Insurance Australia Limited t/as NRMA Insurance v Gatt (No 2)
[2023] NSWPICMP 120
•30 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v Gatt (No 2) [2023] NSWPICMP 120 |
| CLAIMANT: | Anthony Gatt |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| MEMBER: | Belinda Cassidy |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 30 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about whole person impairment (WPI) and treatment (lumbar spine surgery) and review of assessment under section 7.26; original assessment by Medical Assessor Home (MA); claimant was front seat passenger and claimed he was injured in rear end collision; issue of causation of injuries involved; pre-existing spondylolisthesis; pre-accident neck complaints; post-accident fall from chair; initial complaints of pain over shoulders versus pain in shoulder six months later; Held – claimant sustained soft tissue injury to neck causing pain in shoulders; aggravated lumbar spondylolisthesis; no frank or specific injury to either shoulder caused in the accident; in light of causation findings, shoulder surgery not related to accident; chiropractic treatment to neck and lower back related to accident but not reasonable and necessary; accident was material contribution to the need for the lumbar spine fusion surgery; WPI greater than 10%; Certificate of MA in relation to treatment dispute confirmed; certificate of MA in relation to impairment revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate of Medical Assessor Home dated 1 September 2022 and certifies that: 1. the claimant’s L5/S1 surgery is related to the accident, and 2. the claimant’s whole person impairment resulting from the injuries caused by the accident is greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Mr Gatt was involved in a rear end motor accident on 10 August 2018. He was the front seat passenger in a car driven by his wife. They had come to a stop when there was a collision from behind.
Mr Gatt made a claim for statutory benefits against the insurer of the vehicle that hit the family car and the insurer accepted liability for that claim. It appears the claimant has also made a claim for damages against the insurer.[1]
[1] While the Panel has a copy of the application for personal injury benefits, the Panel does not have a copy of the claim form in respect of the damages claim.
Several medical disputes have arisen in the two claims and the following medical assessment matters were referred to the Personal Injury Commission (Commission) for assessment as follows:
(a) in the statutory benefits claim the following treatment disputes:
(i)bilateral shoulder surgery – the subject of proceedings M10167858/21;
(ii)chiropractic treatment – also the subject of proceedings M10167858/21;
(iii)lumbar spine surgery – the subject of proceedings M10440395/21, and
(b) in the damages claim, the degree of Mr Gatt’s whole person impairment (WPI) – the subject of proceedings M10439565/21.
On 9 March 2022, Medical Assessor Truskett found that the claimant’s bilateral shoulder surgery was not related to any injury sustained in the accident and was therefore not reasonable and necessary. Medical Assessor Truskett also determined that the disputed chiropractic treatment was not related to the accident and was not reasonable and necessary. The claimant lodged an application for review of the Medical Assessor’s assessment of both those medical assessment matters with the Commission.[2] On 24 August 2022 a delegate of the President determined there was reasonable cause to suspect a material error in the assessment.
[2] Proceedings numbered R-M10500731/22.
On 1 September 2022, Medical Assessor Home found that the claimant’s lumbar spine surgery was related to the injuries sustained in the accident and was reasonable and necessary in the circumstances. He also determined that the claimant had a WPI of 24%. The insurer lodged an application for review of the Medical Assessor’s assessment of both those medical assessment matters with the Commission.[3] On
27 October 2022 the same delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
[3] Proceedings numbered R-M10535991/22.
The President of the Commission then convened two panels with the same members on each panel to conduct the reviews.
The Panels determined the two proceedings would be heard together as there were treatment disputes in each matter and overlapping issues in particular issues of causation of injuries that affected all disputed treatment and the degree of WPI resulting from the accident-related injuries.[4]
LEGISLATIVE FRAMEWORK
[4] While two separate Panels have been convened, for simplicity these reasons will refer to the Panel in the singular.
General
Mr Gatt’s claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). The legislation provides a scheme of statutory benefits (under part 3) and lump sum damages (under part 4).
Mr Gatt’s statutory benefits includes weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Mr Gatt’s claim for damages would include damages for his economic losses and possibly non-economic loss resulting from his accident-related injuries.
Treatment and care benefits
An injured person cannot recover damages for treatment and care from the insurer.[5] The mechanism for the claimant’s recovery of the cost of treatment and care caused by the accident is through the statutory benefits claim.
[5] See s 3.42 of the MAI Act as well as ss 4.3 and 4.5.
Section 3.24 of the MAI Act provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -
(a)the reasonable cost of treatment and care, …
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
…”
Non-economic loss damages
Damages for non-economic loss are regulated by the provisions in part 4, division 4.3 of the MAI Act. Entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and the dispute must be referred to a Medical Assessor for determination.[6]
[6] See s 4.12 of the MAI Act.
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[7] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[7] Section 7.21. The current version of the Guidelines is Version 9 which is effective from November 2022.
Dispute resolution
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including:
“(a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”, and
“(b) whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care).”
Chapter 7, division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Truskett’s, further medical assessments such as Medical Assessor Home’s assessment of the back surgery dispute and the Review of medical assessments by this Panel.[8]
ASSESSMENTS UNDER REVIEW
[8] Sections 7.20, 7.24 and 7.26 of the MAI Act.
Medical Assessor Truskett
Medical Assessor Truskett was asked to determine three disputes:
(a) whether the 18 January 2020 request for left shoulder arthroscopic repair relates to the accident and, if so, whether that treatment is reasonable and necessary in the circumstances;
(b) whether the 18 January 2020 request for right shoulder arthroscopic repair relates to the accident and, if so, whether that treatment is reasonable and necessary in the circumstances, and
(c) whether eight chiropractic sessions (one per week for eight weeks) requested on February 2020 relate to the injury caused by the accident and, if so, whether that treatment is reasonable and necessary in the circumstances.
The claimant was 51 when assessed by Medical Assessor Truskett.
Medical Assessor Truskett notes the claimant’s employment history (parking police, business owner, truck driver) and his family history (married, four children). Medical Assessor Truskett also took a medical history of a fractured left leg as a young man and right and left knee surgery (15 years ago), various internal surgeries (colectomy, appendectomy, and inguinal hernia repair).
The Medical Assessor has a history of the rear end collision noting the claimant was holding a strap in his left arm, and his right hand was clutching the seatbelt and he twisted sideways on impact. The claimant said the car was able to be driven but was a “repairable write off” and that they received $3,000. No formal panel beating occurred but after his son fixed the lock on the boot, the family is still driving the vehicle which is registered.
Medical Assessor Truskett takes a history of symptoms and treatment from the claimant as follows:
(a) initial attendance on his general practitioner (GP) with neck pain and two days later a further consultation with the GP for neck and back pain;
(b) pain in both arms with shoulder pain;
(c) referral to Dr Al Khawaja who he had seen five years before the accident;
(d) physiotherapy from Everybody in Penrith;
(e) referral to a pain specialist Dr Ramachandran;
(f) 55 chiropractic sessions;
(g) epidural steroid injections into his back June 2019 with no real improvement;
(h) “progressive pain in his shoulders” in May 2019 and referral to Dr Soo shoulder surgeon who advised surgery, the payment of which was rejected by the insurer. The claimant funded his own acromioplasty in September 2020, and
(i) spinal fusion of L5/S1 performed by Dr Seex in July 2020.
The claimant gave a history of a fall from a chair in 17 July 2019 with a two month aggravation of back, neck and shoulder pain.
The Medical Assessor noted the claimant was co-operative and consistent, but pain focused. He was said to be angry with the insurer. The claimant was 125kg with a body mass index (BMI) of 38.6 which placed him in obesity class II or III. The claimant blamed his weight on the accident. The Panel notes the GP records suggest the claimant has been significantly overweight well before the accident. For example, one year before the accident his weight was recorded at the Southlands medical centre as 133kg.
Medical Assessor Truskett noted the claimant’s pre-existing L5/S1 spondylolisthesis which had not developed further since the accident and while not asked, he expressed the view that the spinal fusion was not related to the accident. He found that “as his back, neck and persistent shoulder pain are not related to the motor vehicle accident”, that the chiropractic treatment claimed by Mr Gatt was not related to the accident.
Medical Assessor Truskett found the claimant’s shoulders were not injured in the accident primarily because of the absence of any record of shoulder complaints in the Bligh Park Family Practice and that the first complaint of actual shoulder pain did not occur until May 2019. Medical Assessor Truskett thought the claimant could have had referred pain from his neck injury causing impairment of range of motion in the shoulders but that no actual shoulder injury was caused in the accident and therefore the shoulder surgery was not related to the accident.
Finally, he expressed the view that any injuries sustained in the accident had resolved.
Medical Assessor Home
In proceedings numbered M10440395/21, Medical Assessor Home was asked to determine the following treatment disputes:
(a) whether the L5/S1 anterior lumbar spine interbody fusion relates to the injury caused by the motor accident and if so whether it is reasonable and necessary in the circumstances, and
(b) whether the L5/S1 lumbar spine decompression and fusion relate to the injury caused by the motor accident and if so whether it is reasonable and necessary in the circumstances.
In proceedings numbered M10439565/21, Medical Assessor Home was asked to determine the claimant’s WPI resulting from the following injuries:
(a) cervical spine strain;
(b) left shoulder – supraspinatus, subacromial bursitis, superior labral partial tear from anterior to posterior (SLAP tear);
(c) right shoulder – subacromial bursitis, SLAP tears;
(d) thoracic spine – degenerative changes to thoracic spine, and
(e) lumbar spine – strain.
Medical Assessor Home records the following history from the claimant:
(a) intermittent neck pain before the accident and headaches;
(b) attendance on his GP with complaints of neck pain, right arm pain and headaches several weeks before the accident;
(c) he continued to work as a truck driver;
(d) previous episodes of back pain “associated with heavy manual handling in the past” and attendance on Dr Al Khawaja in January 2015. He recalls being referred for MRI scans but did not have the scans until August 2015;
(e) his lower back was not symptomatic leading up to the accident;
(f) he did not recall previous shoulder complaints or mid-back pain;
(g) the claimant recalled the accident and that his wife was driving and they were stopped when someone hit the back of him;
(h) the claimant says he was talking to his wife and had turned slightly. He was holding the sash of his seat belt at the shoulder with his left hand and the base of his seat with the right hand and he was thrown backwards and forwards;
(i) he recalled immediate pain, in particular in the neck and lower back pain. He understood his doctor had recorded neck pain, but not lower back pain and the claimant could not explain this;
(j)
he started physiotherapy on 20 August 2018 but his pain progressed and he had CT scans of his neck and lower back and was referred to
Dr Al Khawaja who he saw on 16 October 2018. He had MRIs in December 2018 and was referred to pain specialist Dr Ramachandran. At that time the claimant recalled neck pain radiating into both his arms and into the shoulders and pain in the lower back. The claimant did not recall symptoms in the lower limbs;
(k) he had facet joint and epidural injections in June 2019 with only transient benefits and had spinal fusion surgery on 19 July 2020;
(l) he recalled the onset of left leg pain but could not recall when this started but it has continued;
(m) he had further spinal nerve blocks which reduced the severity of his back pain, and
(n) in May 2019 he developed more prominent shoulder pain and had ultrasound examination and was referred to Dr Soo who recommended surgery, which was done by Dr Stening and which has reduced the severity of his left shoulder pain and improved his range of motion.
Medical Assessor Home had a history of the claimant falling from an antique chair in July 2019 landing on his buttocks. This caused an exacerbation of his back pain for six weeks only. He did not recall other injuries on that occasion.
The claimant complained of variable neck pain, constant right shoulder pain, constant left shoulder pain, localised mid-back pain and constant pain in the lower back radiating to both thighs and the left leg below the knee.
On examination the claimant weighed 135kg. There was no muscle spasm, guarding or dysmetria in the cervical spine and no neurological deficits. There was no muscle wasting and active range of motion was said to be restricted by “local shoulder pain”. The lumbar spine had no spasm, dysmetria but reduced sensation in a left L5 dermatome. The claimant was said to be consistent.
After reviewing the medical evidence and radiology, Medical Assessor Home found:
(a) neck and thoracic spine pain caused by the accident with a material aggravation of pre-existing cervical spine spondylosis;
(b) no material injury to either shoulder on the basis of the medical reports although the claimant may be experiencing referred pain from the neck. He found any restricted motion was due to local pathology rather than the neck condition;
(c) soft tissue injury to the lumbar spine on a background of underlying pre-existing degenerative and developmental changes at L5/S1, there were complaints of back pain within a month, but no radicular signs or symptoms recorded for six months but a “steady progressions of his symptoms” by late 2019, and
(d) that the surgery was for the management of severe axial pain and that spinal fusion is recognised treatment for that condition. Therefore the accident was more than a negligible cause of the ongoing aggravation of the symptoms and requirement for surgery.
Medical Assessor Home assessed the degree of Mr Gatt’s WPI as 24%[9] as follows:
(a) cervical spine DRE II 5%
(b) thoracic spine DRE I 0%
(c) lumbar spine DRE IV 20%.
ISSUES FOR DETERMINATION
[9] In accordance with the combined tables on pages 322 and 323 of the AMA 4 Guides, 20% combined with 5% produced 24%.
Claimant’s submissions
The claimant has provided lengthy submissions[10] with paragraphs that are not numbered. This has made navigating the submissions difficult for the Panel during the course of its deliberations.
[10] Page 1 of the claimant’s final bundle.
Medical Assessor Truskett
The claimant says that Medical Assessor Truskett relied on a nine-month gap between the date of accident and the onset of shoulder pain in deciding the issue about shoulder surgery. The claimant notes the history from Medical Assessor Truskett was of initial pain in both arms with shoulder pain and the claimant says in his statement that his shoulders were jarred in the accident. The claimant argues there was no challenge to Mr Gatt’s credibility, and he should be believed.
The claimant also points to entries in the physiotherapy notes from 20 August 2018 and 12 September 2018 where there were complaints of pain which “radiates over his upper shoulder bilaterally”.
The claimant also points to radicular symptoms which, if not radiculopathy, “would have had to be caused by injuries to his shoulders”. He also refers to Dr Ramachandran’s reports of 10 January 2019 and 6 February 2019 which refer to “bilateral shoulder pain”. There are other records from April 2019 which the claimant relies on to support his submission that he did injure both his shoulders in the accident.
The claimant refers to the reports of the insurer’s biomechanical expert and points to the evidence he has now obtained being his own biomechanical engineer and that
Dr Johnston suggests the “internal forces as a result of the accident [was unlikely to be] the primary cause of shoulder complaint” but that he was of the view that if the claimant had no pre-accident shoulder symptoms, the accident must be the cause. The Panel notes that this is not the test of causation. The appropriate test is that the accident could have caused the injury and that it did in fact caused the injury.
The claimant notes that Medical Assessor Truskett did not appear to have the benefit of Mr Johnston’s report, or the report of Dr Al Khawaja dated 24 May 2021.
Medical Assessor Home
In relation to the assessment of the claimant’s cervical spine injury, the claimant concedes there may be an error in the WPI finding, but not in the finding of causation.
The claimant sets out the insurer’s submissions and notes that Medical Assessor Home engaged with the issue of causation and accepted the claimant’s history that he complained of back pain (albeit not recorded by his GP) at the time of the accident. The claimant concedes he did not mention a back injury in his claim form completed six days after the accident but says that within two months he was referred to
Dr Al Khawaja. The Panel notes the referral to Dr Al Khawaja was given on
14 September 2018.
The remaining submissions deal primarily with answering the insurer’s submissions and the threshold issue of material error.
Insurer’s submissions
At the Panel’s request, the insurer lodged a single set of submissions in respect of all the matters in dispute.[11] Like the claimant, the insurer has not numbered the paragraphs which makes it difficult for the Panel to reference the particular submissions in these reasons. The Panel has adopted the headings used by the insurer to assist in navigating the 20-page document.
[11] The submissions are 20 pages long and found at page 77 of the insurer’s combined bundle.
Additional documents
The insurer seeks to rely on documents not before Medical Assessor Home in particular a supplementary report of Dr McIntosh dated 26 October 2022 and the documents he relied on namely the property damage file and photographs of the insured’s vehicle.
The insurer lists a significant number of documents obtained after Medical Assessor Truskett undertook his assessment namely clinical notes of nine entities and a report from Dr Al Khawaja.
The insurer also notes reports of Dr Mitchell dated 20 April 2021 and Dr McIntosh dated 18 September 2021.
Other assessments
The insurer summarised the determinations of Medical Assessors Wallace and Woo and the determinations under review from Medical Assessors Home and Truskett.
Liability evidence
The insurer summarises the claimant’s report from Mr Johnson dated 27 July 2021 who thought the likely speed of the accident was 15 – 25 kmph and that the mechanics of the accident could have possibly caused the lumbar spine injury but was unlikely and that the accident may have aggravated the neck and lower back conditions.
Dr McIntosh has provided three reports which the insurer summarises noting that in his most recent report he considered the claimant could have sustained a whiplash injury to his neck but was unlikely for him to have a lumbar spine injury or exacerbation and that the shoulder injuries were not caused by the accident.
Statements
The insurer submits that the claimant’s statement was written with the assistance of his solicitor and “regurgitates” clinical records and opinions and says that the clinical records should be preferred.
Medical reports and records
The insurer provides extensive summary of the medical reports and records filed in this matter cross referenced to the list of documents, before providing substantive submissions which commence with this statement:
“… all injuries arising from the motor accident are not greater than 10% WPI. Further, all treatments in dispute are unrelated to the motor accident and/or are not reasonable or necessary.”
The insurer says:
(a) cervico-thoracic (neck) – the insurer concedes the claimant may have sustained a whiplash soft tissue injury or symptomatic exacerbations of the claimant’s pre-existing degenerative conditions but that any injury has resolved. The insurer points to Dr Al Khawaja’s records and GP records since 2015 as well as the Nepean Hospital notes two weeks before the accident and the fall from a chair in Dubbo;
(b)
bilateral shoulder injuries – the insurer again relies on the opinions of
Dr McIntosh who says the claimant could not have sustained a shoulder injury in the accident. The insurer accepts the claimant complained of neck pain radiating over the shoulders but then notes the absence of actual shoulder complaints until 7 May 2019. The insurer notes that Medical Assessors Home, Truskett and Dr Mitchell found the shoulder pathology was unrelated;
(c) lumbar spine – the insurer relies on Dr McIntosh’s report that says the claimant could not have injured his lumbar spine and that if it did, he would have had immediate symptoms. The insurer says there is no contemporaneous and independent evidence of symptomatology in the claimant’s lower back until 6 September 2018, one month after the accident. The insurer notes an absence of lower back complaints in the physio notes and his own claim form and at four attendances on the claimant’s GP. The insurer says the claimant had previous complaints in his back and also points to the RSL Club fall. The insurer says the claimant’s lumbar complaints were caused by previous conditions and subsequent events and not the motor accident;
(d) L5/S1 lumbar fusion – the insurer refers to the submissions about causation of injury and submits that the treatment is not related to the injuries sustained in the accident. The insurer then says that pain and pre-existing degenerative changes were the only indicators for surgery and raises multiple issues such as the claimant’s substance abuse disorder (diagnosed by Dr George) and the claimant’s failure to mitigate his condition by undertaking weight loss and exercise. The insurer notes that the spinal injections had limited benefit and that the claimant’s symptoms had not improved since the surgery;
(e) left and right shoulder arthroscopy – the insurer relies on its submissions that no injury to the shoulder occurred in the accident, and
(f) chiropractic sessions – the claimant had 55 sessions between March 2019 and May 2020 with little or no benefit and no progress was recorded. The insurer says it is not reasonable and necessary or related to the accident.
Procedural matters
The Panel first met on 11 October 2022 in respect of Medical Assessor Truskett’s assessment.
The Panel was made aware that Medical Assessor Home had determined a treatment dispute (back surgery) and WPI (24%) and that those determinations were the subject of an application for review not yet been determined. The Panel decided it would defer its consideration to await the outcome of the review of Medical Assessor Home’s decision.
On 2 November 2022, the Panel was advised that the insurer’s application in respect of the determination by Medical Assessor Home was successful and that the President had convened a Panel comprising the same members as the Panel considering Medical Assessor Truskett’s assessment.
The Panel issued directions to the parties advising that the two matters would be heard together and requesting from each party a single fresh set of submissions addressing all matters in dispute and a single bundle of documents.
The Panel met on 28 November 2022 to consider the bundles and reported to the parties with its summary of the matters in dispute and advising the parties of the re-examination details.
The Panel met again on 1 March 2023 to discuss the findings of the re-examination and finalise the assessments.
REVIEW OF THE EVIDENCE
The claimant provided his bundle on 24 November 2022 comprising 91 documents over 390 pages, the insurer’s bundle was also provided on that date and contains in excess of 2,800 pages. The insurer’s bundle contains clinical records from 20 entities and individuals. This, in the Panel’s view, reflects the significant issue of causation between the parties.
There is however duplication between the bundles (for example both bundles include all of Dr Al Khawaja’s letters to the claimant’s GP) and duplication within the bundles.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance:[12]
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. about:blank - endnotesAs noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[12] [2022] NSWSC 1079, at [63].
The Panel does not therefore intend to refer to each and every document in the 3,000 plus pages that are before it, but only those documents considered significant to the issues in dispute.
Claim form and claim documents
The claimant’s application for personal injury benefits[13] is signed as true and correct and dated 16 August 2018. It has a diagram of the accident and describes his injuries as “neck very sore, neck swollen, tingling in left arm”. The Panel notes there is no reference to back or shoulders here.
[13] Page 4 of the claimant’s bundle.
The certificate of capacity / fitness completed by Dr Harinesan on 16 August 2018 diagnoses “neck strain following MVA” and said there were no pre-existing factors relevant to the condition or injury. Dr Harinesan suggests simple analgesia and physiotherapy and “if persistent tingling in arm (L) will require MRI to ensure no nerve impingement”.
The claimant has provided a lengthy statement detailing his work history and previous medical history. Of relevance to the Panel are the following:
(a) from 1993 the claimant experienced occasional headaches and migraines for which he was prescribed Targin and Valium. On 31 July 2018 he was referred for an MRI of his brain [23];
(b) from 1996 “I noticed occasional pain to my neck and lower back”. Mr Gatt describes it as a “mild problem” which used to “come and go”. He saw his family doctor but no specialist [24];
(c) from about 2000 the claimant had pain in his knee which led to arthroscopic surgery and continued occasional pain in his knees [25];
(d) on 5 January 2105 the claimant had a CT scan of his abdomen and pelvis due to diverticulitis and this revealed “mild anterolisthesis of L5 on S1” and the claimant was referred to Dr Al Khawaja [31]. Mr Gatt saw the specialist, had the MRIs but did not return to see him because “my neck and lower back problems improved” [32];
(e) the last time he saw a doctor for back pain was 4 July 2016 and for neck pain was 25 July 2018 [33];
(f) at the time of the accident he was wearing his seatbelt [35] with his left arm raised up and holding the handlebar above the passenger window while his right hand was resting on the right side of his abdomen holding the seat belt sash with his fingers clenched [37];
(g) the car he was in was “struck violently from behind” [38]. His body was “thrusted violently forwards and then my neck and back slammed back into my seat … my shoulders jarred as my body was thrown violently forwards” [39]. The Panel notes the photographs and the biomechanical experts do not support a heavy or significant collision from behind;
(h) after exchanging details, they drove off and after resuming their journey, “I noticed increasing pain to my neck and to a lesser degree my shoulders, arms, mid back and lower back” and he consulted his doctor [42];
(i) his neck pain travelled to his shoulders and arms and was increasing (and to a lesser extent his mid back) and his lower back pain travelling down his right leg also appeared to be increasing and with a tingling sensation in his left hand developing and he consulted Dr Harinesan [43], and
(j) on 5 September 2018 he was re-examined by Dr Harinesan as he had pain in his neck travelling down his shoulders and arms and the lower back pain travelling down his right leg had increased and he was referred for a CT scan [46] and on 14 September with no further improvement he was referred to Dr Al Khawaja [47].
Treating medical records and reports
GP records – Kingswood Mediclinic
These records start on 7 August 2014 with the claimant attending for gastro-oesophageal reflux disorder (GORD) and he was prescribed Nexium, Panadeine Forte and Valium.
On 5 September 2014 the claimant was complaining of a massive headache two days earlier, he had a dizzy spell that day with weakness and blurring vison and was referred to hospital.
On 16 September 2014, Mr Gatt attended with abdominal pain and a history of large amounts of rectal clots and bleeding. On 5 January 2015 after complaining of more abdominal pain the claimant said he had been given Targin at the hospital and he was prescribed more Targin by his GP.
On 27 January 2015, the claimant was referred to Dr Al Khawaja by Dr Rabbi as an abdominal CT scan showed L5/S1 mild anterolisthesis causing possible L5 nerve root impingement.
On 24 April 2015 the claimant weighed 127.5kg and was given weight loss advice.
On 23 July 2015 Mr Gatt saw Dr Aung with Dr Al Khawaja’s request for the MRI of the claimant’s lumbar and cervical spine. He reported “chronic low back problem, sciatica, cervical radiculopathy. Has muscle spasm in the neck, is hitting gym doing strengthening exercise”.
On 2 September 2015, Dr Rabbi went over the MRI scans with the claimant and recorded Mr Gatt as saying “he is [in] severe pain in the neck and back. Will see the neurosurgeon in 6 days”. Targin was prescribed.
In December 2015 and January 2016, the claimant attended for weight loss and diet advice and was given medication (Duromine) to assist.
On 4 July 2016 the claimant attended on Dr Aung wanting Targin and Valium for headaches and muscle spasm. When Dr Aung would not prescribe it, the claimant saw Dr Rabbi about 50 minutes later who records that the claimant has a history of neck and back pain, was under the care of Dr Al Khawaja and takes Valium at night. The claimant had severe pain in the neck and back and Targin and Valium were prescribed.
The last entry with this practice was on 9 August 2016, when the claimant attended complaining of headache, dizziness, neck pain and a sore-throat.
GP records - Southlands
The records commence on 26 September 2016[14] with an entry that the claimant suffers from chronic pain issues and was taking Targin and Valium.
[14] Page 36 claimant’s bundle.
On 22 August 2017, the claimant weighted 133.1kg and attended for his “driver medical”. The examination recorded that the claimant:
(a) had a full range of motion in his cervical spine;
(b) full range of motion in lumbar back;
(c) full range of motion in the thoracic spin;
(d) Apley scratch test bilateral arms normal (the Apley test is used to assess the range of motion of the glenohumeral joint and potential rotator cuff tear);
(e) grip strength and abductor strength arms normal;
(f) reflexes biceps and knee bilateral symmetrical;
(g) squat and stand unassisted;
(h) no dyskiadokineses (ability to perform rapid alternating muscle movements);
(i) no dysmetria;
(j) heel toe gait normal, and
(k) abdominal exam nil ascites, organomegaly, hernia.
On 20 October 2017 the claimant attended for further driver related tests due to sleep apnoea concerns and increased BMI. The claimant at that stage weighed 126kg.
There was a long entry dated 23 February 2018 written by Dr Michael Looj about a confrontation with Mr Gatt over the claimant’s “benzo / opioid use”. The claimant had sought Targin for “headache that he occasionally gets” but he was not having a headache at that time. He also sought a script for Valium. The claimant then complained of right wrist pain and foot pain but was asked to leave the practice.
On 25 July 2018 is an entry by Dr Yong, “headache, neckache, right arm numbness at night, wakes from sleep, eligible for MRI C Spine … bilateral limb swelling”. On
31 July 2018 after presentation to an emergency department the claimant was complaining of “headache severe, both sides, radiates from neck”.
The related hospital entry from Nepean Hospital[15] indicates Mr Gatt presented on
30 July 2018 with an intermittent headache for two months, constant for two days with pain in the neck and tingling in both upper arms.
[15] Page 803 insurer’s bundle.
On 10 August 2018 the claimant attended for his blood test results and advised the doctor of the car accident. Dr Harinesan records:
“Post MVA 8.15am passenger when rear ended neck pain unsure speed of car at back they were stopped for a turn.”
The doctor examined the claimant’s neck recording “nil central tenderness but equally sore, neck movement OK some minor ? swelling noted”.
On 16 August 2018 the claimant saw Dr Harinesan again with insurance forms and “ongoing issues with neck pain following MVA some tingling in hand yesterday L side”. The claimant was referred for physiotherapy, placed on restricted duties and was not taking Valium.
On 22 August 2018 the claimant presented for review and was seeing the physiotherapist but wanted “increased pain relief” from his GP. The claimant was prescribed Panadeine Forte because he “can’t use Targin”. There was a further attendance on 4 September 2018 with a further script for Panadeine Forte and he was given a certificate for a month off work because the opioid medication affected his heavy vehicle driving and he was noted to be “going well with physio”.
On 6 September 2018 the doctor records that pain was ongoing and that he should have a CT scan of the back and cervical spine. The claimant was still taking opioids so had limited driving duties. On 13 September 2018 Dr Harinesan noted the CT scans showed mainly degenerative changes in the cervical spine and lumbar spine and the claimant referred to his lumbar spine problem as “long standing and is aware of this being pre-existing”.
Neck pain is mentioned on 14 September (not improving) and anxiety issues were emerging and on 19 September 2018 the claimant attended for “neck pain with radiculopathy” and Mr Gatt was referred to Dr Seex. The corresponding report from Macquarie Neurosurgery to Dr Harinesan dated 29 October 2018[16] does not mention current neck, back or shoulder pain. The MRI was reviewed, the motor vehicle accident was acknowledged, and the claimant’s medical background was said to be “back pain (managed by Dr Al Khawaja)”. The neurological examination was normal, and the claimant was referred on to Dr Khan for further investigation and management.
[16] Page 675 of the insurer’s bundle.
On 3 October 2018 with the MRI results, the claimant was referred to Dr Shaffi neurologist. On 24 October and 2 November 2018 the claimant attended for more pain relief.
On 16 November 2018 the claimant presented with “numbness in the right lower toe as well as the lateral side of his foot and leg” and Lyrica was prescribed.
On 26 November 2018 Dr Harinesan prescribed Targin and again on
5 December 2018. On 31 December 2018 Dr Cheong saw the claimant who was “finding Targin too strong” and he was seeing another GP at Bligh Park. Dr Cheong would only give the claimant 20 Panadeine Forte tablets.
The last entry here is on 18 January 2019.
GP records – Bligh Park
The records from this medical centre have been produced commencing on
10 December 2018. The claimant attended for GORD and for the effects of the car accident and was prescribed Targin and Endep.
On 5 February 2019 there is an extensive note about the accident and administrative matters but there is a history of “chronic neck and lower back pain secondary to work injury – MVA”. There is no mention of shoulders, and the claimant was seeking a repeat of a Panadeine Forte prescription, but enquiries revealed he already had repeats for that medication. There were other attendances mainly for medication with little information in the way of symptoms recorded.
On 7 May 2019 Dr Gunathilake reports:
“patient presents with bilateral shoulder pain, left worse than the right. Has been having pain present for a few months. Reports affecting sleep as having pain when sleeping on sides. Worse with movement mainly with abduction and rotation of the shoulders. Gradually getting worse over the past few months. Nil specific injury to the shoulders. History of whiplash for the past MVA.”
The claimant was getting treatment from the chiropractor and was happy with that. On 13 June 2019 however the claimant reported to his pain management specialist there was little improvement with the chiropractor.
There is an entry on 22 July 2019 about the fall in Dubbo and the claimant said he hit his head on the edge of the chair and there were mild sensory changes in L5/S1 and Mr Gatt experienced a recurrence of sciatic symptoms on the right side and cervical neck pain down the shoulders. On 26 July is the note “still has ongoing radicular symptoms from the neck and the sciatica from the back following the fall”.
The notes cease with an entry on 2 August 2019 about pain management and medication. The claimant was taking Valium and using Norspan patches.
GP records – AQ Family Practice
In May 2019 the claimant attended Dr Qureshi for neck pain, back pain and obesity and the purpose of the attendance was said to be pain management.
Shoulder issues were discussed at an attendance on 31 July 2019 and in early August 2019 the claimant’s file was transferred from Bligh Park.
There are regular attendances for medical review and complaints of neck, back and shoulder symptoms as well as knee symptoms.
Physiotherapy
The claimant sought treatment from Everybody Physiotherapy Penrith and Mr Harnett wrote to the claimant’s GP on 20 August 2018.[17] The claimant is reported to complain of neck and upper back pain (the Panel notes no lower back pain) and some pins and needles and numbness in the left forearm and dorsal hand and medial side of his tibia and dorsal aspect of the foot which had resolved. He records “constant upper thoracic spine and lower cervical spine pain … [which] intermittently radiates over his upper shoulder bilaterally”.
[17] Page 60 of the claimant’s bundle.
On 12 September 2018 Mr Harnett again wrote to the GP[18] with the same symptoms recorded, upper thoracic spine and lower cervical spine pain radiating over both shoulders intermittently. A third letter “to whom it may concern” dated
4 December 2018 has similar findings and after limited progress the claimant had been referred to Ms Rebbeck a specialist physiotherapist.
[18] Page 64 of the claimant’s bundle.
The Panel notes Mr Harnett does not refer in his letters to lower back pain or shoulder joint pain.
Ms Rebbeck wrote to the insurer on 11 October 2018. She reported the claimant’s symptoms were of constant neck pain, previously intermittent right sided arm pain now constant, intermittent right sided tingling and reasonably constant frontal headaches. The Panel notes there is no complaint here of lower back pain. A pain chart was completed which indicates occipital head pain, neck pain, left forearm pain, right arm pain and pain in the thoracic spine. The pain diagram does not suggest to the Panel that the claimant was experiencing lower back pain or pain in the region of L5/S1.
Ms Rebbeck undertook an examination finding no neurological deficits and noting that the claimant was focussed on the CT finding of a disc bulge in his neck. The Panel notes there is no record in this report of lower back or shoulder symptoms.
In a letter to NRMA dated 5 November 2018 Ms Rebbeck was concerned that the claimant was moving house without help and lifting loads well above what has been prescribed and “as a result of this his symptoms have worsened or regressed”. She deferred her treatment until two weeks after his move was completed.
The final report to NRMA is dated 31 January 2019[19] after Ms Rebbeck’s final session. Ms Rebbeck had given the claimant a progressive exercise program that could be supervised by his local physiotherapist, but he had failed to comply saying it was due to pain and complications with his pacemaker. There is a reference in the GP’s notes of a pacemaker issue on 18 January 2019 and a referral to his cardiologist. Ms Rebbeck explained what pain is, what affects it, and the importance of the graduated exercises that he needed to do in order to reduce the pain and discharged him.
[19] Page 78 of the claimant’s bundle.
The Panel notes that in all of Ms Rebbeck’s letters there is no mention of shoulder pain or restriction of shoulder movement or lower back pain.
Specialists
Dr Al Khawaja, neurosurgeon wrote a letter to the claimant’s doctor in Kingswood,
Dr Rabbi on 6 February 2015.[20] The claimant was presenting with neck pain and lower back pain. “He has been having these symptoms for years, but his condition has become worse recently”. He had not been having treatment and described pain from the neck into both arms and pain from the back into both legs. The claimant had no neurological deficits and was referred for an MRI and the claimant was to return for review.
[20] Page 83 of the claimant’s bundle.
The referral to Dr Al Khawaja[21] from Dr Harinesan is dated 14 September 2018 and requests,
“an opinion and management of persistent neck and back pain following MVA where he was a passenger. Has been seeing a physiotherapist regularly but pain is not improving.”
[21] Dr Al Khawaja’s name is used by various doctors and the parties with or without a hyphen. The Panel has adopted the spelling from his letterhead.
Dr Al Khawaja saw the claimant and wrote to Dr Harinesan on 16 October 2018. He has a history of lower back pain as well as neck pain and arm pain since the accident. There was pain “throughout the whole right arm” which is aching and there is a tight sensation with numbness. Mr Gatt reported no pain in the left arm although he had a tingling sensation to the radial three digits in both upper limbs. He had lower back pain with no radicular symptoms. The claimant had pain at C3 – C7 and L5/S1 but power and reflexes were normal. The Panel notes there is no complaint of shoulder pain or shoulder joint pain in this letter.
On 6 December 2018, Dr Al Khawaja wrote again with the claimant saying he was “still annoyed with a significant amount of neck and lower back pain”. The doctor recommended an MRI of the lumbar spine. He reported that the cervical spine showed a small bulge of the C5/6 disc with no obvious signs of fracture “or acute disc injury”. The MRI was reported to Dr Harinesan on 4 February 2019 to show spondylolisthesis at L5/S1 with pressure on the nerves. Dr Al Khawaja thought the claimant’s disc bulge in the neck required pain management, physiotherapy and possible injections but not surgery.
In terms of the lower back, physiotherapy was recommended but that the natural history of spondylolistheses is for progress leading to surgery. Dr Al Khawaja thought the neck and back pain was new and therefore related to the accident but that the back condition had been triggered and aggravated by the accident.
Further reports from Dr Al Khawaja document the development of pain in the back of the legs (1 April 2019), nerve block injections at L5/S1 and advice for the claimant to lose weight (22 June 2019), the need for surgery and a weight loss program and pain management involvement (12 October 2019). In a letter dated 13 December 2019, the claimant had an injection into his neck which had improved his condition, but the claimant’s back pain was giving him much grief. Dr Al Khawaja was recommending the spinal fusion surgery.
On 27 February 2020 the claimant was reported to be falling all the time and his right side was getting weaker. His neck pain was getting worse with right arm pain. The Panel notes there are no corresponding entries at around this time in the GP notes of falls or weakness. On 13 February 2020 the claimant had a physical review for his truck licence with Dr Qureshi and it is not recorded in the notes that the claimant had been falling.
None of Dr Al Khawaja’s reports record shoulder symptoms.
Dr Ramachandran, pain physician wrote a number of letters to Dr Al Khawaja. The first is dated 10 January 2019.[22] He had a list of “pain oriented” problems including cervical axial spinal pain with referred bilateral shoulder pain, cervical radicular pain, bilateral upper limb pain and chronic axial lumbar spinal pain with somatic referred bilateral gluteal pain. There were no neurological deficits in the upper limbs and
Dr Ramachandran emphasised medical and physical therapy. There was a further report on 6 February 2019 which adds little additional detail. The Panel notes that
Dr Ramachandran describes the shoulder pain as referred shoulder pain which suggests it is pain referred from the neck not pain in the shoulder from a frank or specific shoulder injury.
[22] Page 109 of the claimant’s bundle.
Dr Soo wrote to Dr Gunathilake of the Bligh Park Family Practice on 8 July 2019.[23]
Dr Soo has a history of the accident occurring at high speed, the claimant presenting to his GP that day complaining of neck, back and shoulder pain and no previous history of neck, back or shoulder injuries or pain. The claimant complained of constant pain in both shoulders located laterally and worse with lifting above shoulder height and he feels like “tearing” when he lifts anything heavy, and the pain radiates up the shoulder to his neck and head. After the examination the claimant had a flare up of pain and went to hospital. Dr Soo requested an MRI and a further review.
[23] Page 168 of the claimant’s bundle.
A further letter from Dr Soo is dated 11 November 2019 and he notes continued shoulder, back and neck pain and that after a recent fall Mr Gatt landed on his right shoulder which flared the shoulder pain. The pain was constant and “deep to the shoulder”. His range of motion had deteriorated. A third letter dated 16 January 2020 was written after the cortisone injections which had provided significant relief and reduced the pain however his pain was aggravated after going to the exercise physiologist (likely Ms Rebbeck). His right shoulder was worse, and his flexion had further deteriorated. Dr Soo recommended surgery.
The discharge summary from Dubbo Hospital[24] following the July 2019 incident noted “pain to his back and bilateral shoulders with abrasions in his right flank region”. The claimant required pain killers including Endone before the pain settled.
[24] Page 178 of the claimant’s bundle.
There is a letter from the Western Sydney Pain Centre dated 9 July 2019 to NRMA[25] advising that the claimant was a good candidate for a pain program. He was noted as having “nociceptive and neuropathic” neck, shoulder, thoracic and lumbar spine pain with constant headaches since a car accident.
[25] Page 220 of the claimant’s bundle.
The insurer approved the treatment and on 14 August 2019, a further report was sent to NRMA. The claimant continued to have pain in his neck, shoulders and back with constant headaches and a recent flare up in pain (likely to be the Dubbo fall). Pain was aggravated by lifting and eased by medication. Functional capacity was said to be limited. Right shoulder movements were limited more so than the left. Neck movements were restricted and painful but there is no record of any back movements. In a report dated 29 October 2019, the claimant’s main pain was said to be his neck pain. He had been advised “to lose a significant amount of weight” before the back operation. The claimant asked about medicinal cannabis.
In a letter to NRMA dated 26 November 2019 – there is further discussion of medicinal cannabis. The author of the letter said that the claimant’s “pain has definitely originated from his road traffic accident” in which he sustained injury to his neck and lower back with nociceptive (pain caused by mechanical or physical damage) and neuropathic (caused by nerve damage) upper and lower limb pain.
A further letter to NRMA dated 21 January 2020 again requested consideration of medicinal cannabis to reduce the claimant’s opioid consumption and the claimant was requesting an electric wheelchair. On 26 February 2020 a report noted the claimant was engaging with the pain management program but the advice he had been given “has not translated to functional improvement”.
In a letter of 22 April 2020 medicinal cannabis was recommended again noting the claimant was taking 80mg of Oxynorm, Panadeine Forte and Valium. It was noted that he would require exercise physiology and hydrotherapy and “he is seeing a chiropractor privately with limited benefit”.
The claimant consulted Dr Khaleal a metabolic surgeon concerning his weight and the need to reduce it. In a letter to the GP dated 18 November 2019,[26] Dr Khaleal noted the claimant weighed 132kg, he had a long struggle with obesity worse after the car accident following which his weight has ballooned by 10kg. He also noted “his current weight coming in the way of his spinal surgery and rehabilitation” and recommended gastric bypass surgery. The Panel notes the claimant was 133kg the year before the accident and his weight has fluctuated both before and after the accident suggesting the claimant has never had his weight under control.
[26] Page 235 of the claimant’s bundle.
Associate Professor Seex neurosurgeon saw the claimant and wrote to the GP on
5 May 2020. He has a history of the car accident and the claimant complaining of back pain and radiating pain to the back and lateral aspect of the right leg and third to fifth toes on the right foot since the accident. Mr Gatt reported worsening pain now seriously affecting his mobility. Because he was favouring his right leg the claimant reported he had developed left hip pain.
On examination there were no neurological deficits, the claimant was limping and had pain with movement and bending. He was tender over L5/S1. He offered surgery after further testing.
In a second letter dated 27 May 2020 the claimant indicated he wanted surgery, was aiming to lose weight but requested a wheelchair. The doctor notes “bilateral shoulder issues”.
The operation report[27] refers to “chronic radiculopathy”, there was difficult access due to the claimant’s obesity. After the operation the claimant was still complaining of left sided sciatica (not right) and developed right arm / hand paraesthesia which gradually resolved.
[27] Page 240 of the claimant’s bundle.
In a letter to the claimant’s GP dated 19 August 2020 Dr Seex says that the claimant reports his back felt better and his symptoms were better. He was taking Targin but reducing this and also taking Gabapentin. He was due for a shoulder operation.
Mr Gatt was encouraged to walk and continue his physiotherapy. Dr Seex has a history of no problems before the accident and problems after the accident, “strongly suggestive that the accident has played a significant role in the aggravation of his condition”. The claimant was again progressing according to a letter dated
20 October 2020.
In the most recent correspondence from Associate Professor Seex dated
12 January 2021[28] consideration was given to the claimant’s neck complaints and a problem of swelling and pain going down his arms at night only. He thought these symptoms were unusual, were probably coming from the neck and shoulder but also considered it might be carpal tunnel. He did not think there was serious pathology in the neck.
[28] Page 247 of the claimant’s bundle.
The claimant reported intermittent bilateral pain down into his feet present only with activity. He thought there might be sacroiliac problems, “which is quite a common problem post lumbar fusion surgery”.
Dr Qureshi referred the claimant to Dr Stening, orthopaedic shoulder surgeon on
5 May 2020[29] and refers only to the left shoulder pain.
[29] Page 423 of the insurer’s bundle.
Dr Stening’s letter to the GP dated 11 May 2020[30] records a history of persistent bilateral shoulder pain following a motor vehicle accident. He says the clinical examination matched the ultrasound findings of subacromial bursitis and a supraspinatus tear on the left side and he offered surgery for both shoulders with the left to be done first. A second letter dated 21 May 2020 says that Mr Gatt’s thoracolumbar spine and shoulder (radiology) dated 24 October 2019 were also reviewed and he could not see any cervical pathology which would cause referred pain into the upper limbs.
[30] Page 252 of the claimant’s bundle.
The operation report of 10 September 2020 indicates the operation took place on
8 September 2020 on the left shoulder.[31] In a letter dated 22 October 2020, Dr Stening noted “satisfactory range of motion” with 120 degrees of abduction and 150 degrees forward flexion but a painful arc of abduction. The claimant had not done much physiotherapy, so a referral was given. There was also discussion about paraesthesia in the median nerve of the right hand which came on after the spinal surgery. He thought there might be brachial stretch due to small cervical ribs.
Medico-legal reports
[31] Page 255 of the claimant’s bundle.
Claimant’s medico-legal reports
Dr Al Khawaja provided a report to the claimant’s solicitor dated 24 May 2021. He confirms he had only seen the claimant once before the accident (11 February 2015) and then after the accident on 17 October 2018 and a further 10 times after that.
Dr Al Khawaja summarises many of the features of his reports to the claimant’s GP as follows:
(a) when seen in 2015 the claimant had been having neck and lower back pain “for years” and his condition had worsened. Mr Gatt had neck pain going into both arms and lower back pain into both legs but had no neurological deficits. An MRI was requested, and the claimant did not return for follow up;
(b) after the car accident “Mr Gatt presented with increasing lower back pains” as well as neck pain and arm pain through the whole of the right arm;
(c) in February 2019 the MRI was reviewed showing spondylolisthesis and pressure on the nerves with facet joint inflammation, and
(d) his opinion was the accident was a major contributing factor to the claimant’s neck and lower back conditions.
He says at [6] that based on the claimant’s history the claimant’s back symptoms became a lot worse after the car accident and therefore the car accident was the major contributing factor. He did not have a history of the fall from the chair in July 2019 but noted that falls can aggravate a spinal condition.
Professor Seex provided a report to the claimant’s solicitor dated 31 August 2021.[32] He says he first saw the claimant on 5 May 2020 and that he was given a history of back pain since the accident radiating to the back and lateral aspect of his right leg down to the small toes on the right foot which he felt was consistent with an S1 radiculopathy. Mr Gatt felt that pain had been getting worse and before the accident he had pain. He noted the claimant had been under the care of another surgeon and was being conservatively managed. As this had not worked and the claimant was deteriorating, he felt surgical treatment was appropriate.
[32] Page 387 of the claimant’s bundle.
While he notes the spondylolisthesis was not caused by the accident, it has become significantly symptomatic as a consequence of the accident which made the surgery necessary. He did not have a history of the fall in 2019 but felt it was less likely this was a significant part of the problem and that the car accident was the principle exacerbating event.
Dr Crocker provided a report dated 22 March 2021 to the claimant’s solicitor.
He had a history of the accident in which the claimant reported being hit by a car travelling at 70 kmph. He said his body was twisted at the time because he was talking to his wife and he was holding onto the handle above the door and was thrown backwards and forwards.
Mr Gatt described extensive damage but that the cars were driveable. He said his wife developed complaints and that soon after the accident he felt pain in the neck, shoulders and back and attended his GP.
Dr Crocker reviewed the development of symptoms and treatment. He had a history of the fall from the chair and the claimant said his symptoms returned to their previous level within six to eight weeks.
The claimant reported intermittent headaches after the accident with occasional blurry vision. Mr Gatt complained of neck pain and limited movement, bilateral shoulder girdle pain more on the right associated with limited motion. Mr Gatt complained of occasional pain in the upper limbs, intermittent tingling in his fingers and an occasional feeling of weakness in the upper limbs. Also, a feature was lumbar spine pain which was constant but variable with pain extending into the buttocks and lower limbs and numbness on the toes and sole of both feet.
The claimant complained of bleeding with defaecation, urinary frequency and impaired sexual function.
The claimant reported losing 15kg in weight. He weighed 129kg and Dr Crocker notes the healthy weight is 60 – 81kg.
There was dysmetria present but no muscle guarding or spasm. Right shoulder motion was more restricted than left and reduced from the immediate post-accident period.
Dr Crocker diagnosed a “chronic pain presentation”, aggravation of degenerative cervical changes and an aggravation of a pre-existing symptomatic condition in the lower back. The shoulder condition was aggravation of degenerative changes with development of bilateral subacromial subdeltoid bursitis. There was no neurological dysfunction or radiculopathy. All aggravations were said to be ongoing.
Insurer’s medico-legal reports
Dr Ashwell, an orthopaedic surgeon provided a report dated 11 November 2019.
Mr Gatt gave a history of the accident and that the car in the rear hit him at 50 kmph. The car was driveable but later written off. He reported experiencing soreness in the neck, mid and low back area and also left arm tingling and pain in both shoulders.
Dr Ashwell has a history of the ongoing treatment and the previous medical history.
The claimant says his symptoms are worsening and that he has constant low back pain radiating up to his thoracic spine and down to both legs. Mr Gatt also complained of constant neck pain radiating down both arms to the hands with paraesthesia in the left hand and right. He says, “he can move his shoulders well and use them above shoulder height”.
The claimant weighed 132kg and walked without a limp. There appears to have been asymmetrical range of rotation movement, restriction of elevation and abduction and no neurological signs in the upper or lower limbs.
Dr Ashwell diagnosed aggravated changes in the cervical and lumbar spine and shoulder pain referred from the neck. Dr Ashwell expressed concern at the claimant’s narcotic dependence and that spinal surgery would have a poor outcome as a result. He recommended regular gym-based exercise program, weight reduction and pain management. A supplementary report of 6 April 2020 adds little to the picture and was concerned mainly with the claimant’s abilities to undertake his usual activities of daily living.
Dr Mitchell provided a report to the insurer’s solicitors dated 20 April 2021. She recorded the claimant’s weight at 130kg. On examination of the whole spine there was no dysmetria and she does not record any signs of radiculopathy. Neck movement was normal but right shoulder elevation abduction and internal rotation was significantly reduced. So too the left shoulder.
Dr Mitchell accepted causation of the neck injury and the back injury but found the shoulder symptoms developed some time after the accident and were not caused by the accident.
Biomechanical experts
Dr McIntosh provided the first report dated 4 January 2019. He examined the photographs of the two cars and expressed the view the speed of the insured vehicle was between 10 and 20 kmph and that the change in velocity of the claimant’s stationary vehicle was less than 10.9 kmph.
He expressed the view at [7] that the mechanics of the collision could not have led to injuries to the claimant’s neck, musculoskeletal or whiplash injury. The loading of forces in this accident were unlikely to result in neck or thoracic lumbar injury and was similar to that experienced by people riding in bumper cars which collide and do not cause injury. At worse he considered a short period of symptoms could have occurred.
Dr McIntosh was asked to provide a supplementary report when the claimant alleged injuries to his shoulders and lumbar spine. He expressed a similar view that the speed of impact, the forces involved and the protection offered by the seat and seatbelt meant that lumbar spine injury could not have occurred and that the mechanics of the accident could not have caused injury to the shoulders.
In his third report, dated 26 October 2022, Dr McIntosh was provided with the Assessment of Medical Assessor Home, Mr Johnson’s report and the property damage records.
Dr McIntosh says that the change in velocity of the claimant’s vehicle was more likely in the range of 10 – 15 kmph and that it is reasonable to accept the claimant could have sustained a whiplash injury or aggravation of a pre-existing neck condition. However, he said it remained “very unlikely” that the accident would have caused the alleged shoulder, thoracic and lumbar spine injuries. He also said it was very unlikely the accident would have caused any structural injuries such as a disc bulge or the pars defect or worsening of a pre-existing structural injury,
The claimant retained Mr Johnston to respond to the insurer’s report from Dr McIntosh dated 4 January 2019 and 18 September 2020. Mr Johnston’s report is dated
27 July 2021.[33]
[33] Page 318 of the claimant’s bundle.
Mr Johnston noted the police did not attend and he had limited information about the accident. He recounts the claimant’s version of events from his statement and reviews the available photographs of the insured vehicle. He notes visible damage and says, “it is highly likely that there would have been unseen damage behind the bumper”. He notes the repair bill was close to $2,000.
Mr Johnston examined the photograph of the rear of the claimant’s vehicle noting damage to the rear bumper and tail gate. He does not express the opinion here that there is any unseen damage behind the rear bumper.
He agreed with Dr McIntosh that it was low severity rear end collision and that there were no skid marks to help evaluate speed and that both vehicles were driveable.
He considered a pre-impact speed of 15 – 30 kmph.
He agrees with the majority of the biomechanics principles of Dr McIntosh. He refers to the data studies and noting the claimant had pre-existing conditions which lowered his threshold for injury in the neck, he considers the data on lower back injuries to suggest it is possible but statistically improbable for low speed rear-end collisions to cause injury. He also says the general literature and data sets deal with accident probability in persons without a pre-existing condition.
He agrees with Dr McIntosh that a shoulder injury was unlikely due to the internal forces but notes that in this case, Mr Gatt was holding on with both hands and he says if there were no pre accident shoulder complaints, and Mr Gatt was diagnosed with bilateral rotator cuff tears after the accident and there were no other possible events then the accident “would appear to be the only cause”.
Other assessments
Medical Assessor Wallace issued a certificate on 12 March 2019[34] finding that the claimant’s cervical spine and lumbar spine injuries were minor injuries within the meaning of s 1.6 of the MAI Act.
[34] Page 11 of the insurer’s bundle.
Of significance to the Panel is that the claimant did not allege a frank or discrete injury to either shoulder in this dispute and Medical Assessor Wallace noted current symptoms of neck pain radiating into the thoracic spine and shooting pain about his upper limbs on both sides.
He diagnosed a musculoligamentous strain of the cervical and lumbar spines which he said were now resolved.
Medical Assessor Woo determined on 29 July 2020[35] that the requested L5/S1 lumbar fusion and decompression surgery was not related to the accident and was not reasonable and necessary.
[35] Page 21 of the insurer’s bundle.
Medical Assessor Woo had a history of back pain three or four years before the accident with a diagnosis of L5/S1 spondylolisthesis and frequent use of prescription medication including Valium. The claimant apparently told his wife 30 minutes after the accident that he had back pain and then went to his GP complaining of neck pain.
Medical Assessor Woo has a history of the claimant falling off the chair in Dubbo and that he sustained an aggravation of his pain.
The claimant said he was taking Oxycontin daily, cannabis oil twice a day both for pain and Valium to help him sleep. Physiotherapy tended to aggravate his pain and chiropractic treatment helps him move better.
Medical Assessor Woo found that the claimant had sustained soft tissue injuries to his lumbar spine aggravating pre-existing changes. He noted no clinical findings to satisfy a diagnosis of radiculopathy. Medical Assessor Woo considered Mr Gatt’s current lumbar spine condition does not relate to the accident. He found no evidence of nerve root compression or any significant instability of the lumbar spine and said:
“The indication for lumbar spine fusion appears to be based entirely on the basis of pain management …
The available evidence does not support the hypothesis that spine fusion confers a clinical benefit compared to non-operative alternatives for low back pain associated with degeneration.
There is also evidence of non-organic issues which contribute to his persistent pain.”
Medical Assessor Baker determined on 27 March 2019 that the claimant had a major depressive disorder with anxious distress which was not a minor injury. Of interest to the Panel in this report is the history that the claimant knew since he was a child that he had “a mild lower back skeletal deformity” that has caused “recurrent back pain”. He had used various medical treatments including physiotherapy, analgesics and Valium for muscle spasm in the past, but he had always managed to work. The Panel notes while there is mention of neck and back pain in this report there is no mention of a shoulder injury.
RE-EXAMINATION FINDINGS
Mr Gatt attended the medical suites at the Commission on 1 March 2023 and was examined by Medical Assessor Moloney. He was unaccompanied.
Pre-accident history
Mr Gatt states that he was working full-time as a truck driver before the accident. This was mainly short-haul distances but long hours. He participated in no sporting activities. Prior to truck driving which he started in 2017, he had run his own retail business selling tools. He was married at the time of the accident but has since separated and lives in the same house with two of his children.
He states that he had a past history of headaches due to migraines before the accident and in 2015 he saw neurosurgeon, Dr Al Khawaja for persistent back pain.
Dr Al Khawaja told him that he had a congenital spondylolisthesis which did not require surgery at that time. The claimant agreed that he had ongoing mild back symptoms from time to time before the accident. He denied any back pain at the time of the accident.
History of accident
Mr Gatt was a front seat passenger, and his wife was a driver when another vehicle collided with the rear of their car. He was twisted and talking to his wife at the time. He was wearing a seatbelt at the time of the accident but the car was old and airbags were not installed.
He was able to get out of the car and after exchanging details, his wife drove him to where he was heading for an appointment and later on he attended his GP with “pain all over”. He states that the pain was mainly in his neck but radiated down his back. He did not understand why his GP did not record back pain but thinks his neck pain was the main problem.
Subsequent treatment
Mr Gatt consulted his GP who referred him for physiotherapy and prescribed analgesics. As his back symptoms worsened, he was again referred to Dr Al Khawaja who arranged a lumbar injection which was slightly beneficial. Dr Al Khawaja then gave him four facet joint injections and an epidural injection of his lumbar spine with some relief. On follow-up, Dr Al Khawaja recommended surgical intervention. He said his GP also referred him to a pain specialist, Dr Ramachandran, for ongoing neck pain.
Mr Gatt reported he had a lot of chiropractic treatment which gave him some short-term relief but no long-term benefit.
Mr Gatt said his pre-accident back pain worsened about a month after the accident and that during 2019 he experienced even further increased low back pain associated with numbness in both legs. In addition to the numbness, he developed a pinching sensation in the thoracolumbar region at that time. He was then referred to Dr Seex who undertook a lumbar spinal fusion on 19 July 2020. Rehabilitation was undertaken after this operation but there was some persistent pain particularly in the left leg. He was referred to a further pain specialist, Dr Rao, who organised further spinal nerve blocks. Mr Gatt states that the nerve blocks gave improvement for about eight months but then the pain has recurred.
Mr Gatt said he had a consultation with Dr Rao three weeks ago when he recommended further surgery with fusion of the left then right sacroiliac joints. He has also recently consulted another pain specialist Dr Hassar to change the analgesics for his neck pain to Palexia 50mg which has given him some benefit.
Mr Gatt states that initially the pain in his right shoulder felt to him like it was radiating from the neck and particularly running down the right arm and this would wake him at night. He pointed to the pain which was in the medial side of his right arm and included the ulnar side three fingers and occasionally on the lateral side of his arm with an ache. His GP referred him to an orthopaedic surgeon Dr Soo who recommended surgery which was later undertaken by Dr Stening.
Mr Gatt’s left shoulder was operated on 8 September 2020 with some improvement in his shoulder symptoms. He continues to have pain in the right shoulder which he says radiates from the neck with an ache over the anterior shoulder region. He last consulted Dr Stening a month ago who told him there were tears in his right shoulder, but the pain was coming from his cervical spine. Dr Stening wanted to do a repeat MRI. Due to the fact that Mr Gatt has a pre-accident pacemaker and severe claustrophobia and he is on the waiting list to have this done under general anaesthetic.
Subsequent injury
In July 2019, Mr Gatt slipped off a chair at Dubbo RSL club landing on his buttocks. He states this initially increased his back pain but basically after a month or two, the symptoms returned to where they were before the fall from the chair.
Mr Gatt did not recall injuring any other part of his body in this incident.
Current symptoms
At present Mr Gatt is experiencing persistent neck pain radiating down both arms which has increased in the past two years. Due to this he cannot lie on his back and the pain increases with any use of his arms. The pain is worse in the right arm compared to the left and worse early in the morning.
He complains of persistent lumbar pain associated with a sharp pinching pain in the thoracolumbar region which increases with sitting. He has pain radiating down both legs but in particular there is a burning feeling in the entire left leg which increases with walking. There is numbness in the right leg and in particular the lateral three toes. This increases with sitting or walking. He says all of these symptoms started within two months of the accident. He gets some relief when lying down.
Since the accident, Mr Gatt has not returned work. He explained that after the accident, there was a review from the trucking company as regards to full-time permanent employment. However, a urine drug screen was undertaken which was positive for Valium a few days after the accident. Due to this, the company terminated his employment.
Current treatment
Mr Gatt takes Oxycodone 10mg three times a day, Palexia SR one twice a day and Pariet for reflux. The insurance company has now restarted funding fortnightly physiotherapy and he attends hydrotherapy on a daily basis.
He consults his GP about medication and will have follow-up specialist appointments with the pain specialist who prescribed Palexia in three weeks and Dr Stening after an MRI. He will also follow-up Dr Seex for further lumbar / sacroiliac fusion.
Recently he also attended a chiropractor who mobilised his spine and used cupping on his neck and back with some relief of symptoms.
Clinical examination
Mr Gatt walked into the rooms with a slow ponderous gait and stood up frequently during the interview he said due to back pain.
He states that he is right-handed. His height was measured at 179cm and his weight 134kg which suggests a BMI of 41.8 which is obese category 3 (of 3) and also known as “severe” obesity.
Cervical spine
On testing range of movement in the three planes of movement was as follows:
(a) flexion/extension - half the expected range of motion symmetrically;
(b) side bending – half the expected range of motion on both sides, and
(c) rotation – half the expected range of motion, both left and right.
There was therefore no asymmetrical loss of motion or dysmetria.
On palpation of the cervical spine there was no guarding or spasm but tenderness over the entire cervical spine.
The neurological examination of the upper limbs showed:
(a) reflexes were equal on both sides;
(b) there was normal power in both upper limbs;
(c) no muscle wasting was apparent with the circumference of the upper arms measured at 35cm bilaterally (10cm above the olecranon process) and in the forearms 31cm on both sides.
(d) testing for sensation revealed decreased sensation particularly over the right ulnar two fingers and a global decrease in sensation over both upper arms and forearms. This decreased sensation did not conform to an appropriate dermatomal pattern.
Lumbar spine
Mr Gatt had a slow gait and was barely able to stand on his heels and toes. Squatting was limited to 30% of expected range due to unsteadiness.
On testing range of movement in the two planes required by the Guidelines, the claimant demonstrated:
(a) flexion/extension - 30% of expected range on each movement, and
(b) side bending bilaterally was 50% of expected range on each side.
There was therefore no dysmetria. There was tenderness over the whole of the lumbar spine but no guarding or muscle spasm.
The neurological examination of the lower limb revealed:
(a) reflexes were equal on both sides;
(b) straight leg raise when lying was 30° bilaterally and 80° when seated with negative sciatic nerve root tension signs;
(c) power was normal in both legs;
(d) there was no muscle wasting apparent in the lower limbs with thigh and calf measurements equal on both sides, and
(e) there was a decrease in sensation over the right three lateral toes and lateral right calf and a slight decrease in sensation over the left toes.
Thoracic spine
On palpation of the thoracic spine, there was tenderness over the mid-thoracic spines but no guarding or spasm was noted.
On inspection of the thoracic spine, there was a slight kyphosis and on testing range of movement flexion/extension was 50% of expected range as was side bending and rotation. The planes of motion demonstrated symmetrical loss.
There were no signs of radiculopathy in this thoracic spine region.
Shoulders
On inspection of both shoulders, there was no muscle wasting apparent and on passive movement, no crepitus was detected.
There was a limitation in active movement in both shoulders which Mr Gatt states was due to pain in his neck. Active movements were measured using a goniometer and repeated three times to ensure consistency.
Shoulder Movements
Right
Left
ROM
UEI
ROM
UEI
Flexion
110°
5
130°
3
Extension
40°
1
40°
1
Adduction
40°
0
40°
0
Abduction
110°
3
120°
3
Internal Rotation
80°
0
80°
0
External Rotation
80°
0
80°
0
Total UIE / WPI
9% UEI = 5% WPI
7% UEI = 4% WPI
ASSESSMENT AND FINDINGS
Is the claimant’s evidence reliable?
There is evidence to suggest a degree of exaggeration on the part of the claimant. For example, he has given histories of the speed of the car that hit the car he was in as 70km (to Dr Crocker), 50km (to Dr Ashwell) and “high speed” (to Dr Soo). The Panel notes the claimant told his GP on the day of the accident that he did not know how fast the other car was driving. The Panel also notes the claimant gave a statement which says there was a “violent” impact and he was “thrown” and thrust forwards and “slammed” backwards which is at odds with both Mr Johnson and Dr McIntosh’s evidence. The claimant told Dr Crocker there was “extensive damage”. The Panel has seen the photographs, notes the damage to both cars appears minimal and the claimant says that with no panel repairs and the lock on the boot being fixed the car is still being driven.
There are differences in the detail of how Mr Gatt sustained his injuries. In his statement Mr Gatt says he was holding the handlebar with his left hand and the sash with his right. Medical Assessors Wallace and Woo, Drs Mitchell and Ashwell do not have this level of detail. Dr Crocker has a history of the claimant holding the handle with his left hand but there is no history of where Mr Gatt’s right hand was. Medical Assessor Truskett records Mr Gatt was holding a strap with his left hand and the seatbelt with his right. Medical Assessor Home records he was holding the sash of the belt with his left hand and the seat with his right.
There is evidence to suggest the claimant has a poor recollection about events before and after the accident. For example, he blames his current weight on the accident and says his weight ballooned by 10kg since the accident. The claimant weighed 134kg when examined by the Panel in March 2023. The records suggest he weighed 133kg in August 2017, 126kg in October 2017, 132kg in November 2019, 125kg when examined by Medical Assessor Truskett in March 2022 and 135kg when examined by Medical Assessor Home in September 2022.
Medical Assessor Truskett reports that the claimant said he aggravated his neck, back and shoulder when he fell from the chair in Dubbo. Medical Assessor Truskett has a history from the claimant of him injuring his back only. Mr Gatt told Medical Assessor Moloney he injured his back and did not remember any other injuries. The Panel notes the Hospital and GP records suggest the claimant also injured his neck and both shoulders in this accident.
The Panel is not suggesting the claimant is being dishonest but that, four and a half years after the accident it is reasonable to expect that Mr Gatt’s memory of all the events after the accident may be cloudy. The Panel therefore has paid close attention to the documentation that is before them.
WHAT INJURIES WERE CAUSED BY THE ACCIDENT?
Cervical spine
Mr Gatt had initial pain in the cervical spine region which was reported on the day and has been a consistent source of complaint thereafter and therefore the Panel is satisfied that it was causally related.
The Panel notes the claimant’s Nepean Hospital attendance on 30 July 2018, two weeks before the accident complaining of neck pain with tingling in both arms.
The claimant’s GP recorded neck pain on the day of the accident and on
16 August tingling in the left hand. The Panel also notes the claimant’s early complaints were of left arm symptoms (tingling) and this is included in his claim form and in
Dr Harinesan’s certificate of capacity. The Everybody Physiotherapy letter of
20 August 2018 suggests that these symptoms of pins and needles in the left arm and hand had resolved leaving the claimant complaining of neck pain only.
When the claimant attended Dr Al Khawaja on 16 October 2018, he was complaining of right arm pain and tingling in both hands.
Dr Al Khawaja, Dr Ramachandran and Dr Seex have not recorded any neurological deficits in the claimant’s upper limbs.
It is the clinical judgment of the medical members of the Panel that the claimant has not sustained any nerve root injury in his cervical spine as a result of the accident. The Panel is satisfied that the claimant sustained a soft tissue injury to his neck further aggravating degenerative changes which were already symptomatic.
Shoulders
The Panel notes the significant difference between pain in the shoulder because of a frank or actual shoulder injury and pain in the area of the shoulder being pain referred from the neck. It is for that reason that Medical Assessor Moloney ensured he had a proper history from the claimant and the Panel has undertaken a review of the available documentation.
Mr Gatt told Medical Assessor Moloney that initially there was pain radiating from the neck over the shoulder region, which is consistent with the physiotherapy notes which record “pain over the shoulders”.
The Panel notes there was no mention of either shoulder being injured in the claim form and the shoulders were not mentioned to specialist physiotherapist Ms Rebbeck or neurosurgeon Dr Al Khawaja. The Panel would have expected there to be a record of actual shoulder injuries in the records of those two health practitioners particularly
Dr Al Khawaja who would have had to diagnose whether the claimant’s upper limb pain was coming from an actual injury to the shoulder or a neck or cervical nerve root injury.
The Panel notes Dr Al Khawaja has a history from the claimant of neck pain referred to the upper arms and Dr Ramachandran spoke of bilateral shoulder and upper arm pain in January 2019 which was “referred pain”. The claimant told Medical Assessor Moloney that he felt his shoulder pain was coming from his neck.
Dr Gunathilake, on 7 May 2019 records “bilateral shoulder pain, left worse than the right” which had been present for a few months but with no specific shoulder injury.
The medical records indicate that actual and specific shoulder pain appears before the Dubbo fall and then after the Dubbo fall when the claimant gave a history to Dr Soo of pain “deep” in the shoulder. While the claimant did not recall any injuries at Dubbo other than an aggravation of his lower back, the hospital records confirm complaints of injuries to both shoulders at the time.
The Panel notes that according to Mr Gatt, his treating orthopaedic surgeon,
Dr Stening told him three weeks ago that although he had some changes in his shoulders that the main pain was coming from the cervical spine.
Finally, the Panel notes the biomechanical evidence suggest it is unlikely (albeit not impossible) for an injury to the shoulders to have occurred in this accident.
The Panel accepts that the claimant has had shoulder symptoms at times since the accident however there is no contemporaneous medical evidence that there was an actual or frank shoulder injury sustained in the subject accident.
It is the clinical judgment of the medical members of the Panel having considered the radiology, the claimant’s BMI and work history and well as the development and progression of his shoulder symptoms as set out in the records, that the symptoms of pain in the claimant’s shoulders are consistent with referred pain from his neck. It is also the clinical judgment of the medical members of the Panel that the restriction of shoulder motion is due to bilateral shoulder pathology which is degenerative and not traumatic. The deterioration in pre-existing pathology occurred at least six months after the accident and is therefore not caused by the accident.
Lumbar spine
The test of causation is whether the accident could have caused the claimant’s injury and did cause the claimant’s injury.
There was obvious pre-existing spondylolisthesis (where a vertebra slips forward onto the bone below it) which was not caused by the accident. The lumbar spine injury in
Mr Gatt’s case could be an aggravation or exacerbation of his pre-existing spondylolisthesis.
The medical members of the Panel are of the view that the claimant is obese at his current weight of 134kg. He has weights recorded in the various notes before the accident of upwards of 120kg. The Medical Assessors are of the view that his ideal weight for his height would be between 60 – 80kg. A lot of Mr Gatt’s excess weight is carried in his abdominal area and the gravitational effect of that is to pull the lumbar spine further forward thus aggravating the claimant’s spondylolisthesis. For these reasons there are exhortations throughout the claimant’s pre and post-accident records advising him to lose weight.
However, the Panel notes that while there had been symptoms of back pain in 2015 and 2016, there is no evidence of any symptoms in the lower back immediately before the accident sufficient to cause the claimant to seek medical attention. There is also no evidence of radiculopathy or radicular symptoms before the accident. The Panel notes for example the extensive note in the Southlands records of 22 August 2017 and the very detailed examination undertaken as part of the claimant’s fitness to drive assessment. There was a full range of back motion with no neurological signs at that time.
Mr Gatt told Medical Assessor Moloney that the pain was radiating into the back from the neck immediately after the accident. Mr Gatt was referred for a back and neck CT scan on 6 September 2018 but the corresponding note does not specifically mention back pain. Back pain is specifically mentioned on 13 September and the claimant was referred to Dr Al Khawaja on 14 September 2018 due to “worsening” lower back pain. Mr Gatt confirmed this history to Medical Assessor Moloney and said that the pain increased further about a month after the accident and then again in 2019 when he started experiencing numbness in his lower limbs. The Panel notes that the claimant has been well aware of the chronicity of his spondylolisthesis. The Medical Assessors on the Panel are of the view that Mr Gatt’s reports of developing back complaints and worsening symptoms is common and the natural progression of an aggravation or exacerbation type injury.
The Panel has considered the bio-mechanical evidence, the Panel agrees with the opinion of Mr Johnston that a statistical analysis and literature review is not the definitive answer to the question of whether the car accident caused Mr Gatt’s lumbar spine injury. This is because the statistics and the studies are based on persons with no previous injuries or relevant conditions. Mr Gatt is both obese and with a pre-existing condition and it is the clinical judgment of the medical members of the Panel that this makes him particularly vulnerable to injury. The Panel also notes the claimant’s history of the fact he was twisted to the side talking to his wife at the time of impact.
The Panel is therefore satisfied that the claimant sustained an aggravation or exacerbation of his pre-existing spondylolisthesis as a result of his accident.
TREATMENT DISPUTES
Is the shoulder surgery related to the injuries sustained in the accident?
The claimant has had the left shoulder surgery but not the surgery to the right shoulder both of which were to address the pathology (tears and bursitis) in the shoulders.
The claimant has told his treating doctors, in particular Drs Seex and Stening that he had immediate shoulder pain following the accident, but the review of the records suggests this may not be accurate, therefore the opinions of Drs Seex and Stening as to causal connection between the accident and the need for surgery cannot be relied upon.
The Panel has accepted that the claimant experienced pain over the shoulders after the accident but that the symptoms indictive of an actual or specific shoulder condition did not arise until more than six months after the accident.
Having considered all of the medical and biomechanical evidence and the emergence of symptoms in the shoulder (as opposed to over the shoulder) more than six months after the accident, the Panel is not satisfied that the claimant’s shoulder surgery is related to the injuries sustained in the accident.
It is not medically plausible, in the Panel’s view for a shoulder injury to occur sufficient to cause tears in both shoulders and be asymptomatic for six months or more and then become symptomatic.
As the Panel has found earlier, the claimant’s shoulder pain is pain referred from his neck and surgery to both shoulders cannot be related to referred pain.
Is the chiropractic treatment related to the injuries sustained in the accident?
Dr Truskett reports that the claimant has had 55 chiropractic sessions. He has at various times said this treatment has provided no relief (13 June 2019 to
Dr Gunathilake) or limited relief (22 April 2020 to Dr Kadavil) but he told Medical Assessor Woo it helped him move better. Mr Gatt told Medical Assessor Moloney it gave symptomatic relief but no long-term benefit.
The eight sessions of chiropractic treatment were the subject of a request dated
17 February 2020 from Dr Riya Pathak of the Health Backs Chiropractic Clinic in Windsor. The treatment was refused by the insurer apparently on the basis of the DRS certificate of Medical Assessor Wallace and because no functional improvement had occurred after the earlier treatment.
The chiropractor providing the treatment, Dr Pathak reported on 29 April 2020 that he was treating the claimant for neck, both shoulders and lower back pain and that it has been helpful in reducing the claimant’s headaches.
There is no information before the Panel about whether this treatment took place or not and whether it has been paid for or not. It does appear that the previous treatment was paid for by the insurer.
The Panel has found that the claimant injured his neck and back in the accident but did not sustain a frank or actual shoulder injury in the accident. The claimant has not alleged that his headache condition is related to the accident. However, on the basis that the insurer has paid for the earlier chiropractic treatment and because the treatment was to two accident-related injuries, the Panel is satisfied that the eight sessions of chiropractic treatment are related to the accident.
However, the Panel is not of the view the treatment is reasonable and necessary in the circumstances because:
(a) the claimant has had previous treatment (reported to be 55 treatments);
(b) he has received little benefit from it;
(c) he has proceeded to surgery despite it, and
(d) in the clinical judgment of the medical members of the Panel that long term passive chiropractic treatment in an obese person with pre-existing spondylolisthesis is not appropriate.
Is the lumbar spine surgery related to the injuries sustained in the accident and is it reasonable and necessary?
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[36] where the test of causation for surgical treatment was determined in a matter where the claimant had three motor accidents. The Court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery[37]. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[36] [2018] NSWSC 1710.
[37] Emphasis added.
The claimant’s surgery addressed the pre-existing spondylolisthesis which had been symptomatic at least two years before the accident and in circumstances where the claimant’s symptoms progressed after the accident to a stage where he developed neurological symptoms and more constant more severe pain.
The Medical Assessors on the Panel have expressed the view that Mr Gatt’s reports of the development of his back complaints and the worsening of symptoms is common and the natural progression of an aggravation or exacerbation type injury. But it is difficult to say when an aggravation and exacerbation ends and where the original condition “takes over”.
The Panel is not satisfied that the incident at the Dubbo RSL when the claimant fell off a chair caused any new injury to the claimant’s lumbar spine, but it did cause a further aggravation of his lumbar spine condition. The Medical Assessors on the Panel note that while there was a report to his GP at the time of increased symptoms, there is nothing in the medical reports that suggests ongoing effects from that incident. The Panel accepts the claimant’s history that he had an increase in his symptoms one to two months after the Dubbo incident and then a return to his post-motor accident state.
While the Panel notes the opinion of Dr Al Khawaja that the claimant may have progressed to surgery at some stage in the future, the medical members of the Panel are of the view that in their clinical judgment the accident has been a material contribution to the need for the lumbar fusion surgery of 20 July 2020.
In Diab v NRMA Ltd[38] at [88] the following factors were found to be relevant to, but not determinative of the criteria of reasonableness in the workers compensation scheme:
(a) the appropriateness of the treatment in dispute;
(b) the availability of alternative treatment;
(c) the cost effectiveness of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the appropriateness of the treatment.
[38] [2014] NSWWCCPD 2.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant in the proceedings before the Panel.
Lumbar spinal surgery is, in the clinical judgment of the medical members of the Panel appropriate to treat symptomatic spondylolisthesis. The claimant progressed to surgery two years after the accident after trying conservative treatment including medication, physiotherapy and chiropractic treatment. The treatment has been of some benefit as, according to Dr Seex’s most recent reports the claimant has had a reduction in his pain and in particular the symptoms in his lower limbs.
IMPAIRMENT ASSESSMENT
Cervicothoracic spine
Assessment of the spine required consideration of Chapter 3 of the AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111 of the Guidelines).
There are five diagnostic related categories and a number of indicia provided (see Table 6.7). The first is DRE category I which is selected if there are symptoms which may include pain. In the circumstances of this claim, DRE categories II and III are relevant.
A classification of DRE II requires:
(a) Pain with guarding – there was tenderness and complaints of pain but there was no guarding found by Medical Assessor Moloney on his examination; or
(b) Non-uniform range of motion – dysmetria. The claimant demonstrated restricted neck motion in all three planes of motion but there was symmetrical loss of motion and not asymmetrical loss; or
(c) Non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms such as shooting pain, burning sensation, tingling, and
(ii)these symptoms follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
Mr Gatt had complained of pain in his left arm at the time and shortly after his accident which resolved. Mr Gatt currently complains of pain radiating into both shoulders and in both arms. Mr Gatt was carefully examined by Medical Assessor Moloney and in the clinical judgment of the medical members of the Panel, the areas of complaint do not conform to an appropriate dermatomal distribution. Mr Gatt does not have non-verifiable radicular symptoms.
DRE III requires radiculopathy which is defined in cl 1.138 as, “Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …”. The five signs are:
(a) loss or asymmetry of reflexes. All of Mr Gatt’s reflexes were present and equal);
(b) positive nerve root tension signs. There were none found on examination;
(c) muscle atrophy and/or decreased limb circumference. There was no decreased limb circumference – arm measurements were equal on both sides and there were no signs of atrophy in either limb;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution. Mr Gatt did not demonstrate weakness in his arms on testing, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. While there was diminished sensation, it was variable and did not, in the clinical judgment of the Medical Assessors conform to an appropriate spinal nerve root distribution.
The Panel is not satisfied that the claimant satisfies the criteria for DRE II or III however he does complain of pain in the neck and so qualified for a finding of DRE I.
Left and right shoulders
The claimant said at the examination with Medical Assessor Moloney that the restriction of his shoulder motion was due to pain he was feeling in his neck. The pain he described and the source of it indicated during the course of the examination did not conform to a dermatomal distribution and therefore this pain is, in the Panel’s view not caused by a spinal nerve root injury. He has however had a neck injury and it is possible that that the soft tissue neck injury is causing continued symptoms.
It is the clinical judgment of the medical members of the Panel that the restriction of motion in the claimant’s shoulders is not caused by his neck injury but by his shoulder pathology. This pathology is degenerative and pre-existing and could not have been caused by the accident.
If the claimant did sustain the tears found on the radiology and developed bursitis due to the accident, the Panel would expect the claimant to have significant and immediate pain in the shoulders and not just pain “over the shoulders” and that one or more of his treating health practitioners would have recorded that in their records.
The Panel is not therefore satisfied that the claimant’s 9% WPI due to restriction of motion in the shoulders is an impairment resulting from the claimant’s accident-related injuries.
Thoracolumbar and lumbosacral spine
The claimant’s upper back or mid back pain does not feature extensively in the clinical notes. Mr Gatt did not complain of upper back, mid back or thoracic pain during the course of his examination.
The examination did not reveal any guarding, dysmetria or spasm in the thoracic spine and there were no radicular symptoms and no signs of radiculopathy in the thoracic spine.
Table 6.7 in the Guidelines provides for the assessment of a variety of spinal conditions as follows:
(a) Multilevel structural compromise DRE IV or V
(b) Spondylolisthesis without radiculopathy DRE I or II
(c) Spondylolisthesis with radiculopathy DRE III, IV or V.
In terms of multilevel structural compromise, cl 6.145 of the Guidelines includes spinal fusion and intervertebral disc replacement within that diagnosis. The AMA 4 Guides differentiate between DRE IV where there is no residual neurological motor compromise and DRE V where there is residual neurological or motor compromise.
The most recent report from Dr Seex following the claimant’s surgery was that there was no residual neurological symptomatology (or very little) although the claimant reports he has further symptoms at other levels and he has been advised to have further surgery. The Panel is of the view that the most appropriate classification of the claimant’s injury is therefore DRE IV which provides a WPI of 20%.
Clause 6.31 of the Guidelines provides:
“The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”
The claimant had pre-existing spondylolisthesis with 8mm slippage reported with possible L5 nerve root compression. While there is no evidence in the records of
Mr Gatt experiencing radiculopathy before the accident, there were complaints of severe lower back in 2015 and 2016 and the claimant conceded during the course of the examination with Medical Assessor Moloney that he had back pain from time to time. On that basis, the Panel is of the view that the claimant had a pre-existing impairment related to his spondylolisthesis but with symptoms which should be categorised as a DRE II impairment which attracts a WPI of 5%.
FINDINGS AND CONCLUSION
In relation to Medical Assessor Truskett’s certificate, the Panel confirms the certificate and finds:
(a) the claimant’s shoulder surgery is not related to the accident, and
(b) the claimant’s chiropractic treatment is related to the accident but is not reasonable and necessary in the circumstances.
In relation to Medical Assessor Home’s certificate, the Panel had arrived at the same result in relation to impairment but has found a different degree of WPI. The Panel therefore revokes the Medical Assessor’s certification of whole person impairment and confirms his certificate in relation to the lumbar surgery and finds:
(a) the lumbar surgery is related to the accident and reasonable and necessary in the circumstances, and
(b) the degree of the claimant’s whole person impairment is 15%:
(i)Lumbar spine – DRE IV (20%) less pre-existing impairment of DRE II (5%) = 15%, and
(ii) Cervical spine – DRE II = 0%.
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