Insurance Australia Limited t/as NRMA Insurance v Haklane
[2024] NSWPICMP 782
•21 November 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Haklane [2024] NSWPICMP 782 |
CLAIMANT: | Steven Haklane |
INSURER: | NRMA |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 21 November 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; whole person impairment (WPI) dispute; the claimant was involved in a motor vehicle accident on 17 September 2016; claimant was the driver and sole occupant of a 2015 Mercedes Benz Coupe; he was wearing a seatbelt; the insured vehicle failed to stop at the intersection; Fire Brigade and Police Officers attended; claimant did not lose consciousness; pre-existing lumbar problems since 2001 motor accident; claimant asymptomatic in lumbar spine at time of subject motor accident; claimant undergoes lumbar interbody fusion surgery and laminectomy five years post-accident; Medical Assessor (MA) Bodel certifies that surgery is causally-related to the subject accident, necessary and reasonable; Medical Review Panel (Panel) forms same opinion on causation; Panel accepts that accident caused aggravation of degenerative disease in lumbar spine eventually leading to surgery; foot-drop; Panel includes assessment of surgical scarring by consent; Panel revokes MA Truskett’s certificate (15% WPI) and issues a new certificate (16% WPI) arising from injuries caused by subject accident. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 63 of the Motor Accidents Compensation Act1999 (the Act) 1. The Review Panel revokes the certificate of Medical Assessor Philip Truskett dated · lumbar spine – soft tissue injury with aggravation of pre-existing grade I L5/S1 spondylolisthesis and development of L5 radicular symptoms affecting both legs, and · surgical scarring. 2. The following injuries caused by the motor accident have resolved and do not result in permanent impairment: · cervical spine – aggravation of degenerative disease (resolved), and · closed fracture of the first metacarpal left hand (resolved). 3. The following injuries referred to the Review Panel for assessment have been assessed and determined to be not caused by the motor accident: · left carpal tunnel syndrome and ulnar condition, and · stomach – stomach/oesophagus – gastro-oesophageal reflux disease. An assessment of the degree of permanent impairment of these injuries is therefore not required. |
STATEMENT OF REASONS
INTRODUCTION
Steven Haklane (the claimant) was involved in a motor vehicle accident on
17 September 2016 at approximately 7.00pm (the accident). He was the driver and sole occupant of a 2015 Mercedes Benz Coupe. He was travelling at approximately 50kmph. He was wearing a seatbelt. The car was fitted with head rests. Airbags were fitted and deployed. The claimant was proceeding along Thomson Street, Earlwood, approaching the T-intersection of Hamilton Avenue to his left. The insured vehicle failed to stop at the intersection. The claimant attempted to stop but could not do so. The front of his vehicle hit the right passenger side of the insured vehicle. Ambulance, Fire Brigade and Police Officers attended. The claimant did not lose consciousness. There was no head strike. He was transported to Canterbury Hospital by ambulance. His vehicle was not drivable and subsequently was written off.The claimant was assessed at the Emergency Department of Canterbury Hospital. He complained of pain in his neck, left hand and lower back. X-rays were performed. He was kept overnight with an undisplaced fracture of the first metacarpal of his left hand. A CT scan was performed of his cervical spine. No acute spinal fracture was demonstrated. The claimant was referred to Dr Parkinson (neurosurgeon at St Vincent’s Hospital) in March 2017 for treatment of paraesthesia in both legs. Dr Parkinson subsequently recommended a 2-level decompression and fusion. The claimant was admitted to North Shore Private Hospital on 27 September 2021, under the care of Dr Johnny Wong, and underwent an L5/S1 decompression and an L5/S1 posterior lumbar interbody fusion. Subsequently, on
20 April 2022, the claimant underwent a revision of L4 to S1 laminectomy and posterior lumbar interbody fusion.There is a separate treatment dispute relating to those surgeries which was determined by Medical Assessor James Bodel for determination. The issue of causation would seem to be common to both disputes. Medical Assessor Bodel’s decision in relation to causation is not binding upon the Review Panel but must be given proper weight.
The issue for determination by the Review Panel is the degree of permanent impairment that the claimant suffered as a result of physical injuries caused by the accident. The claimant applied for re-assessment only of the lumbar spine. The insurer sought referral of the cervical spine and the lumbar spine. Causation of injury to the lumbar spine is in issue. Although the claimant has undergone several surgical procedures for the lumbar spine, impairment arising from surgical scarring is not a matter that has been referred to the Review Panel for consideration. The parties consented to the Review Panel deciding that issue.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 58(1)(d) of the Act, the claimant was referred for assessment by Medical Assessor Philip Truskett, who certified on 1 February 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 15% and IS GREATER THAN 10%:
- Cervical spine – aggravation of degenerative disease (resolved)
- Lumbar spine – aggravation of degenerative disease
- Closed fracture of the first metacarpal left hand (resolved)
Medical Assessor Truskett assessed 0% whole person impairment for the cervical spine as he found no muscle guarding, no non-verifiable radicular complaint and no dysmetria, no neurological signs and no bony injury. As to the lumbar spine, he assessed 15% whole person impairment. Medical Assessor Truskett considered the spinal fusion at L5/S1 to be a multi-level structural comprise equating to a Category IV with 20% whole person impairment. Medical Assessor Truskett deducted 5% whole person impairment as non-verifiable radicular complaint had been documented prior to the accident.
Medical Assessor Truskett found that the following injuries WERE NOT caused by the motor accident:
· stomach – gastro-oesophageal reflux (dyspepsia), and
· left carpal tunnel syndrome, and ulnar condition.
He did not so certify.
OTHER ASSESSMENTS
The claimant’s physical injuries previously were assessed on 6 November 2019 by Medical Assessor Truskett who certified 8% whole person impairment for aggravation of pre-existing conditions in the cervical spine (4%), the lumbar spine (4%) and a closed reduction of the left first metacarpal (0%).
The claimant’s solicitors lodged an application for further medical assessment on
7 September 2023 under s 62(1)(a) of the Motor Accidents Compensation Act1999 (the Act) seeking further assessment of the claimant’s lumbar spine.The insurer opposed that application on the basis there was no additional information that could have a material effect on the outcome of the previous assessment.
On 17 October 2023, the President’s delegate accepted the application for further medical assessment, which was referred to Medical Assessor Truskett. His further determination is the subject of the present review.
Medical Assessor James Bodel certified on 25 July 2024 that the following treatment:
· L4/S1 with posterior lumbar interbody fusion surgery performed on
27 September 2021 by Dr Johnny Wong, and· L4/S1 laminectomy and posterior lumbar interbody fusion surgery performed on 22 April 2022.
RELATES TO THE INJURY caused by the motor accident.
In so far as the Panel is aware, neither party has sought a review of Medical Assessor Bodel’s certificate.
Medical Assessor Bodel acknowledged a history of a motor vehicle accident in 2001, but no evidence of any treatment for any injury to the claimant’s lumbar spine, until August 2009. There were a number of unrelated matters involving aggravation to the claimant’s neck and back prior to the subject accident. Medical Assessor Bodel records that the claimant was relatively asymptomatic prior to the accident. Medical Assessor Bodel notes that the claimant’s condition deteriorated over the following five years until he eventually came to surgery.
Medical Assessor Bodel records that the claimant then presented with an increase in grading of spondylolisthesis from Grade 1 to Grade 2 and that he had bilateral L5 radiculopathy with right sided sciatica and left sided drop, which was not recorded by any of those who treated him or assessed him in the aftermath of the subject accident.
Medical Assessor Bodel was of the view that the claimant’s clinical complaints are consistent with the ongoing spinal pathology and associated neurological abnormalities in the lower limbs. Medical Assessor Bodel notes that there were no subsequent events which could have contributed to the claimant’s spinal condition. He specifically refers to the principles of causation (below) in determining that the claimant’s spinal surgery relates to the injury caused by the motor accident.
THE REVIEW
The insurer sought a review of Medical Assessor Truskett’s certificate on the basis that the assessment was incorrect, within the meaning of s 63 of the Act, in a material respect. The insurer brought the application within the time prescribed by s 63(7)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The insurer submitted that Medical Assessor Truskett failed to obtain an accurate pre-existing medical history and failed to properly consider and/or refer to all of the evidence before him in respect of the claimant’s lumbar spine injury. The insurer also submitted that Medical Assessor Truskett failed to provide proper reason or a clear path of reasoning. As a result, it was submitted, Medical Assessor Truskett:
(a) erred in his assessment of the claimant’s lumbar spine injury, and
(b) erred in his assessment of the claimant’s pre-existing WPI.
The insurer submitted that Medical Assessor Truskett failed to have proper regard to the documents contained in the insurer’s reply, and in particular, the following documents:
(a) the insurer’s submissions dated 19 September 2023 and 10 January 2024;
(b) the claimant’s pre-accident medical records, and
(c) the reports of Dr Ross Mellick, Dr Frank Machart and Dr Michael Coroneos, who agree that the claimant’s lumbar condition pre-existed and was not caused by the subject accident.
The insurer’s qualified neurosurgeon, Dr Mellick, opined that the pre-existing clinical records indicate that the claimant had lumbar radiculopathy.
The insurer submitted that Medical Assessor Truskett did not engage with the insurer’s submission, that the need for the spinal fusions was not causally related to the subject accident, having regard to the claimant’s long-standing history of pre-accident lumbar spine symptoms.
The insurer further submitted that, whilst Medical Assessor Truskett’s assessment of WPI suggests an acceptance that the need for spinal surgery was caused by the subject accident, the Medical Assessor failed to provide any reasons for his reaching that conclusion.
In the alternative, the insurer submitted that, if the Medical Assessor was not satisfied that the claimant’s need for spinal surgery was causally related to the subject accident, then he failed to conduct his assessment of whole person impairment in accordance with the Guidelines, such that the whole of the impairment should have been ascribed to the claimant’s pre-existing lumbar condition.
The insurer’s application for review was opposed by the claimant who noted the separate treatment dispute which was yet to be determined. The claimant submitted that causation is to be determined in the separate treatment dispute and was not a matter for Medical Assessor Truskett’s consideration. It is not necessary to describe the claimant’s submissions in detail as they were not accepted by the President’s delegate.
President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 18 April 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated as follows:
“Medical Assessor Truskett highlighted that the claimant had previous non-verifiable radicular complaints of the lumbar spine. He also noted the claimant had two previous motor accidents and pre-existing degenerative changes in the lumbar and cervical spine. Medical Assessor Truskett did not provide reasons, or provided insufficient reasons, for finding that the claimant’s lumbar spine surgery related to the subject accident and was not solely required because of pre-existing conditions. Therefore, he did not provide his reasons for finding that the impairment arising from the surgery was related to the injuries caused by the accident.”
The President’s delegate was satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Accordingly, the Review Application was referred to the Review Panel, which is to assess the following injuries:
The injury
Description
Cervical spine
Aggravation of degenerative disease of cervical spine
Lumbar spine
Aggravation of spondylotic spondylolisthesis at L5/S1 level with left L5 nerve root compression
Stomach
Stomach/oesophagus – gastro-oesophageal reflux disease
unless the parties otherwise agree that any of those injuries need not be assessed.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Motor Accident Injuries Act 2017 (MAI Act). The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.
In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] [2022] NSWSC 372.
“…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination’.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) Claimant’s review submissions dated 15 January 2024 (previously summarised).
(b) Claimant’s submissions in support of an application for further medical assessment.
Claimant refers to the reports of Dr Peter Bentivoglio, neurosurgeon and spinal surgeon, dated 2 August 2018, 11 March 2019, 3 September 2019,
4 November 2022 and 11 August 2023. The claimant submits that both
Dr Bentivoglio and Medical Assessor Truskett support the proposition that the accident was at least a material contribution to the need for surgery, being the legal test enunciated at paragraphs 1.5 to 1.7 of the Motor Accidents Permanent Impairment Guidelines, which apply to this pre-December 2017 motor accident.The claimant records the contemporaneous clinical entry of SOS Physiotherapy on 22 September 2016 which notes a complaint of pain in the lower back. It is submitted this complaint is causally linked to the subject motor accident five days previously. The claimant refers to the certificate of Medical Assessor Truskett who determined that the claimant’s aggravation of degenerative disease in the lumbar spine was caused by the subject accident.
(c) Claimant’s statements dated 12 September 2019, 11 May 2023 and
15 January 2024.Inter-alia the claimant refers to a previous motor accident on 21 May 2001 for which he received workers compensation benefits. In the ensuing years, he had flare ups of neck and back pain. He was hospitalised in August 2009 following a severe flare up of neck pain. He was referred to a neurosurgeon (Dr Richard Parkinson) and a neurologist (Dr Paul Darveniza). He also consulted Dr Raoul Pope, neurosurgeon, for a second opinion. None of those specialists recommended surgery.
In late February 2016, the claimant was referred to Dr Bassam Moses, sports and exercise physician, for pain radiating from his back to his left leg. The claimant says that his symptoms settled after some physiotherapy and he was able to return to his usual activities. The claimant says that the flare ups of back and neck pain which he experienced prior to the subject accident were different to the frequent, severe pain, experienced from the date of the accident, ongoing.
(d) Reports dated 2 August 2018, 3 March 2019, 4 November 2022 and
11 August 2023 by Dr Peter Bentivoglio, neurosurgeon and spinal surgeon, to the claimant’s solicitor.In his most recent report, Dr Bentivoglio recounts the pre-accident history (see previously) and the subsequent history leading up to lumbar surgery performed by Dr Wong in September 2021 involving a L4/L5 decompression, a L5/S1 decompression and fusion at the 51/S1 level. Because the symptoms persisted, those procedures had to be repeated. Dr Bentivoglio states that, as a consequence of the surgery, there has been a 50% improvement in the lower back pain and right leg pain. However, the claimant’s left leg has been made much worse, with pain and numbness. Dr Bentivoglio gives the following diagnosis:
“He is a gentleman with discogenic low back pain secondary to L4/L5 disc disease and evidence of neuropathic leg pain and evidence of L5/S1 radiculopathy. These symptoms have been exacerbated and caused by the motor vehicle accident on 17 September 2016 when he undoubtedly exacerbated pre-existing degenerative disease as shown on MRI scans in October 2009. ….. The motor vehicle accident has exacerbated the back problems at L4/L5 and L5/S1 which usually have settled in the past, but on this occasion, it has not settled and his symptoms have slowly but surely deteriorated because of the spondylolisthesis at L5/S1”.
Dr Bentivoglio thinks that the claimant probably is going to require further surgery in the future to fuse the L4/L5 level with L5/S1, probably interiorly and posteriorly……. Assessing his whole person impairment as he is at the moment, using Table 72, page 3/110 of AMA 4, because he has loss of motion segment integrity with a fusion at the L5/S1 level and persistent radiculopathy, he is DRE Category V with 25% whole person impairment. The fact that he has pre-existing degenerative disease and a spondylolisthesis in the past, I deduct 10% from 25% which is 2.5% which gives him 22.5% whole person impairment rounded up to 23%.
(e) Reports dated 27 April 2021, 27 July 2021 and 11 August 2021 by Dr Richard Parkinson, neurosurgeon, to the claimant’s treating general practitioner (Dr Jessica O’Connor) and the insurer.
In his report dated 27 April 2021, Dr Parkinson notes that the claimant has reasonably significant foraminal stenosis from his chronic isthmic spondylolisthesis at the right L5 level. He also notes subarticular recess stenosis at L4/L5 affecting the L5 nerve roots bilaterally which will require a two-level fusion.
In his report dated 11 August 2021, Dr Parkison notes that the claimant had suffered low back pain which had continued since his 2016 motor accident.
Dr Parkinson says the pain has continued unabated and he had not noted any back pain before the accident occurred. Dr Parkinson says the claimant has bilateral PARS defects and a L5/S1 isthmic spondylolisthesis, which was asymptomatic before the accident, and has caused unremitting and continuing pain since.(f) Report dated 24 May 2021 by Teologos Fengaros, chiropractor.
Referral for medical opinion after chiropractic treatment described in the report.
(g) Report dated 3 September 2019 by Dr Samuel Bolitho, neurologist, to Professor Danforn Lim, describing nerve conduction studies and recommending treatment for carpal tunnel symptoms. Reference to the claimant’s suffering whole body spasms.
(h) Royal Prince Alfred Hospital discharge referral dated 27 April 2022 relating to admission for positional dizziness, vertigo and vomiting, with principal diagnosis of benign positional paroxysmal vertigo.
(i) Discharge Referral dated 20 April 2022 from Chris O’Brien Lighthouse following admission for revision surgery (L5/S1 PLIF).
(j) Referral by Dr Jaison Mangahis dated 14 October 2022 to Dr Johnny Wong for post-surgery review.
(k) Report of CT lumbosacral spine dated 31 July 2017.
(l) Report of MRI – cervical and thoracic spine dated 31 July 2017.
(m) Report of MRI – cervical spine dated 24 May 2019.
(n) Report of CT – thoracolumbar spine dated 21 June 2019.
(o) Report of MR – left elbow dated 9 October 2019.
(p) Report of CT – lumbosacral spine dated 25 February 2020.
(q) Report of MRI – lumbar spine dated 25 February 2020.
(r) Report of MRI – lumbar spine dated 23 December 2020.
(s) Report of MRI – bilateral hips dated 24 June 2021.
(t) Report of MRI – lumbosacral spine dated 18 November 2021.
(u) MRI – lumbosacral spine dated 6 March 2023.
(v) Clinical records of Earlwood General Practice – various dates from Augus 2006 to October 2016.
(w) Clinical records of Dr Richard Parkinson from 1 September 2009 to 6 June 2019.
(x) Clinical records of North Shore Private Hospital from 26 September 2021 to
4 October 2021.(y) Clinical records of Chris O’Brien Lighthouse from 26 September 2021 to
20 April 2022.(z) Clinical records of Dr Johnny Wong from 3 August 2021 to 8 May 2023.
(aa) Clinical records of SOS Physiotherapy – various dates.
The insurer relied upon the following material which the Review Panel has considered:
(a) Insurer’s submissions dated 8 December 2023 re medical assessment – treatment dispute. The insurer submitted as follows:
(i)Medical Assessor Truskett opined the claimant had extensive pre-existing symptoms in the lumbar spine, including complaints of L5 radicular distribution in March 2016.
(ii)Dr Frank Machart, orthopaedic surgeon, noted the claimant had a substantial pre-existing history of spine symptoms.
(iii)Dr Michael Coroneos, neurosurgeon, examined the claimant on
5 March 2020 and, whilst he did not have the benefit of viewing the original radiological scans, based on his clinical findings, he could not relate the reported symptoms to be reasonable, as there was no evidence of neurological or spinal injury having occurred as a result of the subject accident. Dr Coroneos observed all movements to be performed in a smooth and symmetrical manner, with no guarding or deformity.(iv)Dr Ross Mellick, neurosurgeon, examined the claimant on
14 February 2023 and could not relate the claimant’s current symptoms to the subject accident. Dr Mellick could not establish any evidence indicating the spinal fusion was indicated because of the injuries which occurred in the subject accident.(v)Having regard to the claimant’s pre-existing condition, and the opinions of Dr Machart, Dr Coroneos and Dr Mellick, the insurer submitted that the need for lumbar spine surgery is not causally related to the subject accident and/or reasonable and/or necessary.
(b) Insurer’s submissions dated 29 September 2023 in relation to further medical assessment (previously summarised).
Insurer’s qualified reports
(c) Report of Dr Frank Machart, orthopaedic surgeon, dated 9 January 2019 (see above).
(d) Report of Dr Michael Coroneos, neurosurgeon, dated 17 March 2020 (see above).
(e) Report of Dr Thomas Rosenthal, occupational physician, dated
16 November 2022 to the insurer’s solicitors.Dr Rosenthal reviewed the pre and post-accident history, relevant medical documentation and imaging reports. He conducted a thorough physical examination and provided the following diagnosis:
· Fractured left first metacarpal, now healed.
· Aggravation of degenerative changes in the cervical spine.
· Possible temporary exacerbation of pre-existing degenerative conditions in his lumbar spine.
Dr Rosenthal opined as follows:
“He clearly had pre-existing lumbar spondylolisthesis and L5/S1 disc abnormalities. There was L5 left radiculopathy reported prior to the accident. Dr MacDeesi’s report in 2014 suggested that he was going to require surgery or at least further intervention in regards to his lumbar spine, and the report of Dr Truskett for the PIC indicates that he had already been considered for surgery and had been re-referred in regards for his lumbar problem prior to the motor accident. The initial reports from Canterbury Hospital did not report any back injury occurring in the subject accident. It is unclear exactly when the back symptoms developed or worsened following the subject accident.”
Dr Rosenthal said there is inconsistency in regards to the history that the claimant provided to various treating doctors following the accident. Dr Rosenthal thought there were significant neck and back issues prior to the accident that required regular treatment. He said the initial presentation at Canterbury Hospital was in regards to the claimant’s neck and hand. There was no mention of any back symptoms. It was unclear to Dr Rosenthal whether ongoing reports of back pain were related to the pre-existing condition or new symptoms following the accident.
Essentially, Dr Rosenthal related the claimant’s ongoing lumbar problems to his failed surgeries (x2) which he did not relate to the subject accident.
(f) Reports of Dr Ross Mellick, neurosurgeon, dated 27 February 2023 and
9 April 2023 to the insurer’s solicitors (see above).Treating medical evidence
(g) NSW Ambulance report dated 8 November 2016.
Reference to swelling and pain to left thumb, tightness and mild numbness to left lateral neck down left arm.
(h) Treating records of SOS Therapy – various dates.
(i) Treating records of Earlwood General Practice as at February 2017.
(j) Treating records of Canterbury Hospital as at 20 April 2017.
(k) Treating records of Dr Richard Parkinson dated 4 December 2019.
(l) Treating records of Dr James Yu (Sydney spine and pain) as at 29 March 2023.
(m) Report of Dr Samuel MacDeesi, orthopaedic surgeon, dated 23 May 2014.
(n) Report dated 23 May 2014 by Dr Samuel MacDeesi, orthopaedic surgeon, to
Dr Nicole Hall.The claimant was referred to Dr MacDeesi for assessment of left leg pain. MRI scan of the left knee confirmed Grade II osteoarthritis. Dr MacDeesi felt that the claimant’s problems were emanating from his lumbosacral spine, in terms of altering his lower limb biomechanics, and causing secondary muscular and patellofemoral pain issues. He advised that the claimant should undergo an intervention for his L5 radiculopathy and suggested referral to Dr Richard Parkinson as well as to
Dr Moses.(o) Report dated 3 March 2016 by Dr Bassam Moses, sports and exercise medicine physician, to Dr Kelly Chu.
Dr Moses noted two years of lower left back pain radiating into the left buttock and down the left leg of gradual onset. Dr Moses noted that the claimant does experience paraesthesia in the L5 region on the left. Dr Moses noted the history of a motor accident in 2001 and that a MRI in 2014 confirmed bilateral L5 PARS defects with anterolisthesis at L5/S1. Physical examination of the lumbar spine revealed issues on the left side. Dr Moses found sacroiliac joint incompetence on the left side which is responsible for his pain. Dr Moses recommended further diagnostic investigations and conservative treatment.
Radiological scans
(p) MRI of the thoracic lumbar spine dated 19 October 2009.
(q) CT scan of the cervical spine dated 25 August 2009.
(r) X-ray of the lumbar spine dated 1 December 2011.
(s) MRI of the thoracic and lumbar spine dated 9 January 2012.
(t) MRI of the lumbar spine dated 23 April 2014.
(u) MRI of the lumbar spine dated 27 March 2017.
EXAMINATION REPORT
The examination report of Medical Assessor Oates is as follows:
“Steven Haklane
Date of Accident: 17/09/2016
REASONS
Details of who attended the Assessment
Mr Steven Haklane, hereafter known as the claimant, attended unaccompanied at the PIC Medical Suites for re-assessment by Medical Assessor Oates on behalf of the Medical Review Panel on 5/07/2024 as arranged.
HISTORY
Pre-accident medical history and relevant personal details
The claimant was born in Lebanon and came to Australia as a baby in 1973. He completed high school and then did electrical engineering diploma at a TAFE College, and training in IT management.
He worked at Jaycar Electronics for five years and from 2000 with Canon, and is still employed there as a project manager.
He is married and they have three children, all of whom live at home. His wife presently works part-time in her own business from home.
He was previously healthy, apart from some epigastric upset treated with Nexium and Gaviscon. He also developed high cholesterol following the subject motor vehicle accident.
He had a previous motor vehicle accident in 2001. This caused soft tissue injury to the cervical and lumbar spine. Cervical symptoms radiated to the left arm, down to the hand and ulnar fingers. He can’t recall having made any CTP claim and he made a full recovery gradually. He was able to resume running and became very physically active.
In August 2009, his neck flared up after dancing at a party. He had a CT scan cervical spine and saw Dr Parkinson, neurosurgeon, complaining of pins and needles in the forearms and ulnar aspect of both hands. He was reviewed with CT scan and MRI scan to ascertain the cause of the paraesthesia.
The claimant was referred to Dr Darveniza regarding a possible polyneuropathy. An MRI scan of the thoracic and lumbar spine was done and he showed a Grade 1 L5/S1 spondylolisthesis. He had a nerve conduction study and believes it was normal. No further action was taken. He had conservative treatment.
Later in 2009 in November, he had an accident on a quad bike at a family member’s property, causing a dislocation of left shoulder and probable brachial plexus injury. The plexopathy resolved. His shoulder was managed by Dr J Goldberg with a sling and physiotherapy, and he went on to make a full recovery.
He ceased physiotherapy, as he was much improved by March 2010, however in November 2020 he had a short-lived flare-up of symptoms after holding his baby daughter. He had a further flare-up in November 2011 of neck and back pain after overdoing it at the gym and had physiotherapy. He recovered within a month or so.
He had further problems in January 2012 and had an MRI scan and was advised conservative treatment and pilates, which he did through to February 2012. He also had some physiotherapy.
In April 2013, he had a pull in the back that radiated to the neck but this recovered in a short time and he returned to doing yoga and pilates.
In July 2013, he had some further neck and low back pain after a long drive and had physiotherapy, and the exacerbation settled.
In later 2013, he developed a problem with his left knee and saw his GP on 28/04/2014 and was referred to Dr MacDeesi for management of chronic left knee pain. He saw the specialist on 23/05/2014. He doesn’t recall having back pain at this time but told the specialist about the past history and doctor suggested that the claimant’s knee problems may be related to the back and he did not recommend any specific treatment for the knee.
The knee pain subsequently settled completely and he continued with yoga and pilates to strengthen his core.
The claimant had no further problems until October 2015 when he was working hard doing a house renovation and had a flare-up of low back pain. He rested and had physiotherapy for two months, and the pain eventually settled and he was able to complete the renovation.
He next saw the physiotherapist in late September 2016 after the subject accident.
The claimant stated that he did not have any back problems or receive physiotherapy for any back issues between December 2013 and after the accident in September 2016, apart from a short-lived flare-up in October 2015 from the house renovation.
The claimant had been reviewed by Dr Moses, sports physician, in March 2016 about the episodes of low back pain and stiffness, which would always settle within a short time with rest and exercise, and doctor advised him to continue working on core strength and strengthening the gluteal muscles.
Between this visit to the specialist and the subject accident, he was able to run, perform his exercises, continue the renovation, and also restore old cars with minimal and manageable low back pain.
I asked the claimant about an episode in May 2014 when he saw Dr MacDeesi. Doctor gave a history that he had initially seen Dr Parkinson, who had recommended lumbar surgery, but the claimant says this is not correct. At the consultation with Dr MacDeesi, he diagnosed left L5 radiculopathy as a result of a mass effect of the L4/5 disc and that he would need intervention and that he should be reviewed by Dr Parkinson.
The file evidence indicated at the review by Dr Moses on 3/03/2016, there was a two-year history of low back pain radiating to the left leg in an L5 distribution with pins and needles, and on examination there were bilateral absent reflexes with negative straight leg raising but slump test positive for left L5.
An MRI scan was ordered of the left hip which showed a labral tear. He was sent to Sydney Spine and Pelvis Physiotherapy at Drummoyne and had 10 visits with good relief of left hip and leg pain.
MRI scan lumbar spine showed 7mm anterolisthesis at L5/S1 with mild foraminal stenosis bilaterally at this level.
At specialist review on 23/03/2016, Dr Moses suggested a left L5 foraminal and left hip joint cortisone injection but the claimant did not proceed with these, instead opting to continue the Drummoyne physiotherapy program. He also did not attend ‘Take Control’ physiotherapy in Oatley, as referred to in the specialist report, as he was getting good results with the Drummoyne clinic.
Just before the accident, the claimant stated he had several months completely free of back symptoms before the subject accident and he was running, doing exercises and performing mixed martial arts.
History of the motor accident
The claimant stated that on 17/09/2016, he was the driver of a 2015 Mercedes Benz coupe with no passengers. He was travelling at about 50kph. He was wearing a seatbelt and the car seats had head rests. He approached a T-intersection and another vehicle failed to stop at the intersection. This vehicle did not seem to be making a turn and just went straight ahead. The claimant tried to stop but could not do so in time and the front of the claimant’s vehicle hit the right driver’s side of the other vehicle, which had been coming from his left.
Police, ambulance and fire brigade attended. The airbags deployed. He was not knocked out. He was taken to Canterbury Hospital by ambulance. His vehicle was towed and was subsequently written off.
History of symptoms and treatment following the motor accident
Immediately after the accident, the claimant felt pain at the base of the left thumb to the forearm and there was a bit of numbness in the neck like a whiplash, and a warm numb sensation in the lower back and buttocks, and back of the legs as far as the calves.
Note - the ambulance and hospital records made no reference to the back and I asked the claimant about this, but he said he did tell them but they were more focused on his neck. He was transported in a neck brace which was very uncomfortable, but once the neck was cleared in hospital, the brace was removed.
He had physiotherapy at SOS Physio in Earlwood and the neck settled down, but he can’t recall how long it took. X-rays showed an undisplaced thumb fracture at the 1st metacarpal which was treated in a splint, and he then had hand therapy. The range of movement and strength improved progressively in the thumb.
He saw the GP for the first time after the accident on 21/09/2016 and the neck and thoracic spine were mentioned. He can’t recall if he mentioned the low back pain at this time.
At the second GP visit on 7/10/2016, there was mention of attending SOS Physiotherapy to the neck and back, which included the lumbar spine.
He was referred to Dr Parkinson, the neurosurgeon whom he had previous seen, for re-assessment on 28/03/2017. He diagnosed whiplash injury to the neck and low back, and he recorded complaints of paraesthesia in both legs. MRI scan showed the previously noted L5/S1 spondylolisthesis with a very small slip, and in fact no worsening of the slip compared to the previous MRI scans. Dr Parkinson recommended conservative treatment.
The claimant saw Dr Yu, pain specialist at St Vincent’s Hospital Darlinghurst. He was treated with Lyrica but this was ceased because of unwanted side-effects, and he changed to Neurontin for the nerve pain running down both legs, and he was also treated with Cymbalta.
He started physiotherapy at SOS a few months after the accident and also had treatment for the thumb with a hand therapist.
His neck and left hand improved but he had worsening of low back pain and bilateral leg pain despite treatment. He also tried acupuncture, hydrotherapy, physiotherapy, epidural injections and attended an exercise physiologist, as he wanted to avoid surgery at all costs.
He tried radiofrequency for the left leg symptoms but there was no benefit.
He was off work for six weeks after the accident because he could not drive to work because of low back pain. He then started working from home two days a week and gradually built up to five days a week. He breaks up his work day to rest during the day, but accomplishes the full hours by the end of the day.
At review with Dr Parkinson on 10/12/2019, he had worsening left-sided L5 distribution leg pain. Dr Parkinson did not believe he had progressive spondylolisthesis but there was progressive disc problem at L4/5 with bilateral foraminal stenosis but no evidence of radiculopathy or myelopathy. He believed that the claimant would require bilateral L5 nerve root decompression.
At review by the specialist on 27/04/2021, he was then recommending a two-level decompression and spinal fusion. Surgery was declined by the insurer and Mr Haklane could not afford Dr Parkinson’s fees, despite being in a health fund.
Note: The nerve root decompression is for the effects of the subject motor vehicle accident, however fusion was indicated to stabilise the pre-existing spondylolisthesis. The treating neurosurgeon had found that the motor accident had not aggravated the spondylolisthesis.
The file evidence did not contain any reference of a functional lumbar spine x-ray to see if there was appreciable instability at the listhetic segment, nor was a bone scan done to see whether there was active uptake at the site of the spondylolisthesis, which would indicate aggravation of the pre-existing condition.
Because there was no demonstrable aggravation of the listhesis by the motor vehicle accident, fusion cannot reasonably be related to the effects of the motor vehicle accident, only the nerve root decompression surgery.
The claimant then attended Dr J Wong, first by telehealth on 2/09/2021, and he was told he required L5/S1 fusion with decompression of L5 nerve root and of the L4/5 lateral recess. He was assessed in person on 16/09/2021 with L5 radiculopathy and L5/S1 spondylolisthesis, and was recommended an L5/S1 posterior body fusion and decompression of L5 nerve roots. Dr Wong performed surgery at North Shore Private Hospital on 27/09/2021, performing an L5/S1 decompression and an L5 to S1 posterior lumbar interbody fusion, which was self-funded by the claimant through his health fund.
Dr Wong’s operation report, dated 27/09/2021 and received as a late document by the Panel, recorded operative findings of Grade 2 L5/S1 spondylolisthesis, which was surgically reduced to Grade 1, as part of the lumbar spinal fusion procedure.
He was hospitalised for one week after surgery and he still had numbness in both legs with worsening pain. He had hydrotherapy without improvement and he states that both his back and leg symptoms were much worse after this surgery. He was taking Palexia and Palexia SR, and after a period started gentle hydrotherapy but he did not improve. There was also some post-operative hypothermia, the cause of which was not found.
He had review with Dr Wong on 26/10/2021 with a progress CT scan lumbar spine. Dr Wong considered that a small amount of bone graft may have migrated from the cage at L5/S1 and was in contact with the left S1 nerve root. He was re-admitted to Chris O’Brien Life House on 20/04/2022 and underwent a revision of L4 to S1 laminectomy and posterior lumbar interbody fusion from L5 to S1.
He was taking Palexia and Palexia SR post-operatively and thought he was improving, but as he became more active there was increased pain in the lower back and severe radiating pain down the right lower extremity to the calf, and he would start to limp after walking more than about five minutes. There was persistent intense numbness in the left foot.
He recommenced Neurontin at night about 10 days ago 300mg, and was also having Endep, Celebrex and Panadol with no improvement thus far.
He was re-assessed by Dr Wong on 27/10/2022 who suggested he now required fusion of the level above the previously fused segment, that is at L4/5.
He has been attending a Pain Clinic at RPAH including input from a psychologist, physiotherapy and hydrotherapy. He is dreading having a third surgery.
He has been referred for cortisone injection to the lumbar spine from the pain clinic but this has not proceeded yet.
Dr Lim, his GP at Earlwood, referred him to a different back specialist for a further opinion, but he can’t recall the specialist’s name.
The claimant would rather not return to Dr Wong for a third operation because of the previous failed back surgery.
Details of any injuries or conditions sustained since the motor accident
Nil.
Current symptoms
His neck is no longer a problem and the left arm pain has resolved.
The claimant has constant pain in the lower back which is 5/10 at its best and 10/10 at its worst. The severe flare-ups occur almost daily, especially in the afternoon after sitting, standing and walking.
He has right leg pain which is 5-6/10 at its best and can flare-up to 10/10, and less intense pain in the left leg at 6/10. There is numbness constantly in the left foot and distal left leg.
He is sick of being in pain, as it has an adverse effect on his family and he is very afraid of having further surgery with Dr Wong.
He had had epigastric pain prior to the subject accident from intermittent ingestion of anti-inflammatory medication and was taking Nexium and Gaviscon for symptomatic relief. He thinks he had gastroscopy and colonoscopy some years ago. He did not think there was any physical abnormality.
He had a subsequent gastroscopy and colonoscopy on 06/07/2019 by Dr Kwok, surgeon, but there was no abnormality found.
He has constant numbness in the left foot.
He is sleeping better with the medication but the pain still wakes him. He can walk for about 10-15 minutes then gets increased aching in the back, and a sharp pain down the right leg to the calf. He has to lie down and relax and a relative will do gentle traction on his legs.
He can drive for half an hour at a time.
His ability to do home chores is reduced and they have a cleaner now. He has someone in to do the yard work. He can’t do tasks involving bending and stooping.
Current and proposed treatment
He has Gaviscon and Nexium 40mg because of ongoing reflux symptoms.
He is having Neurontin, Endep, Celebrex and Panadol, and takes supplements including chondroitin sulphate, Curcumin and flaxseed oil.
He attends the Pain Clinic on average about once a week for hydrotherapy and has appointments with the psychologist and physiotherapist.
He had had calf deep vein thrombosis after both lumbar surgeries and was on Eliquis, an anti-coagulant, but no longer takes this.
He has altered his diet since developing high cholesterol. He is a non-smoker and does not drink alcohol.
EXAMINATION
General presentation
He is right hand dominant and was of proportionate build with height 181cm and weight 90.1kg.
There were multiple large circular bruises over the lower back from recent cupping from an acupuncturist. There was a 9cm mid-line vertical well-healed surgical scar in the lumbar spine. There were visible staple marks and there was some paleness in the scar and atrophic changes.
Cervical spine (cervicothoracic)
There was no guarding and no local tenderness. There were no non-verifiable radicular complaints.
Flexion and extension were two-thirds of normal, lateral flexion was two-thirds of normal bilaterally, and rotation was three-quarters of normal bilaterally. There was no dysmetria.
All reflexes were symmetrical but of low amplitude. Power and sensation in the upper limbs were normal.
Upper arm girth; right 30.5cm, left 31cm. Forearm girth; right 29cm, left 30cm.
The clinical findings put the cervical spine as DRE Category I.
Lumbar spine (lumbosacral)
Flexion was two-thirds of normal, extension one-half, lateral flexion to the right one-half and to the left one-third with complaint of low back pain.
Thoracic rotation was two-thirds of normal bilaterally, limited by complaints of low back pain. There was no evidence of thoracic radiculopathy.
The reflexes were symmetrical and all of low amplitude, even with reinforcement. The plantar responses were both flexor. Power was intact. There was decreased light touch to the lateral aspect of the left foot.
He could squat fully. He could walk on the toes without difficulty. Heel walking was OK on the right but he complained of discomfort on the left leg.
Supine straight leg raising 70° bilaterally with negative stretch test on the right and positive stretch test on the left.
Thigh girth; right 46cm, left 45cm at 10cm above the superior patellar pole.
Calf girth; right equals left equals 39cm at 16cm below the inferior patellar pole (maximal circumference).
There was no asymmetry of reflexes. There was no loss of power in a nerve root distribution. There was patchy loss of sensation in the lateral left foot but this did not extend proximally to follow a specific nerve root distribution. There was no atrophy. There was a positive straight leg raising test on the left side.
There are not two or more criteria to justify a diagnosis of lumbar radiculopathy.
The findings are in keeping with DRE Lumbar Category II.
Because the claimant has undergone lumbar fusion, he automatically falls into a DRE Lumbosacral Category IV, however the necessity for fusion was not as a result of the subject motor vehicle accident, but rather as a result of a pre-existing intermittently symptomatic condition of lumbar spondylolisthesis which post-accident MRI scan showed had not worsened since the pre-accident scans.
Comments on consistency
The claimant presented in a straightforward consistent manner.
IMAGING
No imaging was brought to the assessment.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is soft tissue injury to lumbar spine with development of L5 radicular symptoms affecting both legs. There was also direct visual evidence of aggravation of a pre-existing grade 1 L5/S1 spondylolisthesis, converting it to Grade 2, recorded in Dr Wong’s operation report of 27/09/2021. Pre-accident and post-accident MRI scans had referred to a grade 1 spondylolisthesis at L5/S1.
The accident was a cause of the lumbar spine condition, as although it was not mentioned in the initial hospital records or the first GP visit, there was reference to lumbar spine by the physiotherapist and the second GP visit in the early contemporaneous medical records.
There was also a cervical spine soft tissue injury which has since resolved. This was caused by the accident, as it is referred to in the hospital records from the date of the accident.
There was also a referred injury of gastroesophageal reflux disease. This is a pre-existing condition and symptoms were associated with a long history of ingestion of anti-inflammatory medication. There was no indication that this condition was aggravated in the subject accident, however it was symptomatic whenever there was need to take anti-inflammatory medication. A post-accident gastroscopy and colonoscopy showed no evidence of organic reflux disease. The diagnosis is a clinical one.
There was a closed fracture of the left metacarpal of the thumb, however this injury resolved.
There was no clinical evidence or file reference to a diagnosed left carpal tunnel syndrome or ulnar neuropathy, but rather these were presumably referred non-verifiable radiculopathy complaints from the cervical spine condition, which have since resolved.
Based on the evidence available, the accident was a cause of the cervical spine, lumbar spine and left 1st metacarpal conditions, but was not a cause of the oesophageal reflux symptoms which was a pre-existing condition.
PERMANENT IMPAIRMENT
The cervical spine condition and left thumb fracture conditions have resolved, giving no assessable permanent impairment.
The lumbar spine condition is assessed at DRE Lumbosacral Category IV giving 20% whole person impairment on the basis of the L5/S1 spinal fusion performed to treat the aggravated grade 2 L5/S1 spondylolisthesis. This aggravation only came to light at the time of surgery, noting that all previously performed imaging had reported grade 1 spondylolisthesis. L5 radiculopathy which was also caused by the accident was treated surgically on two occasions, and the L5/S1 fusion was revised, unfortunately without success.
There is no evidence at present of a diagnosable radiculopathy.
There was evidence of a two year pre-accident history of low back pain radiating to the left leg in an L5 distribution accompanied by pins and needles, with two signs of lumbar radiculopathy (reflex asymmetry and positive nerve stretch test) reported by Dr Moses on 3/03/2016, however, the claimant stated that he then had become symptom-free for several months before the index motor vehicle accident after a course of ten physiotherapy sessions. There is no documented evidence to the contrary of which the Panel is aware, hence there is no indication to make a deduction from the assessed permanent impairment pursuant to MAG 6.31 – 6.32.
There is surgical scarring present which shows some atrophic changes, some colour contrast with surrounding skin, visible suture or staple marks, but otherwise the scar is well healed. The claimant is conscious of the scar and able to locate the scar by looking in a mirror. The anatomical location of the scar would not be usually visible with usual clothing. There is no contour defect, no effect on ADLs, no requirement for treatment and no adherence. The best fit under the TEMSKI table is 1% WPI.
The combined accident-related permanent is 20% combined with 1% giving 21% whole person impairment.”
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the basis of their assessment, which does not differ significantly to the assessment of Medical Assessor Truskett, at the time of their assessment.
[5] Section 63(3A) of the Act.
[6] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel accepts that the claimant suffered an accident-related aggravation of pre-existing degenerative disease in his lumbar spine, which ultimately led to lumbar spinal surgery, as a matter of medical determination, and as a matter of non-medical factual determination.
The spinal surgery left the claimant with assessable whole person impairment for surgical scarring.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the Certificate issued by Medical Assessor Truskett on 1 February 2024 should be revoked. The new Certificate appears at the commencement of these reasons.
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