Insurance Australia Limited t/as NRMA Insurance v BMU

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v BMU [2024] NSWPICMP 874
CLAIMANT:	BMU
INSURER:	IAG Ltd t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	John Garvey
DATE OF DECISION:	19 December 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (MAC Act); accident on 3 December 2014; claimant injured; dispute related to gastrointestinal injury; insurer’s review application re permanent impairment; causation disputed; insurer alleges digestive condition not due to accident because claimant delayed treatment until 2022; permanent impairment; claimant re-examined; different clinical findings to original assessor; causation accepted as claimant’s doctors prescribed opioids to treat musculoskeletal injuries accepted as caused by accident; close association with opioids with gastrointestinal injuries; claimant sought treatment for gastrointestinal injury soon after accident; permanent impairment of anus; condition impacts adversely on claimant’s ADL causing Class I anal impairment 9% under Table 4 on page 10/243 of AMA 4; benefits of treatment; cost effective and easily available; surgery will assist rehabilitation and recovery; proposed surgery still appropriate despite different clinical findings; Held – accident caused injuries requiring treatment and permanent impairment; original certificate revoked; original combined impairment certificate revoked; new certificates issued; combined permanent impairment greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Certificate Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 following the Review Panel reviewing whether the subject motor accident on 3 December 2014 caused injuries to the claimant resulting in permanent impairment greater than 10%. 1. In respect to the disagreements under s 58 (1) d) of the MAC Act about 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% the Review Panel revokes Medical Assessor Cowlishaw’s certificate dated 26 April 2024 and issues a new certificate. 2. The motor accident caused the following injuries, which are assessed as a combined permanent impairment of 9%, which IS NOT GREATER THAN 10%: · gastrointestinal system – anus. 3. Medical Assessor Assem’s replacement certificate dated 19 August 2024 assessed 8% permanent impairment of the following injuries caused by the motor accident which is not greater than 10%: · cervical spine (soft tissue); · lumbar spine (soft tissue), and · left shoulder (soft tissue). 4. Using the Combined Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, this Panel’s medical assessment combined with Medical Assessor Assem’s assessment is 16%, which is greater than 10%. 5. Accordingly, this Review Panel revokes Lead Medical Assessor Assem’s combined assessment certificate dated 6 June 2024 and issues a replacement combined assessment certificate under s 61 (10) (b) of the Motor Accidents Compensation Act 1999 stating the following injuries caused by the motor accident were assessed at permanent impairment of 16% which is greater than 10%: · cervical spine (soft tissue); · lumbar spine (soft tissue); · left shoulder (soft tissue), and · gastrointestinal system – anus.

REASONS

BACKGROUND

[BMU] (claimant) was injured in a motor accident on 3 December 2014. The insurer has admitted liability for the claim under the Motor AccidentsCompensation Act 1999 (MAC Act).
The parties are disputing causation of the referred gastrointestinal system injury and the degree of permanent impairment for the claimant’s injuries from the accident.
On 13 March 2024 the Personal Injury Commission (Commission) referred the gastrointestinal injury permanent impairment dispute to Medical Assessor James Cowlishaw to assess. He assessed the claimant’s gastrointestinal injury as related to the subject accident and permanent impairment as 9% in his certificate dated 26 April 2024.
The insurer applied under s 63 of the MAC Act for a review of the certificate.
The President of the Personal Injury Commission (Commission) has constituted this Review Panel to review the Medical Assessor’s certificate only addressing the permanent impairment dispute after the President’s delegate found reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The Commission referred the following injury for the Panel to assess:
· gastrointestinal injury.

STATUTORY PROVISIONS

General

[BMU]’s claim and entitlements to compensation are governed by the MAC Act and the Motor Accident Compensation Regulation 2020 (the Regulation).
The MAC Act, the Personal Injury Commission Act 2020 (PIC Act) and the Personal Injury Commission Rules 2021 (the Rules) govern the MAC Act dispute resolution process.

Causation of injuries

[BMU] can only recover damages from the insurer for the losses incurred as a result of the injuries caused by the accident. The decision maker must determine whether the subject accident caused or materially contributed to injuries before individual treatment or impairments can be assessed.
The relevant statutory provisions, the case law and the Motor Accident Permanent Impairment Guidelines version 1 (Guidelines or MAPIGS) are set out at Appendix A.

Assessment under Review

The original assessment findings are summarised in Medical Assessor Garvey’s report below.

Matters considered and decided by the Panel

The Panel considered all aspects of the assessment under review.
The Panel considered the parties’ submissions which are set out at Appendix B.
The Panel also received further submissions on 11 December 2024 where the claimant submitted after consulting with the insurer that it was common ground that the parties had wanted the treatment dispute to be referred and assessed as well as permanent impairment.
Although the Commission did not refer the treatment dispute to Medical Assessor Cowlishaw, by what looks like an oversight, the Panel considered what the Court of Appeal stated in Mandoukos[1] about the scope of a medical dispute. It was said it is defined, not by the statute or by the bundle of documents provided to the Commission, but by the parties’ submissions.
[1] Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 (4 April 2024).
However, McKee v Allianz Australia Insurance Limited[2] referred to in Mandoukos refers to whether a MAC Act review panel of a permanent impairment medical assessment was limited to the grounds on which the assessment was said to be incorrect in the application for review: “at [5]. Allsop P held that it was not and that the “matters concerned” in s 63(4) of the 1999 Act are “the matters referred for assessment, being the medical dispute referred for assessment”.
[2] (2008) 71 NSWLR 609; [2008] NSWCA 163
The Panel agreed that this Panel was to resolve the permanent impairment medical dispute based on what was referred to Medical Assessor Cowlishaw and could not provide a certificate to resolve a treatment disagreement under s58 (1) (a) and (b) of the MAC Act.
However, the Panel could comment on whether the proposed treatment was linked to the accident and whether it was reasonable and necessary, because this was in line with the Commission’s guiding principle to “facilitate the just, quick and cost effective resolution of the real issues in the proceedings” following s 42 of the PIC Act.
The Panel decided re–examining the claimant was required. Medical Assessor Garvey examined [BMU] on behalf of the Panel on 18 November 2024 at the Commission’s medical suites.

Documentation

The Panel adopts the documentation Medical Assessor Garvey summarised for his report on the re-examination.

REVIEW PANEL FINDINGS

The claimant attended the examination alone on 18 November 2024.

HISTORY

Pre–accident medical history and relevant personal details

Claimant’s details including:
(a)    Age at examination: 51 years of age.
(b)    Hand dominance: Right.
(c)    Employer and occupation: Self–employed excavator (Quake Excavations) and scrap metal collector. Now doing mainly excavations.
(d)    Present treatment: Targin MR (modified release) tablet (Oxycodone/naloxone) one twice a day but this causes him difficulty in sleeping. Telmisartan 80/20 mg for high blood pressure once daily; occasional Nurofen; he prefers Tramadol because he believes there is something in that medication to help him use his bowels.
(e)    Present and recent symptoms: The claimant said that after his accident he was treated by Panadeine Forte, and he was constipated for one week. Then he passed a “football” which caused rupture and blood and stabbing pain inside his back passage. He had problems of constipation with his stomach and different drugs were tried. Tramadol kept him awake, and he has had constipation for about 10 years, and he has occasional blood and when he does go to the toilet to pass a motion, he gets pain.
(f)    Details of any previous or subsequent accidents, injuries, or condition: Motor bike accident affecting his left ankle about 20–30 years ago.
(g)    General health: “Terrible, I am fat and lazy.”
(h)    Family history: His father died from asbestosis on the day of his motor vehicle incident.
(i)    Relevant work history before the accident: Self–employed subcontractor excavator and scrap metal collector. Now works as a truck driver and excavator. He does some environmental sampling testing for carcinogens in the ground and geotechnical testing to a depth of approximately 3m.
(j)    Social activities: Married man who lives on a four acre farm at Ingleburn with his wife and two children (aged 19 and 22). Previously smoked 25 cigarettes a day then quit but has now taken it up again smoking 40 cigarettes a day. Alcohol–nil, Drugs: Cannabis, ICE, speed, LSD, heroin, MDMA/ecstasy, cocaine–nil.
[BMU]’s condition has the following effect on his activities of daily living (ADL):
(a)    Dressing – yes.
(b)    Bathing and self-hygiene – yes.
(c)    Toileting – yes but has to use his left hand to wipe his bottom and is never clean.
(d)    Mobility/transportation–can walk 200m; can drive for two hours and then has to stand up.
(e)    Eating and preparing meals–yes.
(f)    Domestic duties including washing and hanging clothes, vacuuming, making/changing beds, mopping floor, cleaning bathroom–all no, because his wife does this.
(g)    Grocery shopping–yes.
(h)    Stair climbing– not applicable.
(i)    Gardening/home maintenance–with difficulty because of his left shoulder injury.
(j)    Sport– no.
(k)    Hobbies– browsing the Internet, social media.

History of the motor accident

Medical Assessor Garvey asked the claimant to explain the incident in his own words so the Medical Assessor could write this down as closely verbatim as was possible and reproduce it here:
“The claimant said that on 3 December 2014 his father had just died at Liverpool Hospital from asbestosis of the lung. He was leaving Liverpool Hospital with his mother and sister who were in another vehicle and another vehicle collided with him head-on whilst he was stationary at the lights. The circumstances were that he had waved through a red P plate driver from his left to go in front of him, but the P plate driver cut across in front of him into another lane and was hit by another vehicle coming in the opposite direction at about 60 km/h. That vehicle was shunted into him whilst he was stationary at the lights on Bigge St. His HiLux utility was towed away and written off. He experienced a pain and bruise in his left shoulder which he believes was probably because he had his left hand on the gear stick at the time of impact.”
History of symptoms and treatment following the motor accident
First responder asked him if he wanted to go to the Hospital, but he preferred to go home with his mother and he went to his general practitioner (GP) later that afternoon or night because of pain in his left shoulder and neck and he was provisionally diagnosed with whiplash injury. He was treated with physiotherapy one week after the incident. His GP had referred him to two Specialists in the Campbeltown region and Xrays and MRI scans were taken which revealed bruising in his left shoulder. However, the claimant was referred to Professor George Murrell who diagnosed a torn ligament in the shoulder, but he could not undergo operation at that time because he was not prepared financially for an operation which would have a lengthy recovery and be off work when he had 2 young children at home and a wife to support. Since then, he has been doing his best to survive and arguments had been going for the next 6 years about who would pay for his operation and then the Covid 19 Corona virus pandemic came along, and his injury could not be fixed.
Details of digestive tract conditions sustained since the motor accident
With respect to his digestive system, he has been referred to two gastroenterological specialists and both have advised that he needs a colonoscopy and haemorrhoidectomy, but nothing has been agreed or done. He developed a large anal skin tag when he had that ‘big poo’ one week after commencing Panadeine Forte and this was accompanied by blood, itch, and pain. His bottom become scratchy, and bleeds and his skin tag becomes bigger in volume and fills with blood. When he is constipated, he has a big motion which he described as a ‘weird poo’ which is like glue sticking to the ceramic toilet bowl. Sometimes his motion is dry pellets which are a different yellow colour. He wakes at 5:30 in the morning for a 7 AM start to work and he sometimes has to ‘shit 3 times’. His bowels open first thing in the morning when he has coffee and a cigarette, and he passes solid pellets and then he passes a liquid stool and then he passes diarrhoea pellets, and all this takes about 30 minutes. After that he is pretty good and he will not have to go again the same day, but 90% of time he is in pain. He has to lie down for 15 minutes in order that he can feel better to move before getting in the truck to go to work, but sometimes when he drives around to the front of his property, when he reaches the front fence, he has to stop the truck and go back home inside to go to the toilet again.
He has not had blood PR[3] for about 6–8 months and before that he would only have PR bleeding about once every 6 months. He cannot clean himself properly and leaves ‘skid marks’ on his underpants because he cannot clean his bottom properly because he cannot reach around with his left arm to clean himself properly. Sometimes he has a shower, but he feels that he is never clean. Medical Assessor Garvey questioned the claimant in more detail about his bowel habits. The claimant said that when he uses his bowels 1, 2, 3 times in a row that is usually it. However, when he has his morning coffee and a cigarette, he has faecal urgency and has to be on the toilet within 20 seconds and he has to bang on the door of the bathroom if someone else is in there. This urgency can be variable, and his motion changes and he is better off without opiates. However, the urgency can catch him out and twice in the last 10 years he has had accidents whereby he has “shit myself”. When he is working on the excavator away from the toilet, sometimes he has to dig a hole in the ground and go on that spot and bury it. The claimant was not sure about dates and times but said four or five days a week he experienced faecal urgency in response to eating. Sometimes he cannot distinguish between gas and ‘poo’ and sometimes he has a little spray because he cannot hold the pressure. His wife will not sleep in the same bed as him because she said his ‘poo stinks,’ but he has not soiled himself in the last 6 months.”
[3] Per rectum: from or into the rectum.

Current symptoms

Constipation, faecal urgency, and faecal incontinence.

Current and proposed treatment

Colonoscopy and excision (removal) of anal skin tag.

CLINICAL EXAMINATION

General presentation

Inspection: The claimant was covered in red spots involving his trunk and lower extremities for which his GP is treating him for scabies or lice. 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 chest. There were no Caput Medusae (distended veins in chest or abdomen).
The abdomen was symmetrical and rotund in shape. There were no abdominal masses visible. There were no scars, sinuses, fistulas and the umbilicus was normal.
Palpation: There were no enlarged lymph glands palpable in the neck, axilla or groin regions. The supraclavicular fossae were normal, the external potential hernia orifices were closed, the femoral pulses were palpable and the external genitalia were normal. Light palpation was normal.
Moderate palpation of the abdomen was normal in all quadrants. There was no muscular guarding and no rebound tenderness or crossed rebound tenderness. The liver was not palpable, nor was the spleen and the kidneys were not ballottable.[4] There were no abdominal masses palpable.
[4] A ballotable abdominal mass is one that moves when gently palpated with two hands. Renal masses are typically described as ballotable, but gastric or pancreatic tail masses can also be ballotable. Merriam-Webster Medical.
Testing his conjoint tendons by resisted situp was normal on each side. His Carnet’s test for abdominal wall pain was negative on each side.
There was no evidence of peripheral neuralgia of the anterior cutaneous abdominal nerves or border nerves and there was no saddle anaesthesia.
Percussion: The percussion note was resonant and there was no fluid thrill and no shifting dullness.
Auscultation:[5] On auscultation the bowel sounds were normal and there was no aortic bruit and no gastric splash.
[5] listening to sounds from the heart, lungs, or other organs, typically with a stethoscope, as a part of medical diagnosis.
Rectal examination revealed a large haemorrhoidal skin tag in the posterior position and there were no fissures, fistulas and no blood. The anal sphincter tone was normal and the strength of sphincter contraction was normal. Medical Assessor Garvey found no evidence of haemorrhoids or of anal fissure.
The weight was 108.8 kg and height 180.5 cm (BMI 33.5). The waist circumference was 114 cm.
Medical Assessor Garvey showed the claimant the Bristol Stool Chart: he chose numbers 1 (Separate hard lumps, like nuts (hard to pass), 2 ("Sausage–shaped but lumpy"), and 3 (“like a sausage but with cracks on its surface”) at his 1st evacuation in the morning, but also said that his motion was variably loose to include all the higher loose motion numbers as well.

Comments on consistency

The claimant’s presentation was consistent with the history and examination obtained.

REVIEW OF DOCUMENTATION

Summary of relevant documentation:
(a)    Motor accident personal injury claim form (page 13): The claimant was stationary in his car in traffic southbound when a car hit another car then bounced off it and collided with his vehicle head–on at estimated 60 km/h. Injuries sustained included soft tissue injury to left shoulder, back, neck, stomach/indigestion, ankle.
(b)    Medical certificate March 6, 2015, Dr D Karanjai (page 25): Soft tissue injury–neck, below left shoulder blade, left of upper lumbar spine. Opiates causing constipation leading to rectal pain. Recommended treatment: Analgesics, physiotherapy, surgical referral for rectal pain.
(c)    New South Wales Police report January 6, 2015 (page 312): At approximately 3:50 PM on Wednesday, December 3, 2014, the claimant’s vehicle was travelling south along Bigge St, Liverpool past intersection of Moore Street and when stationary in traffic, the driver waved another vehicle out of the driveway. As that vehicle turned right to head in a northerly direction, it collided with another vehicle travelling north along Bigge Street which collided with the front of the claimant’s vehicle. The driver felt pain in his left ankle, bruising to his left shoulder and pain to his back.
(d)    Karanjai, D GP medical referral to colorectal surgeon
Dr Stephen Fulham 6 March 2015 (page 113): Rectal pain after defecation–3 months, constipated started after taking Panadeine Forte, no better with topical cream.
(e)    Patroulias, Petros, GP medical referral (page 135): Sore bottom and sometimes it bleeds, started about seven years ago and originally, he was constipated from analgesics as a result of a car accident. Current medications Endone 5 mg daily Targin MR once daily.
(f)    Kyaw, GP surgical referral 28 January 22022 (page 366): External haemorrhoids needing colonoscopy and intervention.
(g)    Complete record as of 11 November 2022 (page 175).
(h)    10 March 2011, Nurofen for left shoulder pain.
(i)    11 March 2011, Nurofen TDS PC, Panadeine Forte 20 tablets.
(j)    14 March 2011 left shoulder pain for one week.
(k)    27 December 2014, Panadeine Forte tablets two when necessary.
(l)    12 January 2015, constipation, sore anus–likely from codeine.
(m)     4 February 2015, codeine causes constipation, anal pain at defecation.
(n)    18 February 2015, anal pain at defecation Rx Panadeine Forte two tablets when necessary.
(o)    6 March 2015, rectal pain after defecation– three months. Constipated started after taking Panadeine Forte.
(p)    29 June 2015, Panadeine two tablets when necessary.
(q)    28 September 2015, Panadeine Forte two tablets when necessary.
(r)    26 November 2015, Tramadol 50 mg helping.
(s)    15 December 2015, Tramadol two mainly at night.
(t)    11 January 2016, Tramadol 50 mg 1–2 TDS when necessary.
(u)    5 February 2016, Tramadol 50 mg 1–2 TDS when necessary.
(v)    29 February 2016, Tramadol 50 g 1–2 TDS when necessary.
(w)   14 March 2016, Tramadol 50 mg 1– 2 by mouth when necessary.
(x)    1 April 2016, Tramadol 50 mg. Tramadol AN SR 100 mg.
(y)    3 May 2016, Tramadol 50 mg. Tramadol SR1 150 mg.
(z)    5 September 2016, Tramadol 50 mg 1–2 TDS.
(aa)    11 October 2016, Maxigesic tablets 30.
(bb)    8 November 2016, Nurofen tablets 200 mg, Tramadol 50 mg 1–2 TDS.
(cc)     17 January 2017, Panadeine Forte tablets, Coloxyl with Senna.
(dd)    16 May 2017 became constipated and passed a big stool and it bled, and a haemorrhoid came through around the end of last year (2016).
(ee)    12 September 2017, Tramadol 50 mg 1–2 TDS.
(ff)    10 April 2018, Targin 10/5 mg MR.
(gg)    15 June 2019, left buttock pain 4–5 days, evolving abscess Rx Keflex Capsules 500 mg.
(hh)    6 November 2019, boil left buttock.
(ii)    25 April 2020, big boil left side, 3 other small red, swelling, tender.
(jj)    25 September 2020, Endone tablet 5 mg 1 BD when necessary.
(kk)     29 December 2020, diarrhoea since last Saturday when he had a pizza and twice this morning watery.
(ll)    23 April 2021 left buttock abscess.
(mm) 22 June 2021: Good appetite and normal bowel and bladder function. Panadeine Forte had good effect but gave him constipation, but pain is better controlled with Endone. Celebrex 100 mg daily prescribed and Norgesic tablet 35 mg/450 mg at night.
(nn)    12 October 2021: Sore bottom and has a mass he states it can bleed and rarely.
(oo)    31 March 2022, suggested for regular aperients[6] or increased fibre uptake.
(pp)    16 June 2022, had haemorrhoids from Panadeine Forte et cetera and is now on Targin 2.5 mg/1.25 mg and has been used seeing Targin 5/2.5 mg.
(qq)    Cowlishaw, James gastroenterologist MAC 26 April 2024 (page 1–10) referral for gastrointestinal assessment. The claimant submits that taking opioid medication over eight years since the accident has led to constipation, diarrhoea, and haemorrhoids. He attended his GP the following day and was prescribed Panadeine Forte (paracetamol 500 mg and codeine phosphate 30 mg) tablets and he did not pass stool for approximately one week. He passed a “football” accompanied by severe anal pain and the passage of fresh blood in the toilet water. Following this he avoided Panadeine Forte for five years and relied on both Targin 2.5 mg BD and Nurofen weekly for control of musculoskeletal pain. His bowel motion varies between diarrhoea, normal and hard pellet–like stools. He experiences frequent anal pain on defecation but no blood for approximately 6 months but previously noted intermittent fresh rectal bleeding during defecation. Prolonged sitting whilst driving has been uncomfortable. There is a tendency to both faecal urgency and faecal incontinence. Work and recreational activities have been affected by faecal incontinence if he is unable to fully empty his rectum before working or without ready access to a toilet. Current symptoms include anal pain (90% of the time), difficulty cleaning his perineum, perianal itch and irritation, faecal urgency, fear of incontinence. Anal pain has reduced any activities such as riding a bicycle or a motorbike or sitting for prolonged periods of time. A large perianal skin tag tends to weep or may bleed if scratched. There is a sense of faecal urgency in the morning and episodic faecal incontinence whilst driving. Bowel habit consists of diarrhoea or hard stool. 10–12 kg of weight has been gained from 100–102 kg to 113 or 114 kg due to restricted physical activity. Colonoscopy has not been performed. Examination: BMI 34. Diffuse abdominal distension and a large non–tender abdomen without organomegaly. Large posterior anal skin tag on inspection of the perineum. Digital rectal examination revealed mild tenderness in the anal canal on the left posterolateral position and no visible haemorrhoids and no blood. GP records show presentation on January 13, 2015, with constipation and anal pain and he was treated with lactulose and Proctosedyl ointment. Panadeine Forte was continued until November 2017 together with Coloxyl and Senna together with Tramadol, Voltaren, Maxigesic and Nurofen. After June 22, 2021, Tramadol was replaced with Targin, Celebrex and Endone. Diagnosis: Constipation secondary to opioid use, anal skin tag secondary to likely anal fissure secondary to constipation resulting from opioid use, anal pain on defecation likely due to anal fissure secondary to constipation from opioid use, faecal urgency, and incontinence secondary to constipation due to opioid use, grade 2 haemorrhoids secondary to constipation. The prescription of opioid analgesics is a direct result of the motor accident and has resulted in gastrointestinal and anal impairment which would not otherwise have occurred. Assessment 0% WPI for gastro–intestinal system (page 241, Table 3, AMA4) and 9% WPI for anal impairment (chapter 4, Table 4).
(rr)   Causation: Straining to pass large hard stool after the initial prescribing of Panadeine Forte is a credible explanation for both the initial anal symptoms.
(ss)     Sethi, S Gastroenterologist medical reports 18 October 2021 (pages 137–139): PR bleeding and moderate amounts of bright red blood with constipation after taking Endone for a shoulder injury. On examination: PR showed large external haemorrhoids. The condition has resulted from the opioid analgesics for which he was prescribed for his car accident. Colonoscopy proposed to WorkCover.
(tt)    Surgeon Dean Yeh’s, medical report 23 February 2022 (page 27): Consultation regarding PR bleeding and anal skin tag. Intermittent PR bleeding since his accident in 2014 and was on large quantity of opioid analgesics and suffered significant constipation with pain on passage of a hard stool. This eventually settled although he still has intermittent bright red PR bleeding and complains of anal skin tag which is irritating and causing perianal itchiness. His bowel habits have improved. On examination: Large perianal skin tag at 9:00 position and grade 2 internal haemorrhoids. Anal skin tag is suspected to be the result from the initial anal fissure after his accident and haemorrhoids are also likely related to chronic constipation as a result of long–term opioid use since his accident.
[6] a drug used to relieve constipation.
Dr Yeh proposed colonoscopy, banding of haemorrhoids and anal skin tag excision to the insurer and sought funding approval.

Summary of relevant radiological and medical imaging and other investigations

Nil tendered or brought to the examination.

DETERMINATIONS – PERMANENT IMPAIRMENT

Diagnosis and reasons

The diagnosis is the claimant suffers from constipation, haemorrhoidal anal skin tag, faecal urgency and incontinence.

Causation and reasons

The claimant’s constipation arose shortly after commencing Panadeine Forte medication prescribed to treat his musculoskeletal pain attributable to the subject accident. Constipation frequently occurs as a side effect of taking opioids medication and the Panel is satisfied that it is causally connected to the accident because it was prescribed to treat musculoskeletal injuries that Medical Assessor Assem assessed originally on 23 April 2024[7] as being causally related to the accident.
[7] Replacement certificate issued on 19 August 2024
During his first motion after he became constipated the claimant passed a “football” which tore his anal canal and gave him a fissure which led to loss of control being faecal urgency and incontinence as well as creating a haemmorhoidic skin tag.

Summary of injuries referred by the parties

For the reasons explained above the following injuries WERE caused by the motor accident:
· constipation, haemorrhoidal skin tag, faecal urgency and faecal incontinence.

Although constipation alone results in 0% WPI, this claimant’s condition merits closer scrutiny.
The relevant Guidelines state that colonic and/or rectal disease caused by the use of opiate medication must be assessed between 0% WPI and 2% WPI as a Class 1 impairment according to Table 3 on page 241 of AMA 4.[8]
[8] “1.248 Colonic and/or rectal disease caused by the use of opiate medication must
be assessed as 0 – 2% WPI class 1 impairment according to Table 2 (page 239,
AMA4 Guides). Assessment of constipation alone results in 0% WPI”.
The claimant has a high AMA4 Class I anal impairment under Table 4 on page 10/243 of AMA 4. because of the size of his haemorrhoidal skin tag, the frequency of variable faecal urgency (4–5 times per week), the faecal soiling of his underpants, the inability to distinguish between flatus and faeces resulting in a “little spray” and the fact that the claimant indicates that his bowel motions are painful 90% of the time.
He has “skid marks” on his underpants and he said his wife is sick of cleaning up his “shitty underpants”.
It cannot be a Class 2 impairment because he is not being continually treated (an essential component of Class 2), but he is a high Class I anal impairment because there are physical signs of organic anal disease being anatomical alteration due to large haemorrhoidal skin tag and he has incontinence involving gas and liquid stool and he has faecal urgency 4–5 days a week.
He is considered the highest class I impairment of 9% WPI for these reasons.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition) (AMA 4) (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
This claimant’s condition has been in existence since 2014 and it is unlikely the permanent impairment will change by more than 3% in the next 12 months whilst he continues to take opioid analgesics in spite of treatment for his anal canal.

Statement about permanent impairment

The determination as to permanent impairment is made in accordance with the AMA 4 and the Motor Accident Permanent Impairment Guidelines.
The permanent impairment table is at appendix C.

Pre–existing/subsequent impairment

There was no evidence of any pre–existing or subsequent impairment for which deduction needed to be made.

Apportionment

There was no evidence of any subsequent impairment for which apportionment needed to be made.

Effects of treatment

The claimant has received no treatment so this question is not appropriate.

Panel deliberations

The Panel met again on 26 November 2024.
The Panel decided to adopt Medical Assessor Garvey’s examination report, the impairment assessment and its conclusions as evidence.
The Panel considered the principles of causation set out in the Guidelines, in particular at cl 1 .7, of the Guidelines in particular that the accident does not have to be the sole cause of a condition, but it can be a contributing cause, as long as the impact is not negligible. These clauses are addressed to causation of permanent impairment, but the principles are applicable to treatment disputes too. The motor accident need only be a material contribution between the motor accident and permanent impairment or the need for treatment: AAI Limited v Phillips.[9]
[9] [2018] NSWSC 1710 (Phillips) at [29].
Briggs No. 2 [2022] NSWSC 372 was discussed in regard to the relevant legal test being on the balance of probabilities and not requiring scientific certainty.
The Panel considered the insurer’s submission dated 26 September 2023, which disputed the nexus between the subject accident and the gastrointestinal injuries. This was largely based on what it said was a delay of some seven years before the claimant sought specialist treatment from Dr Yeh. The treating health care providers notes and correspondence did not support that submission.
The Panel agreed that the GP clinical notes, which Medical Assessor Garvey summarised showed early complaints about digestive issues connected to the use of opioids to treat the accident –related musculoskeletal condition and that his doctor was monitoring this condition.
There was an early referral to a colorectal surgeon Dr Stephen Fulham on 6 March 2015 (three months after the subject injury) by Dr D Karanjai, which the claimant did not follow–up because of cost of the consultation, but that did not negate the complaints about the opioids’ effects on his ADL, which his GP noted soon after the treatment commenced. This is sufficient to draw a nexus between the subject accident with the gastrointestinal conditions and the effects of the treatment for injuries arising from that accident.
The Panel adopted Medical Assessor Garvey’s opinion and his clinical judgment and experience that [BMU] relying on his GP for treatment for this condition was reasonable under those circumstances.
Responding to the Panel’s request for further information after the first teleconference dated 4 November 2024 the claimant provided further information about the first onset of constipation and the insurer continued to dispute the accident caused the claimant's medical condition.
The Panel considered the insurer’s application to the President which initiated this review of Medical Assessor Cowlishaw’s certificate regarding permanent impairment, which is summarised as the Medical Assessor:
(a)    Applied the wrong Guidelines to assess permanent impairment.
(b)    Failed to explain why he diagnosed “[f]aecal urgency and incontinence due to anal injury secondary to constipation due to opioid use”.
(c)    Used Table 4 of the AMA4 Guides to assess permanent impairment relating to an “anal injury”, without explaining:
(i)the nature of the anal injury, which was causing the faecal urgency and incontinence, and
(ii)how the anal injury was secondary to constipation due to opioid use.
(d)    Diagnosed “Grade 2 Haemorrhoid(s) secondary to constipation resulting from opioid use” but finding “no visible haemorrhoid” and “No masses” on clinical examination.
(e)    Found 9% permanent impairment referable to “anal impairment” without:
(i)explaining why the “anal impairment” suffered by the claimant attracted the highest level of impairment in the range of Class 1 impairment of Table 4 of the AMA4 Guides, and
(ii)not having regard for Class 1 of Table 4 of the AMA4 Guides providing a range of permanent impairment.
In respect of the Guidelines this Panel has applied the correct Guidelines being the first edition.
In terms of the diagnosis of “[f]faecal urgency and incontinence…” the Panel relied on Medical Assessor Cowlishaw’s note that when constipated, the claimant passed a “football” which tore his anal canal and gave him a fissure which led to his loss of control being faecal urgency and incontinence.
Regarding using Table 4 of the AMA4 Guides to assess permanent impairment relating to an “anal injury”, the Panel opined Medical Assessor Cowlishaw described the anal fissure, haemorrhoids and haemorrhoidal skin tag but not with sufficient detail in explaining his reasons.
Regarding the lack of explanation about why opioid use could cause these problems the Panel agreed with Medical Assessor Garvey it probably seemed obvious to the Medical Assessor because that is common medical knowledge in that speciality.
The inconsistency about the clinical findings could not be explained because Medical Assessor Garvey’s findings were distinctly different because he did not find there was a fissure and haemmorohoids.
The Panel addressed the lack of explanation about why the “anal impairment” suffered by the claimant attracts the highest level of impairment in the range of Class 1 impairment of Table 4 of the AMA4 Guides.
Medical Assessor Cowlishaw put a history together but did not meld all the findings into explanation for his high range assessment.
Medical Assessor Garvey’s examination and findings indicate Medical Assessor Cowlishaw’s WPI assessment was merited despite the difference on clinical findings.
The Panel’s view on the delay in seeking treatment is discussed above.
The Panel also discussed Medical Assessor Assem’s further medical assessment dated
19 August 2024 (originally issued 23 April 2024) finding the subject accident caused the following musculoskeletal injuries:
(a)    cervical spine – soft tissue injury;
(b)    lumbar spine – soft tissue injury, and
(c)    left shoulder – soft tissue injury.
The Panel agreed that the subject accident probably caused the claimant’s anal condition because his GP and other health care providers treated the other injuries suffered in the accident with opioids, which the Medical Assessors on this Panel know from their clinical experience and training has a strong nexus with causing digestive system conditions.
The Panel discussed the insurer’s submissions to the Commission’s President when seeking review summarised at Appendix B regarding the reasons why the claimant’s permanent impairment can be assessed as 9%.
The Panel discussed Medical Assessor Garvey’s report and agreed that this amount of incontinence is at the high end of “mild” class 1 due to the impact of the changes the digestive injury had on [BMU]’s activities of daily living and the anatomic alteration.
The Panel noted that Medical Assessor Garvey had made different clinical findings to the original assessor because unlike him Medical Assessor Garvey did not detect an anal fissure.
Medical Assessor Garvey found the mass, which Medical Assessor Cowlishaw diagnosed as a grade two haemorrhoid, was a haemorrhoidal skin tag.
The Panel considered that the examination, Mr Pripic’s answers to Dr Garvey’s questions during the examination and his statements addressed the insurer’s concerns.
Noting the amount of treating notes and correspondence, the complaints related to the claimant’s anus soon after the accident and the claimant’s consistent explanation to Medical Assessor Garvey the claimant’s credit was not a relevant factor in this Panel’s findings.
Medical Assessor Garvey explained to the Panel what appropriate treatment would be, and it was accepted that colonoscopy was appropriate but the proposal to treat the tag with bands would be inappropriate because the haemorrhoidal skin tag is hanging out of the anus and is so large that it would not take a band because it would be too painful.
The appropriate treatment is to excise this large haemorrhoidal skin tag during the colonoscopy and if there are other internal things to band that can be done at the same time.
The cost of the treatment is detailed and inexpensive for the benefits it would provide. It would involve day surgery, which is widely available with some brief time off work and rehabilitation.
The insurer’s submissions do not address anal skin tags but refer to treatment for haemmorohoids and relies on the causation argument and on a Health Direct download on this subject to support in respect of whether the proposed treatment is reasonable and necessary. The download states that haemmorohoids often go away and do not require treatment or can be treated less invasively.
It is clear, given the nature of [BMU]’s condition, which impacts his health, his relationships and ADL that the benefits of a colonoscopy and anal skin tag removal would exceed the low risks of failure and an adverse outcome. It is a widely used procedure.
On balance, the weight goes towards pursuing the proposed treatment.

Panel’s decision

The Panel found that the accident caused the following injuries secondary to the claimant’s use of opioids which were prescribed to treat musculoskeletal injuries from the accident:
(a)    constipation;
(b)    haemorrhoidal skin tag;
(c)    faecal urgency, and
(d)    faecal incontinence.
The Panel considered that the following injuries caused permanent impairment above 0%:
·gastrointestinal system – anus at 9%.

Permanent impairment

The motor accident caused injuries with total percentage permanent impairment of 9% to the anus. The total WPI is NOT greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. A finding of 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant guides may rate the associated impairment at 0% WPI.
The Panel’s permanent impairment findings about the injuries caused by the motor accident are the same as Medical Assessor Cowlishaw’s further assessment dated 26 April 2024, but the clinical findings are different.
Accordingly, the Panel will revoke this certificate and issue a new permanent impairment certificate.

Combined impairment

Medical Assem’s Certificate dated 23 April 2024 assessing the claimant’s musculoskeletal injuries caused by the subject accident was not reviewed and can be combined with this Panel’s wpi assessment.
Medical Assessor Assem assessed 8% permanent impairment of the following injuries caused by the motor accident which is not greater than 10%:
·        cervical spine (soft tissue);
·        lumbar spine (soft tissue), and
·        left shoulder (soft tissue).
This Panel’s permanent impairment assessment for the gastrointestinal system – anus

combined with Medical Assessor Assem’s assessment is 16%, which is greater than 10%.

Publication

These reasons contain sensitive personal information, which is intensely intimate and could cause embarrassment and possibly reputational harm to the claimant if it were widely known.
The Panel has weighed the matters referred to in rule 132(4) of the Commission’s Rules and consulted with the parties regarding the safety, health, and wellbeing of the claimant, and considered when giving a direction to de–identify publications whether the public interest significantly outweighs the public interest in open justice
The Panel is satisfied in these circumstance that on balance the claimant’s interests outweigh the public interest, particularly because the identification will not diminish the medical and legal significance of the decision to those interested in the outcome. Accordingly, the decision should be de–identified before the Commission publishes.

Conclusion

The Review Panel revokes Medical Assessor Cowlishaw’s certificate dated 26 April 2024 and issues a new certificate.
The motor accident caused the following injuries, which are assessed as a combined permanent impairment of 9%, which IS NOT GREATER THAN 10%:
· gastrointestinal system – anus
Medical Assessor Assem assessed 8% permanent impairment of the following injuries caused by the motor accident which is not greater than 10%:
·        cervical spine (soft tissue);
·        lumbar spine (soft tissue), and
·        left shoulder (soft tissue).
Using the Combined Values Chart at page 322 of the AMA 4, this Panel’s medical assessment combined with Medical Assessor Assem’s assessment is 16% WPI which is greater than 10%.
Accordingly, this Review Panel revokes Lead Medical Assessor Assem’s combined assessment certificate dated 6 June 2024 and issues a replacement combined assessment certificate under s 61 (10) (b) of the MAC Act stating the following injuries caused by the motor accident were assessed at permanent impairment of 16% which is greater than 10%:
·        cervical spine (soft tissue);
·        lumbar spine (soft tissue);
·        left shoulder (soft tissue), and
·        gastrointestinal system – anus.
The Panel directs that, pursuant to Rule 132 of the Rules, the decision be de–identified before publication.
Each Panel member has reviewed this decision and agreed with all of the above findings.

Review Panel

Personal Injury Commission

APPENDICES

APPENDIX A

Statutory Provisions

Under s 63(3) of the MAC Act and Sch 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.

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.

Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “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%”.

Section 60 of the MAC Act provides either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5–1.7 of the Motor Accident Permanent Impairment Guidelines (the Guidelines) relate to the assessment of permanent impairment and provide:

“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary on page 316 of the AMA4 Guides as follows ‘Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non–medical determination.’

This involves a medical decision and a non–medical informed judgement.
1.7 There is no simple common test of causation that is applicable to 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 a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:

“One may accept that a review Panel is engaged in a process of dispute resolution by 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), ss 5D 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.”

These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC Act.

The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.

Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation.”

The Civil Liability Act 2002 (the CL Act) applies to the MAC Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:

“One may accept that a review Panel is engaged in a process of dispute resolution by 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), ss 5D 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.”

Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:

“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning 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 (PIC Rules) are made under 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.

Rule 132 of the PIC Rules:

De–identification or redaction of publishable decisions

(1) The Commission or the President may, of their own motion or on the application of a relevant person, direct either or both of the following—

(a) that all or part of a publishable decision be de–identified before it is published,

(b) that part of a publishable decision be redacted before it is published.

(2) An application for a direction may be made during, or after the completion of, the proceedings in which the publishable decision is issued.

(3) An application for a direction is to be made to—

(a) for proceedings being heard by the Commission that have not been completed—the Commission, or

(b) for other proceedings that have not been completed—the President, or

(4) In determining an application for a direction, the Commission or the President is to have regard to the following matters—

(a) the objects of the PIC Act and enabling legislation and, in particular, the object that the Commission be open and transparent about its processes,

(b) the prevention of prejudice to the proper administration of justice,

(d) the views of any other party to the proceedings,

(e) whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice.

(5) If the Commission grants an application for a direction under subrule (3)(a), the President may, despite the direction of the Commission, direct that the publishable decision be published without the de–identifications or redactions directed by the Commission or with different de–identifications or redactions.

(6) In this rule—publishable decision means a decision details of which are required to be published by section 58 of the PIC Act.

relevant person, in relation to an application for a direction, means—

(a) a party to the proceedings in which the publishable decision is made, or

(b) a person named in the publishable decision, or

APPENDIX B

Submissions

Claimant’s submissions

The claimant's bundle of documents do not include a copy of submissions to Medical Assessor Cowlishaw.

The submissions noted in Medical Assessor Cowlishaw’s certificate dated 26 April 2024 are as follows.

“The claimant submits that he suffers from a gastrointestinal injury as a result of taking pain relief medication and opioid medication for over eight years since the accident. The patient (claimant) submits that this has led to constipation, diarrhoea and haemorrhoids.

The insurer submits that the issues in dispute are whether the claimant suffers from gastrointestinal injuries. If so, whether such gastrointestinal injuries were caused by the motor accident, and of the assessment of any impairment arising from such gastrointestinal injuries.”

On 4 November 2024 the Panel requested further information regarding when the claimant first complained of faecal incontinence and other symptoms, which impacted on his activities of daily living.

The claimant's solicitor made further submissions after he conferred with the claimant who instructed he had been taking opioid medication since the accident and constipation and bleeding began two weeks later.

The claimant submitted that due to the history since 2014 and the amount of opioids the claimant had taken was a likely reason why the maximum permanent impairment was allowed.

In respect of a request for more records of treatment since November 2022, the claimant has been waiting on funding approval to have that treatment so there are no more recent notes.

The claimant applied to the Commission to assess WPI and treatment on 13 September 2023. That application included submissions regarding the surgical treatment Dr Yeh recommended.

The claimant submits that the treatment assessment was not addressed, despite it being included in the initial application.

The claimant refers to submissions made with the original application (this cannot be located in the documents visible to the Panel).

Those submissions refer to his treating specialist recommendations for the colonoscopy. The cost of the treatment is less than $6000. Dr Yeh's report included a history of treatment with opioids related to the accident with the gastrointestinal issues. The claimant referred to Associate Prof Shatwell's report dated 17 January 2022, which refers to the first gastrointestinal complaint being on 12 January 2015 as the claimant was complaining about a sore anus, "likely from codeine" GP's clinical notes

Insurer’s submissions

The claimant sought a further medical assessment in respect of alleged gastrointestinal injuries which he alleges resulted from the motor vehicle accident.
The insurer disputes:
(a)     whether the claimant suffers from gastrointestinal injuries.
(b)     if so, whether such gastrointestinal injuries were caused by the motor vehicle accident.
(c)     the assessment of any impairment arising from such gastrointestinal injuries.
The insurer disputes both causation and degree of impairment in respect of the alleged gastrointestinal injuries.
The subject motor vehicle accident occurred 10 years ago.
The claimant did not seek treatment for his alleged gastrointestinal injuries until he saw Dr Yeh, Colorectal and General Surgeon in February 2022, some seven years after the motor vehicle accident.
The Insurer submits there is insufficient medical evidence to support the claimant’s claim that his gastrointestinal issues were caused by the motor vehicle accident.
In these circumstances, the insurer submits there is insufficient evidence to support the claimant’s allegation of suffering gastrointestinal injuries as a result of the motor vehicle accident and on that basis, there is no impairment to assess.
In the event that a Medical Assessor finds the claimant has suffered gastrointestinal injuries as a result of the motor vehicle accident, the insurer submits that the claimant’s whole person impairment does not exceed the 10% whole person impairment threshold.
In respect of the proposed treatment by Dr Yeh, the insurer disputes that the need for such treatment was caused by the motor vehicle accident and submits it is not reasonable and necessary in the circumstances.

Appendix C

Permanent impairment table

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	*%WPI from pre–existing OR subsequent causes**	*%WPI due to motor accident**
1	Anus	Chapter 10, page10/243 Table 4	Yes	9%	0	9%
2	Lower digestive system	Chapter 10, page 10/241 Table 3	Yes	0%	0	0%
3	Upper digestive system	Chapter 10, Table 2, page 10/239	Yes	0%	0	0%

* %WPI = percentage whole person impairment

[2024] NSWPICMP 874

19 December 2024