Hirmiz v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Hirmiz v AAI Limited t/as GIO [2023] NSWPICMP 546
CLAIMANT:	Nahi Hirmiz
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	30 October 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment by Medical Assessor (MA) Cameron of whole person impairment (WPI) and treatment and claimant’s review under section 63; original assessment of 8 separate injuries and 28 individual treatment disputes; Panel directed parties to confer; issues narrowed to that of cervical and lumbar spine surgery and WPI arising from neck and lower back injuries; main issue one of causation; Held – Panel satisfied no previous complaints of neck pain and no pre-existing impairment, surgery related to injuries and reasonable and necessary as conservative measures failed to relieve pain; WPI 25%; Panel satisfied fusion surgery to L5/S1 was related to the accident and reasonable and necessary in the circumstances; claimant had long-standing back complaints leading up to 2010 L5/S1 discectomy and some continuing mild symptoms; WPI 20% due to surgery less 5% for pre-existing condition; certificates of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certifications issued by Medical Assessor Cameron dated 23 December 2023. 2. Certifies that in respect of the lumbar spine fusion surgery performed on or about 11 March 2020, it: a. relates to the injuries caused by the accident, and b. was reasonable and necessary in the circumstances. 3. Certifies that in respect of the cervical spine fusion surgery performed on or about 14 October 2020, it: a. relates to the injuries caused by the accident, and b. was reasonable and necessary in the circumstances. 4. Certifies that the degree of the claimant’s permanent impairment as a result of the cervical and lumbar spine injuries caused by the motor accident is greater than 10%. 5. Notes that the parties have resolved the approach to the assessment of the remainder of the treatment disputes as reflected in the document dated 30 June 2023 put before the Panel.

STATEMENT OF REASONS

INTRODUCTION

Nahi Hirmiz was involved in a motor accident on 9 July 2017. The claimant was driving his car when it was run into from the rear apparently with sufficient force to cause a secondary impact with the vehicle in front.
Mr Hirmiz says he injured his neck and back in the accident and made a claim for damages against GIO, the third-party insurer of the vehicle that he says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment. On 27 August 2019, Medical Assessor Meakin found the claimant had a 5% WPI due to cervical and lumbar spine soft tissue injuries.
The claimant commenced proceedings seeking a further medical assessment of his WPI.[1] In addition, multiple disputes about treatment provided or to be provided to the claimant were referred by the insurer to the Commission for determination in separate proceedings.[2]
[1] Proceedings numbered F-M1041 4821/21.
[2] Proceedings numbered F-M1042 2887/21.
On 23 December 2023, Medical Assessor Cameron determined Mr Hirmiz did not have a WPI of greater than 10%; that all of the treatment in dispute was not related to the accident and that none of the treatment in dispute was reasonable and necessary in the circumstances. The claimant then lodged a single application with the Commission seeking a review all of the Medical Assessor’s decisions made in both sets of proceedings.
On 1 March 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment (by inference of all of the medical assessment matters referred to him for assessment) and has allowed the Review. On 7 March 2023 the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Whole person impairment

Mr Hirmiz’s claim and entitlements to compensation are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[3] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[3] The current maximum as of October 2023 is $620,000.
Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, and the matters currently in dispute, Chapter 3 of the AMA4 Guides is relevant.
In assessing spinal impairment, only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines). There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 7).
The spine is divided (cl 1.131) into three regions:
(a)   cervicothoracic (cervical);
(b)   thoracolumbar (thoracic), and
(c)   lumbosacral (lumbar).
In accordance with cl 1.131, separate injuries to different regions of the spine must be combined using the ‘Combined values’ chart (pages 322–324, AMA4 Guides).
The guidelines provide for subsequent injuries and impairments (cl 1.34) and pre-existing impairments. Clause 1.31 provides that “If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value.”

Treatment

Damages for pecuniary or economic losses are determined in accordance with common law principles and include damages for past and future treatment and care (including gratuitous care) expenses.
Section 83 of the MAC Act imposes upon insurers, while a claim is active, a duty to provide treatment, the need for which was caused by the injuries sustained in the accident. The insurer need only pay for treatment that is verified and is reasonable and necessary.

Related to the injury resulting from the motor accident

The insurer is not under a duty to pay for treatment if it does “not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine the injuries caused by the accident before determining whether the treatment relates to those injuries.
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[5] where the test of causation of surgical treatment was determined in a matter where the claimant had three motor accidents. The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery[6]. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[5] [2018] NSWSC 1710 (Phillips).
[6] Emphasis added.

Reasonable and necessary in the circumstances

In order for the insurer to be liable to pay for the treatment, the claimant must then establish that the treatment is “reasonable and necessary in the circumstances”.
When discussing the meaning of “reasonably necessary” within the workers compensation scheme, Grove J in Clampett v WorkCover Authority of NSW[7] said that the word “reasonably” modified the word “necessary” and that:
“[22] Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
[23] The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone ... In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[7] (2003) 25 NSWCCR 99 (Clampett).
In the motor accident scheme, the word necessary is not modified by the word “reasonable” and there are effectively two matters to consider, whether treatment is reasonable and whether treatment is necessary.
In Diab v NRMA Ltd[8] at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a)           the appropriateness of the treatment in dispute;
(b)           the availability of alternative treatment;
(c)           the cost effectiveness of the treatment;
(d)           the actual or potential effectiveness of the treatment, and
(e)           the acceptance by medical experts of the appropriateness of the treatment.
[8] [2014] NSWWCCPD 2 (Diab).
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant in the proceedings before the Panel and these works operate to moderate or soften the test of reasonable and necessary.
Of further note is that the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. It may be reasonable and necessary for a claimant to have treatment to alleviate symptoms from an injury but the insurer will have no duty to pay for it if the injury does not relate to (was caused by) the injury caused by the accident.

Dispute resolution

Section 58(1) of the MAC Act (in Part 3.3 of Chapter 3) provides for the resolution of the following “medical assessment matters” that may arise during the life of a claim:
“(a)    whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b)     whether any such treatment relates to the injury caused by the motor accident,
(c)     (Repealed)
(d)     whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
(e)     (Repealed)”
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment (such as Medical Assessor Meakin’s in 2019), further medical assessments (such as Medical Assessor Cameron’s) and the review of medical assessments by this Panel.[9]
[9] Sections 61, 62 and 63 of the MAC Act.
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 that the medical assessment was incorrect in a material respect” 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 for Review but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A) in other words the assessment is a de novo assessment.
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.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined the claimant on 9 December 2022 and issued his determination on 23 December 2022 by way of a single document comprising:
(a)   certification in F-M10414821/21 – that the claimant’s WPI was not greater than 10%;
(b)   certification in F-M10422887/21 – that the disputed treatment was not related to the accident or reasonable and necessary in the circumstances, and
(c)   a single set of reasons explaining his decisions in both matters.
Medical Assessor Cameron confirmed at [2] that he was required to assess the following injuries:
(a)   cervical spine – soft tissue injury (including right and left shoulder pain), disc protrusion C6/7 with right nerve root impingement;
(b)   lumbar spine – soft tissue injury, L5/S1 desiccation;
(c)   thoracic spine – soft tissue injury;
(d)   right shoulder – soft tissue injury;
(e)   left shoulder – soft tissue injury;
(f)    right leg – soft tissue injury;
(g)   left leg – soft tissue injury, and
(h)   scarring – cervical and lumbar spine.
At [3] he listed 28 individual disputes about the following treatments:
(a)   handyman assistance to the date of the medical assessment and for life;
(b)   lawn-mowing assistance to the date of the medical assessment and for life;
(c)   L5/S1 lumbar interbody fusion surgery performed by Associate Professor van Gelder;
(d)   C6/7 cervical discectomy and fusion surgery performed by A/Prof van Gelder;
(e)   fortnightly reviews by his general practitioner (GP) for life;
(f)    single consultation with a pain physician;
(g)   single and future consultations with a rehabilitation physician;
(h)   a three-month supervised gym programme;
(i)    anti-inflammatory and non-opioid analgesic medication from the date of the medical assessment and for life;
(j)    future physiotherapy consultations, and
(k)   future guided spinal injections into the lumbar and cervical spines.
Mr Hirmiz was 46 years of age at the time of the accident and is now 52 years of age. He was said to run a business employing five staff.
Medical Assessor Cameron records the following history:
(a)   at [9], the claimant disclosed a diagnosis with obstructive sleep apnoea and in 2011 he had an L5/S1 laminectomy and discectomy;
(b)   at [10] the claimant says after the accident he was attended to by ambulance personnel but declined transport to hospital and he then attended his GP;
(c)   the claimant is reported at [11] to have had no time off work but worked in a reduced capacity. He returned to driving but developed psychological symptoms and pain. He had significant ongoing neck and back pain and physiotherapy gave no relief. He had injections into his neck and back with no relief identified. He wanted to go to a pain specialist, but this was not approved by the insurer. Due to persisting symptoms he had lumbar fusion surgery, which was quite effective, but the cervical surgery has not been as effective;
(d)   surgery to the left shoulder was reported at [12] to be cancelled due to the improvement in the state of the left shoulder;
(e)   the claimant is reported at [13] to complain that the main issues were his psychological issues and neck pain without significant radiation, and
(f)    he is reported at [14] to be taking Panadol, Maxigesic and occasional Endone and sees Dr Naser at Cecil Hills.
On examination of the neck, thoracic and lumbar spine, Medical Assessor Cameron found reduced range of motion with no muscle guarding, dysmetria or spasm and no non-verifiable radicular complaints present.
In the shoulders, Medical Assessor Cameron reports mildly inconsistent range of motion (due apparently to pain) but no neurological abnormalities in the upper limb or loss of motion in the other joints.
In the lower limbs there were no neurological abnormalities and a full range of motion in the knees and other joints.
The Medical Assessor reviewed the radiology and medical reports and at [19] diagnosed soft tissue injuries to the cervical and lumbar spinal regions on a background of pre-existing degenerative disease. He said there were no significant injuries to other parts of his body and that there could have been soft tissue injuries to the thoracic spine and both shoulders but there was no evidence of soft tissue injuries to the legs.
As the scarring related to the cervical and lumbar spine surgery, and as he considered that surgery not related and not reasonable and necessary, he did not allow any impairment in relation to it.
In terms of the claimant’s neck, he found a DRE IV (25% WPI) due to the spinal surgery but found the surgery was not caused by the accident and deducted 25%.
In the lumbar spine, Medical Assessor Cameron also found DRE IV (20%) due to the spinal surgery but found the surgery was not caused by the accident and deducted 20%.
The thoracic spine was assessed as 0% and the loss of range of motion in each shoulder was assessed at 2% WPI making a total of 4%.
In terms of the treatment, Medical Assessor Cameron was of the view that the surgeries were not causally related to the accident because there was no indication for surgery. The reasonable indication for surgery he said would have been persistent symptomatic radiculopathy, myelopathy or an unstable spinal column none of which were present. There was extensive treatment that was not effective and interventional pain management techniques were not appropriate.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant says generally:
(a)   that the Medical Assessor failed to take into account his medical state after the 2011 surgery noting that in none of the treating documentation suggests complaints of pain in the neck or lumbar spine before the car accident;
(b)   the claimant has complained of neck and back symptoms including radiculopathy since the accident;
(c)   there is radiology that the Medical Assessor did not consider;
(d)   the Medical Assessor has not explained his reasons for denying causation for the surgery, and
(e)   the claimant’s expert Professor Dan expressed the opinion that whilst the claimant had degenerative changes, these have been rendered symptomatic by the accident.
The claimant also says the Medical Assessor determined causation of the need for surgery on the basis of reasonable and necessary criteria.
In terms of WPI the claimant says it was not appropriate to deduct anything for pe-existing impairment as there was no pre-existing impairment in those areas of the body injured in the accident.

Insurer’s submissions

The insurer said Medical Assessor Cameron has referred to the radiology and diagnosed an aggravation of pre-existing degenerative disease.
The insurer also says, when read as a whole, the Medical Assessor has diagnosed a soft tissue injury on a background of degenerative changes.
The insurer says that the Medical Assessor has addressed both causation of the surgeries and whether those surgeries are reasonable and necessary.

ISSUES IN DISPUTE

Procedural matters

The Panel met on 6 June 2023 to discuss the Review and reported to the parties on

13 June 2023.
The Panel noted that Medical Assessor Cameron had assessed eight injuries for WPI and that the submissions indicated the significant issue in dispute was causation of the claimant’s cervical and lumbar spine injuries and the impairment resulting from those injuries.

The Pane also noted that Medical Assessor Cameron was required to assess 28 individual disputes about treatment.
The Panel advised that as the main issue was causation, a physical examination was not required and that an audio-visual examination would be conducted.
The parties were directed to confer and advised if the matters in dispute had been narrowed or matters conceded.
On 30 June 2023 the Panel was advised by the legal representatives of the parties that the parties agreed the disputes about treatment (other than the surgical treatment) did not need to be determined by the Panel and that the quantum of damages in respect of the disputed treatment could be determined by the Member charged with assessing the claim.
The Parties agreed that the Panel’s deliberations need only deal with the cervical and lumbar spine injuries and that the only treatment for the Panel to determine are the two surgeries which the insurer says were not related to the injuries sustained in the accident.

REVIEW OF THE EVIDENCE

The claimant’s bundle of documents[10] comprises 550 pages. There are some irrelevant documents such as a difficult to read medical report relating to a female claimant Nada Hirmiz, a referral for psychological treatment and a medico-legal report invoice. There is also duplication of records, for example two copies of the ambulance report and two copies of Medical Assessor Meakin’s decision.
[10] Document AD1 in the Commission’s electronic file.
The insurer’s bundle of documents[11] comprises 149 pages including some duplicate documents.
[11] Document AD3 in the Commission’s electronic file.

Claim form and claim documents

The medical certificate attached to the claim form[12] was completed by Dr Georgis on

23 August 2017. He indicates on the pain diagram, injuries to the neck and lower back and bilateral knee pain however the description of the injuries does not mention knees but upper and lower limb radicular complaints.
[12] Page 65 of the insurer’s bundle.

Treating medical records and reports

The insurer has provided a copy of the ambulance report[13] which says:
“Patient with neck pain. …Directed to male patient who was standing and speaking with Police. Patient states was stopped in traffic when his vehicle was hit from behind at approximately 60 km/hr. Minor damage to rear of patient’s vehicle. On examination 3/10 left side muscular neck pain. Nil spinal tenderness. No motor / sensory defecit. Nil loss of consciousness. No head trauma. 5/10 lumbar back pain. No bruising or deformity to back. History of lower back pain and patient states feels like he has aggravated his old injury. Obs normal. Patient not wanting to got to hospital as he is on a holiday and would prefer to go back to his hotel.”
[13] Page 14 insurer’s bundle.
On 12 July 2017 Mr Hirmiz saw Dr Georgis saying he had been on holiday and was hit from behind while nearly stationary. He has a record of “big damage to both cars”. The claimant said he started having lower back pain and right shoulder and neck pain which progressively increased in intensity. Dr Georgis says the claimant has “[right] radiculopathy”. The doctor records that the ambulance attended and that he was offered a hospital transfer but “after 30 minutes settled” and he was “able to drive his car back to hotel”.
When examined by Dr Georgis on this occasion, three days after the accident, the claimant had no central cervical spine tenderness but his right paracervical muscle and shoulder muscles were tense. There was no upper limb neurological deficit. There were similar findings in the lower back (no tenderness, left sided paralumbar muscle tension and no neurological deficit in the lower limbs). Mr Hirmiz was referred for scans. Dr Georgis makes this note “he has chronic back pain due to lumbar disc disease and disc bulge in the past.”
Dr Georgis saw the claimant again on 26 July 2017 with the CT scans and recommended physiotherapy, a referral to Dr Darwish and to consider CT guided nerve root and facet joint injections.
On 4 August 2017 the claimant was complaining of pain over the back of his neck radiating to his right upper limb. The claimant wanted to see Dr Darwish first before having any physiotherapy.
On 23 August 2017, the claimant attended with the medical certificate which needed to be completed for the claim.
The claimant returned on 15 September 2017 after seeing Dr Darwish and Mr Hirmiz complained of having a lot of stress, flash backs of the accident, feeling down and having difficulty concentrating. He said his lower back pain was “more aggravated” and he “started having back of neck pain with radiculopathy”.
On 27 November 2017 the insurer’s rehabilitation advisor had advised the claimant to have his shoulders checked out and the claimant was referred for bilateral shoulder ultrasounds. The claimant said he was having pain over the back of his neck radiating to the left side of his shoulder.
On 6 June 2018 the claimant requested his records be transferred to the Cecil Hills Medical Centre and there were no further attendances at Hoxton Park.
Dr Georgis provided a report to NRMA diagnosing a soft tissue injury with possible cervical disc bulge and lumbar spine disc bulge due to upper and lower limb radiculopathy. Doctor records the history of lower back lumbar problems but “no past history of any cervical spine pathology as to my best knowledge”.

Pre-accident

The claimant attended Dr Georgis at the Hoxton Park Medical Centre for the first time on

10 May 2017, two months before the accident, with tiredness and lethargy.[14] There were no further attendances before the accident.
[14] The notes are found at page 26 of the insurer’s bundle and duplicated at page 40.
Within the Hoxton Park notes is a copy of the Bankstown Health Service record[15] of the claimant’s bilateral L5/S1 radiculopathy (left and right L5/S1 microdiscectomy and rhizolysis). The surgery occurred on 9 March 2011.
[15] Page 57 of the insurer’s bundle and duplicated at page 72.
There is also a letter dated 26 August 2013[16] directed to Dr Georgis when he was practising at the Prestons Medical Centre concerning a “redo left L5-S1 discectomy”. The claimant was removed from the waiting list on 26 August 2013 on the basis the claimant “declined surgery/treatment” and Dr Darwish had been advised.
[16] Page 139 of the insurer’s bundle.
The notes for Prestons Medical Centre have been provided[17] and they end with a note on

26 November 2013 of pain in the left shoulder with simple lifting and restricted range of motion and a referral to Dr Arash Nabavi, orthopaedic surgeon was provided. The entry before that was dated 26 August 2013 which says, “He has shoulder pain with chronic lower back pain” and Naprosyn was prescribed. There are several attendances in 2012 for lower back pain but no entries for neck pain at any stage.
[17] Page 142 of the insurer’s bundle.
The Greenfield Park notes suggest Dr Georgis was practising there after Prestons (2013) and before Hoxton Park (2017). There are a handful of attendances concerning a hand injury and concerns over the claimant’s smoking and sleep, but no complaints of neck or back pain recorded. There is a letter suggesting that Dr Georgis is a family friend as well as the family’s doctor.
Records from the Cecil Hill Medical Centre commence in 2006 and show general medical conditions and complaints of back pain recorded from 2009. The claimant also attended this practice in 2018 for treatment by Dr Naser to his neck, lower back and shoulder. There are no complaints of neck pain before the car accident in these records.
Dr Darwish’s medical records have been provided. He first wrote to Dr Georgis on

29 July 2010[18] noting that the claimant had a 10-year history of lower back pain with intermittent radiation into the left leg which had got worse in the last year. There were no sensory or motor symptoms. There was a large central disc protrusion seen on a CT scan of 9 July 2010. After a further consultation and MRI in September 2010, Dr Darwish advised surgery and the claimant agreed to have it.
[18] Page 192 in the claimant’s bundle.
On 7 February 2012 Dr Darwish wrote to Dr Georgis again noting that the claimant had the surgery and “did well for a while” and returned to work but that his work involved heavy lifting and twisting and bending his back and the claimant had developed left leg pain in the last few weeks. A CT scan revealed a “small recurrent left L5/S1 posterior disc protrusion potentially compressing the left S1 nerve root” and an MRI was requested. The MRI was done, and in a letter dated 5 March 2012 Dr Darwish had a history from the claimant of his symptoms improving by 80% and so conservative treatment was recommended. A further letter to Dr Georgis dated 20 May 2012 suggested the claimant’s back pain and left sciatica was continuing and he wanted to go ahead with the further surgery and his name was placed on the waiting list for surgery.

Treating specialists

Dr Darwish saw the claimant after the accident on 17 August 2017 and reported to

Dr Georgis.[19] Dr Darwish refers to his previous treatment and the letter of 20 May 2012.
[19] Page 66 of the insurer’s bundle and duplicated at page 73 and included at page 432 of the claimant’s bundle.
The claimant is said to have developed neck pain on the left side and lower back pain radiating to both lower limbs. There was normal power and sensation recorded in all limbs. The doctor had reviewed the CT scans and organised MRI scans and recommended physiotherapy.
After the MRIs were done, the claimant attended again on 5 October 2017 complaining of neck and lower back pain. He considered there was a C6/7 disc protrusion extending into the foramen and compressing the right C7 nerve root along with mild degenerative changes at C5/6. There was no spinal cord compromise. He noted no nerve root compression in the lower back. He gave the claimant a script for Panadeine forte, recommended physiotherapy and said that surgery to the neck was a possibility but unlikely for the back.
The claimant then saw A/Prof van Gelder who provided a report dated 12 June 2018 to the claimant’s GP, Dr Naser, after a consultation on 5 June 2018. The report deals exclusively with the claimant’s neck symptoms. It was noted the claimant had chronic neck pain but no “red flag clinical features indicating a need for further investigation”. He said: “Symptoms are likely to fluctuate in the future but may be quite manageable. The surgery such as a fusion operation at C6-7 would be an unreliable and controversial last resort option.”
A/Prof van Gelder wrote to Dr Naser again on 2 October 2018.[20] The claimant had been reviewed on 4 September after the C6-7 foraminal injection which had improved his neck pain by 50%.
[20] Page 137 of the insurer’s bundle.
The claimant complained of neck pain radiating up and down the left side of his neck. He was working but said his life had been affected. The claimant said he also had ongoing lower back pain since the accident and that he was motivated to have surgical treatment.
A/Prof van Gelder organised a bone scan showing uptake at C6/7 and L5/S1. He reviewed the other radiology. He says:
“Mr Hirmiz has chronic low back pain associated with advanced degenerative disc disease and history of surgery at L5-S1. He does not have clearcut indications for neurosurgical treatments. He is prepared to continue trying conservative treatments such as swimming, physiotherapy and practical adaptations. From a surgical perspective, a last resort option would be for him to have surgery. In the presence of single level advanced degenerative disease and disabling low back pain, an anterior lumbar fusion at L5-S1 would be [the] treatment option.
Mr Hirmiz has nonspecific neck pain associated with active disc degeneration at C6-7. He does not have deformity, instability, clearly symptomatic cervical radiculopathy or similar conditions that would make an indication for surgical treatment. Surgery such as anterior cervical discectomy and fusion at C6-7 would be a controversial treatment option if all else was unsuccessful and if he was highly motivated.”
Dr Naser wrote to Dr Bakljac, chiropractor on 9 October 2018 seeking an opinion on “non-surgical spinal decompression treatment for his neck pain”[21]. The records of the chiropractor while handwritten and difficult to understand, refer to neck symptoms and suggest

13 treatments occurred up until the end of February 2019.
[21] The referral is at page 147 of the claimant’s bundle.
The claimant was referred to Dr Nazha for pain management advice and conservate measured were recommended. Dr Nazha’s report is dated 5 November 2018.[22] Dr Nazha has a history of neck pain worse than his back and radiating into the right side of Mr Hirmiz’s shoulder but without any “significant radicular component”. The claimant reported lower back pain radiating to the back of the left thigh but also “no significant radicular component”. On examination there were no neurological features.
[22] Page 148 of the claimant’s bundle.
Dr Nazha recommended the claimant stop smoking, lose weight, try a TENS machine and have diagnostic medical branch blocks.
The claimant returned to A/Prof van Gelder on 12 November 2019[23] with ongoing neck and back symptoms and the claimant was saying this was having a major impact on his capacity to work in his business.
[23] Page 434 of the claimant’s bundle.
The claimant had neck pain which could radiate and left shoulder pain. The claimant also had constant low back pain aggravated by kneeling and standing and it radiated into both legs particularly the left leg.
A/Prof van Gelder reports “he has been offered a settlement after his motor vehicle accident, but he is not satisfied, and he needs a recommendation for surgery.” A/Prof van Gelder requested updated scans and asked the GP to refer the claimant to an orthopaedic surgeon for his shoulder.
There is a referral from Dr Naser to Dr Ireland dated 28 November 2019 and his report dated 18 December 2019 concerning the claimant’s shoulder problems. Arthroscopic examination was recommended.[24]
[24] Relevant records concerning the claimant’s shoulder commence at page 152 of the claimant’s bundle.
On 17 December 2019 the claimant returned again to A/Prof van Gelder.[25] There was tenderness on palpation over the left iliac crest but no neurological signs in the legs and straight leg raising was positive but caused hip pain. There was restricted motion in the cervical spine. The doctor records:
“Mr Hirmiz is highly motivated for surgical treatment. I explained to him the lack of clearcut indications for cervical spinal surgery. He does not have clearcut indications for lumbar spinal surgery. For persistent and unmanageable pain and residual radicular symptoms, an anterior fusion at L5-S1 would be a treatment option. I would not consider [this] until he can reduce his weight to a BMI of less than 30 and his waist circumference to less than 100cms. Surgery for his lumbar condition would be associated with risk of complications and recovery period of three to six months. The long-term benefits are still controversial. Mr Hirmiz has asked me to request authorisation as a CTP patient for an anterior lumbar fusion at L5-S1. In the meantime, I did not have other important suggestions for managing his symptoms.”
[25] See the report at page 102 of the claimant’s bundle.
The claimant returned on 26 February 2020 and A/Prof van Gelder wrote to Dr Naser on

28 February 2020. The claimant had lost weight, sat and walked normally, was tender at L5/S1, had positive straight leg raising but strength and reflexes were intact. The claimant “has come in highly motivated for surgical treatment and we discussed the anterior lumbar fusion”. The claimant did not want to wait for the outcome of the medical dispute in relation to his claim and wanted to proceed with the surgery.
On 31 March 2020 after the surgery on 11 March 2020, the claimant reported an improvement in his pain, and he was going for regular walks.
On 15 September 2020 the A/Prof van Gelder wrote to Dr Naser after a review on

18 August 2020.[26] The claimant had not returned for the scheduled post operative follow up, but he was pleased with the results. He had “some occasional ongoing pain, but his symptoms are much improved, and his leg symptoms have largely resolved”. The claimant was complaining of constant neck pain on the left exacerbated by extension.
[26] Page 486 of the claimant’s bundle.
On 4 August 2021 A/Prof van Gelder wrote to Dr Naser after seeing the claimant by telehealth on 2 August 2021. The claimant had the cervical discectomy and fusion on

14 October 2020. He had some improvement in his pain but “more recently he is describing constant neck pain”. He examined the X-ray and said Mr Hirmiz has chronic nonspecific neck pain. He recommended anti-inflammatory medication, self-directed treatments (over physiotherapy) and has no indication for further neurosurgical treatment or interventions such as injection or nerve blocks.

Radiology

In Dr Darwish’s records are the following pre-accident radiological scans:
(a)   9 July 2010 – Disc bulge at L4/5 and a large disc protrusion at L5/S1 that results in encroachment on the L5/S1 nerve roots bilaterally, but more so on the left side;
(b)   12 July 2010 – CT guided epidural injection at left of L5/S1;
(c)   27 August 2010 – MRI lumbar spine for low back pain and left sciatica – severe disc protrusion at L5/S1 causing central canal stenosis and abutting the left S1 traversing nerve root;
(d)   27 January 2012 (“lower back pain radiating to the left lower limb”) – CT scan moderate loss of L5/S1 disc height, moderate sized generalised disc bulge with left sided component indenting the thecal sac and narrowing the left lateral recess and encroaching upon the descending left S1 nerve root, and
(e)   13 February 2012 – MRI lumbar spine for “left leg pain on a background of previous L5/S1 discectomy” – the laminectomy defect on the left side was noted, recurrent protrusion causing compression of the left S1 nerve root and some associated inflammatory changes.
The CT scan of 18 July 2017[27] found:
(a) in the cervical spine – mild to moderate disc bulges – osteophyte development at C3/4, C4/5 and C5/6 and C6/7 with moderate narrowing of the right C7 but no significant degenerative change in the facet joints, and
(b) in the lumbar spine at L5/S1 here was mild reduction of the disc space suggesting chronic disc degeneration with some indentation of the thecal sac and impingement of the S1 nerve root on the right and at L5 on the left and mild bilateral facet joint arthritis at L1/2 and L5/S1.
[27] Page 52 of the insurer’s bundle.
The claimant had an MRI of his cervical and lumbar spine on 26 August 2017 – the result was of “significant degenerative change” at the C5/6 and C6/7 levels with compromise of the spinal canal at C6/7 and “significant” osteophytic encroachment on the right at C6/7.
In the lumbar spine there was a broach-based disc bulge at L5/S1 with impression on the left S1 nerve root and some encroachment on the left at L5.
On 30 November 2019 the claimant had further MRI scans of his neck and lower back. In the neck the results were similar to those of 2017 with the disc protrusion at C6-7 and some right C7 nerve root impingement. In the lumbar spine there was a broad-based disc bulge with a possible residual or recurrent disc impinging the left S1 nerve root but no L5 nerve root impingement.

Medico-legal reports

Claimant’s medico-legal reports

Dr Shahzad, occupational physician has provided a report to the claimant’s solicitor dated

25 November 2017.[28] Dr Shahzad had a history of Mr Hirmiz’s “complete recovery” following the 2011 surgery. Dr Shahzad has a consistent history of the circumstances of the accident and the immediate post-accident symptoms and treatment.
[28] Page 75 of the claimant’s bundle.
The claimant complained to Dr Shahzad of severe pain in his neck including headaches and left shoulder blade pain. The claimant also complained of pain in the left lower lumbosacral area which was variable in intensity and radiates into the back of his left leg and there is intermittent sciatica.

The claimant reported owning a bargain shop which his wife now manages. Mr Hirmiz manages a business importing pallet jacks and other equipment which he has done for two years.
Dr Shahzad diagnosed a whiplash neck injury and acute on chronic exacerbation of lower back pain. His prognosis was of continuing symptoms for 12 months. On examination there were no neurological deficits recorded. Dr Shahzad supported physiotherapy and medication.
A report has been provided by Dr Lee psychiatrist dated 22 January 2018.[29] He has a history of the claimant first experiencing back pain in late 2000, giving up work as a truckdriver, worsening pain in 2007 and the collapse of his business but continuing intermittent back pain until surgery in March 2011 which was “very successful”. Dr Lee has a history of the bargain shop being unsuccessful but that his importing business (which commenced in April 2015) was very successful.
[29] Page 91 of the claimant’s bundle.
The claimant obtained a report from Dr Sun, rehabilitation and pain physician, dated

7 March 2019.[30]
[30] Page 70 of the claimant’s bundle.
Dr Sun took a consistent history of the accident and the immediate onset of neck, left upper and lower back pain. At this time, the claimant had three injections in his neck and was waiting on a fourth injection. The claimant complained of constant neck and lower back pain. The neck pain radiated to the left shoulder and into the elbow and the lower back pain was radiating into both thighs.
Dr Sun noted the claimant had returned to work but had hired replacement labour to assist him with his shop.
Dr Sun diagnosed a C6/7 disc protrusion without radiculopathy and soft tissue injuries to the claimant’s thoracic and lumbar spine. He had a history of the 2011 back surgery and expressed the view that all of the claimant’s injuries were accident related. He assessed WPI at 15%.
The claimant attended Dr Noel Dan at the request of his solicitors and he provided a report dated 14 October 2020.[31] Dr Dan had a history of longstanding back pain leading up to the 2011 L5/S1 discectomy.
[31] Page 99 of the claimant’s bundle.
Dr Dan says that the claimant’s GP “who was then a friend of his” visited the family at home the next day. The claimant told Dr Dan that the surgery performed by A/Prof van Gelder reduced his lower back pain to 10% (that is reduced by 90%). He had no left lower limb symptoms. The claimant was due to have his neck surgery in two days’ time.
Dr Dan has a history of constant neck pain radiating to the left and sometimes to the right. While his duties at work had changed, he had not lost time from work.
Dr Dan noted that the claimant had pre-existing degenerative changes in his neck which had been rendered symptomatic by the car accident. He considered both surgeries were related to the accident.
Dr Matthew Giblin provided a report to the claimant’s solicitors dated 29 January 2018. He has a history of neck pain into both shoulders after the accident and lower back pain with intermittent radiation in the left leg. He also had a history of physiotherapy and acupuncture treatment. Dr Giblin diagnosed an aggravation of underlying degenerative changes in the neck and lower back. He was of the view that the shoulders had not been injured due to their being full range of motion in the shoulders.
A further report was obtained from Dr Giblin dated 29 March 2021.[32] He has a history of the lumbar fusion in March 2020 which has given Mr Hirmiz a good result. In terms of the cervical spine fusion this produced a good result initially, but his neck problem has returned. The claimant’s shoulder symptoms had resolved after the neck surgery and as a result he no longer needs or is contemplating shoulder surgery.
[32] Page 102 of the claimant’s bundle.
Dr Giblin maintained his opinion that the claimant sustained soft tissue injuries aggravating pre-existing degenerative changes in the neck and a pre-existing condition in the back.

Insurer’s medico-legal reports

The insurer had the claimant examined by Dr Coroneos neurosurgeon on 8 June 2018. He submitted his report dated 19 June 2018.[33] The claimant gave Dr Coroneos a history of no previous medical conditions but a history of L5/S1 surgery in 2011 following a six or seven year history of lower back and left lower limb symptoms. The claimant said he had a good result from the surgery and returned to work. The claimant denied any previous neck or mid back problems before the current accident.
[33] Page 111 of the insurer’s bundle.
Mr Hirmiz gave a consistent history of the accident and said he experienced immediate neck and lower back pain which was 8 out of 10 and sharp but with no upper or lower limb symptoms. Both his wife and his son who were in the vehicle also complained of back pain. The next day they drove home, and Dr Georgis came to see the family at home.
The claimant reported taking no time off work.
In terms of the current symptoms, the claimant complained of left sided lower back and right sided mid neck pain, left upper shoulder pain and right shoulder pain and left lower lumbosacral and upper buttock pain and pain in the left posterior thigh to the knee. The claimant did not report any arm pain.
Dr Coroneos had the claimant complete a pain and symptom diagram and there were no symptoms in the arm or upper limb. He undertook a thorough neurological examination of the claimant. He expressed the opinion:
“He may have experienced a cervical and lumbar soft tissue strain or exacerbation to pre-existing lumbar spondylosis as a consequence of the motor vehicle accident.
There is no evidence of any significant neurosurgical spinal injury having occurred.”
This opinion was expressed on the basis of no report of any arm pain, no evidence of radiculopathy or objective neurological deficit and “power tone reflexes and sensation are normal with no wasting of the upper or lower limbs and lumbar nerve tension signs are negative”.
Dr Muratore was retained by the insurer and provided a report dated 27 August 2020.

Dr Muratore has a history of the previous lumbar discectomy and the current spinal fusion noting the claimant was “recovering well”. Dr Muratore has a history of the accident generally consistent with other histories although he records the claimant’s estimate of the speed of the offending vehicle at 80 kmph and that the airbags of that vehicle (but not his) deployed.
The history taken by Dr Muratore is that the claimant had four or five injections in his neck and two in the back at the request of A/Prof van Gelder before the surgery occurred. His lumbar spine pain was at 1 or 2 out of 10 whereas before it was 5 or 6 out of 10.
At this stage the claimant had not had the cervical spine surgery and on examination of the cervical spine he had:
(a)   normal posture;
(b)   tenderness over C5/6 and C6/7 on the left;
(c)   no guarding;
(d)   no muscle spasm;
(e)   no wasting and no significant difference in circumference of the arms;
(f)    negative spurling’s test;
(g)   positive brachial plexus tension test on both sides;
(h)   reduced range of neck and shoulder movements, and
(i)    no neurological signs in the upper limbs.
Dr Muratore was of the view the claimant had sustained soft tissue injuries aggravating degenerative changes in the cervical and lumbar spine and that the surgery undertaken and contemplated was related to those degenerative changes and not the accident.
Dr Dalton saw the claimant for the insurer on 24 November 2020 and provided a lengthy report dated 28 February 2021.[34] He has a history of the car accident with two impacts (rear and then front) and that the claimant did not go to hospital because his wife was unable to drive the car. Mr Hirmiz told Dr Dalton he had immediate pain in his left lower neck and back.
[34] Page 77 of the insurer’s bundle.
The claimant said he attended his GP and that by the time he saw Dr Darwish he had developed sciatica worse on the left with milder symptoms on the right. He had physiotherapy and went to see A/Prof van Gelder because he did not like the treatment he was receiving from Dr Darwish. The claimant suggests he had a cervical spine injection organised by Dr Darwish and then he was referred to Dr Nazha. The claimant says that by this time he had had several injections.
The claimant told Dr Dalton that A/Prof van Gelder recommended lumbar fusion which was done at the L5/S1 level in March 2020 and that since then his back had markedly improved in that “his sciatica has resolved, and his back pain is much better.”
The claimant also complained of constant left sided neck pain radiating to the top of his shoulder and that A/Prof van Gelder performed a discectomy and fusion at C6/7 on

14 October 2020. Dr Dalton records a significant improvement in his symptoms and that “he is very happy with the results of his lumbar and cervical spine surgery.”
The claimant told Dr Dalton about his early L5/S1 decompression and discectomy and that his symptoms had resolved for a year, he had a further aggravation which settled and that the lower back gave him little trouble before the accident and that he had no neck trouble before the accident.
At page three of the report the claimant detailed the improvement in his neck and back symptoms. While he is not completely pain free, he was managing most days without medication.
Dr Dalton had the clinical notes from Dr Darwish and A/Prof van Gelder.

Dr Dalton notes that at no stage after the accident did the claimant present with any features of cervical or lumbar radiculopathy. Dr Dalton noted the earlier reports from A/Prof van Gelder that there was no clinical indication for surgery.
Dr Dalton expressed the view that the claimant sustained soft tissue injuries to his neck and lower back aggravating degenerative changes (longstanding in the back). He was of the view that the nature of the degenerative changes, the claimant’s general lack of core strength and time have led to the need for the surgeries which the claimant has had. He says the surgeries are not related to the accident.

Other assessments

Medical Assessor Meakin saw the claimant on 27 August 2019 and issued his certificate on that date.
The claimant gave a history of 2011 back surgery which resolved all his back pain and his left pain but that in February 2012 his left leg pain returned radiating to the knee. Symptoms persisted up to May 2012 and over the next few months he said symptoms eventually settled.
The claimant gave the Medical Assessor a consistent history of the accident and that he experienced immediate neck and back pain. His GP referred him to Dr Darwish who saw

Mr Hirmiz about five weeks after the accident. A C7 perineural injection was given on

1 December 2017 “which gave significant relief”.
Medical Assessor Meakin has a history of neck pain with right and left paracervical muscle discomfort more on the left with pain from the neck into the pad of the shoulders. There was no left or right arm pain and his most recent injection in May 2019 had no effect.
There were no neurological signs of radiculopathy in the upper or lower limbs although there was a radicular symptom of asymmetric range of cervical motion.
Medical Assessor Meakin accepted that the claimant was asymptomatic in his lumbar and cervical spine before the accident and assessed WPI at 5%.

RE-EXAMINATION FINDINGS

The Medical Assessors interviewed Mr Hirmiz on 3 October 2020. Medical Assessor Dixon used the Teams video link. Because of technical difficulties, Medical Assessor Couch used the Teams phone link. Audio quality throughout was good and the questioning took approximately 45 minutes.
Mr Hirmiz spoke excellent English with a slight accent and there were no difficulties with communication. He was cooperative throughout and gave a clear specific history in a straightforward manner.

Pre-accident medical history

Mr Hirmiz said that he arrived in Australia from Iraq in 1999. He drove his own truck for a couple of years and during this period developed low back pain. He understood that he had a problem with a lumbar disc and in 2011 had L5/S1 laminectomy and decompression. He was asked if he recalled having sciatica (pain radiating into the lower limb) at this time. He said he could not recall this, although he said radiating pain into the lower limbs was a definite symptom following the subject accident in 2017.
Before the 2011 surgery, he felt obliged to sell his truck and subsequently managed a small shop for a while. Mr Hirmiz said that his back was much better for a long time following the 2011 surgery, but he did have an exacerbation (in 2012) and some pain intermittently over the years since then. He recalled doing swimming and stretches for relief and said that he would often be alright for a few months and then get some symptoms again but nothing like the symptoms he experienced after the car accident leading up to his surgery.
In about 2015, Mr Hirmiz set up a small warehouse and since then had operated a business importing manual handling and lifting equipment, mainly pallet jacks. He was asked how he coped with this work. He indicated that currently he had about five employees. Between 2015 and the subject accident in 2017, he was very busy establishing the business. Among other duties, he regularly operated a forklift, including lifting and retrieving stock from high shelving. Mr Hirmiz said that at this time had had absolutely no neck symptoms and had no difficulty looking up to high shelving (he later emphasised that he now cannot do this because of neck stiffness and pain). Mr Hirmiz denied any previous neck symptoms or conditions before the 2017 accident. He could not recall having any imaging or seeing doctors about his neck before the accident.

History of accident and subsequent symptoms

Mr Hirmiz described a rear-end crash on a country road in the Hunter Valley on 9 July 2017. He was driving a six-month old Kia Sorrento four-wheel drive. The passengers were his wife and son (then aged about 16 years). They had taken a two-day trip to the Hunter Valley and at the time had gone out for lunch. He described being on a downhill stretch of road and traffic ahead had stopped. He stopped. He recalled “the biggest bang I’ve ever heard – my car was pushed into the car ahead and then it hit me the second time with the momentum.” He said the car that hit his was a Landcruiser Prado four-wheel drive. He was wearing a seatbelt and while airbags in the Kia did not deploy, he said those in the Landcruiser did.
He commented “my car was only six months old and big and strong – if not, she would have killed us all.”His was driveable and was subsequently repaired. He recalled considerable front end damage to the Landcruiser and thought that it would have been a write-off, although he did not have further details. On questioning, he did not recall any damage to his driver’s seat. He did recall that he was looking to the right at the scenery just before the impact.
Mr Hirmiz said that immediately after the accident he had pain in the neck radiating to the left shoulder and also lower back pain and he wanted to lie down. He recalled “I couldn’t believe it was just a car accident – I thought a helicopter had landed on us.” He said that the ambulance officers wanted to take him to hospital but as his wife was not able to drive on country roads, he drove them back to their accommodation. Ambulance officers advised him to call again if he needed. Instead, he consulted his GP on returning to Sydney.
Because of persistent neck and low back symptoms, he subsequently consulted A/Prof van Gelder, neurosurgeon. He said that A/Prof van Gelder did not hesitate to offer further surgery to his lumbar spine and was confident that it would help, but he was unsure whether surgery to the cervical spine would be beneficial. He first underwent anterior lumbar fusion at the Sydney Adventist Hospital (he recalled having one or two prior injections to the lumbar spine for symptom relief). This surgery was helpful.
Mr Hirmiz described the neck injury as more troublesome. He recalled having four or five injections to the cervical spine, only one of which gave any benefit. He described persistent neck and shoulder pain. He described further discussions with A/Prof van Gelder, who eventually offered anterior cervical discectomy and fusion (ACDF). Apparently, A/Prof van Gelder said there was likely to be only moderate improvement. Mr Hirmiz recalled that pain was so bad that “I said I’d take anything”.
The Medical Assessors asked Mr Hirmiz if he had had physiotherapy or other physical treatments. He said that physiotherapy did not help and said that he had not had a gym program or hydrotherapy. Records suggest the claimant had 13 sessions of chiropractic treatment but there are no records from any physiotherapist.
A/Prof van Gelder went on to perform C6/7 ACDF at Liverpool Private Hospital in October 2020. Mr Hirmiz recalled that bone graft was taken from his hip and said that this was initially the most painful part of the procedure. He described a good result for the first couple of months but then some increase in pain. Overall, he considered there had been about 30-40% pain relief from the cervical procedure. He was asked specifically if he had radiating pain into the upper limbs in addition to neck pain he said definitely that he could not recall any radiating pain.

Activities since the 2017 accident and surgery

Mr Hirmiz said that apart from brief periods off work following the two operations, he had continued working in his own business throughout (he commented that he had been so distressed mentally after the accident that work became very important for him). He said that he now avoids using the forklift if at all possible – if he does have to use it sometime because his employees are too busy, his neck is worse for the rest of the day. He avoids using the forklift to access high racking, as neck extension is too painful.
Mr Hirmiz said the family had moved into a new house two months earlier. He said that whereas in the past he was active around the home and yard, he had to get help with various tasks. He now tries to avoid mowing the lawn and his 22-year-old son does this and helps with other jobs.

Current treatment

The Medical Assessors understood that Mr Hirmiz sees his GP as needed. He mainly relies on Panadol or Nurofen as needed and occasionally takes a Panadeine Forte if his pain is worse.

Medical Assessors’ impression following interview

Mr Hirmiz presented in a straightforward and convincing manner and gave a clear specific history. From that history there was no evidence of a symptomatic cervical spine condition before the 2017 accident.
He describes a quite severe rear-end crash and immediate onset of persistent neck and left shoulder symptoms. He described persistent symptoms, lack of relief from four or five cervical spine injections, and eventually proceeding to surgery by A/Prof van Gelder after considerable deliberation and reservations about the outcome. He described worthwhile, although incomplete relief from this procedure.
Mr Hirmiz described some variable and intermittent low back symptoms following his surgery in 2011 but he denied any sciatica or lower limb symptoms before the accident. He described a definite increase of symptoms and onset of lower limb symptoms following the subject accident. He described good result from subsequent anterior lumbar interbody fusion.
The Medical Assessors concluded that this further history supported the fact that Mr Hirmiz sustained injuries both to the cervical spine and lumbar spine in the subject accident.

ASSESSMENT OF THE ISSUES

What were the injuries caused by the accident?

The Panel notes that the claimant’s unchallenged evidence is that the vehicle that ran into the claimant’s was travelling at somewhere between 60 and 80 kmph. The airbags in that vehicle deployed. While the claimant was able to drive his vehicle away from the accident and back to Sydney the claimant’s evidence is that the first impact was considerable and there was a second impact with the vehicle in front.

The claimant’s wife was injured, and the documents suggest his wife also made a claim. It is not clear whether the claimant’s son made a claim but there is reference in the records to the claimant’s son also having an injury.
The insurer does not dispute that the claimant injured his neck and lower back in the accident. The bulk of the medical opinion relied on by both parties and the treating medical material supports a finding that the claimant sustained soft tissue injuries to his cervical spine and to his lumbar spine.
The claimant does not dispute that he had a pre-existing lumbar spine injury but denies any previous complaints in his neck. The radiology supports a finding that the claimant had significant degenerative changes in his neck and degenerative changes in his lower back which had already been the subject of surgery.
It is the clinical judgment of the medical members of the Panel’s view that the claimant had a vulnerable lumbar and cervical spine before the accident and that he sustained soft tissue injuries which have stirred up or exacerbated the degenerative cervical spine changes and the pre-existing lumbar spine condition.

Was the need for the claimant’s neck surgery accident related?

Although his radiology has shown severe degenerative changes, Mr Hirmiz’s neck had been asymptomatic until the time of the accident. The claimant complained to the attending ambulance officers and to his GPs and specialists thereafter of constant neck pain that did not settle with prolonged conservative treatment. The claimant’s soft tissue injury has, in the Panel’s view, rendered symptomatic the claimant’s pre-existing cervical spine degenerative changes.
While the extent of the degenerative changes in the claimant’s cervical spine suggests the claimant could have progressed to pain and impaired function leading to surgery at some stage in the future it is equally possible that he may have continued through life with no symptoms.
It is the clinical judgment of the medical members of the Panel that the car accident was a material contribution to the need for surgery to his neck and the surgery that occurred on

14 October 2020 would not have occurred but for the accident.

Was the neck surgery reasonable and necessary in the circumstances?

The claimant has had, based on his history and according to the records, constant cervical spine pain. The ambulance records neck pain and the claimant attended his GP within a few days of the accident and was investigated with scans and the subject of a referral to specialists. He was prescribed strong pain killing medication. Mr Hirmiz has complained consistently since the accident of neck pain. He had chiropractic treatment and possibly also physiotherapy,[35] medication and four or five injections in his cervical spine.
[35] The claimant has given histories of having had physiotherapy. Panel has no notes from a physiotherapist but does have notes recording 13 sessions with a chiropractor.
While it does not appear Mr Hirmiz ever had true radiculopathy (in terms of the neurological signs prescribed in the Guidelines) he did have radicular symptoms in particular pain from his neck radiating to his shoulder (which resolved after surgery). The claimant reported a 40% improvement in these symptoms after surgery which supports the decision to proceed with the surgery.
It is the clinical judgment of the medical members of the Panel that cervical fusion surgery was reasonable and necessary due to the findings of severe degenerative changes on

X-rays and MRIs and in the light of unremitting pain (for more than three years) and after conservative measures were exhausted.

What is the impairment resulting from the neck injury?

Due to the surgery and the C6/7 cervical fusion, the claimant must, in accordance with cl 1.145 of the Guidelines, be assessed as having multi-level structural compromise at the C6/7 level. This falls within the fourth category of a diagnostic related estimate (DRE IV) and attracts a WPI of 25%.
As there is no evidence of a pre-existing symptomatic cervical spine condition and associated impairment and no subsequent injury there is no issue of apportionment of the impairment to Mr Hirmiz’s cervical spine.

Was the need for the claimant’s back surgery accident related?

The claimant had previous lumbar spine surgery (L5/S1 discectomy). It is the clinical judgment of the medical members of the Panel that after such surgery, the spine at that level becomes unstable and was particularly vulnerable to exacerbations, aggravation and further injury.
There is documented in the GP notes a 10 year history (or more) of back symptoms before his first surgery in 2011. There is also a history of a significant exacerbation in 2012, so significant that the claimant and his specialist were considering revisionary surgery to the L5/S1 area. While that surgery did not go ahead in August 2013, the claimant’s GP at the time refers to chronic back pain. Mr Hirmiz himself, at the re-examination with Medical Assessors Couch and Dixon conceded that he had had occasional lower back pain from then up to the date of the accident although not as severe as the symptoms felt after the accident.
The Panel notes the 2012 and 2013 scans show that the claimant had further protruding disc material and the more recent scans confirmed a similar finding. This material is impinging the L5/S1 nerve roots and is the source of the claimant’s pain.
There is nothing in the GP or specialist notes to suggest the claimant had any ongoing symptoms in his lower back after November 2013, if there were symptoms, as the claimant conceded, they were not of sufficient severity for him to seek medical attention.
The claimant told the attending ambulance officers at the scene of the accident that he felt he had aggravated his previous back condition. He has complained consistently since then of back pain.
When all of these records are considered, it is the clinical judgment of the medical members of the Panel that the accident in July 2017 was a material contribution for the claimant’s need for the lumbar spine surgery that occurred in March 2020. It is also the view of the Panel that but for this accident, the claimant would not have had the surgery that he had in March 2020.

Was the lumbar spine surgery reasonable and necessary in the circumstances?

The claimant has not had neurological signs (loss of sensation, loss of power, weakness and muscle atrophy) in his lower limbs since the car accident. Dr Shahzad in 2017 had a history of pain in the back of the left leg, Dr Nazha in November 2018 has a history of radiating pain to the left knee but not beyond. In 2019, Dr Sun had a history of pain in both thighs and in 2020 A/Prof van Gelder records pain radiating into both legs and in particular down to the left calf. These are radicular symptoms but not signs of radiculopathy.
The claimant’s back condition has improved since the surgery. He says he no longer has any radicular symptoms. While he has continued pain, it is managed by modification of activities and over the counter medication.
It is the clinical judgment of the medical members of the Panel that in the light of the pre-existing condition and the claimant’s unremitting back pain (treated for two and a half years by conservative measures) that it was reasonable and necessary for A/Prof van Gelder to proceed to a fusion of the claimant’s L5/S1 spine.

What is the impairment resulting from the back injury?

The claimant’s current whole person impairment in his lumbar spine is assessed at DRE IV due to the lumbar disc fusion. This results in a finding of 20% WPI. In the case of the lumbar spine, Mr Hirmiz had a pre-existing condition treated with a discectomy. This should, in the view of the Panel be assessed as DRE II due to residual back ache but sciatica that had been resolved by surgery. This attracts a WPI of 5% which should be subtracted from 20% to leave an accident-related impairment of 15%.

CONCLUSION

The Panel has found that the claimant’s cervical spinal fusion at C6/7 is related to the injuries caused by the accident and is reasonable and necessary in the circumstances. As a result, the WPI flowing from the injury (treated with surgery) is 25%.
The Panel has also found that the claimant’s lumbar spinal fusion surgery at L5/S1 is related to the injuries caused by the accident and is reasonable and necessary in the circumstances. The WPI from that injury (treated with surgery) is 15%.
When the combined values chart at page 322 is applied, the total WPI in respect of the claimant’s cervical and lumbar spinal injuries is 36%.
As the Panel has come to a different view to that of Medical Assessor Cameron it follows therefore that his certifications must be revoked and a fresh certificate issued.

[2023] NSWPICMP 546

30 October 2023