Insurance Australia Limited t/as NRMA Insurance v Abdallah
[2023] NSWPICMP 650
•1 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Abdallah [2023] NSWPICMP 650 |
| CLAIMANT: | Amira Abdallah |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Elizabeth Medland |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | John Carter |
| DATE OF DECISION: | 1 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; panel review of a single Medical Assessor (MA) certificate; dispute as to whole person impairment (WPI) of alleged gastrointestinal injuries; MA had found a 2% WPI due to dyspepsia, irritable bowel syndrome and haemorrhoids; Panel requested parties to confirm whether the clinical findings of the MA were disputed and if the question is one of causation only and therefore no examination required; parties confirmed that the issue was causation only, the clinical findings of the single MA were not in dispute; Panel found that the evidence is such that the gastrointestinal symptoms are likely not due to “overuse of medication” as a secondary injury to the shoulder injury caused by the motor accident; noted that similar injuries were noted in medical material prior to the motor accident; found that such symptoms would have become prominent within days to weeks of commencement of medication treatment rather than the many months that occurred in the subject case; found that the alleged injury was not caused by the motor accident; Held – original certificate revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Garvey dated 14 July 2022 and issues a new certificate determining that the following injuries: · dyspepsia; · irritable bowel syndrome, and · haemorrhoids. Are NOT caused by the motor accident. |
REASONS
BACKGROUND
Ms Amira Abdallah (the claimant) suffered injury on 5 April 2018 when she was the driver of a motor vehicle, when a collision occurred with another vehicle who entered the roadway to her left.
Insurance Australia Limited t/as NRMA Insurance (the insurer) is the insurer of the vehicle the claimant considers at fault. The insurer has a liability to pay Ms Abdallah statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The issue in dispute is whether the “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2 cl 2 of the MAI Act.
The claimant alleges physical and psychological injuries caused by the motor accident. The alleged injury the subject of this dispute is:
Stomach: Gastrointestinal problems due to overuse of medication - secondary injury.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Garvey who issued a certificate dated 14 July 2022 certifying injuries caused by the accident including: dyspepsia, irritable bowel syndrome and haemorrhoids give rise to a permanent impairment of 2% and is not greater than 10%.
A medical assessment certificate has also been issued by Medical Assessor Home dated
18 December 2020. Medical Assessor Home certified the claimant as suffering a whole person impairment of 9% due to a rotator cuff tear injury to the right shoulder caused by the accident. The certificate is not a subject of this review.
The combined total of the aforementioned certified impairment assessments results in the claimant being assessed over the 10% whole person impairment threshold.
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President’s delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
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.[5]
14.Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[5] Section 41(2) of the PIC Act.
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The Panel convened via teleconference on 19 May 2023. Thereafter, directions were issued dated 7 June 2023 requesting the parties to advise whether Medical Assessor Garvey’s clinical findings were disputed and if not, whether it was agreed that a re-examination was not required.
The insurer confirmed via messages on the Commission portal that the insurer does not dispute the clinical findings of Medical Assessor Garvey and does not seek a re-examination by the Review Panel.
The claimant’s legal representatives provided a response dated 13 June 2023 which states: “the claimant too does not dispute Assessor Garvey’s clinical findings and submit that his original assessment has factored in all relevant and necessary details.”
ASSESSMENT UNDER REVIEW
Medical Assessor Garvey’s assessment of whole person impairment is as follows (page 8):
“Dyspepsia caused by medications taken to treat musculoskeletal injuries - 1% WPI is assessed as a midrange mild impairment as there are symptoms only and no objective clinical evidence of any anatomical disruption.”
Constipation-predominant irritable bowel syndrome, a sequel of medications taken for constipation is assessed at 0% whole person impairment under AMA 4 guides example on page 10/241.
Haemorrhoids, the result of chronic constipation - only one haemorrhoid has been banded (doubly) which has not recurred and is not visible so 1% whole person impairment is assessed.
Medical Assessor Garvey took a history that the digestive system problems commenced in March/April 2020. Constipation was noted to last 2-3 days and she was treated with Metamucil and suppositories. Excessive PR bleeding was reported lasting seven days associated with pellets, which was painful. The claimant was reported to have seen specialist gastroenterologist, Dr Sauel, who advised having sigmoidoscopy and stopping Brufen. The claimant stated that she never felt any haemorrhoids but when going to the toilet, she could feel something coming out when evacuating her bowels. The claimant’s diet changed for the constipation and the diagnosis of colitis was never confirmed, and an upper GIT endoscopy was not performed.
Current symptoms were noted as “anorexia, heartburn, bloating, nausea, constipation”.
The claimant was noted to have taken: Voltaren, Avanza, Endone, and Brufen “taken for a long time at high doses of 6 tablets/day, ceased February March 2020”.
The Medical Assessor’s clinical findings are recorded as follows:
“Inspection: There was no cachexia, pallor of anaemia or jaundice. There was no clubbing of the fingers or liver palms. There were no spider naevi or stigmata of liver disease on the cherst. The abdomen was symmetrical and obese in shape with a fatty apron. There were no abdominal masses visible but discolouration from striae abdominalis. There was an imperceptible abdominal wall hernia scar, but no sinuses or fistulas and the umbilicus was normal.
Palpation: There were no enlarged lymph glands palpable in the neck or groin regions. The supraclavicular fossae were normal, the external potential hernia orifices were closed, the femoral pulses were palpable. Light palpation was normal. Moderate palpation of the abdomen was normal in all quadrants There was muscular guarding in the right upper quadrant from fatty liver but no rebound tenderness or crossed rebound tenderness. The liver was just palpable, but the spleen was not palpable and the kidneys were not ballottable. There were no abdominal masses palpable.
Percussion: The percussion note was resonant and there was no fluid thrill and no shifting dullness.
Auscultation: On auscultation the bowel sounds were normal and there was no aortic bruit and no gastric splash. Rectal inspection (only) was normal and there were no fissures, fistulas or haemorrhoids and no blood. The weight was 95 kg and height 165.5 cm (BMI 34.6). I showed the Claimant the Bristol stool chart and she chose numbers 2(‘Sausage-shaped but lumpy’) and 7 (‘Watery, no solid pieces. Entirely Liquid’).”
Medical Assessor Garvey noted the claimant’s presentation to be consistent.
In respect of the issue of causation, Medical Assessor Garvey’s reasons are confined to a statement that the motor accident is a contributing cause, which is more than negligible.
SUBMISSIONS
Claimant’s submissions dated 4 May 2021
These are the claimant’s original submissions in support of the original further medical dispute application as to whole person impairment in respect of gastrointestinal issues.
The submissions refer to the report of Dr Berry dated 22 April 2021. Dr Berry noted a significant amount of pain requiring use of medication. He considered the development of epigastric discomfort and alternating constipation and loose bowel motions associated with haemorrhoids as being a consequential injury to medication use for the musculoskeletal injury.
Insurer’s submissions dated 19 August 2021
These submissions are in reply to the claimant’s application for assessment of whole person impairment. The insurer notes the Bankstown-Lidcombe Hospital records that document attendances for day surgery in December 2010 and February 2014 for repairs to epigastric hernias. The insurer also notes treating records that pre-date the subject accident that document gastrointestinal complaints.
On the basis of the evidence and the insurer’s qualified expert medical opinion, the insurer submits that the alleged gastrointestinal injuries are not related to the subject accident.
Insurer’s submissions in support of the application for review dated 20 July 2022
The insurer submits the Medical Assessor failed to explain why the pre-accident epigastric symptoms shown in the treating records, and set out in the insurer’s original submissions, and commented on by Dr Sethi, in respect of the issue of causation. It is noted that such recorded complaints do not factor into the assessment of whether the current symptoms are caused by the accident.
It is further submitted on behalf of the insurer that the Medical Assessor failed to address the relevance of the delay in onset of symptoms said to be due to the use of medication related to the accident when this issue is directly raised as a factor relevant to causation by specialist Dr Sethi.
The insurer also submits that the Medical Assessor failed to address the causes of the symptoms as identified by Dr Sethi.
Claimant’s submissions in reply to insurer’s application for review dated 9 September 2022
It is submitted that it would be unreasonable for the Medical Assessor to transcribe each and every comment or remark made by the claimant during an assessment when preparing a certificate. The claimant submits that she did provide a full and transparent history to the Medical Assessor.
The submissions refer to cl 6.41 of the Guidelines about inconsistencies being put to the claimant, and it is submitted the history provided by the claimant fully and sufficiently disclosed pre-accident epigastric issues, and therefore there were no inconsistencies.
In respect of the insurer’s allegation that the Medical Assessor failed to adequately provide his path of reasoning, the claimant refers to the various inclusions in the medical assessment as to the material evidencing gastrointestinal complaints since the motor accident, including relevant medication prescribed.
In respect of the delay between medication and symptoms, it is submitted that had the Medical Assessor had concerns this would have been expressed. The claimant submits that the Medical Assessor took into account pre-existing issues and any other possible factors and clearly attributes the injury to the motor accident.
The claimant submits that disagreeing with the conclusion of the Medical Assessor is not a proper ground for review.
DOCUMENTATION
The Panel has considered all documents provided by the parties as included in their paginated and indexed bundles, and all other information and documentation that has been received.
The material includes two statements of the claimant. The statement of 28 January 2020 lists medication to include: Valadoxin 25mg, Brufen 400mg, Valium 5mg, Tramadol 50mg, and Endone 5mg.
Injuries and disabilities suffered are listed in the January 2020 statement. They do not include any complaints of a gastrointestinal nature.
In the second statement dated 21 March 2023, the claimant lists her medication as: Valium 5mg, Tramadol 100mg, Endone 5mg and Oxycontin 10mg. She states that at times these medications make her feel “extremely nauseous” and removes her appetite.
A Certificate of Medical Assessor Home dated 18 December 2020 certifies a 9% whole person impairment related to a rotator cuff tear of the right shoulder. She was noted to be using Tramadol, Valium and ibuprofen (four to six tablets daily).
A Certificate of Medical Assessor Samuels dated 4 December 2020 is noted which certified a 5% whole person impairment related to psychological injury. No gastrointestinal complaints are recorded in the reasons.
Dr Berry, specialist general surgeon, provided a report to the claimant’s lawyers dated
22 April 2021. Dr Berry notes the history of the physical injuries, including the right shoulder injury requiring surgery in July 2018. He takes a history that in 2020 the claimant began to suffer from heartburn and reflux, associated with constipation and alternating with diarrhoea. Bleeding from the bowel was noted leading to an admission to Bankstown Hospital.
At the time of assessment the claimant reported that she was still aware of reflux and epigastric pain. Her constipation and diarrhoea had settled and there was no further bleeding since the banding of the haemorrhoids. The doctor related the symptoms to the medication use. He assessed a 5% whole person impairment owing to gastrointestinal issues.
The claimant was referred to gastroenterologist, Dr Samuel. In a report dated 22 April 2021, the doctor noted that a recent sigmoidoscopy confirmed no colitis to hepatic flexure. Haemorrhoids were banded and there was no further PR bleeding. It was noted that she was slowing managing her pain medications and her bowels will work better if she is able to come off the opiates.
The insurer obtained a report from gastroenterologist and hepatologist, Dr Sethi, dated
18 June 201. He examined the claimant on 8 June 2021. He took a history from the claimant that she began experiencing gastrointestinal symptoms for the first time in
June 2019, which progressively worsened over the next few months. The symptoms were described as:
“…epigastric and left sided pain which was described as sharp and stabbing. There was prominent bloating, gas and abdominal distention. She felt nausea and vomiting. There were irregular bowel habits alternating between constipation and diarrhoea. She noted excess gas and wind with large amounts of rectal blood. Treatment with Buscopan, Maxolon and Docusate was commenced.”
The rectal bleeding was noted to have resolved at the time of examination, however symptoms of abdominal pain, bloating and irregular bowel habits persisted.
Dr Sethi opines that the diagnoses of gastro-oesophageal reflux disease, irritable bowel syndrome and haemorrhoids would have developed independently of the motor accident and the treatment she received afterwards. The doctor states his opinion that owing to a 14 month delay between the commencement of analgesics and symptoms, the accident is unlikely to have had any causative role. He also notes the medical records to have clearly documented abdominal pain in the past. He notes that the reflux disease is common in the population and not normally caused or worsened by analgesic medication. Similar comments are made in respect of the irritable bowel syndrome and haemorrhoids. He assesses a 0% whole person impairment.
FINDINGS
Summary of relevant history
The claimant suffered a torn rotator cuff as a result of the subject accident of April 2018. This was treated surgically and she subsequently took analgesic medication (predominantly opioids and Brufen) until early 2020 when it was ceased. Medical Assessor Garvey noted symptoms of anorexia, heartburn, bloating, nausea and constipation commencing in March or April 2020. She was treated with medication such as Metamucil but she had some rectal bleeding and a sensation of second degree haemorrhoids. A sigmoidoscopy showed no pathology apart from a single haemorrhoid, which was successfully banded. Medical Assessor Garvey concluded that the claimant suffered from dyspepsia, irritable bowel syndrome and haemorrhoids and that they were causally related to the analgesic medications prescribed for pain secondary to the shoulder injury caused by the accident on
5 April 2018.
The Panel notes that there is an extensive history of gastroenterological problems that ante-dated the motor vehicle accident of 5 April 2018:
(a) on 18 November 2011, Ms Abdallah attended Dr Yvonne Pham (general practitioner) (A12). She noted “Recurrent nausea, epigastric discomfort” ;
(b) on 12 September 2012, Ms Abdallah attended Dr Pham. She noted “epigastric discomfort for 1 week”;
(c) on 9 July 2013, Ms Abdallah attended Dr Surinder Kaur (general practitioner) (also A12). She documented “still have abdo pain”;
(d) on 23 July 2013, he reviewed Ms Abdallah and noted that she had been experiencing abdominal pain, bloating, distention and fullness for the last few months. She was advised to undergo gastroscopy but did not proceed with this;
(e) on the same day, 23 July 2013, Dr Haddad general practitioner’s records (Primary Health/Idameneo) (A15, R7) indicate: ‘Has been experiencing abdominal pain described as dull pressure in the epigastrium for the last few months. Has not had similar pain before. It is associated with bloating, abdominal distention and fullness. The pain does not radiate anywhere. No nausea, vomiting or weight loss. Tried Nexium but did not find this to be effective. Abdo US shows fatty liver. LFTs normal’;
(f) on 14 August 2013, Ms Abdallah attended Dr Pham. She documented “Intermittent epigastric discomfort, bloating, burping, comes and goes”, and
(g) on 15 October 2013, Ms Abdallah attended Dr Duraid Haddad (general practitioner). He documented “upper abdo pain, worse few days ago with BBQ Food. Severe pain and nausea no vomiting.”
The 2013 symptoms shown in the treating records are recorded by Medical Assessor Garvey, but he took a history that the claimant’s symptoms had an onset of March/April 2020, well after the accident in April 2018, and long after the time Dr Sethi recorded as the date of onset on the claimant’s history to him, which was in June 2019.
Panel’s determination
The Panel believes there is evidence that the gastrointestinal symptoms are likely not due to “overuse of medications” as a secondary injury to the shoulder injury caused by the motor accident. Similar symptoms were documented in detail in 2013, and the onset of the symptoms as recorded by Medical Assessor Garvey in March/April 2020 was at the time that the analgesic medications were being ceased. If there were a causal relationship between the gastrointestinal symptoms and the analgesia, the Medical Assessor did not explain why it took up to two years for them to develop when they would almost certainly be expected to become prominent within days to weeks of the commencement of treatment. It is documented that the claimant had been ingesting Brufen and opioids on a long term basis as at March/April 2020.
The Panel does not disagree with the 2% impairment assessment of Medical Assessor Garvey for the gastrointestinal problems, however, finds that the evidence supports the conclusion that these problems are due to pre-existing gastrointestinal problems dating back to at least 2013. If they were due to the medication taken for treatment of the musculoskeletal injuries caused by the accident, the symptoms would have almost certainly arisen within days to weeks after the commencement of same and not months/years as is the case here.
The Panel notes that the claimant’s representatives have expressly stated that Medical Assessor Garvey had included all relevant and necessary details. Neither party disputes the clinical findings, and neither party have pressed for a re-examination of the claimant.
The Panel concludes that the gastrointestinal injuries identified by Medical Assessor Garvey are not caused by the motor accident. As such the certificate of Medical Assessor Garvey is revoked in accordance with the attached certificate.
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