head on the seat rest in front of her and being hit in the back of the head by the client’s wheelchair which had been in the boot of the car.
At this interview the claimant was complaining of headaches, occipital neuralgia, back pain and emergent left hand and arm pain. The claimant also complained of panic attacks, bullying by her employer and 20 kg in weight gain.
She had trialled several anti-depressants but could not tolerate any of them and so Dr Singer wished to have pharmacogenomic testing done and suggested a new antidepressant. The claimant was said to be seeing a psychologist which was not helping.
Dr Singer wrote again on 20 December 2021 noting the claimant was still experiencing low back pain and was having repeat diagnosis medical branch blocks. The claimant was reported to be very distressed after a meeting with her CEO. While she had been given an assessment form for an online CBT program, she had not completed it and she had been given access to a headspace App but had not downloaded it.
The insurer obtained a report from Dr Vickery, psychiatrist dated 2 February 2022. He summarised a large volume of material into a few paragraphs under the heading “medical history”. He has the record of previous low back pain and the development of low back pain after the accident. He noted a history of 2014 psychological issues in the context of a separation. He noted the claimant was seeing a psychologist and psychiatrist (Dr Singer).
Ms Hartman reported workplace stresses and suicidal ideation due to pain and work problems. She describes a “massive nervous breakdown” after a meeting with the CEO and she had not been back to work since.
Dr Vickery found no psychiatric impairment and so psychiatric disorder or injury due to the accident.
The insurer obtained a report from Professor Fitzsimons, neurologist dated 1 June 2022.
The Professor has a history of the accident noting Ms Hartman’s head hit the headrest and her body was thrown forwards and backwards. She had no idea what speed the truck was doing when it hit her taxi.
Professor Fitzsimons documents the development of the claimant’s symptoms noting that most forms of treatment have had no long-term effect. The occipital neuralgia injections were said to have been successful for six months but she noted the claimant had no further similar injections. Dr Mobbs had referred her to a headache specialist Dr Ng. The claimant reported paraesthesia in the left arm and says this is due to carpal tunnel. Ms Hartman denied having difficulty with her speech at any stage.
The claimant reported continuing lower back pain and she had nerve blocks which were of no assistance.
Dr Fitzsimons did not detect any specific occipital tenderness or numbness on her examination of the claimant’s head and no decreased sensation in the head or neck. Carpal tunnel tests were positive in the left wrist and otherwise there were no neurological abnormalities and no wasting in the upper arms or forearms.
There was guarding at about L3, but no neurological abnormalities in the lower limbs and there was dysmetria on the flexion / extension plane. Right ankle reflex was detected with reinforcement, but no reflexes were detected on the left. There was no wasting in the lower limbs.
Professor Fitzsimons noted the claimant had sleep apnoea with hypoxemia which “is a classic cause of morning headaches” and is a likely contributor to her complaints of headache. She also considered the claimant had carpal tunnel syndrome in the hands, but that the complaints of paraesthesia were not in a radicular distribution. She noted that hypothyroid could also result in carpal tunnel.
Professor Fitzsimons said the claimant did not hit her head and that the basal ganglia microhaemorrhages could not be related to the accident and are more likely to relate to intermittent hypertension.
She diagnosed “whiplash” a soft tissue injury to the neck with referred headaches and relapse of an earlier migraine state.
Professor Fitzsimons said there was no evidence of radiculopathy in the upper limbs and she considered the claimant had an exacerbation of previous low back pain without radiculopathy in the lower limb.
There was no impairment for any head injury.
Professor Fitzsimons noted complaints of back pain early on but then neck and headaches dominated before the lower back complaints again began to dominate. She considered this was consistent with the flare up of an underlying chronic condition pre-dating the accident.
She noted no structural changes in the radiology.
The Professor assessed WPI at:
(a)    5% due to dysmetria of neck movement;
(b)    no WPI for the back injury, and
(c)    she noted that an occipital nerve injury could attract a 5% WPI for the greater occipital nerve or 3% for the lesser occipital nerve. The radiologist had not stated which nerve had been injected but in any event, as there was no sensory impairment Professor Fitzsimons considered there was no assessable impairment.
The Panel notes there are no other Medical Assessments from the Commission and no medico-legal reports from the claimant.

RE-EXAMINATION FINDINGS

The claimant attended the medical re-examination with Medical Assessor Gibson in her North Shore room. Ms Hartman was unaccompanied to the assessment and although she had been requested by the Panel to do so, she had brought no imaging studies (scans or films) with her.

Pre-accident medical history provided by the claimant

The claimant advised she had a partial thyroidectomy in 2013 and a cholecystectomy in 2012.
Ms Hartman denied any previous motor accidents or work injuries and in particular no prior complaints with her neck, lower back or head. Although she did note she had had some hormonal headaches with her periods, she said she had no headaches since her hysterectomy in 2007.
The claimant was then asked about the treating medical practitioners’ reports and notes. She agreed that she had had some mental health issues or stress and anxiety in association with separation from her husband. She also confirmed that there had been multiple investigations to exclude cardiac disease, although she said her symptoms had eventually been put down to thyroid disease. She agreed she had diabetes and hypertension. She confirmed carpal tunnel syndrome in October 2014.
When she was asked about the entries concerning low back pain, she said that she was working as a carer, and it was not surprising she had some low back discomfort. When she was taken to the particular notes, she agreed that she had had low back pain radiating to her left legs with pins and needles in 2015 and again in 2017. She maintained however that her low back complaint had settled by the time of the subject accident. When asked about the certificate completed by Dr Chehalnabi on 20 February 2019, certifying that she was unfit for heavy lifting until further notice, she could not recall it.
Ms Hartman said she takes Olmesartan 20mg for hypertension. She takes a mixture of Simethicone and Loperamide for gastric upset. She also uses a probiotic and magnesium supplement and applies Anusol as required.

Relevant personal history

The claimant had completed high school. She had partially completed a course with an open university but discontinued it to start her family.
She said that she worked as a caregiver. She said she worked for a provider in Roseville for four and a half years and before that with Home Instead for seven years. She has ceased work after the accident. She had also commenced coursework in Dementia Care but discontinued after the accident.

History of the accident

The claimant had been accompanying one of her clients, a 90-year-old woman, into the city. She said the lady had wanted to visit the food hall in David Jones as it was set to close. They were travelling by cab, the claimant in the rear seat of the taxi and her client in the front seat.
She said the vehicle had come to a stop at traffic lights when they were hit from behind by a truck. She understood the truck driver had admitted to being on his mobile phone at the time so had failed to notice that the traffic had come to a stop. She said that she did not get out of the vehicle while the taxi driver exchanged details with the truck driver. They had then resumed their journey into town.
Her client was helped out of the taxi into her wheelchair and the claimant had then pushed the wheelchair anywhere from 5-10 minutes en-route to the David Jones store when she felt that "something was not right in my head". She felt dizzy and nauseous. She apologised to her client, and they had then caught another taxi back to the nursing home. Once there the claimant organised for a nurse to look after her client.
When asked about any head injury occurring in the subject accident, the claimant said she had hit the headrest as she was thrown forward and back. She confirmed she had been wearing a seatbelt at the time. When asked had there been any marks on any part of her head, she could not recall there being any.
Later that day, she caught a taxi to visit the Chatswood Medical Centre where she had seen Dr Ho. She said the doctor had told her that she had some “friction burns” from the seatbelt. Physiotherapy was suggested. She was taken to the records noting there was no mention of seatbelt marks or bruising and Dr Ho has said she had not hit her head and there was no headache. The claimant could not explain why that was so. The Panel notes that Dr Ho had certified on 27 March 2019 a diagnosis of whiplash injury to the cervical spine, lower back pain and recorded complaints of headache as well as dizziness, lower back spasms and neck stiffness.
The claimant reported the accident to the police the following day, she said this was more in relation to her client, “a frail older woman” rather than because of her own personal injuries. When asked why she told the police about a whiplash only, she said that her other symptoms were not immediately apparent at that time, “apart from the vertigo and nausea”. Ms Hartman contacted the insurer and was told that the accident came under workers’ compensation, so she put in a claim.

She attended physiotherapy a few days after the accident. At that stage she said there was some neck and low back pain.
She was referred for an MRI scan of her head.
She had come under the care of neurologist, Dr Mobbs. On 26 April 2019 Dr Mobbs recorded a history of mid-back pain, nausea, a sensation of instability and a generalised headache. She opined the claimant had whiplash exacerbating a headache with likely migrainous and tension features. Ms Hartman said she had three Botox injections to deal with the headache that she was experiencing at that stage and these were successful.
She was later referred to Dr Selby but could not visit her as the doctor had moved in the interim.
The claimant had later come under the care of the Northern Pain Centre. Diagnostic medial branch blocks to bilateral L4/5 and L5/S1 facet joints were performed at North Shore Private Hospital on 11 August 2021. Ms Hartman confirmed Dr Holford’s note on 11 August 2021 that she “…continues to experience pain now localised to the left side of the low back only, radiating into the buttock and down the posterior aspect of the left lower limb to just below the knee. Farideh also reports a recent increase in the severity of her headaches”.
In August/ September 2023, she had a cortisone injection into her back. Neurosurgeon

Dr Parkinson had advised further injections, but these were of no help. In fact, following one of these injections, Ms Hartman said she developed severely increasing pain and some element of incontinence and numbness over her legs, left greater than right.
On 12 February 2024, Dr Parkinson performed a laminectomy at Royal North Shore Hospital. On 25 March 2024 he gave a diagnosis of lumbar spondylosis and noted she had some left leg pain in the L5 distribution in the days after surgery, which abated. The claimant confirmed that she also had some numbness in the same distribution and that Dr Parkinson had advised her he was unsure of the cause.
She underwent inpatient rehabilitation at Lady Davidson Hospital where she recalled suffering severe episodes of vertigo and being advised to use a walking stick due to her poor balance.
There was later referral to Dr Parratt, and Ms Hartman understood that some differential diagnoses were considered in terms of her dizziness including stroke, vertigo and cardiac causes. A 24-hour blood pressure monitor was done and she was found to be hypertensive and so was commenced on medication.
More recently, she was referred to the Balance Clinic in Newtown for further assessment of the vertigo, but she is still waiting for an appointment.

Current complaints

The claimant described intermittent neck pain, which is aggravated by awkward or prolonged positions of the head and neck. She indicated her pain was over the C1/C2 area and at times it spread to the right trapezius.
She said there had been pins and needles into her left arm some time ago, but this has resolved, particularly since she had carpal tunnel surgery to her left wrist.
She said there is now some pins and needles and numbness over the entire right hand but not in the right arm. This distribution of altered sensation did not follow a dermatomal pattern, and this symptom seemed only to occur when she raises her hand.
Ms Hartman complained of constant low back pain which is aggravated by prolonged sitting or standing. She complained of numbness over the anterior lateral left thigh. She manages to sit or stand for up to 20 minutes.
In relation to the head, there are right-sided headaches which generally begin over the forehead and spread over the right side of the face. She continues to experience episodes of vertigo. She said the headaches increase in severity between monthly Aimovig injections. Her last injection was on 17 June 2024.

Current treatment

The claimant has monthly Aimovig injections and uses Rizatriptan 10mg wafers as required for headache. She takes Panadol Osteo for her other pains. Ms Hartman reports she visits her GP on a monthly basis for certification.
She is scheduled to visit Dr Parratt in August 2024. She had last seen Dr Parkinson in June 2024, when she was advised that no further reviews were required unless new symptoms arose. She hopes to have an appointment with Dr Nham at Newtown Balance Clinic but is waiting to have this scheduled.

Activities and restrictions

The claimant currently lives with her youngest son in a first-floor, two-bedroom, one-bathroom flat. Her son is planning to move out soon. She has a second son who lives in Darwin and a daughter who lives in Homebush. She has been separated from her husband for over 10 years.
She manages the housework but gets help with the shopping from her daughter and son. She volunteered that her GP had told her not to drive for any longer than 10 minutes, previously this was because of the symptoms in her left hand but now also due to the dizziness.

Physical examination

The claimant was right hand dominant. She had a stocky build, and was 165cm tall and weighed 96kg with a BMI of 35.3 which places her in the obese range. She mobilised with the aid of a stick which she said was due to her balance issues which she associated with movements of her head. There were no episodes of unsteadiness or loss of balance during the course of the examination.
When Ms Hartman’s head was examined there were no sensory abnormalities in the pattern of the occipital nerve however she reported being tender over the whole of the right side of the head.
On examination of the cervical spine, there was no local tenderness. Movements were noted as follows:
(a)    flexion was to two thirds normal and extension to one half normal;
(b)    lateral flexion was reduced to three-quarters normal on both sides, and
(c)    rotation was reduced to three-quarters normal.
There was no muscle spasm or guarding.
On examination of the upper limbs, there was normal power, reflexes and sensation (to light touch and pin prick). As noted above, the claimant reported an unusual sensation when raising her right hand off her knee. Ms Hartman complained of pins and needles over her entire right hand but not in any part of the arm which does not correlate to a dermatomal pattern.
There was no evidence of muscle atrophy with measurements:
(a) upper arm – 38cm in both the right and left, and
(b) forearm - 28.5cm on the right and 28cm on left. This is not clinically significant due to the claimant’s right-hand dominance.
There were no nerve root tension signs evident on testing.
On examination of the shoulders, there was normal, full range of motion with no pain complaints on extremes of shoulder movement.
On examination of the lower back, there was no asymmetry with measurements recorded as follows:
(a)    half-normal flexion and extension;
(b)    two-thirds normal lateral flexion on both sides, and
(c)    two-thirds normal rotation on both sides.
There was no muscle spasm or guarding.
On examination of the lower limbs, there was normal power, reflexes and sensation apart from reduced sensation over the left antero-lateral thigh. There was no evidence of muscle atrophy with both thighs measured at 54cm and both calves at 43cm. There were no nerve root tension signs.
There was tenderness in the region of the laminectomy scar which measured 5.5cm and was well healed.

CONSIDERATION OF THE ISSUES

Did the claimant sustain a head injury in the accident?

On the day of the accident Dr Ho records the claimant did not hit her head and she had no headaches. The claimant told the police the day after the accident she sustained a whiplash injury to her neck. In her claim form lodged two days after the accident she said her head hit the headrest in front of her and that immediately she felt sick and later lightheaded and dizzy and a headache developed. Ms Hartman’s headaches and dizziness have been extensively investigated in the five years since the accident.
The test of causation of injury is two-fold. There is a medical determination required as to whether the accident could have caused a head injury and then a factual determination as whether the accident did in fact cause a head injury.
The medical members of the Panel accept that a rear end collision can result in an impact between the front of the head of a rear seated passenger and the seat rest in front, particularly if the incident involves speed, significant force, a passenger not wearing their seat belt properly or the seat is pushed far back.
The question remains whether the accident did cause a head injury.
The claimant has consistently reported an impact between her head and the back of the seat in front of her.
The claimant says the taxi was hit by a truck (which could involve more force than had the taxi been hit by a small sedan) however in her statement, Ms Hartman says there was no substantial damage done to the taxi (which suggests little force was involved). The Panel notes the history of the accident provided by the truck driver (recorded by the police) was that the taxi accelerated from the lights then stopped suddenly which was why he hit the taxi. This suggests there could have been two opportunities for the claimant to hit her head.
The Panel also notes Dr Singer in November 2021 took a history of the claimant being hit in the back of the head by her client’s wheelchair. This particular history has not been provided to anyone else and does not strike the Panel as plausible. However, the Panel has no information about the type of taxi or where the wheelchair was stowed in it.
There is no evidence from the driver of the taxi as to the significance of the impact and any complaints of pain made by the claimant. There is no evidence from the other passenger the “frail old woman” and any injuries she may have sustained. There is no accident reconstruction evidence before the Panel as to the forces involved and likelihood of injury.
Ms Hartman attended upon her GP the day of the accident and he records she did not hit her head however in the claim form lodged two days after the accident the claimant said she did. The claimant could not explain why her GP did not record that she sustained a head injury and it may be the simple explanation is that, “busy doctors sometimes misunderstand or misrecord histories of accidents” see Davis v Council of the City of Wagga Wagga.[2]
[2] [2004] NSWCA 34 at [35] (Davis).
On the information currently before the Panel, in particular the contemporaneous records and the claimant’s consistent history, the Panel is satisfied that the forces involved in this accident could have and did cause the claimant’s head to come into contact with the headrest of the vehicle in front of her.

Did the claimant sustain a neck injury in the accident?

The insurer does not appear to dispute that the claimant sustained some form of neck injury in the accident, but the insurer disputes the degree of impairment flowing from that injury.
The Panel has considered the contemporaneous records and notes that the claimant has consistently referred to suffering a whiplash injury. The Panel is satisfied that the claimant could have and did sustain an injury to her neck in the accident.
The claimant has had multiple scans of her cervical spine in the five years since the accident. The scan of 2 May 2019 does not indicate any fractures or dislocations but have revealed degenerative changes that the medical members of the Panel would expect in a woman of 57 years of age (at the time of the accident) and who has worked as a carer. The Panel also notes the nerve conduction study on 16 May 2019 found no evidence of cervical nerve root injury.
While the Panel accepts that later scans have indicated there may be additional pathology in the claimant’s cervical spine, the Panel does not accept that this was caused by the accident. The later scans support the continued progression of the underlying age-related changes.
The Panel is satisfied that the claimant sustained an injury to the soft tissues of her neck which has aggravated the degenerative changes in her spine.

Did the claimant sustain a lumbar spine injury in the accident?

The insurer notes the claimant’s pre-accident history of lumbar spine pain and injury which were investigated with scans and referral to a specialist and treated (including the administration of an injection). While the claimant first denied any symptoms in her lumbar spine, she then conceded she did have some problems but asserted she had recovered from them at the time of her accident. She could not however explain the medical certificate from her doctor a few weeks before the accident advising that she was not fit to lift heavy weights.
The claimant complained of lower back pain after the accident and the lower back was referred to in the first medical certificate. Thereafter the lower back complaints were episodic and there are references to an exacerbation for example in June 2020. Having considered all of the medical records from the claimant’s GP and the specialists who have seen the claimant, it is the clinical judgment of the medical members of the Panel that the claimant sustained a soft tissue injury to her lower back. The claimant had well established degenerative changes in her lower back evident in the radiology of 2015 (disc bulges, stenosis and nerve root compression) and 2017 (osteoarthritis, cauda equina compression and so on).
The Medical Assessors are of the view that the soft tissue injury to Ms Hartman’s back exacerbated these existing changes and resulted in some symptoms from which the claimant recovered. The claimant experienced further exacerbations and symptoms as time passed but these are, in the Medical Assessors’ clinical judgment related to the underlying condition and not to the accident.
The medical members of the Panel do not accept that the need for the lumbar spine surgery was caused or materially contributed to by the accident. The need for the laminectomy appears to be to address the bulging of discs at L4/5 and L5/S1 and the “high grade neural foraminal stenoses and compression of exiting L4 and L5 nerve roots and contact of descending L5 and S1 nerve roots” identified in 2015 which had deteriorated by December 2017 and which may have been the reason for the medical certification in the month before the accident. It is the Panel’s view that the surgery was related to the continued progression of Ms Hartman’s degenerative spinal disease rather than any temporary exacerbation or minor aggravation cause by the motor accident.

IMPAIRMENT ASSESSMENT

Spinal impairment provisions

Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions, the cervicothoracic, thoracolumbar, and lumbosacral. If injury is alleged in more than one region of the spine then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories and a number of indicia provided (see Table 7) to assist in the assessment of which category is appropriate. The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim DRE categories II and III are relevant.
DRE category II requires there to be:
(a)    Pain with guarding or
(b)    Non-uniform range of motion – dysmetria or
(c)    Non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
DRE category III requires radiculopathy which is defined in cl 6.138 as the impairment caused by dysfunction of a spinal nerve root or nerve roots and requires two or more of the following clinical signs to be found on an examination:
(a)    loss or asymmetry of reflexes;
(b)    positive nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
If any impairment to another part of the body results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[31] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[32]
[31] [2011] NSWSC 351.
[32] This is referred to as the “Nguyen Principle”.

Cervicothoracic spine

The claimant says she has pain but there was no local tenderness reproduced on testing. There was no guarding observed by Medical Assessor Gibson at the re-examination but on the flexion / extension plane there was dysmetria, but the other planes of movement showed loss but symmetrical loss of motion.
The claimant did not satisfy the criteria for a DRE category III impairment because there was no cervical radiculopathy. Power, sensation and reflexes were normal on testing. There was no evidence of muscle atrophy and nerve root tension signs were negative.
Due to the presence of dysmetria, the claimant is assessed as having DRE Category II, 5% WPI in accordance with the descriptors in Table 6.7 of the Guidelines.

Lumbosacral spine

The claimant says she has pain in the lower back but there was no local tenderness reproduced on testing. There was no guarding observed by Medical Assessor Gibson at the re-examination. On all planes of motion there was a reduction of movement, but it was equally reduced. Testing did not reveal any non-verifiable radicular symptoms.
The claimant did not satisfy the criteria for a DRE category III impairment because there was no lumbar radiculopathy present when she was re-examined. Power, sensation and reflexes were normal on testing. There was no muscle atrophy and no positive sciatic nerve root tension signs.
While the claimant has had spinal surgery, it was a laminectomy only which does not attract a DRE category IV rating.
The above suggests a finding of DRE category I, 0% WPI in accordance with the descriptors in Table 6.7 of the Guidelines.
However, as the Panel has found the claimant’s lumbar spine injury was a soft tissue injury causing an aggravation or exacerbation of a pre-existing condition the Panel is of the view there is no current assessable impairment resulting from that soft tissue injury. Any impairment in the claimant’s lumbosacral spine, including impairment resulting from her recent surgery is not, in the Panel’s view an impairment resulting from an injury sustained in the accident.

Head including occipital nerve and headaches

The central nervous system including the brain is assessed in accordance with Chapter 4 of AMA4 and cls 6.160 – 6.176 of the Guidelines.
Clause 6.160 provides for the following categories of impairment resulting from head and brain injury:
(a)    aphasia and communication disturbances (s 4.1a of AMA4);
(b)    disturbances of mental status and integrative functioning (s 4.1b of AMA4);
(c)    emotional or behavioural disturbances (s 4.1c of AMA 4), and
(d)    permanent disturbances in level of consciousness and awareness such as a coma (s 4.1d of AMA4).
Medical Assessor Gibson did not observe that Ms Hartman had any difficulty with comprehension or communication therefore section 4.1a of the AMA 4 Guides is not relevant to this assessment. Bearing in mind the nature of her injury and current complaints, sections 4.1d of AMA 4 Guides is also not relevant to her impairment assessment.
Clause 6.164 of the Guidelines provides that in order for there to be an assessment of mental status impairment (section 4.1b) and emotional and behavioural impairment (section 4.1c), there must be:
(a) evidence of a “significant impact to the head”, and
(b) one or more significant, medically verified abnormalities such as an abnormal Glasgow Coma Scale (GCS) score, post-traumatic amnesia (PTA) or brain imaging abnormality.

Although Ms Hartman says her head did connect with the head rest in front of her, and the Panel has accepted that did occur, there was no period of unconsciousness or confusion. The claimant continued with her journey, got her client out of the taxi, wheeled her client to the department store before developing symptoms. The impact does not appear to have occurred at high speed and Ms Hartman confirmed there was little deformation of the vehicle. Ms Hartman does not report any fracture or laceration or bruise to the front of her head where it hit the headrest and Dr Ho does not report any laceration or bruise to the head in his note on the day of the accident. The medical members of the Panel would expect even a busy practitioner to record lacerations or bruising of the head noting the potential seriousness of a head injury. The Panel is not satisfied that there was a significant impact to Ms Hartman’s head in the accident as required by cl 6.164(a) of the Guidelines.
In relation to cl 6.164(b) the Panel notes there was no GCS score as the claimant was not seen to by ambulance officers, did not attend hospital and her GP Dr Ho did not record any head injury and examination findings in relation to any alleged head injury. There is no evidence of PTA as the claimant has a good and clear recall of the events leading up to the accident and the events after the accident. An MRI of Ms Hartman’s brain was performed on 15 April 2019, six weeks or so after the accident. This reported nonspecific white matter changes related to small vessel disease– differential diagnosis: hypertension, hyper coagulopathic state or vasculitis. Small susceptibility artifacts in the basal ganglia were said to be consistent with microhaemorrhages. It is the clinical judgment of the medical members of the Panel that microhaemorrhages are not usually associated with traumatic brain injury. Microhaemorrhages associated with traumatic brain injury more commonly occur in the frontal lobes. The Medical Assessors would, in their clinical judgment expect microhaemorrhages in the basal ganglia to occur in an accident involving greater speed, greater forces and more substantial damage to the vehicle the claimant was in.
The claimant has had a presentation to Royal North Shore Hospital for headache and hypertension. She is on oral hypoglycemic medication for non-insulin dependent diabetes. She is on cholesterol lowering medication. She has been diagnosed with sleep apnoea. In the clinical context of an overweight patient the changes reported in the claimant’s brain scans are more likely caused by her diagnosed diabetes, hypertension and sleep apnoea.
There is therefore no evidence of a “significant impact to the head” and no brain imaging abnormality caused by the accident.
It is the Panel’s view that any injury to the claimant’s head caused by the accident did not cause any assessable brain injury impairment.

Is there an impairment due to headaches or occipital nerve injury?

Ms Hartman has complained of headaches since the day of the accident. She described to Medical Assessor Gibson right sided headaches beginning over the forehead and spreading over the right side of her face. They can worsen between her monthly Aimovig injections.
Ms Hartman’s headaches have been thoroughly investigated and the possible source of her headaches has included:
(a) sleep apnoea can produce headaches was diagnosed in August 2019 which is not related to the accident but the claimant’s weight and age. The claimant advised to use CPAP but did not like it and her headaches continued, and
(b) stress and anxiety can produce headaches and there is a history of pre-accident and post-accident stress and anxiety involving work issues, her separation from her husband and her workers compensation and motor accident claims.
Occipital nerve injury can cause occipital neuralgia and pain in the head. The Panel notes injections in the area of the occipital nerve gave relief, but the claimant does not appear to have had any further injections and her headaches have continued. The claimant’s description of pain in the forehead spreading over the right side of her face is not clinically consistent with an occipital nerve injury and the medical members of the Panel are not of the view that the claimant’s current headache syndrome is caused by any occipital injury.
The Medical Assessors note that headache and nausea following a whiplash injury to the cervical spine is quite common and this has been the diagnosis of Dr Mobbs the claimant’s long-term treating neurologist.
Clause 6.162 of the Guidelines says:
“Headache or other pain potentially arising from the nervous system, including migraine, is assessed as part of the impairment related to a specific structure. The AMA4 Guides state that the impairment percentages shown in the chapters of the AMA4 Guides make allowance for the pain that may accompany the impairing condition.”
The first sentence of this clause suggests that if headache is caused by an occipital nerve injury, then it is to be assessed as part of that injury and not separately. As Ms Hartman did not demonstrate at the re-examination sensory deficit, pain or discomfort in an occipital nerve distribution, there is no current assessable impairment resulting from headaches if they were caused by an occipital nerve injury.
If the headache is related to the whiplash injury (for example disruption of C1/2 as suggested by Dr Holford, pain physician) then it is to be assessed as part of a cervical spine injury. In that case, DRE categories I and II refer to pain and no separate impairment for headaches is allowed.
The Panel notes cl 6.38 located in the introductory section of the Guidelines says this about pain (which would include pain caused by headaches):
“Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides [the pain chapter] must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”

CONCLUSION

The Panel’s assessment of the impairment resulting from the claimant’s injuries referred for assessment is:
(a)cervical spine          5% DRE category II;
(b)lumbar spine            no assessable impairment, and
(c)head injury              no assessable impairment from any brain injury, occipital nerve injury or headaches.
As the Panel has found the same degree of impairment as Medical Assessor Cameron from the same injury, it follows therefore that his certificate should be confirmed.

[2024] NSWPICMP 534

2 August 2024