Hellegers v AAI Limited t/as AAMI
[2024] NSWPICMP 867
•18 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Hellegers v AAI Limited t/as AAMI [2024] NSWPICMP 867 |
CLAIMANT: | Sharon Kay Hellegers |
INSURER: | Australian Associated Motor Insurers Limited, trading as AAAMI |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 18 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); Motor Accident Compensation Regulation 2020; medical assessment of whole person impairment (WPI) and treatment dispute by Medical Assessor (MA) and review under section 7.26 of the MAI Act; claimant injured in motor vehicle accident of March 2017; collision with kangaroo; severe impact; surgery to C5/6 ACDF; issue of degree of whole person impairment (WPI); issue of causation; review of medical assessment; Held – Medical Review Panel revoked determination of MA; determination of 29% WPI; surgery is reasonable and necessary. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION
|
STATEMENT OF REASONS
BACKGROUND
Ms Sharon Kay Hellegers (the claimant), who was born in August 1965, was injured in a motor vehicle accident (the accident) on 10 March 2017.
Australian Associated Motor Insurers Limited (the insurer) is liable to pay Ms Kay any damages under the Motor Accidents Injuries Act 2017 (the MAI Act).
The dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAI Act.
There is a secondary dispute in relation to treatment.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to section 7.21 for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
This application is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment of the subject of this review was conducted at the Personal Injury Commission (Commission) by Medical Assessor Home dated 17 June 2021 (the medical assessment). Medical Assessor McGrath determined that the whole permanent impairment was 2%.
Medical Assessor McGrath also determined that the surgery to C5/6 of the anterior cervical decompression and fusion did not relate to the issue caused by the accident.
The delegate of the President referred the medical assessment to the Review Panel (Panel).
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
CONDUCT OF THE REVIEW
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 Merit Reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
The parties provided a bundle of documents for the Panel’s consideration. The insurer’s bundle was only eight pages because it seemingly did not repeat the material contained in the claimant’s bundle. The Panel’s enquiry to the parties regarding the material before it drew no objection from the parties.
On 2 October 2024, the Panel issued a further direction noting the history of pre-accident symptoms recorded by previous Panels. The direction was in the following terms:
“The Panel notes the pre-accident history contained in the medical assessment certificates of the Review Panel dated 5 September 2016 (Claimant’s bundle, p 54) and 9 March 2018 (Claimant’s bundle, pp 83-84).
The source material is not contained in the claimant’s bundle.
The claimant is directed to advise whether she admits the accuracy of the pre-accident histories referred to above. Failing such admission, the claimant is to produce all clinical records for the period from the 2008 motor accident to the subject motor accident.
The claimant is to provide a response and produce the further documents by close of business, 16 October 2024.”
The claimant responded to this direction advising that she admitted the accuracy of the pre-accident histories contained in the Medical Assessment Certificates of the Panel dated 5 September 2016 (claimant's bundle page 54) and 9 March 2018 (claimant's bundle,
pp 83-84).These histories are set out in the discussion of the evidence.
MEDICAL ASSESSMENT UNDER REVIEW
This review is from the medical assessment when it was determined that the claimant suffered a 6% permanent impairment for the physical injuries caused by the motor accident. Medical Assessor Home assessed the impairment of the lumbar spine at 5% and the scarring at 1%. The Medical Assessor found that the motor accident did not cause injuries to the cervical spine and either shoulder.
Causation
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Motor Accidents Compensation Act 1999 (MAC Act). In Raina v CIC Allianz Insurance Ltd Campbell J stated:
“One may accept that a Review Panel is engaged in the process of dispute resolution by an expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law, including the law of causation, in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise, but rarely.”
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
The following injuries were referred by the Commission for assessment:
(a) left arm soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, consequential impairment from cervical spine;
(b) right arm/forearm soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, consequential impairment from cervical spine;
(c) cervical spine soft tissue, orthopaedic injury, aggravation and acceleration of degenerative changes, C5/6-disc protrusion, C6 root compression, exacerbation of pre-existing cervical spondylosis;.
(d) right foot/right big toe – soft tissue injury/orthopaedic injury, aggravation and acceleration of degenerative changes, numbness;
(e) right-hand soft tissue injury/orthopaedic injury, aggravation and acceleration of degenerative changes, consequential impairment from cervical spine left hip/lower limb associated pain and restricted movement derived from the lumbar spine, soft tissue injury;
(f) right hip/lower limb – associated pain and restricted movement derived from the lumbar spine, soft tissue injury;
(g) lumbar spine – soft tissue injury/orthopaedic injury, aggravation and acceleration of degenerative changes, L4/5-disc bulging;
(h) left shoulder soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, consequential impairment from cervical spine;
(i) right shoulder – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, consequential impairment from cervical spine, and
(j) thoracic spine – soft tissue injury/orthopaedic injury, aggravation, and acceleration of degenerative change.
Treatment disputes to be assessed
The following treatment disputes were referred by the Commission for assessment:
(a) surgery to C5/6 anterior cervical decompression and fusion relates to the injury caused, and
(b) surgery to C5/6 anterior cervical decompression and fusion is reasonable and necessary.
SUBMISSIONS
Claimant’s submissions
The claimant seeks to rely on the following additional relevant information:
(a) progress note (page 3);
(b) quotation for surgery (page 4), and
(c) report of Dr Gray (page 5).
The claimant submits that her injury has deteriorated, given that she underwent a C5/6 anterior cervical discectomy on 9 October 2023.
The claimant requests further assessment of the following injuries:
(a) cervical spine – soft tissue injury, orthopaedic injury, aggravation of degenerative changes, C5/6 disc protrusion, C6 root compression, exacerbation of pre-existing cervical spondylosis;
(b) cervical spine – C5/6 anterior cervical discectomy and fusion;
(c) surgical scarring;
(d) right shoulder – orthopaedic injury, restricted motion secondary to neck pain;
(e) left shoulder – orthopaedic injury, restricted motion secondary to neck pain;
(f) lumbar spine – soft tissue injury, aggravation of chronic back pain, L4/5 disc bulging;
(g) left hip/lower limb – pain and restricted range of movement associated with lumbar spine injury, and
(h) right hip/lower limb – pain and restricted range of movement associated with lumbar spine injury.
Insurer submissions
The claimant’s application is based on an assertion that her cervical spine injury has deteriorated, given that she underwent a C5/6 anterior cervical discectomy on 9 October 2023. Despite this, the claimant has failed to provide any evidence in support of her contention that she underwent surgery or the precise nature of the surgery performed.
It is submitted that there is no objective evidence to demonstrate a deterioration of the claimant’s cervical spine injury capable of having a material effect on the outcome of the previous assessment of Medical Assessor Home.
MEDICAL ASSESSMENT UNDER REVIEW
Surgery to C5/6 anterior cervical decompression and fusion relates to the injury caused. This decision is based upon consideration of all of the relevant information and the legislative wording. In essence, the motor vehicle accident has to have a cause that is more than negligible. Towards that decision, the following is noted
(a) previous motor vehicle accident 2010 with neck and right arm symptoms. From the record and her statements, she was offered and accepted surgery in the form of a C5/6 foraminotomy. On two occasions, the surgery was cancelled due to her husband’s ill health;
(b) the accident itself was minor under most criteria;
(c) there is no information to support a change in anatomy in the region of C5/6. A return of symptoms, virtually identical to symptoms following the 2010 accident, has been recorded. Magnetic resonance imaging (MRI) of Neck before and after the motor vehicle accident are indistinguishable. That is, there is pathology at C5/6 with a compromise to the C6 nerve root on the right;
(d) the surgery itself was modified from foraminotomy to fusion. This appeared to be a surgical choice rather than any injury-related observations;
(e) a return of symptoms following trauma does not necessarily imply more than negligible;
(f) a long delay from the motor vehicle accident to the conclusion that surgery was required;
(g) multiple general practitioner (GP) entries related to other issues, with no discussion about neck symptoms, suggesting a variable neck problem and return to pre-motor vehicle accident status;
(h) established pathology can produce fluctuating and variable symptom expression. There is no clinical evidence that the motor vehicle accident caused more than a modest increase or recurrence of previous symptoms. That is pain in the neck and right shoulder, with non-verifiable radicular complaints. There may have been some neurological signs, but these were also observed pre-motor vehicle accident, and
(i) she was assessed before and after the motor vehicle accident by two different Commission Medical Assessors, with no change to the permanent impairment calculation, suggesting a negligible injury.
For these reasons, the surgery is not accepted as causally related to the motor vehicle accident.
Documents provided to the Panel
The Panel received the following documents:
(a) Commission submissions dated 13 June 2024;
(b) claimant’s statement regarding Commission appointment with Medical Assessor McGrath;
(c) Commission submissions dated 15 December 2023;
(d) progress note;
(e) quotation for surgery;
(f) report of Dr Randolph Gray;
(g) clinical notes of Dr Gray;
(h) clinical notes of Dr Kuku;
(i) clinical notes of Royal North Shore Hospital;
(j) clinical notes of Dubbo Hospital;
(k) clinical notes of Dr Kuku;
(l) Motor Accident Personal Injury Claim Form;
(m) Compulsory Third Party (CTP) Medical Certificate;
(n) NSW police report;
(o) certificate of Medical Assessor McGrath;
(p) President’s Delegate’s decision;
(q) Insurer’s summary of issues in dispute – treatment
(r) insurer’s submissions and summary of issues in dispute – whole person impairment;
(s) insurer’s submissions to the President’s Delegate;
(t) certificate of Medical Assessor Oates;
(u) certificate of Medical Assessor Home;
(v) medical report of Dr Buckley;
(w) medical report of Dr Doig;
(x) clinical records of Dubbo Base Hospital;
(y) clinical records of David Cross;
(z) clinical notes of Gilandra Medical Centre;
(aa) Clinical notes of RAMS Giltrap;
(bb) clinical records of Kandos Family Medical Practice;
(cc) extracts from clinical records of John Hunter Hospital;
(dd) referral to Dr Vasili;
(ee) report/referral of Dr Visali;
(ff) extracts from QBE file, and
(gg) internal review decision.
Assessment by Medical Assessor Drew Dixon on 22 November 2024
History of the motor vehicle accident
On 10 March 2017 at 9.00pm the claimant was travelling in the front seat of a Holden Capri when the car driven by husband turned a corner and was hit on the front passenger side by a large kangaroo with major damage to the car, which did not have a bull bar.
She sustained a whiplash injury to her neck and back strain injury. She was driven home by her husband and, the following day, was aware of neck and right shoulder pain. She attended Dubbo Hospital, had CT scans of her cervical spine, was prescribed analgesia and referred to the care of her GP, Dr Kuku, who she saw on 30 March 2017, complaining of neck pain extending to the right shoulder and down to the right hand, with numbness in the fingers of the right hand, mainly the thumb and index finger.
She was referred to Dr Vasili, an orthopaedic surgeon. She was prescribed Mobic as an anti-inflammatory and also Endep as an anti-depressant for night sedation, and Lyrica for neuropathic pain.
She was subsequently sent to a pain specialist.
Her orthopaedic surgeon referred her to Dr Randolph Gray, an orthopaedic spinal surgeon, who proposed C5/6 anterior cervical decompression fusion due to a history of cervical myelopathy. The C5/6 anterior cervical decompression and fusion (ACDF) was performed on 9 October 2023 by Dr Gray, with a bone graft taken from the right iliac crest anteriorly. She was discharged on 13 October 2023 on Paracetamol and Pregabalin. Her operative details were a bone graft harvested from the right Iliac crest and a transverse incision over the C6 level anteriorly; after the discectomy was performed, end plates were prepared, the bone graft was packed into a Pyrenees plate, placed and held with locking screws.
The convalescent period was uneventful, and her pre-op MRI of the cervical spine on 2 December 2022 showed a C5/6 disc protrusion with moderate core compression and foraminal narrowing with C6 nerve root impingement bilaterally.
These findings were reported to be similar to those of a previous study in May 2019.
The reason she had been sent to see Dr Randolph Gray is she had attended the spinal clinic at Dubbo Base Hospital to see an orthopaedic specialist, Dr Con Vasili, who diagnosed right-sided cervical radiculopathy and referred her to Dr Randolph Gray, who subsequently performed the C5/6 ACDF.
Summary
In summary, this claimant was involved in a severe motor vehicle accident on the evening of 10 March 2017 when a kangaroo jumped in front of their car and hit the front passenger side of the vehicle with major damage. There was no bull bar. Her diagnoses are:
(a) whiplash injury to her neck with post-traumatic stiffness with C5/6 disc protrusion, which required C5/6 ACDF;
(b) right shoulder brachalgia with trapezia! muscle spasm with difficulty elevating the arm above shoulder height;
(c) low back strain injury with lumbar stiffness with erector spinae muscle spasm and radicular complaint with right sciatica;
(d) neuralgia parasthetica with sensory loss in the distribution of the lateral cutaneous nerve of the thigh extending from her bone graft donor side at the anterior iliac crest;
(e) impaction of her injuries on her activities of daily living (ADLs), and
(f) reliance on analgesia and anti-inflammatories.
These conditions are causally related to the injuries received in the subject accident.
While it is noted that she was due to have a C5/6 foraminotomy following the previous motor vehicle accident in 2010, this did not take place, and there was no direct evidence of radiculopathy when she was seen for this injury by Medical Assessor Chris Oates on 2 April 2012, where he found there was impairment of diagnosis-related estimate (DRE) II for the cervical spine of 5% whole person impairment. He did allow DRE II for the thoracic spine, but this area was not symptomatic during today's examination. He did find DRE I for the lumbar spine, 0% whole person impairment. He did find mild restriction of motion of the right shoulder.
The claimant also had a Commission assessment by Dr Alan Home for the accident on 10 March 2017, who, in his certificate dated 17 June 2021, gave the cervical spine with an underlying C5/6 discopathy, an impairment of DRE II, 5% whole person impairment. He reported that in the period leading up to 2015, the medical record was relatively silent, and he was satisfied that the patient had made a reasonable recovery from her previous injuries. He did not deduct for the pre-existing condition and allowed impairment of DRE II of 5% whole person impairment for the cervical spine. He also found mild restriction of the right shoulder; however, based on the measured figures supplied in his chart, it was 13% upper extremity impairment.
He also assessed the lumbar spine at DRE I, 0% whole person impairment.
Based on today's findings, the claimant's impairment for the cervical spine is DRE IV for loss of motion segment at C5/6 due to C5/6 ACDF, which, from Table 73, Page 110, gives 25% whole person impairment less DRE II (5%) for a pre-existing condition, giving 20% whole person impairment.
That for the right shoulder is from Pie Charts 38, 41 and 44, 18% upper extremity impairment (UEI) less 9% UEI for the range of motion of her left shoulder, which gives 9% UEI, which equates to 5% whole person impairment.
That for the lumbar spine, where she has a back strain injury with erector spinae muscle spasm and right sciatica, is from Table 72, Page 110, American Medical Association (AMA) V, DRE II, 5% whole person impairment.
That for the sensory loss in the distribution of lateral cutaneous nerve of the right thigh is from Table 60, Page 89, AMA IV, 1% whole person impairment.
This gives a total from the Combined Values Chart of 29% whole person impairment.
She has reached maximum medical improvement.
Panel’s consideration of the submissions
The insurer’s submissions bear a date of 5 July 2024. I refer to the paragraph number indent 5.2. The insurer argues that the accident gave rise only to soft tissue injuries to the cervical spine and lumbar spine, and as to the right shoulder, the restricted motion was secondary to neck pain, and the Nguyen principle was applied.
The insurer submits that while Medical Assessor Home assessed a 5% whole person impairment of the cervical spine and a 1% whole person impairment of the right shoulder, he was not privy to the earlier certificate of Medical Assessor Oates of 14 April 2013. Medical Assessor Oates had assessed 5% whole person impairment of the cervical spine and 1% whole person impairment of the right shoulder arising from the 10 May 2010 motor accident. The insurer, therefore, submits that the impairment of the cervical spine and right shoulder was pre-existing.
The Panel’s response to the insurer’s submissions.
Medical Assessor Drew Dixon, who did the assessment of the claimant, commented that the claimant was involved in a severe motor vehicle accident on 10 March 2017 when a kangaroo jumped in front of the car and hit the front passenger side with major damage. With no bull bar. He referred to the six diagnoses:
(a) whiplash injury to her neck with post-traumatic stiffness with C5/6 disc protrusion, which required C5/6 ACDF;
(b) right shoulder brachalgia with trapezia! muscle spasm with difficulty elevating the arm above shoulder height;
(c) low back strain injury with lumbar stiffness with erector spinae muscle spasm and radicular complaint with right sciatica;
(d) neuralgia parasthetica with sensory loss in the distribution of the lateral cutaneous nerve of the thigh extending from her bone graft donor side at the anterior iliac crest;
(e) impaction of her injuries on her ADLs,
(f) reliance on analgesia and anti-inflammatories,
and opined that these conditions were causally related to the injuries the claimant received in the motor vehicle accident.
He commented that while he noted that the claimant was due to have a C5/6 foraminotomy following the previous accident in 2010, this did not take place, and there was no direct evidence of radiculopathy when she was seen for the injury by Medical Assessor Oates on 2 April 2017.
While Medical Assessor Home may not have been privy to the certificate of Medical Assessor Oates, Medical Assessor Dixon certainly was aware of it, and he took into account Medical Assessor Oates’ findings.
Medical Assessor Dixon drew conclusions on the basis of his findings on examination on 22 November 2024:
(a) DRE 4 for loss of motion segment C5/6 due to C5/6 anterior cervical discectomy (decompression) and fusion) which from Table 7.3, page 110, gives 25% whole person impairment. Medical Assessor Dixon subtracted 5% for the preexisting condition, giving 20% whole person impairment;
(b) for the right shoulder from the PIE Charts 38, 41 of 44, Medical Assessor Dixon found 18% UEI less 9% UEI for the range of motion in her left shoulder, leaving 9% equating to 5% whole person impairment;
(c) for the lumbar spine, where the claimant had a back strain injury with erector spinae muscle spasm and right sciatica from Table 72, Page 110, AMA V, he found DRE II, giving 5% whole person impairment;
(d) for the sensory loss in the distribution of lateral cutaneous nerve of the right thigh, applying from Table 60, Page 89, AMA IV, Medical Assessor Dixon gave 1% whole person impairment, and
(e) cumulatively, this gave a total of 29% whole person impairment.
The members of the Panel agreed with the findings of Medical Assessor Dixon.
Determination of the Panel on whole person impairment
The Panel revoked the determination of medical assessor David McGrath of 17 May 2024 as to whole person impairment and found whole person impairment of 29%.
Dispute as to treatment
Based on all the evidence and the examination of Medical Assessor Dixon, the Panel considered that the surgery to C5/6 anterior cervical decompression and fusion related to the injury caused by the accident. The Panel noted that it was a severe collision with significant forces applied. The claimant was thrown about by the impact of the vehicle with the kangaroo, and major damage had been caused to the motor vehicle, which did not have a bull bar. The panel refers again to diagnosis (a) [paragraph 52] that the claimant had had a whiplash injury to her neck with post-traumatic stiffness with C5/6 disc protrusion, which required C5/6 ACDF.
Determination
The Panel revokes the determination of Medical Assessor McGrath and determines that the subject’s accident gave rise to the need for surgery to C5/6 ACDF. This surgery relates to the injury caused and is reasonable and necessary.
0
0
0