Insurance Australia Limited t/as NRMA Insurance v Frangie
[2023] NSWPICMP 537
•26 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Frangie [2023] NSWPICMP 537 |
| CLAIMANT: | Lourde Frangie |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 26 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Cameron finding a 12% whole person impairment (WPI) assessment of the claimant who was injured in an accident on 9 March 2017; the claimant injured her lumbar spine and subsequently had two surgical procedures resulting in considerable pain and for which she required multiple anti-inflammatory medications and analgesics which the claimant claimed caused gastrointestinal symptoms arising 12 months post-accident; insurer conceded WPI of 10% for the lumbar spine but disputed an assessment of 2% for upper gastrointestinal inflammation; the insurer asserted that the gastrointestinal problems were too remote having risen 12 months post-accident and are more likely to be a result of lactose intolerance; the Panel was satisfied that gastrointestinal inflammation was likely to occur gradually and not immediately due to the gradual and long term consumption of medication; the Panel was also satisfied that the upper intestinal problems are not a consequence of lactose intolerance which is a lower intestinal symptom; Held – the claimant had a 10% WPI of her lumbar spine and a 2% WPI arising from gastrointestinal symptoms consequent upon the long-term ingestion of non-steroidal anti-inflammatory medication; decision of MA Cameron affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION DETERMINATION 1. The Panel affirms the decision of Medical Assessor Cameron dated 20 December 2022. 2. The degree of permanent impairment of Lourde Frangie’s (the claimant) injuries arising from the accident on 9 March 2017 on the combined tables is 12% consisting of: (a) lumbar spine 10%, and (b) gastrointestinal injuries 2%. |
BACKGROUND
This is a dispute about the claimant’s degree of whole person impairment (WPI) assessed pursuant to the Motor Accidents Compensation Act 1999 (the Act) and arising out of an accident on 9 March 2017
Medical Assessor Cameron found in his certificate and reasons dated 20 December 2022 that the following injuries caused by the motor accident give rise to a permanent impairment of 12% and is greater than 10%:
(a) lumbar spine – soft tissue injury;
(b) abdomen – upper gastrointestinal inflammation and constipation, and
(c) scarring – lumbar spine.
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) lumbar spine – severe disc injury, with referred pain to left leg;
(b) abdomen – gastrointestinal injuries as a result of pain killer medication, and
(c) scarring – lumbar spine.
The insurer has successfully applied for a review of the certificate of the Medical Assessor.
The accident
On 9 March 2017, the claimant was the driver of a vehicle that was stationary. She was hit from behind by the insured vehicle. The claimant says that she had her upper body partly rotated at the time of the impact. The claimant says that she had back pain after the accident. She saw her general practitioner (GP), Dr Kumarasina, a day or two after the accident.
The insurers submissions
The Insurer says that concerninng its reply to the application for assessment of WPI it prepared comprehensive written submissions. These set out its position with respect to the permanent impairment dispute. The insurer says that these submissions highlight in unambiguous terms, issues relating to causation of the claimant’s gastrointestinal complaints, and highlighting evidence which its says tends to suggest that the gastrointestinal complaints were mild in any event. Following on from this, the insurer says that arguments raised by it appear to have overlooked or disregarded entirely.
The insurer submits that whilst the Medical Assessor simply notes the parties’ respective submissions, he did not attempt to engage with the substance of those submissions. Furthermore, the insurer says that despite the nature of the dispute between the parties, the Medical Assessor’s consideration of the gastrointestinal issues is surprisingly brief.
The insurer says that without addressing issues raised by it, relating to causation or severity of the claimant’s symptoms, the Medical Assessor simply assumed causation and severity going to respect to the complaints, merely concluding:
“There are gastrointestinal symptoms which are causally related to the motor vehicle crash and the upper gastrointestinal symptoms are assessable with reference to permanent impairment”.
The insurer says that the basis for the conclusion that the gastrointestinal symptoms are causally related to he motor vehicle accident is left unexplained by the Medical Assessor.
The insurer submits that the Medical Assessor does not engage with numerous clearly articulated arguments raised in the insurer’s submissions, which the insurer says were either overlooked or disregarded.
The insurer submits that the actual path of reasoning has been exposed. In particular, the insurer says the following issues do not appear to have been addressed or considered at all:
(a) the limited reference to epigastric complaints in the claimant’s voluminous clinical notes from different treatment providers;
(b) the absence of evidence of any treatment provider recommending that the claimant reduce her medication on account of abdominal symptoms;
(c) the possibility that the alteration in bowel habits could be stress related as opposed to medication;
(d) the possibility that her symptoms could be related to diagnosed lactose intolerance noting that she was advised by Dr Neuhauser to avoid lactose products;
(e) the relevance of the fact that the claimant does not appear to have renewed her prescription of Iberogast after 24 July 2018, or Nexium after 4 December 2018;
(f) the lack of evidence of contemporaneous complaints of epigastric pain after seeing Dr Kordian on 13 June 2019, and
(g) the relevance of the fact that the claimant’s legal representatives did not appear to be aware of epigastric complaints which might be causally related to the accident until 3 August 2021, almost three and a half years after the accident.
The insurer says that these are matters which went squarely to causation and severity of the epigastric complaints.
The insurer further says that the number of the matters raised, such as the issues concerning the impact of lactose intolerance, stress and ceasing medication are matters which as a matter of procedural fairness ought to have been raised with the claimant during the course of her assessment. The insurer says that it is readily apparent that this did not occur.
The insurer says that if the Medical Assessor had regard to the foregoing, then it is entirely plausible that the gastrointestinal complaints would be found not to be causally related to the accident, and even if they were found to be causally related, they would attract a WPI rating of 0%.
In either case, the insurer submits that the claimant would not be entitled to damages for non-economic loss.
Insurers submissions for assessment of WPI
The claimant relies upon the insurer's report of Professor (Dr) Spira, neurologist and her report of Dr Berry, general surgeon, to assert her combined injuries exceed the WPI threshold.
The insurer relies upon the findings of its expert reports, namely:
(a) Dr Lowy, occupational physician diagnoses chronic lumbar spine pathology and assesses whole person impairment at 10%.
(b) Dr Lowy, considers any WPI rating involving the digestive system is unrelated to the accident.
(c) Dr Spira, diagnoses lumbosacral disc protrusion and assesses WPI at 10% for the lumbar spine.
(d) Dr Potter, psychiatrist, said that the claimant's behaviour falls within the concept of an abnormal illness behaviour which is related to her father’s physical abuse and also the depression with suicidal ideation in 2015.
(e) Dr Potter does not accept there is any psychological injury related to the accident and therefore there is no WPI arising.
The insurer does not rely upon its report by Dr Garvey, surgeon. The insurer clarifies that this report has been disclosed in accordance with the Motor Accident Guidelines (the Guidelines).
The insurer highlights that none of the claimant's expert reports assess the claimant's WPI at over the threshold.
The insurer submits any finding of WPI is 10% which is for the lumbar spine injury only.
Regarding the lumbar spine injury, the insurer submits the claimant sustained a lumbosacral injury as a result of the motor vehicle accident.
The insurer submits the finding of WPI in respect to the lumbar spine is 10% which represents diagnosis-related estimate (DRE) Category III.
The insurer submits there is no dispute as to this injury and no dispute as to the assessment of WPI for the lumbar spine.
Regarding the gastrointestinal injury the insurer disputes causation of the alleged gastrointestinal injury for the following reasons:
(a) The claimant's treating GP, Dr Neuhauser, of Triple 333 Medical Centre does not record any abdomen injury/upper digestive tract injury in the records as at 21 December 2021. The insurer notes the claimant has been a patient of this medical practice since 29 June 2013, four years before the subject accident.
(i)Section 85 particulars dated 3 August 2021 does not allege any abdomen – gastrointestinal injury.
(ii)Section 85 particulars dated 3 August 2021 do not assert any ongoing disabilities arising from pain medications. The insurer says the ongoing disabilities relate to the lumbar spine injury only.
(iii)The insurer says these particulars were provided nearly four years post- accident and there is no claim for a gastrointestinal injury.
(e) The insurer relies upon its report by Dr Lowy who says the accident did not cause an upper digestive tract injury.
(f) The claimant served a report by Dr Berry, surgeon, dated 26 November 2021 and asserted the claimant sustained a gastrointestinal injury. The insurer submits and notes that the report was obtained nearly 4.5 years after the date of accident.
(g) The insurer submits that at no time prior to obtaining the report by Dr Berry did the claimant assert the accident caused any abdomen/gastrointestinal injury.
(h) The insurer submits that Dr Berry referred to and relied upon a colonoscopy report dated 7 June 2019 which was normal and a panendoscopy report dated 7 June 2019 reporting mild reflux oesophagitis. The insurer submits these reports are now three years old and do not provide an accurate depiction of the claimant's upper digestive tract condition. The insurer further submits Dr Berry did not refer to the contemporaneous records of Triple 333 Medical Centre which do not provide consistent entries relating to any upper digestive tract injury.
(i) The insurer submits the claimant's GP, in a consultation dated 20 March 2019, agrees the claimant's complaints appear to be an isolated incident because there are no other consultation entries referring to complaints with the upper digestive tract.
(j) The insurer submits the claimant's expert, Dr Berry, should not be accepted by the Commission (the Panel assumes this to be a reference to the Review Panel) because:
(i)Dr Berry fails to provide adequate reasoning for why he assesses the claimant's impairment for the upper digestive tract at 5%.
(ii) Dr Berry did not refer to the contemporaneous evidence of Triple 333 Medical Centre records.
(iii) Dr Berry refers to reports which are more than three years old.
(iv) Dr Berry records at page 5 of 9 of his report that the examination and inspection of the claimant's abdomen revealed no scars, no distention or any other abnormality.
(v) The insurer submits the diagnosis and normal examination does not accord with the remainder of the evidence on file or the assessment of WPI of 5%.
In the alternative, the insurer submits that should the Commission (the Panel) accept the report by Dr Berry, then Dr Berry's assessment should fall within 0% WPI because of the normal examination of the claimant; clause 1.247 of the Motor Accident Permanent Impairment Guidelines (the Guidelines) with respect to the digestive system.
Regarding scarring, the insurer disputes any impairment rating derives from this alleged injury because:
(a) There are no expert reports held by either party commenting on any alleged scarring.
(b) There is no evidence before the Commission to refer this injury for assessment.
(c) The claimant does not claim scarring as an injury in her particulars dated 3 August 2021.
The insurer submits that there should be a WPI finding of 0% WPI in reference to the evaluation of minor skin impairment (TEMSKI) scale of assessment because the claimant is not conscious of her scar, the scar is a good colour match to surrounding skin and the claimant is unable to easily locate the scar.
Overall, the insurer submits the claimant's WPI will not exceed the threshold under s 131 of the Act.
The insurer presented further submissions in response to the claimant’s additional submissions responding to the insurer’s submissions in reply, above.
The insurer says further, that its position with respect to the claimed gastrointestinal injury is twofold. First, the insurer submits that any such injury is not causally related to the subject accident. The second contention, is that even if the Medical Assessor was satisfied that there was a causal link, that any such gastrointestinal injury would attract 0% WPI.
With respect to the question of causation, the insurer says that the claimant relies heavily upon records produced by Dr Kordian, gastroenterologist. However, the insurer submits that despite the voluminous clinical notes provided from different treatment providers, the complaints of epigastric pain are limited both in number and duration.
Furthermore, the insurer submits that it can find no evidence of any treatment provider recommending that the claimant reduce her medication on account of abdominal symptoms or otherwise suggest that amount of medication.
The insurer noted that the claimant observed that she attended upon Dr Neuhauser on 24 July 2018 apparently complaining of “abdo discomfort”. The insurer submits that the claimant then asserted that “[t]hese complaints remained consistent in early 2019”. The insurer submits that the careful wording of this submission appears to acknowledge that there does not appear to be a complaint that could relate to abdominal discomfort again until 7 March 2019, seven months later. The insurer acknowledges that the claimant told Dr Milinkic on that occasion she had experienced abdominal pain and nausea for two months, at this consultation.
The insurer says that although the claimant quoted selectively from Dr Kordian’s report dated 3 June 2019, his conclusion was omitted, as it is important, where he says:
“Lourde has epigastric pain and altered bowel habits, especially diarrhoea. It could be from medications, it could be stress related, however we need to rule out any other antiologics of peptic ulcer disease or chronic inflammatory disease like Crohn’s disease as a cause of her diarrhoea…” [insurers emphasis added]
The insurer says that whilst the claimant may have told Dr Kordian that she started having epigastric pain “after having a motor vehicle accident a year ago”, this has little bearing on the question of causation.
The insurer says that in a letter to Dr Neuhauser dated 13 June 2019, he stated the following:
“I saw Lourde today. Her gastroscopy showed mild reflux oesophagitis confirmed
On biopsy and mild gastritis, also lactose intolerance. Colonoscopy was unremarkable. I advised her to avoid lactose products. I also asked her to take Nexium 20 mg, especially while she is taking pain medications – Nurofen. I am happy to discharge her back to your care for now but if there are any issues, please do not hesitate to refer her back.” [insurers emphasis added]
The insurer noted that even on the claimant’s account, the evidence before the Commission suggests that there may have been complaints of epigastric pain made on limited occasions between 24 July 2018 and 13 June 2019.
Furthermore, the insurer submits that the evidence suggests that the claimant’s prescription of Iberogast was not renewed after 24 July 2018, and Nexium was not renewed after 4 December 2018.
The insurer says that there is no treating medical evidence before the Commission that the claimant continued to complain of epigastric pain after seeing Dr Kordian on 13 June 2019. In support of this the insurer submits that the claimant does not appear to have seen Dr Kordian again.
The insurer says that it can be reasonably be inferred that the claimant took Dr Kordian’s advice and started to avoid consuming lactose products.
The insurer further submits that it can also be reasonably inferred that any epigastric symptoms settled regardless of cause.
The insurer says that further supporting the contention that any gastrointestinal injury would have been minor is the fact that the claimant’s legal representatives did not appear to be aware of any epigastric complaints which could be referrable to the subject accident at the time of preparing particulars of the claimant’s claim on 3 August 2021. The insurer says that presumably that document would have been prepared in consultation with the claimant.
The insurer says that the claimant has not addressed why, if the Medical Assessor is persuaded that the epigastric pain is causally related to the accident, that WPI should be anything other than 0%.
The insurer says that for the avoidance of doubt, it maintains that it does not rely upon Dr Garvey’s report.
The insurer refers to clause 1.247 of the Guidelines which provides the following:
“Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed at 0 - 2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides). Upper digestive tract disease caused by the use of anti inflammatory medications resulting in severe and specific signs or symptoms must be assessed as a class 2 impairment according to Table (page 239, AMA 4 Guides).”
The insurer refers further, to clause 1.245 of the Guidelines and says that Tables 2 to 7 in Chapter 10 (pages 239-247 of the AMA 4 Guides) give details of the components to be assessed. The insurer says that without seeking to be exhaustive of the matters therein, the insurer observes that with respect to Class 1, these include whether continuous treatment is required, weight loss,and there being no sequelae after surgical procedures.
The insurer contends that the claimant’s symptoms clearly do not satisfy Class 2, in that there is no evidence of “severe and specific signs or symptoms”.
The insurer says that if it is found that there is any upper digestive tract disease resulting from the accident, which the insurer denies, it is contended that symptoms experienced were mild.
Furthermore, the insurer says that a fair reading of the claimant’s treating medical records does not support the contention that any symptoms have persisted since June 2019 when Dr Kordian discovered that she was lactose intolerant and suggested that she avoid lactose products. The insurer says that in those circumstances, if causation is accepted then it is contended that this must result in 0% WPI.
Claimant’s submissions
The claimant says that without going into a detailed summary of the evidence available to the Medical Assessor, it is submitted on behalf of the claimant that, on the whole, the vast weight of evidence available to the Medical Assessor, suggested that the gastrointestinal injury was caused by the ingestion of pain killer medication, prescription of which was necessitated by the accident which is the subject of the claim. The claimant said that there was limited evidence, opinion or clinical, to suggest otherwise.
The claimant says that the accident caused a significant injury to the claimant’s lumbar spine, for which she had to undergo surgery in the form of a left L5/S1 partial laminectomy, microdiscectomy and spinal rhizolysis on 21 March 2018.
The claimant says that the initial surgery to her lumbar spine was not successful and radiology soon revealed a small recurrent disc protrusion at the pre-operative site on the left at L5/S1 with S1 nerve root impingement. It is submitted that the claimant suffered a recurrent disc protrusion with recurrent pain for which she consulted her treating specialist, neurosurgeon Dr McKechnie.
The claimant says that on 12 December 2019, she had a re-do surgery in the form of left L5/S1 partial laminectomy, microdiscectomy and spinal rhizolysis, performed by Dr McKechnie.
The claimant says that on 10 July 2019, she was assessed on behalf of the insurer by neurologist, Dr Spira, who assessed the permanent impairment to her lumbar spine at 10%.
The claimant says that since the accident and as a result of her injuries, surgical procedures and continuing disabilities, she has had to take a significant amount of pain killer medication which has led to her developing consequent gastrointestinal issues.
The claimant says that during and following her re-do surgery on 12 December 2019, she experienced severe abdominal discomfort. Five days later, on 17 December 2019, the claimant admitted herself to Westmead Hospital complaining of severe nausea and vomiting.
The claimant says that on 3 June 2019, she was referred to Dr Kordian reporting of epigastric pain nearly on a daily basis after eating and fasting, altered bowel habits, constipation and diarrhoea up to seven times a day and occasional mucus. The claimant says that Dr Kordian also noted that her weight fluctuated and as at June 2019, she had lost weight. Reference is made to his consultation report dated 3 June 2019 which notes:
“…the pain starting after her motor vehicle accident while she was on multiple medications, including Endone, Panadeine Forte and Voltaren and currently she is on Lyrica, Tramadol and Nurofen for her back pain”.
The claimant says that on 7 June 2019, she underwent a colonoscopy and panendoscopy by Dr Kordian, which revealed reflux oesophagitis, gastritis and epigastric discomfort.
The claimant submits that she has been required to regularly take medication in the form of Nexium and is heavily reliant on antacids in the form of Gaviscon. She has also tried natural remedies in the form of Iberogast. The claimant says that she has also had to severely restrict her diet, consisting mainly of light meals to help her digestive symptoms.
The claimant notes that on 26 November 2021, she was assessed by general surgeon Dr Berry for her gastrointestinal issues. In his report dated 26 November 2021, Dr Berry diagnosed the claimant with lumbar disc injury, chronic gastritis and irritable bowel syndrome, and noting the following:
“…These conditions are likely to persist for the foreseeable future, especially as two episodes of surgery have not settled the patient’s back condition.
In terms of her gastrointestinal system, I believe that her ongoing problems have been substantially contributed to both by her motor accident and the requirement for analgesic medications for pain.”
The claimant submits that Dr Berry assessed her digestive system as having 5% permanent impairment and recommended that her scarring be assessed by a spinal surgeon. The claimant says that with Dr Spira’s permanent impairment assessment of 10%, Dr Berry combined her WPI to her lumbar spine and gastrointestinal injuries to 15%.
The claimant submits that she experiences restricted and limited range of movement and a loss of curvature in her lumbar spine. She says that her treating specialist, Dr McKechnie, has recommended that she undertake a spinal fusion.
The claimant submits that in addition to severe ongoing pain and restriction to her lumbar spine and lower limb, she also suffers from a significant consequential gastrointestinal injury.
Submissions in reply by the claimant to WPI dispute
The claimant says that there is no dispute about her WPI in relation to the lumbar spine at 10% WPI.
The claimant says that her lumbar spine injury was assessed by A/Professor Ryan on 5 December 2018 as being 10% WPI This was later confirmed by Dr Spira on behalf of the insurer in his assessment dated 10 July 2019.
In any event, the claimant confirmed that the insurer submitted that there is no dispute regarding her WPI of the lumbar spine being 10%.
The claimant has referred to a report of Dr Garvey, general and diagnostic surgeon, who has assessed the claimant on behalf of the insurer and found WPI arising from her gastrointestinal injury at 2%.
While the claimant acknowledges the insurer does not rely on Dr Garvey’s report, the claimants says that it ought to be considered for the purposes of assessment of the claimant’s WPI and it is an opinion and a report which the claimant does rely upon.
Regarding the claimant’s gastrointestinal injury, the claimant noted that the insurer disputed causation in respect of the claimant’s gastrointestinal injury based on what it alleges is essentially a delay in the claimant reporting that gastrointestinal injury.
The claimant referred to the insurer’s submissions that:
“The Claimant’s treating general practitioner, Dr Neuhauser, of Triple 3 Medical Centre does not record any abdomen injury/upper digestive tract injury in the records as at December 2021”.
The claimant says that presumably, this submission is intended to establish that the claimant had not made any complaint of gastrointestinal injury from the date of the accident to December 2021.
However, the claimant says that the insurer then references an extract from the claimant’s GP records dated 20 March 2019 where the claimant presented to Triple 3 Medical Centre with gastric and abdominal complaints.
The claimant refers to the insurer’s submission that this is an isolated complaint, and which the claimant disputes, but says that in any event, the existence of the complaint undermines the insurer’s position that “Triple 3 Medical Centre does not record any abdomen injury/upper digestive tract injury in the records as at December 2021”.
In this regard, while the claimant acknowledges that the complaint was not received by Dr Neuhauser, it was received by Dr Sanki of Triple 3 Medical Centre and as such, the claimant disputes the accuracy of the insurer’s submission on this issue.
The claimant refers to paragraph 16(j)(iii) of the insurer’s submissions, and says that the insurer once again submits that;
“Dr Berry should not be accepted by the Commission because ... [he] refers to reports which are more than three years old”.
The claimant submits that this submission is liable to mislead as the reports referred to were not more than three years old at the time of Dr Berry’s assessment and is also inconsistent with the insurer’s submission that there was no record of gastrointestinal injury as at December 2021.
The claimant submits that an examination of the clinical notes of her GP, Dr Neuhauser, and Dr Kordian, reveals a history of epigastric complaints dating back to mid 2018.
The claimant says that following her initial surgery, she consulted Dr Neuhauser, complaining of epigastric discomfort and abdominal pain. In an entry dated 24 July 2018, Dr Neuhauser, noted the following “abdo discomfort, GORD” and prescribed the claimant with gastrointestinal relief medication in the form of Nexium and Iberogast. The claimant says that these complaints remained consistent and in early 2019, Dr Neuhauser referred the claimant to Dr Kordian.
The claimant says that in a report dated 3 June 2019, Dr Kordian noted “a history of epigastric pain and altered bowel habits . . . epigastric pain nearly on a daily basis . . . her pain started after having a motor vehicle accident a year ago while she was on multiple medications including Endone, Panadiene Forte and Voltaren”.
Further, the claimant submits the Insurer’s position on the delay in reporting epigastric injury fundamentally fails to appreciate that the claimant’s epigastric injury:
(a) was caused over time by her regimen of medication, and as such, the onset of the injury should not be expected to occur at the date of the accident, but sometime after the accident, once the claimant’s medication has begun to impact her stomach and gastrointestinal tract;
(b) the claimant’s epigastric pain and symptoms must be considered in light of the claimant’s other significant injuries, for which she was actively seeking treatment, and
(c) and in circumstances where it is likely that the more pressing spinal injury was the primary focus of the claimant and her treating doctors.
The claimant submits that in the circumstances, it is entirely reasonable that the her clinical records do not record complaints of epigastric pain and injury until sometime after the accident, as that is consistent with the likely delayed onset of such an injury.
Further, the claimant submits that to accept the insurer’s submissions on the claimant’s delay in reporting epigastric pain, an assessor would need to completely disregard the history of epigastric injury that the claimant reported to Dr Kordian, as early as June 2019, which included a history of epigastric pain that had persisted for some time by the time of the claimant’s consultation with Dr Kordian.
The claimant also noted that the insurer’s own expert, Dr Garvey, accepted that the claimant’s epigastric injury was causally related to the accident and has given rise to a WPI of 2%.
The claimant says that while the claimant notes that the insurer does not rely on the report of Dr Garvey, and prefers the opinion of Dr Lowy expressed in his report of 18 February 2022, the claimant submits that:
(a) there is no medical basis for the Insurer’s preference for Dr Lowy’s report over that of Dr Garvey, or Dr Berry, particularly in light of the claimant’s evidence on the persistence of her epigastric symptoms, which is inconsistent with the insurer’s submissions on that issue, and
(b) it is not clear from Dr Lowy’s report whether he was provided with the clinical notes of Dr Kordian, as no reference is made to Dr Kordian’s clinical notes in Dr Lowy’s reports dated 29 March 2019, 25 November 2021 or 18 February 2022.
The claimant submits that there is sufficient evidence before the Commission to find that the claimant’s gastrointestinal injury has been caused by, or materially contributed to by the accident.
Regarding the assessment of the claimant’s scarring, the claimant referred to the insurer disputing that the claimant is entitled to any WPI rating as a result of scarring on the basis that:
(a) there are allegedly no expert reports held by either party commenting on any alleged scarring; and
(b) there is allegedly no evidence before the Commission to refer this injury for assessment.
The claimant disputes both of the Insurer’s submissions in this regard and notes that:
(a) At page 5 of his report dated 5 December 2018, Dr Ryan states “She has a vertical scar over her lumbosacral junction in the midline posteriorly”.
(b) At page 4 of his report dated 10 July 2019, Dr Spira states “I noted the central low-back scar referable to her lumbar decompressive surgery”.
(c) At page 8 of his report dated 26 November 2021, Dr Berry states “In terms of scarring, this should be assessed by a Spinal Surgeon, as I was unable to review it today.”
The claimant submits there are clearly expert reports before the Commission which comment on the claimant’s scarring, including an opinion assigning a WPI rating to the scarring and as such, there is sufficient evidence available before the Commission to refer this injury for assessment.
The claimant submits that, on the basis of the above, there is sufficient evidence before the Commission to find that:
(a) the claimant’s injuries exceed the threshold for claiming damages for non economic loss;
(b) the claimant’s gastrointestinal issues are causally related to the accident and give rise to an assessable level of WPI, and
(c) there is sufficient evidence before the Commission that:
(i)the claimant has sustained surgical scarring that is causally related to the subject accident, and
(ii)gives rise to an assessable level of WPI.
Medical evidence
The parties have provided their respective bundles of evidence. The Panel has read and reviewed the contents of each bundle. If a document or documents contained in a bundle is not referred to by the Panel, the parties should not consider that it has not been taken into account.
Dr Lowy for the insurer provided a report of 20 March 2019. He noted:
“Ms Frangie is not restless in the chair for the first 20 minutes or so but then became uncomfortable having to change positions because of her lower back/buttock region discomfort. She is able to stand and sit spontaneously and her gait is careful but even. She is able to stand on each leg individually with normal balance; unable to stand on heels and toes.
Healed surgical scar noted over the lumbar region; slightly reduced lumbar lordosis.
Her spine is straight with no tilt or scoliosis. She achieves about two-thirds the normal range of spinal movements at all levels complaining of lower lumbar region pain at the extremes (no exaggeration).
She has a normal range of motion of the head, neck, shoulders and arms; reduced thoracolumbar and lumbosacral spinal movements because of her lumbar pain and muscle guarding.
Examination of her legs demonstrates slight weakness throughout the left leg compared to the right, 4/5 compared to 5/5 on the right, with 1 cm difference of the lower thighs and half a centimetre left in the left calf compared to the right calf; (lower thighs are 41 cm compared to 40 cm and 34.5 compared to 34.0 left mid calf). Achieves 60 degrees SLR pain free on the right but painful on testing left leg; unable to stand on heels and toes.
I was unable to obtain either knee reflex; the right ankle reflex was single plus; there was no left ankle reflex (as recorded by Dr McKechnie at the beginning in December 2018).
Ms Frangie has persisting post-operative lumbar spine pain and radiculopathy involving the left S1 nerve root. Left leg symptoms with weakness and absent left ankle reflex.”
Dr Lowy assessed 13% WPI entirely with respect to the lumbar spine.
Dr Spira, neurologist, provided a report of 10 July 2019. He noted that;
“Miss Frangie was reviewed by her general practitioner on 21 March 2017 but the motor vehicle accident was not mentioned and the consultation appears to have been in relation to some burns she bad suffered in the course of her work as a chef. There were further consultations on 28 March 2017 and 12 April 2017, again in relation to other aspects and the motor vehicle accident was not covered. There was a consultation on 12 July 2017 where it was indicated that there was ongoing low-back pain following the motor vehicle accident and it was stated that there was ‘ ...left-sided radiculopathy.’. It was suggested that she should continue to use analgesics.
I believe that Miss Frangie has had a lumbo-sacral disc protrusion with S1 nerve root irritation. Both historically and to clinical testing it appears that there is ongoing neural irritation and Miss Frangie will require further radiographs to determine whether there is an ongoing structural change which requires surgical correction.
According to the history I obtained Miss Frangie, she did not suffer back pains prior to the accident and the back and left lower limb pains have been present ever since its occurrence. This makes it highly likely that the motor vehicle accident was responsible. Nonetheless, one aspect regarding the accident remains unclear, This relates to the actual forces to which Miss Frangie was subjected in that accident the evaluation of which requires input of a mechanical engineer/crash investigator.”
Dr Spira assessed WPI at 10% for the lumbar spine only.
Dr Spira provided a further report of 18 November 2021. He said:
“Overall, little has changed in Miss Frangie's presentation despite the repeat surgery of December 2019. She retains low-back pain with a left lower limb radiation and, unfortunately, the reason for the protraction of this pain is not entirely clear. To objective testing there are no convincing neurological abnormalities involving the left lower limb and the fact that she has a full straight leg raising test means that it is unlikely that there is ongoing neural compression at L5-S1. The cause for her ongoing pain is therefore an issue to be resolved and I believe that she requires yet another MR scan of lumbar spine as well as CT-SPECT films to see if there is a significant facet joint arthropathy at the base of her ongoing complaints.
I believe that Miss Frangie's original history is consistent with her having suffered an L5-S1 disc protrusion with left-sided nerve root compression. It seems that after two surgical procedures she retains all of the symptoms she had prior to surgery for reasons which are not apparent in the radiographs or on physical examination.
I remain of the view that Miss Frangie sustained a lumbo-sacral disc protrusion in the subject accident.”
Various reports have been prepared by Dr Garvey for the insurer. In a report of Dr Garvey of 2 March 2022, he said “This Worker has objective clinical evidence of upper digestive tract impairment being reflux oesophagitis confirmed by endoscopy and biopsy results. Optical antral gastritis has not been confirmed by biopsy. Irritable Bowel Syndrome attracts 0% WPI under the guidelines.” Dr Garvey assessed 2% WPI.
Dr Kordian provided a report of 13 June 2019. He said:
“… a 24-year-old lady with a history of epigastric pain and altered bowel habits. Lourde complains of epigastric pain nearly on a daily basis after eating, but also when fasting. Her pain started after having a motor vehicle accident a year ago while she was on multiple medications including Endone, Panadeine Forte, and Voltaren and currently she is on Lyrica, Tramadol and Nurofen for her back pain. She never took any antacid medications. She has also been complaining of altered bowel habits, constipation, but mainly recently over the last few months diarrhoea up to seven times a day, occasional mucus, but no blood. Her weight fluctuates and she lost a few kilos over the last few months. She has seen another gastroenterologist and she was waiting to have a gastroscopy and colonoscopy, however it did not happen. No known allergy. No family history of bowel cancer.
Lourde has epigastric pain and altered bowel habits, especially diarrhoea. It could be from the medications, it could be stress related, however we need to rule out any other aetiologies of peptic ulcer disease or chronic inflammatory disease like Crohn's disease as a cause of her diarrhoea.”
Dr McKechnie provided a report of 10 August 2021.
“The back pain has continued to be her major residual complaint and she has been unable to return to her previous duties as a head chef as this employment involved repetitive bending, long periods of standing and some lifting. All of these activities would aggravate her residual lower back pain
It is my opinion that the claimant’s signs and symptoms are consistent with the accident which occurred on 9 March 2017. The onset of the lower back and left leg pain was caused by the accident. There was no history of pre-existing or predisposing illnesses or injuries. There is an MRI confirmation of a large left L5/S1 disc protrusion compressing the left S1 nerve root.
The surgery relieved her severe radicular left leg pain but she still complains of prominent lower back pain for nearly 18 months following the operation”.
There are various reports from Dr Porteous however these relate to the claimant’s psychiatric condition.
Dr Ryan provided reports of 5 December 2018 and 30 March 2021. He said:
“Ms Frangie has undergone two left lumbo-sacral discectomies: Westmead Private Hospital on 5 May 2020, and at Bankstown-Lidcombe Hospital, 21 March 2018. Ms Frangie has scarring over her spine, posteriorly at the lumbo-sacral junction that is consistent with the procedures she has undergone. She has no other scar or injury.
Ms Frangie continues to suffer from left-sided leg pain in the S1 distribution. This is a
consequence of a lumbosacral disc protrusion.
If I were caring for Ms Frangie I would have referred her to the Department of Pain Management for a comprehensive pain management program. Having said this I have misgivings about invasive pain management treatments because of the poor predictive value of spinal stimulators and the risk of aggravating an individual’s condition.
Another possibility is the performance of lumbosacral spinal fusion to stabilise the injured disc space”
Dr Berry provided a report of 26 November 2021. He said:
“In terms of her gastrointestinal system, I believe that her ongoing problems have been substantially contributed to both by her motor accident and the requirement for analgesic medications for pain.
The patient continues to suffer from bloating and alternating constipation and diarrhoea and episodic nausea and vomiting”.
He assessed WPI at 15%.
Dr Berry provided a further report of 17 June 2022. He said, commenting on a report of Dr Garvey:
“I have read Dr Garvey’s reply to the Insurer indicating that it is inappropriate to rely on biopsy reports from 2019.
The Insurer’s contention that Ms Frangie’s gastrointestinal injuries are not related to the motor accident is based on a supplementary report of Dr Anthony Lowy, dated 18 February 2022. Dr Lowy indicates that he does not consider any WPI rating involving the patient’s digestive system to be related to the subject motor vehicle accident in March 2017. I have reviewed my report dated 26 November 2021, and I note that the patient after the accident attempted to work but then had to attend her general practitioner due to back pain and left leg pain.
Ms Frangie was initially treated with Voltaren and she underwent surgery carried out by Dr Simon McKechnie and in fact had a second surgical procedure and at that stage she was taking multiple analgesics and anti-inflammatory medications, therefore given the level of pain that the patient was suffering it was reasonable for her to take these medications and she was therefore subject to gastrointestinal symptoms as supported by her gastroscopy at the time.
Given that the patient had two episodes of surgery, and was told that she required a fusion, and during this time she took multiple analgesics and anti-inflammatory medications I cannot see how her gastrointestinal symptoms were not related to her motor vehicle accident.
With regard to the Insurer’s contention that the patient’s biopsy is three years out of date, Ms Frangie gives no history at any time that her symptoms have resolved and I would therefore be of the opinion, that if her gastroscopy was repeated the findings would be the same or possibly worse. I would therefore support Dr Garvey’s supplementary report”.
The Medical Assessor also provided a summary of relevant documentation, noting:
“The Motor Vehicle Accident Medical Certificate completed by the general practitioner, which is Dr Kumarasiri, and dated 24 February 2018 lists the injuries as; Lower back pain post-MVA on 9/3/2017.
Consistent back pain since. MRI – large left posterolateral L5/S1 disc prolapse with fragment compressing S1 nerve root.”
General practitioner records from Triple 333 Medical Centre were also noted. These were from 2013.
The first consultation after the accident was with Dr Kumarasiri on 11 March 2017. The accident on 9 March 2017 was noted. It said since 10 March 2017, the claimant had had pain in the left lower back, radiating down the leg. There was no history of past problems noted. There was a careful examination and treatment was suggested.
There was ongoing back pain documented by Dr Kumarasiri and Dr Neuhauser.
CT imaging of the lumbar spine on 28 October 2017 was reported as showing large posterior central disc protrusion with probable nerve root compression. There was referral to Dr McKechnie.
There were subsequent consultations.
The imaging report from the MRI of the lumbar spine on 13 December 2017 stated there was, “Large left L5/S1 paracentral and central disc extrusion causing moderate spinal canal stenosis and compression of the descending left S1 nerve root.”
Reports of other imaging studies were provided.
The discharge summary from Westmead Hospital showed an assessment on 16 November 2017. This was with back pain. It stated there had been chronic back pain since the motor vehicle crash. The imaging study was noted, as well as lower back symptoms with radiation to the left leg.
The physio reports from Mr Elkarina were noted.
The panendoscopy report from Dr Kordian dated 7 June 2019 said that there was mild reflux oesophagitis and mild antral gastritis. It said that the colonoscopy was normal.
The operation report from 21 March 2018 at Bankstown Lidcombe Hospital shows surgery from Dr McKechnie. The operation was “left L5/S1 microdiscectomy for S1 rhizolysis.”
The report of Dr Porteous dated 5 November 2018 is a medico-legal occupational physician’s report. He provided an assessment and recommended further treatment.
His further report dated 28 July 2020 provided a re-assessment.
A report of Dr Samuels dated 22 November 2018 is a medicolegal psychiatrist’s report.
The report of Dr Garvey dated 10 June 2022 is a medicolegal surgeon’s report. He commented on digestive system impairment.
The occupational therapy report of Ms Owen dated 11 March 2021 was noted.
The report of Dr Lowy dated 29 March 2019 provides a medico-legal occupational physician’s report. He provided an assessment. He provided an evaluation of permanent impairment. This was with reference to the WorkCover Guidelines.
A report of Dr Garvey dated 2 March 2022 is a medico-legal surgeon’s report. He provided an evaluation of digestive system impairment and said that it was 2% WPI related to upper digestive impairment.
Medical Assessor Cameron said; “In the motor vehicle crash on 9 March 2017, Ms Frangie sustained an injury to her lumbosacral spine.
Causation is established because there were symptoms consistent with this injury within a short time after the motor vehicle crash. There has been a disc prolapse with extrusion, which has caused persistent radiculopathy. There are ongoing symptoms and objective abnormalities despite the surgery.
There are gastrointestinal symptoms which are causally related to the motor vehicle crash and the upper gastrointestinal symptoms are assessable with reference to permanent impairment.
There is minimal scarring of the lumbar spine.
Causation for the listed injuries has been established based on the available clinical information and the information provided by Ms Frangie.”
The Medical Assessor assessed 10% WPI for the lumbar spine, 2% WPI for the upper gastrointestinal inflammation and constipation and 0% WPI for the lumbar spine scarring. This gave a total WPI assessment of 12%.
Panel medical examination
The claimant was medical examined by Medical Assessor Oates. His report follows”
“DOB: 5 March 1995
Date of Assessment: 19 July 2023
Ms Frangie attended the Personal Injury Commission examination rooms at 1 Oxford Street for examination by Medical Assessor Oates on 19 July 2023 as arranged. She attended unaccompanied.
HISTORY
Pre-accident medical history and relevant personal details
Ms Frangie lives with her mother, brother and one of her sisters in a house. This house was damaged and they had to move out for a period, but have since moved back in after repairs.
Before the accident she did fishing from a boat or off a jetty, but now her main hobby is walking.
At home, she is able to wash dishes and do some of the cooking, but her sister and mother clean the floors and bathrooms. Her brother gets a contractor to cut the front lawn.
She is independent with personal care. She is an ex-smoker and drinks alcohol rarely.
Her general health was good. She has familial hyperlipidaemia but does not wish to start medications yet. There is no past history or family history of lactose intolerance.
There was a history of peri-menstrual backache, which was not disabling and for which she would take Naprogesic or Nurofen. She did end up seeing a GP and had an ultrasound scan of pelvis showing polycystic ovarian syndrome at about the age of 17 or 18. There was no radiation of back symptoms into either leg.
At the time of the accident, she was a full-time chef at the Cooking Room and had been in that job for two months. In the past, before she became a chef, she had done waitressing and bartending.
History of the motor accident
Ms Frangie is right hand dominant.
She said on 9 March 2017, a Thursday from memory, she was the driver of a Mazda 6 sedan with no passengers. She was stationary, first in line at a traffic light, when she was rear-ended by a following sedan in a 60kph zone. She didn’t hear a screech of brakes. Her car was pushed forward by the impact but she is unsure how much.
She had a seatbelt on and was not knocked out, and does not recall any impact injury. She self-extricated through the driver’s door. No police or ambulance attended. Both drivers drove their car around the corner to exchange details in a carpark.
Her car was still driveable. However, her boot would not close so she called her then boyfriend and mother, and he took her car away and she took his car to continue on to work.
History of symptoms and treatment following the motor accident
Over the next few hours, she noticed low back pain and chest pain from the seatbelt, and took Nurofen. A co-worker then gave her a Lyrica tablet and this helped the pain significantly. She worked the next day also in pain and saw a GP on her day off, a Saturday, and was diagnosed with soft tissue injury and advised Voltaren or Nurofen.
She kept working thereafter but the pain started radiating from the back into the left buttock and down the left leg as far as the foot, with tingling and burning sensation a few days after the onset of low back pain. She found it increasingly difficult to stand up for periods and walk.
She stopped work one or two months after the accident when she was able to find someone to replace her as a chef, and she went on Centrelink benefits.
She saw her GP, Dr Neuhauser, Merrylands and was sent for scans which showed a disc protrusion. She was then referred to Dr McKechnie, neurosurgeon, Bankstown and on 21 March 2018, he performed an L5/S1 laminectomy, discectomy and left rhizolysis at Bankstown Hospital. There was temporary relief of low back pain and left leg symptoms for about one or two months and then the symptoms recurred.
She had physiotherapy and hydrotherapy but was no better.
On 12 December 2019, she had a revision laminectomy at Sydney Southwest Private Hospital, paid for by the insurer, undertaken by Dr McKechnie. There was no benefit. She had further physiotherapy.
Dr McKechnie then suggested an epidural cortisone injection, which she eventually had a few months later, and this gave two days good relief of low back pain and left leg symptoms.
At review, Dr McKechnie said the only option left available to her would be fusion, but she did not wish to proceed with this operation.
She had been taking Voltaren and Panadol from the date of the accident and then Panadeine Forte and Tramadol from early 2018. She then ceased Panadeine Forte because of nausea and she started taking Endone 5mg per day.
By July 2018, she had developed abdominal pain, heartburn, indigestion, vomiting and a rumbling stomach. She told her GP and was given Nexium and Iberogast, which relieved the heartburn symptoms but they still recurred at times.
She had continuing symptoms thereafter and reported these to the GP again in March 2019 and was referred to Dr A Sanki and then Dr Nicolau, and then Dr Kordian, gastroenterologist, whom she saw on 3 June 2019. He advised gastroscopy and colonoscopy. These were done on 7June 2019 showing gastritis and reflux. The colonoscopy was normal. She was advised to continue taking Nexium, especially if she had to take painkillers.
One of a battery of tests ordered by Dr Kordian showed lactase deficiency, so he advised her to avoid lactose. However, she had not been aware that she was intolerant to dairy products before this. She took the advice and changed to almond milk or Zymil lactose free milk.
Around the time of the second lumbar operation, she started Lyrica 75mg per day and Tramal 50mg per day, along with Nurofen.
She tried to restart work as a chef in late 2022, which involved driving to and from the workplace, so she had to stop Lyrica. She tried four hours a day, several days per week, and lasted three months before she had to stop because of intolerable low back pain.
She reverted to Centrelink JobSeeker benefits and has an exemption, such that she only needs to submit a certificate from the GP every three months.
Details of any relevant injuries or conditions sustained since the motor accident
No subsequent injury or relevant condition has developed.
Current Symptoms
She has low back pain which is worse with sitting, standing, walking and bending, and relieved by lying down but she can only lie prone or on her right side. The pain is rated at 8/10 on a VAS (visual analogue scale).
She also has constant left leg pain in the same area as before the operations, which she rates as 7/10 VAS, and there is intermittent tingling in the dorsum of the left foot. She is not sure whether it is more to the medial or lateral side of the foot.
She has indigestion and heartburn, and this has been more severe recently. She avoids hot foods such as chilli, and also garlic and onions. She thinks these symptoms continue because of her need to take analgesic and anti-inflammatory medication. She gets constipated at times and will then take cows milk in her coffee, which makes her bowels slightly easier. She last had this in June. At this time, there was an associated episode of rectal bleeding when she was constipated. She says the lumbar operative scar is not irritable but used to itch in the past.
Current and proposed treatment
She has physiotherapy once a week and pays for it herself after the insurer ceased benefits six months ago.
She has Nexium 20mg per day or Gaviscon daily, which she finds gives faster relief of the dyspeptic symptoms.
She has Nurofen Zavance, two once a day or twice a day. She has recommenced Lyrica 75mg per day after having a break from this. She doesn’t take it when she knows she has to drive. She has Tramadol 50mg daily and remains under the care of the GP, Dr Neuhauser.
CLINICAL EXAMINATION
General presentation
Ms Frangie was of solid build with height 162cm and weight 77.6kg. She sat in some discomfort and got up once or twice during the interview.
Lumbar spine (lumbosacral)
Lordosis preserved. Flexion limited to one-half normal, extension one-third normal with complaint of worse central low back pain. Lateral flexion two-thirds bilaterally and rotation two-thirds bilaterally.
She could squat one-half of normal range with complaint of tightness in the quadriceps. She could walk on the heels and toes. There was reflex asymmetry with the ankle jerk on the left side needing reinforcement, but other reflexes were brisk. Plantar responses were both flexor. Power was reduced in the eversion of left foot and there was decreased sensation to pin prick in the medial aspect of left foot and leg.
Supine straight leg raising was negative on the right and positive on the left. Thigh girth; right 46cm, left 47cm at 10cm above superior patellar pole. Leg girth; right 35cm, left 34cm at 13cm below the inferior patellar pole. There was no muscle spasm or guarding and tenderness at L5/S1 centrally.
Abdomen
Soft and non-tender to palpation. No enlargement of liver, spleen or kidneys palpable. Bowel sounds were active and within normal limits.
Scar
3cm mid-line vertical scar in the lower lumbar area. The scar was not tender or irritable. There was no trophic changes, no contour defect and no adherence. There was some mild colour contrast with surrounding skin.
Comments on consistency
Ms Frangie presented in a consistent manner.
Imaging brought to the assessment
26 August 2019 - MRI Lumbar Spine - history of increasing low back pain, severe degenerative discopathy at L5/S1 complicated by annular fissure and small left paracentral disc protrusion which appears to contact the emerging left S1 nerve root within the central canal. - recurrent, left paracentral disc protrusion contacting and irritating the emerging Left S1 nerve root in the central canal.
18 July 2017 - CT Lumbosacral. spine.- History of lower back pain.? Disc prolapse. MVA four months ago - No significant wedging or loss of lumbar vertebral body height, no spondylolisthesis of the visualised lumbar vertebrae, at L5/S1, a large posterior central disc protrusion resulting in moderate spinal canal narrowing with probable irritation of the bilateral. traversing S1 nerve roots. Also mild to moderate right and moderate left neural exit foraminal narrowing secondary to disc encroachment.
11 December 2017 - CT Lumbar Spine - A large posterior protrusion of the L5/S1 disc is demonstrated, with the protruding disc occupying a large component of the area of the vertebral canal and impressing upon the adjacent thecal sac and S1 nerve roots. Further management is required and an appropriate specialist consult is recommended.
DIAGNOSIS, CAUSATION AND REASONS
Lumbar spine soft tissue injury including large left L5/S1 paracentral and central disc extrusion, causing moderate spinal canal stenosis and compression of the descending left S1 nerve root. This injury was associated with a left lower extremity radiculopathy.
This injury was caused by the motor accident, as it is mentioned in the Claim Form and early contemporaneous medical records, and verified on MRI scan.
There is also an upper gastrointestinal tract injury in the form of heartburn/ dyspepsia as a result of long-term ingestion of analgesic and anti-inflammatory medication. The accident was a cause of this injury, because the accident caused back and left leg pain requiring long-term use of these medications. The diagnosis of gastritis and reflux oesophagitis has been confirmed on gastroscopy.
Lower gastrointestinal tract injury.- constipation. The accident was a cause of this injury, because it caused back and left leg pain, requiring long term use of analgesics, including opioids, a known side effect of which is constipation.
There is operative scarring of the lumbar spine from an initial and revision lower lumbar discectomy and rhizolysis.
In response to the insurer’s submissions:
a. The limited reference to epigastric complaints in the claimant’s voluminous clinical notes and different treatment providers.
The claimant’s Statement indicates the onset of gastrointestinal symptoms at July 2018, which was reported to the GP and prescribed Iberogast and Nexium, which relieved the symptoms. These medications would not have relieved lactose intolerance, if this was the cause of the symptoms.
b. The absence of evidence of any treatment provider recommending that the claimant reduce her medication on account of abdominal symptoms.
Dr Kordian, the gastroenterologist, advised her to take Nexium whenever she needed to ingest painkillers and there is no prescription for Voltaren in the records after 12 July 2017. By implication, this means that the presumptive irritant medication was reduced.
c. The possibility that the alteration in bowel habits could be stress related as opposed to medication.
Ms Frangie complained of constipation, which is a side-effect of opioids. If a bowel is affected by stress, there is usually increased bowel motions and diarrhoea, as with irritable bowel syndrome, which was not the case here.
d. The possibility that her symptoms could be related to diagnosed lactose intolerance, noting that she was advised by Dr Neuhauser to avoid lactose products.
She gave no history of any issues with dairy products and the symptoms of abdominal cramps, bloating and diarrhea are not upper GI symptoms, which are those usually seen in lactose intolerance.
e. The relevance of the fact that the claimant does not appear to have renewed her prescription of Iberogast after 24 July 2018 or Nexium after 4 December 2018.
Iberogast is a natural remedy which does not require prescription. Nexium was prescribed on 10 November 2021, according to the medical records. Ongoing review of these records showed that Voltaren was re-prescribed for low back pain on 10 February 2023 and a subsequent visit on 5 March 2023 followed for acute upper abdominal pain, indicating that the GI tract upper digestive condition does continue.
f. The lack of evidence of contemporaneous complaints of epigastric pain after seeing Dr Kordian on 13 June 2019.
Nexium was prescribed on 10 November 2021 and 10 February 2023, implying further complaint of epigastric pain. This re-prescription occurred after Voltaren had been reinstated.
g. The relevance of the fact that the claimant’s legal representative did not appear to be aware of epigastric complaints which might be causally related to the accident until 3 August 2021 (almost 3½ years after the accident).
No comment from the Panel.
PERMANENT IMPAIRMENT
Lumbar spine
The clinical examination findings of asymmetric reflex with reduction of left ankle jerk and weakness of left foot eversion (S1) and possibly straight leg raising test on the left, are sufficient clinical criteria to indicate the presence of a persisting left-sided lumbar radiculopathy despite surgery. This places her in DRE Lumbosacral Category III giving 10% whole person impairment.
Abdomen
Upper gastrointestinal inflammation and constipation.
The constipation is not related to the effect of anti-inflammatories or simple analgesics, but could be related to ingestion of opioids and this includes Panadeine Forte. Assessment of constipation is 0% whole person impairment, as there was no evidence on colonoscopy of any colonic or rectal disease and the symptoms can be managed with medication.
The upper abdominal injury is more likely than not the result of ingestion of non-steroidal anti-inflammatory medication, which had been taken on a long-term basis since the time of the accident, and this is to be assessed as a Class 1 impairment from Table 2, AMA4, in the lower range of this category between 0 – 2 %.
In this case, the Panel assesses 2% because the symptoms are significant and continuing, but there is no weight loss and no dietary restriction on account of the upper gastrointestinal inflammation, which has been clinical proven at gastroscopy.
Scarring – lumbar spine
Addressing the TEMSKI criteria, Ms Frangie is aware of the scar and she is able to locate it but there is relatively good colour match, no trophic changes, no visible suture or staple marks, and no contour defect. It would not be visible with normal clothing and there is no requirement for treatment or effect on ADLs, and no adherence. The best fit under TEMSKI is 0% whole person impairment.
Body part or system
AMA/Guidelines References
Permanent (yes/no)
Current %WPI
%WPI from prior or subsequent causes
%WPI due to motor accident
1
Lumbar spine
Ch3 p102 AMA4 DRE III
Yes
10
0
10
2
Digestive system – upper gastrointestinal inflammation and constipation
Guidelines V8.1 cl 6.247,6.248 p129
Yes
2
0
2
3
Scarring lumbar spine
Guidelines V8.1, T 6.18 p132
Yes
0
0
0
The combined impairment is 12% whole person impairment.
The Panel adopts the report and findings of Medical Assessor Oates.
REASONS
This is an application for review of the certificate of Medical Assessor Cameron, made by the insurer.
The insurer concedes that the WPI of the claimant’s spine is 10%.
The insurers contention is that the gastrointestinal problems suffered by the claimant post-accident do not arise from the accident. Medical Assessor Oates has addressed the issues raised by the insurer, in his examination report.
The gastrointestinal symptoms complained of by the claimant would not have appeared acutely after the accident. The claimant had two surgical procedures to her lumbar spine. Because of the pain she was suffering she consumed multiple analgesics and anti-inflammatory medications. Dr Berry said that it was not unreasonable for her to take these medications. He also said that the gastrointestinal symptoms were supported by her gastroscopy at the time.
Dr Berry addressed the contention by the insurer that any gastrointestinal injury would have been minor because the claimant’s legal representatives did not appear to be aware of any epigastric complaints in reference to the accident at the time of preparing particulars of the claim on 3 August 2021. Dr Berry said that the claimant at no time gave a history that her symptoms had resolved. He said that given the level of pain the claimant was suffering then with the consumption of multiple anti-inflammatory medications and analgesics, he could not see how her gastrointestinal symptoms are not related to the accident. Medical Assessor Oates also concurs with this analysis as does the Panel.
The Panel is not satisfied that the claimant suffers from lactose intolerance, unrelated to the accident. She gave no history of problems with dairy products and as Medical Assessor Oates says, the symptoms of abdominal cramps, loading and diarrhoea are not upper gastrointestinal symptoms which are those usually seen in lactose intolerance.
On balance, as Medical Assessor Oates reported, the claimant’s upper abdominal injury is more likely than not to have arisen as the result of ingestion of non-steroidal anti-inflammatory medication which has been taken on a long-term basis since the accident. The claimant’s symptoms are significant and continuing.
Whilst the claimant has suffered some scarring, as a result of two surgical procedures, this is not significant and does not attract an assessment of WPI.
CONCLUSION
The insurer concedes that the claimant’s lumbar spine injury attracts a 10% WPI assessment. Dr Spira for the insurer, agreed with this, as did Associate Professor Ryan for the insurer.
The Panel has found an assessment of 10% WPI for the claimant’s lumbar spine and 2% WPI for her gastrointestinal injuries making a total WPI assessment of 12%.
DETERMINATION
The Panel affirms the decision of Medical Assessor Cameron dated 20 December 2022.
The degree of permanent impairment of the claimant’s injuries arising from the accident on 9 March 2017 on the combined tables is 12% consisting of;
(a) lumbar spine 10%, and
(b) gastrointestinal injuries 2%.
0
0
0