Insurance Australia Limited t/as NRMA Insurance v McTackett
[2023] NSWPICMP 341
•20 July 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Insurance Australia Limited t/as NRMA Insurance v McTackett [2023] NSWPICMP 341 |
| CLAIMANT: | Denis McTackett |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| REVIEW Panel | |
| SENIOR MEMBER: | Brett Williams |
| MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 20 July 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of medical assessment concerning permanent impairment and surgery accordance with section 63; claimant suffered neck injury in September 2004 motor accident; two attendances on GP then certified fit for work four days after accident; no further attendances on GP until after work incident in May 2005; radiology after 2005 incident revealed C4/5 and C5/6 disc pathology; off work for two months; subsequent symptoms; C4/5 and C5/6 cervical disc replacement surgery performed in April 2021; Medical Assessor (MA) found WPI greater than 10% and treatment both reasonable and necessary and related to injury caused by the accident; State Government Insurance Commission v Oakley, Slade v Insurance Australia Ltd t/as NRMA, Owen v Motor Accidents Authority of NSW, and AAI Limited t/as AAMI v Phillips applied; Held – motor accident resulted in musculoligamentous neck strain with no disc involvement and without radicular complaint; it was more probable than not that the disc pathology at C4/5 and C5/6 levels was caused by the work incident on 27 May 2005; the third Oakley category applies; subsequent injury gave rise to 25% permanent impairment; accident caused impairment was 5%; MA certificates relating to permanent impairment and surgery being related to injury caused by the motor accident revoked; new certificates issued determining that permanent impairment as a result of the injury to the cervical spine caused by the motor accident is not greater than 10% and surgery does not relate to the injury caused by the motor accident; certificate with respect to whether the surgery was reasonable and necessary in the circumstances confirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate of Medical Assessor Moloney dated 17 December 2022 with respect to permanent impairment. 2. Certifies that the degree of permanent impairment of the claimant as a result of the injury to his cervical spine caused by the motor accident is not greater than 10%. 3. Revokes the certificate of Medical Assessor Moloney dated 17 December 2022 with respect to whether the C4/5 and C5/6 cervical discectomy and disc replacement relates to the injury caused by the motor accident. 4. Certifies that the C4/5 and C5/6 cervical discectomy and disc replacement does not relate to the injury caused by the motor accident. 5. Confirms the certificate of Medical Assessor Moloney dated 17 December 2022 with respect to whether the C4/5 and C5/6 cervical discectomy and disc replacement was reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
BACKGROUND
Denis McTackett (claimant) was injured in a motor vehicle accident at Kingscliff on
2 September 2004 (accident). On 10 June 2005 he made a claim for damages under the Motor Accidents Compensation Act 1999 (MAC Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). Disputes arose between the claimant and the insurer with respect to the claimant’s neck (cervical spine) injury. Those disputes, adopting the language in s 58 of the MAC Act, are about the following matters:
(a) whether the C4/5 and C5/6 cervical discectomy and disc replacement (surgery) was reasonable and necessary in the circumstances;[1]
(b) whether the surgery relates to the injury caused by the motor accident,[2] and
(c) whether the degree of permanent impairment of the claimant as a result of the cervical spine injury caused by the accident is greater than 10%.[3]
[1] Section 58(1)(a) MAC Act.
[2] Section 58(1)(b) MAC Act.
[3] Section 58(1)(d) MAC Act.
Each of the disputes are medical assessment matters within the meaning of s 58. Medical Assessor Moloney determined the three medical assessment matters in the claimant’s favour and gave certificates to that effect on 17 December 2022 (Assessment).
The Assessment was referred to the review panel (Panel) following a determination by the President’s delegate on 28 February 2023 that there was reasonable cause to suspect that the Assessment was incorrect in a material respect. The Panel has been constituted by the President of the Personal Injury Commission (Commission) to conduct the review of the Assessment (Review).
THE REVIEW
The Panel is to conduct the review in accordance with s 63 of the MAC Act. Section 63(3) provides that the Panel is to consist of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
The review of the Assessment is not limited to a review of only that aspect of the Assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the Assessment is concerned: s 63(3A) MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). The Panel determines how it conducts and determines the proceedings: Rule 128.
Version 5 of the Medical Assessment Guidelines (Assessment Guidelines), effective from
12 February 2021, apply to this review as does version 1 of the Motor Accident Permanent Impairment Guidelines effective from 1 June 2018 (Impairment Guidelines).
PANEL DIRECTIONS AND RELATED MATTERS
On 9 March 2023 the Panel made directions for the lodgement of a joint agreed bundle that contained all material relied on by the parties for the purposes of the Review, together with submissions relied on for the purposes of the Review.
The proceedings were listed for a preliminary conference on 8 May 2023 to clarify the directions made by the Panel on 9 March 2023. Directions were made at the preliminary conference for the lodgement of a revised joint bundle that only contained material that was relevant to the assessment being undertaken by the Panel. The parties were informed that the Panel only required one set of submissions from each party. Accordingly, to the extent that there were matters referred to in previous submissions that were relied on by either or both parties, those submissions were to be incorporated into the submissions lodged in accordance with the directions made at the conference. Previous submissions were not to be included in the revised joint bundle.[4]
[4] See Preliminary Conference Report dated 8 May 2023.
On 12 May 2023 the Panel issued a further report addressing matters that arose with respect to the Panel’s directions of 9 March 2023 and 8 May 2023.[5]
[5] Review Panel Report 12 May 2023.
On 30 May 2023 the Panel issued a further report to the parties. Among other matters, the report confirmed that a further revised joint bundle had been provided[6] (joint bundle). The Panel confirmed that the joint bundle contained the submissions relied on by the insurer for the purposes of the Review and that, other than documents attached to applications to admit late documents (AALD) lodged by each party, the further revised joint bundle contained all material relied on by the parties in the Review.
[6] AD10. A revised joint bundle was also provided (AD9), but was superseded by AD10. That occurred because the certificate and reasons of Assessor Ryan dated 22 August 2017 was not produced in full in the earlier bundle (AD9).
The Panel also dealt with the AALD lodged by the insurer dated 12 May 2023 (insurer’s application) and the claimant dated 25 May 2023 (claimant’s application). The insurer was given leave to rely on some, but not all, of the material attached to its application. Reasons for that decision were provided. The claimant’s application contained a claim form dated 6 June 2005. The Panel determined that the claim form was relevant to the issues in dispute and granted the claimant leave to rely on that document.
The Panel noted that the accident occurred over 18 years ago and that the claimant has undergone the surgery that is the subject of the treatment disputes. The parties were advised that, in these circumstances, the Panel considered the re-examination could be conducted, and the claimant questioned, by audio-visual link, and that this would take place on 16 June 2023.
Having asked the parties to lodge one set of submissions, the claimant lodged further submissions dated 25 May 2023. In those submissions the claimant at [B] referred to submissions before Medical Assessor Moloney, and relied on those submissions. In correspondence to the Panel dated 31 May 2023, the claimant’s solicitors referred to the Panel’s report of 30 May 2023, and stated that the claimant relied on submissions dated 3 March 2022, 30 March 2023, 19 April 2023, 25 May 2023. The claimant also lodged further submissions dated 1 June 2023.
Noting its earlier request in relation to submissions, on 7 June 2023 a message was sent to the parties on behalf of the Panel. The Panel sought from the claimant confirmation that, despite what is stated at paragraph [B] of the submissions dated 1 June 2023, all submissions he relies on in the Review are contained in the submissions dated 1 June 2023.
On 7 June 2023 a message to the Commission from the claimant’s solicitors stated that the “claimant is content to rely on the submissions provided to the review panel” dated 1 June 2023. The message also records that “[i]f the panel is not minded to consider any other submissions, then the claimant relies solely on those submissions provided to the panel 1.6.23”.
By requesting one set of submissions from each party, the Panel sought to avoid the situation that has now come about, whereby a party seeks to rely on multiple sets of submissions in the Review. Ultimately, the Panel considered all the claimant’s submissions.
STATUTORY PROVISIONS
No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 131 MAC Act. Section 132 of the MAC Act deals with the assessment of impairment. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a Medical Assessor under Part 3.4 of the MAC Act. The method of assessing the degree of impairment is dealt with in s 133.
Permanent impairment is to be assessed in accordance with the Impairment Guidelines. Clause 1.3 of the Impairment Guidelines provide that they apply to the assessment of the degree of permanent impairment that has resulted from an injury between 5 October 1999 and 30 November 2017. 21. Clauses 1.5 – 1.7 of the Impairment Guidelines relate to causation of injury, an issue that will be addressed later in these reasons.
Clause 1.34 of the Impairment Guidelines deals with subsequent injuries, and is in the following terms:
“Subsequent injuries
1.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
In relation to the situation covered by cl 1.34 of the Impairment Guidelines, there are common law principles that address the problem of subsequent injuries and impairment and how the values required to be calculated under that clause might be used to determine the degree of permanent impairment “as a result of the injury caused by the motor accident” where there are subsequent injuries or impairment: Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031 (Slade) at [84]. These principles were set out in the judgment of Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003; 10 MVR 570 (Oakley). In Slade, Wright J explained the Oakley principles, with reference to cl 1.34 of the Guidelines, as follows at [90]:
“[90] The injuries and damage or impairment covered by the Oakley principles are, like the impairment to be assessed under par 1.34, injuries and damage or impairment that result from a subsequent event. The first Oakley category concerns events or accidents that would not have occurred but for a previous relevant event in which the claimant had been injured. Thus, the first category applies to a “related” injury or condition. The second and third Oakley categories, however, concern injuries resulting from a subsequent event that “would have occurred had the plaintiff been in normal health”, which is, in other words, an “unrelated event” that leads to “subsequent and unrelated injury” within the meaning of par 1.34. The subsequent event and the associated injury or condition is “unrelated” because that event was not brought about by, or causally related to, the claimant’s condition as a result of the earlier accident.”
Wright J went on to say at [104] – [105]:
“[104] The principles in Oakley establish, relevantly for present purposes, in effect that:
(1) Where the further injury or impairment results from a subsequent incident, which would not have occurred had the claimant not been in the condition caused by the earlier motor accident, the added damage should be treated as caused by the earlier motor accident. In this situation, par 1.34 is not engaged because the “injury or condition” is not “unrelated”.
(2) Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but impairment is sustained or is greater because of aggravation of the earlier injury, the additional impairment resulting from the aggravated injury should be treated as caused by the earlier motor accident.
(3) Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but the impairment sustained includes no element of aggravation of the earlier injury, the subsequent incident and further impairment should be regarded as causally independent of the earlier motor accident.
[105] In the latter two situations, par 1.34 is engaged because the “subsequent … injury or condition” is “unrelated” to the first motor accident, as that expression is to be understood in that paragraph. The Oakley principles provide a structure of analysis which is of assistance when applying the approach referred to in pars 1.5 – 1.7 and 1.34 of the 2018 Guidelines and s 5D(1)(b) of the CL Act.”
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed.[7] There are five diagnostic related categories and a number of indicia provided for each category.[8]
[7] Clause 1.111 of the Guidelines.
[8] Table 7 of the Guidelines.
Chapter 11 of the Medical Assessment Guidelines set out the assessment procedure including, at [11.1]-[11.5], the assessor’s role.
If any impairment to the shoulders results from an injury to the neck, then, in accordance with Nguyen v Motor Accidents Authority of New South Wales and Anor[9] that impairment must be assessed, and its value included in the determination of the claimant’s total whole person impairment.
[9] [2011] NSWSC 351.
Section 83 of the MAC Act imposes a duty on the insurer to make payments to or on behalf of the claimant in respect of, relevantly, hospital and medical expenses. The duty only applies to the extent to which those payments are reasonable and necessary in the circumstances, are properly verified, and relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates: s 83(2) MAC Act.
CAUSATION
It is convenient at this point to address the approach to be taken to causation of injury. The Impairment Guidelines apply to the Review. Causation of injury is addressed at cl 1.5 as follows:
“Causation of injury
1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor[10]) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
[10] Or Member of the Commission.
In Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 (Owen), Campbell J held at [27] that:
“[27] Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessors constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling[11] at p. 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D.(See s.3B(2)).”
[11] Ackling v. QBE Insurance (Australia) Limited (2009) 75NSWLR 482.
Campbell J held at [50] that,
“…in general terms (subject to 5D Civil Liability Act 2002[12]) it is sufficient if the injury ... was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
[12] (CLA).
In AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 (Phillips), Davies J held at [29] that, for a motor accident to have been causative of the need for surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, in Phillips it was held that 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.
ASSESSMENT UNDER REVIEW
As previously recorded, Medical Assessor Moloney gave certificates and reasons dated 17 December 2022. The certificates certify that:
(a) an injury to the claimant’s C4/5 and C5/6 discs was caused by the accident and gave rise to a permanent impairment that is greater than 10%;
(b) the C4/5 and C5/6 cervical discectomy and disc replacement surgery relates to the injury caused by the accident, and
(c) the C4/5 and C5/6 cervical discectomy and disc replacement surgery was reasonable and necessary in the circumstances.
Medical Assessor Moloney recorded a history that when the accident occurred the claimant was driving a HiLux Van. He was stationary and hit from the rear. The claimant was wearing a seatbelt. The airbags were not deployed. He drove home after the accident but experienced a headache and felt nauseated. The claimant consulted his general practitioner (GP) the same day and was diagnosed with a whiplash injury to his neck. The claimant was referred for acupuncture and massage and prescribed analgesics. The Medical Assessor recorded that the claimant had persistent soreness in his neck associated with headache, and that “[a]bout a month after the accident, he was lifting a nail bag with his left hand at work when he experienced a sudden pain in the left side of his neck radiating into his shoulder and left arm”, and that he was “on and off work for a few weeks after this incident”. As will be seen, the history with respect to the incident involving the nail bag is not accurate.
The Medical Assessor recorded that the claimant developed numbness and tingling in the left arm, and his hand became “bluish”. Dr Salaria subsequently undertook a disc replacement at C4/5 and C5/6 level. Since the surgery, the claimant reported that his neck pain had improved, with less numbness in the left arm and hand. He stated that he had near-normal use of the left arm. Although he was no longer able to do heavy manual work such as involving carpentry, the claimant was working full-time as an on-site manager.
The Medical Assessor determined that the accident “had a more than negligible effect on any degenerative changes in the cervical spine which necessitated the surgery”. In his opinion, but for the accident, it is most likely that the claimant would not have had the need for cervical surgery. The Medical Assessor appears to have come to his opinion in relation to causation on the basis that the claimant’s GP recorded immediate neck pain following the accident, together with the claimant’s history of persistent neck pain since that time.
As to whether the surgery was reasonable and necessary in the circumstances, Medical Assessor Moloney noted that the claimant’s treating neurosurgeon, Dr Salaria, documented signs of radiculopathy associated with relevant muscle weakness at the C5 and C6 levels, and that post operatively he observed that there was an improvement in neck pain and headaches with a gradual decrease in symptomatology in the left arm post operatively. This, in the Medical Assessor’s opinion, indicates that the operation was undertaken at the correct level with significant reduction in symptoms and signs after the surgery. He determined that, as the symptoms and signs of radiculopathy in the left arm recorded by the treating doctors after the accident have virtually subsided following surgery, the surgical procedure was reasonable and necessary. This was, in his opinion, further substantiated by the loss of radicular symptoms in the left arm and his return to full-time work post-surgically.
The Panel has come to a different view to that formed by Medical Assessor Moloney in relation to the nature of the injury the claimant sustained in the accident. This has flow on effects with respect to both permanent impairment and whether the surgery relates to the injury caused by the accident.
EVIDENCE
The joint bundle comprises in the order of 730 pages of material. The Panel does not propose to summarise all that material. It has been reviewed and considered, as has the additional material contained in the AALD lodged by each of the parties (to the extent that leave was given to the parties to rely on that material).
The claim form contained in the claimant’s AALD is addressed later in these reasons. The insurer’s AALD contains records from AAI Limited (Suncorp), and relate to a motor vehicle accident on 29 September 2013. Loss details include the following incident description, that the Panel infers was provided by the claimant:
“I was stopped at the lights and someone has run straight into the back of me and this has pushed me forward and I have hit the concrete. Impact points IOV rear bumper, reverse censors, lights and front bumper.”
The material from AAI Limited records that when the accident occurred the claimant was driving an Alfa Romeo Giulietta. The other vehicle involved was a Toyota Corolla. An assessment summary records that the impact damage was to the “Rear Bar”. A repair quote refers to various repairs, including to the front and rear bumper of the claimant’s vehicle.
The Panel notes the certificate of determination from the Workers Compensation Commission. Neither party has argued that the determination in any way binds the Panel.
The Panel has also considered the claim form dated 10 June 2005, that relates to the motor accident. That document provides a description of the accident and lists injuries that included the neck. At [33] of the claim form, the claimant has ticked the “No” box in response to the question “Have you had any other injuries or illness – before or since the accident – to the same part(s) of your body?”. The medical certificate attached to the claim form has also been considered.
Clinical records
The joint bundle contains clinical records from treating practitioners, including Dr Salaria, Dr Day, Dr Pauley, Wollongong Medical Centre, Main Street Medical Centre, Eagleby Family Practice, Belmore Road Family Practice, Mt Health Edens Landing, 13Sick, Hunter Primary care, Dapto Medical Centre, Aberglassyn Medical Centre, Marketplace Medical Centre, and Nullum Physiotherapy.
The records from Main Street Medical Centre include the clinical notes of Drs Woodhead, Honey, Morrison, Gambin, McMahon and Zhao. Those records confirm that the claimant attended on the day of the accident, 2 September 2004. The following was recorded in the clinical notes with respect to that attendance:
“MVA
hit from behind while stationary
?other driver doing 80km/h
No HI, no LOC
felt OK until 2-3 hours later and severe spasm across upper back and neck
Examination
Not wanting to move neck
No bony tenderness – more in muscles…”
The notes record that the claimant was referred for an X-ray of his cervical spine. The notes refer to “rest and analgesia”. The reason for the attendance was described as “[w]hiplash”.
The clinical notes from the practice record that the claimant next attended on 6 September 2004. The notes for that attendance record as follows:
“neck much improved
some slight stiffness
work clearance given”
The notes record that the claimant’s next attendance at the practice was on 27 May 2005. Neither party has suggested that the claimant attended the practice on occasions that have not been record. Nor is it suggested that the claimant attended another practice between 6 September 2004 and 27 May 2005. Accordingly, the Panel finds that the claimant did not attend the practice after 6 September 2004 until 27 May 2005.
The clinical notes related for the 27 May 2005 attendance refer to an “MVA 6 months ago”. Reference is also made to “some headaches”. The notes record:
“In pain
L paravertebral sore
Not central…”
The notes make no reference to an incident at work. Tramadol, Naprosyn, and Paracetamol was prescribed. The claimant then attended the practice the following day. It is recorded in the clinical notes that “p/c vomiting ? from tramadol”. The claimant then attended the practice on 30 May 2005. It is recorded that he was “[m]uch improved”. The entry in the clinical notes records that a “WorkCover” letter was created. A referral to Lachlan Hamill, physiotherapist, was prepared and the claimant was referred for a CT scan.
The notes record that the claimant next attended the practice on 3 June 2005. The notes make reference to “work cover” and a “further week” and record “still stiff neck on rotation”. Physiotherapy was to continue.
The claimant attended on 10 June 2005. At that time it was recorded that his neck was still stiff and sore. He then attended on 17 June 2005. The notes for that attendance record that his mobility was improving. He attended the practice on 21 June 2005, at which time it was recorded that he had “gone backwards”. An MRI of his cervical spine was requested.
On 30 June 2005, his next attendance, reference is made in the clinical notes to the MRI scan findings of a left sided disc bulge. The notes for this attendance also record “W/c. till July”. There was then an attendance on 18 July 2005, when it was recorded that the claimant’s neck pain fluctuates.
The next attendance is on 1 August 2005. The clinical notes for this attendance record the following history:
“original injury – whiplash injury 11 months ago
still geting [sic] some pain in neck and tingling down left arm
aggravated injury lifting nail bucket at work - was onlylight [sic] 2,5kgs - lifted and it - carried ot [sic] to truck and pain onset whil [sic] swinging it on to backof [sic] truck fetl pani [sic] and locked up immediately. Then neck got stiffer
over time
Slow improvement until 4 weeks ago - no furhter [sic] improvement since.
Has been having physiotherapy stretches etc
O/e tender C2, C3, 4.5
tender left C2/3 to 4/5 joints and right C3/4 joint
tender also upper thoracic spines
rotation left 30 right 60, Ext 15 flexion 25
lateral flexion to 15trigger point trapezius on left and left LS muscle”
On 5 August 2005 the claimant attended with complaints of neck pain. On 20 October 2005 it was recorded that:
“still neck stiff, left arm and hand a bit weak, sometimes tingling on middle and ring fingers, wants to be
documented.
o/e neck movement slightly reduced, left arm and hand power5/5-, sensation is intact.range of movement is normal.”References are made to neck symptoms in the notes related to attendances on
26 October 2005, 3 November 2005, 31 January 2006 (that also refers to “forms for workcover”).
The Panel has been provided with the clinical notes from Nullum Physiotherapy, that include the notes of Mr Hammil. The notes record that the claimant had been referred by Dr Honey. The referral dated 30 May 2005 records that the claimant’s “current problem is neck pain and spasm. Had MVA 8 months ago. Some pain since but now much worse”. The clinical notes refer to a “D.O.A” of 31 May 2005. The date of the claimant’s first treatment was 31 May 2005.[13] It is recorded that the claimant had provided a history of “Neck pain for a while” and note “likely since MVA 2/9/04”. A diagram indicates symptoms between the shoulder blade and in the left upper arm and hand. There are attendances in June 2005 (8), July 2005 (2), November 2005(1), and February 2006 (1).
[13] Tax Invoice dated 21 June 2005 from Nullum Physiotherapy records that an initial consultation occurred on 31 May 2005.
The clinical notes from Wollongong Medical Centre include the clinical records of Drs Giri, Franco, Das, together with other doctors at that practice. The first entry appears to be on 16 July 2008. There is a history of a neck injury in an “MVA” in 2004 in the notes recorded on 1 April 2009. Radiology (CT scan) was ordered. There is no reference to neck symptoms in the entries related to attendances on 9 August 2012, 24 October 2012,
11 December 2012, 16 April 2013, 27 April 2013, and 26 August 2013. The claimant then did not attend the practice until 14 January 2014, at which time he complained of neck pain radiating to his left upper limb (and lower back pain radiating to his left buttock).
The claimant was referred to Dr Al-Khawaja on 19 January 2014. Ongoing neck and back pain is recorded. The notes made on 19 January 2014 record that the “symptoms are now worsening”. Reference is made to an “MVA 10 yrs ago”. There are complaints of neck symptoms recorded in February 2014. An MRI scan of the cervical spine was performed on 8 April 2014, and there was a referral to Dr Day in June 2014. There was a further referral to Dr Day in October 2017.
Dr Pauley recorded complaints of ongoing symptoms from cervical radiculopathy affecting the left hand, that worsens after increased workload, and that any manual tasks involving lifting makes it worse. An X-ray and MRI scan of the cervical spine was performed on 3 October 2018. Dr Pauley referred the claimant to Dr Salaria and Dr Kuru on 28 February 2019. On 15 July 2019 Dr Pauley referred the claimant to Drs Spittaler and Tame, with a history of left cervical radiculopathy with very predictable and reproducible pain after performing the routine tasks of his work as a carpenter. There was a further MRI scan in June 2020. On 15 March 2021 Dr Pauley recorded that the claimant’s pain had been worsening over the “last few months”. In his clinical notes relating to an attendance on 15 April 2021, Dr Pauley recorded a history of the claimant:
“…shovelling concrete as an urgent thing
needing certificate for some time off to let things settle
…
exacerbations related to activities performed”
Notes from John Hunter Clinic on 10 April 2019 record that the claimant had suffered a “left shoulder neck injury” that day after overextending whilst retrieving tool out of truck. A history of disc herniation was noted. The notes state “Pain ++ on movement, dec strength and sensation L arm, restricted movement neck”.
Claimant’s statement
The joint bundle includes statements from the claimant dated 13 January 2021 and 30 March 2022.
In his 13 January 2021 statement, the claimant states that he had been stationary at road works for about two minutes when a Mitsubishi Mirage collided with the rear of his Toyota Hi-Lux. He states that he had “absolutely no warning of the collision”. He thought that the other vehicle had “hit his car very hard because the collision forced [his] car forward at least two car lengths”. He states that the collision was “very violent” and that his head was thrown backwards and then forwards. He states that he was “stunned” by the force of the impact. He observed that the front of the other vehicle was very badly damaged. He continued to TAFE following the accident. He states that about two hours after the accident he noticed that his neck was becoming stiff and sore. He started to feel intense pain and physically sick as a result. He then went to see Dr Honey, who referred him for X-rays. He states that Dr Honey told him “there was nothing that showed up on the x-ray and that [he] probably had done some soft tissue damage and that [he] should have a few days off work and take analgesics”.
The claimant states that he took the analgesics and rested for three days before returning to work. He states that he felt better, “although [his] neck discomfort had not completely resolved”. He states that he continued to experience intermittent neck pain for some months after the accident “about once a week” with headaches associated with those bouts of neck pain. He took analgesics and on occasions his wife massaged his neck to relieve the discomfort. The claimant states that he continued working up until 27 May 2005. There were no incidents involving his neck between the accident and that time.
The claimant states at [26]:
“On the morning of 27 May 2005 I went to go to work and I carried my nail bag out to the truck and threw it into the back. As I did, I felt a sharp pain in my neck. This was at the site where I had previously had pain immediately after the accident and where I continued to have intermittent pain about once a week in the interim period. It as sharper than it had been since shortly after the accident. I did not think too much of it at the time and I went to work, but within a period of an hour or two it got much worse and I could not continue work…”
He states that he went to see Dr Honey, and that he was in severe pain. He was referred for a CT and later for an MRI scan. He underwent physiotherapy and acupuncture. He states that he was, at that time, noticing marked pain in his left arm, pain in his left hip, and a loss of strength in his left hand.
After mid 2005 he experienced constant neck pain that, from time to time, got worse. He also experienced constant headaches. He moved to the Illawarra in 2008, and worked in Wollongong between 2008 and 2014. The statement provides an account of his treatment and progress. He states that from 2008 through until 2014 he continued to suffer ongoing neck pain with restriction of movement and increasing left arm pins and needles and numbness affecting his fingers. In 2015 he noticed symptoms in his right arm.
The statement records various referrals, including his referral to Dr Salaria. He states that he was a candidate for C4/5 disc replacement and C5/6 anterior cervical discectomy and fusion. He was enthusiastic to undergo the surgery.
In his March 2022 statement, the claimant addresses the surveillance. He states that he was only able to work after consuming painkilling medication, and that without the medication he could not do the work. He states that the fencing he is seen lifting would have weighed no more than 25kg. He states that lifting of that nature was not a common occurrence in his job, and that he could go for weeks without doing any manual labour. He states that his work is mainly supervisory in nature. He said he could stop physical work if he was under extreme pain, and that he paces himself.
Reports from treating doctors
Dr Walker reported to Dr Morrison on 25 July 2005. He recorded a history of a neck injury as a result of the accident. He stated that the claimant “did make a recovery over a few weeks with simple analgesics and rest. The doctor recorded that the claimant went back to work “and was doing reasonably well” until a subsequent incident at work when the claimant threw a nail bag into a truck. This resulted in sudden pain and stiffness in his neck, which had been ongoing. It is recorded that the claimant had been off work since that time. The claimant described occasional pins and needles, and weakness in his left arm. His symptoms varied according to the activity he had been undertaking. He described pain in the left side of his neck and around that area.
In Dr Walker’s opinion, the MRI of the claimant’s cervical spine showed mild degenerative changes at C4/5 and C5/6 particularly and very mild posterior bulges. He stated that he “did not think these are significant particularly and probably just reflect normal degenerative processes”. The doctor did not believe that they reflect a particular injury or that they were “specifically the cause of his ongoing neck pain”. In the doctor’s opinion, the claimant’s symptoms were “largely” soft tissue in nature. The claimant was told that his long term prospects were good, and that a gradual return to work should be considered.
Dr Gambin, GP, reported to the insurer on 15 February 2006. The report records that the claimant was seen at the practice by Dr Woodhead on 2 September 2004 with a history of having been involved in a motor accident. The report records that “initially [he] did not feel too bad by two to three hours later felt severe spasms across his neck and upper back”. It is recorded that the claimant was reviewed by Dr Woodhead on 6 September 2004 at which time the neck had settled and the claimant was given a clearance for work. The report records that the claimant was next seen at the practice on 27 May 2005 by Dr Honey with a history of headaches, severe pain and reduced movement on the left side of his neck. It is stated that “[t]here was no history of new injury and precipitating activity (if there was one)…”. The Panel notes that the material available to it (including the claimant’s statement) establishes that there was a new injury and precipitating activity; the claimant injured his neck at work on 27 May 2005 throwing a nail bag. That history is not recorded in the clinical notes for the consultation on 27 May 2005.
Dr Gambin recorded that he saw the claimant for the first time on 3 June 2005. At that time the claimant complained of a severe stiff neck. While there was improvement following physiotherapy, he deteriorated on 21 June 2005. An MRI was performed on 27 June 2005 which showed a paracentral disc herniation at C5/6. There was a referral to Dr Walker. Acupuncture and physiotherapy continued. When reviewed on 31 January 2006 the claimant was found to have reduced neck movement especially on rotation to the left.
A referral by Dr Das to Dr Cherukuri, neurosurgeon, dated 4 May 2009, related to neck pain with radiculopathy to the left arm and hand. The referral refers to the accident but not the May 2005 work incident.
On 9 June 2009 Dr Cherukuri reported to Dr Das. A history of neck pain is recorded following a motor accident in 2004. The report records that the claimant was “rear-ended at 100kmph”. It is recorded that following the accident the claimant developed neck pain and nausea, and that “one or two weeks later” he picked up a nail bag at work when he experienced a sudden worsening of his neck pain that radiated to his left arm up to the shoulder. The Panel notes that this history is incorrect; that incident occurred on 27 May 2005, nearly nine months after the motor accident. A repeat MRI was recommended together with EMG and nerve conduction studies and orthopaedic opinion.
Drs McGrath and Gerrard reported on the nerve conduction studies in a report dated
27 June 2011. It was concluded that there was electrophysiological evidence of chronic inactive denervation affecting the left C7-T1 nerve root supplied musculature.
Dr Giri, GP, referred the claimant to Dr Day, neurosurgeon, on 5 June 2014. A history of neck pain, shoulder and left upper limb pain, and lower back pain is recorded. It is recorded that his symptoms were worsening.
Dr Day reported to Dr Giri on 3 September 2014. The report records complaints of neck and arm discomfort affecting both arms, the left more than the right. It is recorded that the claimant has had difficulty since a motor accident in 2004. The report records that the claimant’s vehicle was hit from behind by a vehicle travelling at 110kmph. No mention is made of the May 2005 incident. The claimant “eventually returned to work as a carpenter but was unable to work at full duties so had to assume a supervisory capacity”. In Dr Day’s opinion, “the best option” for the claimant was anterior cervical discectomy and total disc replacement at C4/5 and C5/6. The primary impact of the surgery will be relief of the chronic neck pain and improvement in radiating upper extremity pain.
Dr Salaria, orthopaedic surgeon, reported to Dr Pauley, GP, on 25 July 2019. The report records a history of neck pain following a motor vehicle accident in 2001. The Panel infers that this is an error, and that the reference should be to the accident in 2004. It is recorded that the claimant’s stationary vehicle was hit from behind at 100kmph. No history is recorded about the 27 May 2005 incident at work. The report records that the claimant’s pain is exacerbated after heavy work, with recurrent episodes of headache, neck stiffness and sometimes vomiting. It is recorded that the claimant had learnt to manage the pain well with Panadol and Nurofen. The claimant was advised to continue with non-operative treatment. It is stated that the claimant may benefit from surgery if he does not respond to non-operative treatment.
Dr Salaria reported to the claimant’s solicitors on 20 August 2020. The report records that the claimant had experienced neck pain since the motor accident in 2004. Because his neck and arm pain had become more severe he was unable to continue working and wished to consider the surgical option. In the doctor’s opinion, the accident had exacerbated the disc degeneration and consequent impingement of the C5 and C6 nerve roots. As the claimant had not responded to the non-operative treatment, he required C4/5 and C5/6 anterior cervical discectomy and fusion surgery. In the doctor’s opinion, as the claimant had no neck pain prior to the accident, and had never been pain free since the accident, the accident “would be the main reason for him to have this surgery”. In his opinion, the surgery was cost effective, was acceptable treatment, and would improve the claimant’s neck an arm pain, and arm and wrist muscle strength. The surgery was expected to have a 70-80% success rate in improving his neck and arm pain. It does not appear to the Panel that the doctor was provided with a history of the incident at work on 27 May 2005. Further, it is not clear to the Panel that the doctor had access to the clinical notes from Main Street Medical Centre, in particular the notes from the date of the accident through to 2006. The absence of a complete history undermines the doctor’s opinion in relation to causation.
On 11 May 2021 Dr Salaria reported that, 10 days post C4/5 and C5/6 disc replacements, the claimant’s neck pain, pins and needles had all improved a lot. He was able to rotate his neck without excruciating pain in the left arm.
On 2 December 2021 Dr Salaria reported to the claimant’s solicitor. He confirmed that the surgery had taken place, and that it had been “quite successful”. Neck pain and headaches had improved, as had arm and hand function. The surgery was, in his opinion, reasonable and necessary and directly related to the motor accident on 2 September 2004. The doctor also provided a response to Medical Assessor Ryan’s determination. In Dr Salaria’s opinion, C4/5 and C5/6 level were the main cause of the claimant’s neck pain, headaches and arm pain. The surgery was reasonably necessary and the relief of symptoms since surgery was a good indication of the clinical decision to perform the surgery.
Dr Kuru, spinal surgeon, reported to Dr Pauley on 16 April 2019. The report refers to a motor accident in 2001, and that the claimant had experienced pain in his neck and symptoms radiating down his left arm since. No history of the May 2005 incident at work is recorded. The report records that an MRI demonstrated mild cervical degenerative disc disease. Left sided C5/6 foraminal stenosis was identified, but was inconsistent with the claimant’s clinical presentation. The doctor reported telling the claimant that the chance of the proposed surgery giving him significant relief of his neck pain was in the region of 10%-15%, that the symptoms in his upper limb were anatomically inconsistent with this, and that the doctor was concerned that the surgery wouldn’t help these symptoms.
Medico-legal reports
Dr Hopcroft, general surgeon, reported to the claimant’s solicitors on 10 March 2006. He recorded a history of the accident that occurred on the morning of 2 September 2004. The doctor recorded that the claimant “…was thrown violently backwards, forwards and backwards again on impact and within an hour or two of the accident was noticing some neck stiffness and headache”. He recorded that the claimant was off work for three days and that on returning to work he developed “quite marked headache and some residual stiffness of his neck but he continued to work through those symptoms”. Some three months later, “after a continuous period of neck pain and occasional headache” his neck locked on one occasion. He had time off work and was referred for investigations. In the doctor’s opinion, the claimant had suffered a significant injury to his neck with damage to two intervertebral discs at C4/5 and C5/6. He was at risk of further deterioration. While his prognosis was guarded, the claimant was considered to be fit to undertake his pre-injury work. In a separate report of the same date, the doctor provided an assessment of a 15% permanent impairment of the claimant’s cervical spine.
The Panel observes that Dr Hopcroft did not record a history about the incident at work on 27 May 2005. Further, he records that the claimant was referred to Mr Hamill for physiotherapy after the accident. However, Mr Hamill’s records confirm that the referral was after the 27 May 2005 incident at work. Additionally, the doctor refers to the claimant’s neck locking on one occasion “about three months later” (three months after the accident), and that the claimant was reviewed by his GP at that time. This history is not consistent with the clinical records from the GP’s practice that record that, after attending on 6 September 2004, the claimant did not re-present until 27 May 2005, some nine months later. In light of these matters, the Panel does not consider that Dr Hopcroft’s opinion is predicated on a full and complete history. As a consequence, the Panel has discounted the doctor’s opinion that the accident resulted in damage to the intervertebral discs at C4/5 and C5/6.
Dr Hopcroft reported again on 27 September 2006. He confirmed his opinion that the claimant had suffered a significant injury to his cervical spine as a result of the accident. In his opinion, “[i]t is important to note that the [claimant] had had pain from the time of the accident and had not previously had problems with his cervical spine…”. He confirmed his opinion that cervical impairment was 15%.
Dr Hopcroft next reported on 18 June 2015. He recorded that the claimant had continued to suffer ongoing neck pain with increasing restriction in movement and increasing left arm paraesthesia and numbness. In his opinion, it was more probable than not that the pathology at C4/5 and C5/6 is the cause of his significant and advancing left arm paraesthesia. The claimant was a candidate for discectomy surgery. He had a 5% permanent impairment of the cervical spine.
Dr Watson, orthopaedic surgeon, reported to the insurer on 5 May 2006. He recorded a history of the accident and neck symptoms that followed. It is recorded that the claimant had three days off work, and that he returned to work as a carpenter with no restriction of duties. The claimant experienced headaches and increasing pain in 2005. The Panel notes that no history is recorded of any injury at work in May 2005. The doctor recorded a history that the claimant was off work for three months during 2005, with increasing pain in his neck. In the doctor’s opinion, the history was consistent with the presentation of discogenic pathology. He thought it was “interesting that he initially attended work and it was only during 2005 that he experienced severe pain and underwent investigations…” that identified the discogenic pathology. In his opinion, surgery “is not an option” and there is no indication to consider operative procedure. The claimant should have returned to his “pre-accident state” and duties approximately six weeks after the accident. He had a 5% permanent impairment.
Dr Davies, neurosurgeon, reported to the claimant’s solicitors on 28 March 2012. A history of the accident in September 2004 is recorded. The claimant reported feeling stiff and sore in the neck after the accident. It is recorded that “by about lunch time” he was feeling nauseous and had a headache and pain in his left arm. The claimant experienced ongoing pain in his neck that radiated to the left scapular region and intermittent pins and needles and a weak feeling in the left arm. He returned to work on light duties and gradually increased his duties over time until he returned to his pre-injury duties.
Dr Davies recorded that there was a further incident “sometime later”. The doctor recorded that the claimant was throwing his nail bag into the back of his truck and experienced sudden pain in his left arm and neck, and his arm, neck and lower back “locked up”. He was off work for two or three months and gradually returned to pre-injury duties. The claimant reported that the pain eventually settled down to the same level that it had been prior to the second incident. The doctor recorded that the claimant had been aware of neck, left shoulder, left upper limb, lower back and left lower limb problems ever since the motor accident. It is recorded that the claimant had been involved in two further motor accidents since the September 2004 accident. Both were low speed rear-end collisions. The claimant told the doctor that he “did not get any aggravation of his symptoms following either of those accidents”. In the doctor’s opinion, the claimant’s ongoing complaints relate to the September 2004 accident. He was able to continue to work as a carpenter without restrictions. The doctor was unable to explain the reports of nausea with certain neck movements. He “wonder[ed] whether this may be a form of pain behaviour”. In a separate report of the same date, Dr Davis assessed a 5% permanent impairment as a result of the neck injury.
On 17 November 2020 Dr Walker, consultant neurologist, reported to the insurer’s solicitor. He recorded a history of the motor accident in September 2004, and neck and back pain developing later that day. In the doctor’s opinion the claimant suffered a “whiplash type of injury” as a result of the accident that was “from all accounts” a soft tissue injury. It was not until some eight or nine months later that his symptoms started to get worse and he has experienced constant cervical pain ever since. No history of the May 2005 incident at work is recorded. In the doctor’s opinion, the claimant’s symptoms over the years were due to cervical spondylosis. There was a mismatch between the anatomy of his symptoms, that were suggestive of a radiculopathy, and the major degenerative changes. In the doctor’s opinion, the claimant’s “current level of spondylosis had nothing whatsoever to do with” the accident; it represents a constitutional problem that was progressing with age, and “possibly more related to his occupation than anything else”.
Dr Walker assessed a 5% impairment of the cervical spine. The impairment related to the progression of cervical spondylosis. There was, in his opinion, no relationship between the claimant’s “current complaints” and the accident. It seemed very likely that the claimant will undergo surgery. The surgery is not related to the accident. Due to the mismatch between symptoms and the imagery, the doctor was pessimistic about the likely outcome of the surgery.
Dr Walker reported to the insurer’s solicitors again on 17 March 2022. He noted that, despite the uncertainty of some about the surgery, including himself, the claimant was “extremely happy with the results”. The numbness in his left hand resolved completely as did the pain in his left shoulder. The doctor noted the activities the claimant is seen to undertake in the surveillance footage, both pre and post-accident. The doctor described the surgery as having been “successful”. In his opinion there was 0% permanent impairment of the cervical spine as a result of the accident, and a 25% permanent impairment as a result of the surgery. There was no relationship between the claimant’s recent complaints and the surgery.
On 17 November 2020 Dr Rogers, consultant physician in occupational and environmental medicine, reported to the insurer’s solicitor. She recorded a history that the claimant took about two weeks off work after the accident. The Panel notes that this history is not accurate, the evidence being that it was a few days. The doctor recorded that the claimant continued to perform duties that involved heavy manual work such as framework. This work would often temporarily aggravate his neck symptoms. He avoided some work that involved climbing and frequent neck extension. She noted the history in Dr Davies’ report (28 March 2012) that there was a further incident “a few weeks after” the accident when the claimant experienced sudden pain in his neck and left arm when throwing a nail bag into the back of a truck. The doctor recorded that the claimant attended his GP on 27 May 2005 with a history of headaches, pain and reduced movements in the left side of his neck.
Dr Rogers recorded a history that about two hours after the accident the claimant started feeling nauseous, and attended his GP that afternoon. The doctor observed that “[t]his is a difficult case given the length of time that has elapsed since the [accident].” In her opinion, her examination of the claimant was consistent with cervical spondylosis and non-verifiable radicular complaints. There was swelling and colour changes of the left hand which she believed were more consistent with a rheumatological condition. The doctor stated that “[a]fter extensive consideration of all the evidence [she had] concluded that that the [accident] is a contributing cause to chronic neck pain which is more than negligible”. However, in her opinion, the majority of the claimant’s current symptoms are due to degenerative changes in the cervical spine which are not related to the accident.
It does not appear to the Panel that Dr Rogers had access to the clinical notes from Main Street Medical Centre, in particular the notes from the date of the accident through to 2006. In this regard, the list of documentation provided to the doctor, that is recorded in her report, does not refer to this material. Nor does it appear that she had an accurate history about the May 2005 incident at work; the doctor recorded that it occurred a few weeks after the accident. She also recorded that the claimant was off work for about two weeks after the accident when the correct history is that he was given a work clearance, and returned to work, after four days.
In a supplementary report of the same date, Dr Rogers assessed a 5% impairment of the claimant’s cervical spine.
Dr Rogers reported again on 24 May 2021. In that report the doctor provided her opinion in relation to surveillance of the claimant on 6, 10 and 17 November 2020. As a result of the surveillance she changed her opinion. She concluded that there was no evidence of ongoing neck injury as a result of the accident. There was, in her opinion, no evidence of restriction of range of motion of the cervical spine observed. The surveillance video was not, in her opinion, consistent with her formal examination in 2020, where the claimant showed apparent mild regional loss of muscle power in the left arm. There was no impairment. She would not place any restriction on fitness for employment. No formal treatment was indicated.
Following a re-examination of the claimant in May 2022, Dr Rogers reported to the insurer’s solicitors on 19 June 2022. The report records that, on that occasion, the records from Main Street Medical Centre had been provided to the doctor for review. She recorded a history that, following disc replacement surgery in 2021 the claimant had been off work for three months. He was happy with the results of the surgery. On the basis of document review, examination and review of imaging reports, the doctor changed her opinion; she considered that, on the balance of probabilities, the claimant’s current condition relates to degenerative changes, probably aggravated by heavy manual work. In her opinion, the motor accident at most symptomatically exacerbated early degenerative changes. The degenerative changes would have progressed irrespective of the motor accident, therefore the motor accident was not a contributing cause which was more than negligible. In her opinion the accident caused a whiplash injury that resolved. The disc replacement surgery related to degenerative spondylosis that had probably been accelerated by heavy manual work.
Dr Spittaler, consultant neurosurgeon, reported to the claimant’s solicitors on 4 December 2020. He recorded a history of the accident in September 2004, and that the claimant had increasing headache and neck pain by the middle of the day. He recorded that “[t]he neck pain continued although it was reasonably mild until about 10 days later when the [claimant] was lifting a nail bag into his ute which led to severe neck pain…”. [The Panel notes that this history is not correct, the incident occurred nine months later.] Following this incident it took about three months for the claimant to return to normal duties. He has had continued neck pain since this episode. Dr Spittaler expressed the following opinion:
“Given the circumstances of the accident and the ongoing symptoms and subsequent imaging, it is likely that Mr McTackett has suffered an injury to likely several cervical intervertebral discs which has led to subsequent disc degeneration as seen on the current imaging. I believe this process has been accelerated by the patient performing heavy work as a carpenter until being re-deployed as a supervisor.”
Dr Spittaler expressed the opinion that the claimant was not fit for physical work as a carpenter. He could function as a sedentary worker. He thought that there was a “prospect” for improvement with surgery. In his opinion, the accident was a “substantial contributing factor” to the claimant’s neck injury and subsequent symptoms “to the present day”. The claimant had suffered an injury to his cervical spine that has led to a subsequent cervical degenerative disc disease. The heavy work that the claimant initially performed as a carpenter has contributed to his cervical degenerative disc disease. The surgery proposed by Dr Salaria was reasonably well accepted treatment, appropriate (given the long standing symptoms), and cost effective.
The doctor has not recorded an accurate history in relation to the 27 May 2005 incident; he recorded that it occurred 10 days after the motor accident. It is not clear whether the doctor was provided with the contemporaneous clinical notes, and if he was, that he considered that material. The Panel does not accept his opinion that the accident caused injury to the intervertebral discs.
Dr Porteous, occupational physician, reported to the claimant’s solicitors on 16 September 2021. He recorded a history of the accident in September 2004 and that, about two hours later, he had marked neck pain and headaches, felt sick, and felt stiff over the rest of the body. He stated that approximately 10 days later, he went at the end of the day to put his tool belt on to his ute, and as he put it on, had an onset of marked neck pain and spasm. With conservative management his pain improved and he returned to normal duties after approximately three months. His neck pain was, thereafter, “generally manageable”. His subsequent progress, leading to surgery in April 2021, is noted. The claimant’s neck pain improved following the surgery. In the doctor’s opinion, the claimant had suffered a cervical neck soft tissue sprain injury and an injury to the C4/5 and C5 discs. The accident on 2 September 2004 was the substantial contributing factor to the neck injuries. There was no evidence of a disease process. The doctor assessed a 28% permanent impairment as a result of the accident (using the WorkCover Guidelines). The surgery was reasonable and necessary; it was appropriate, costs effective, was accepted treatment and “would have slowed the deterioration”. The surgery reduced his chronic pain.
Despite the doctor having been provided with the clinical notes from Main Street Medical Centre, it is not clear from his reasons that he considered that material. He recorded an incorrect history about the May 2005 incident. The Panel rejects the doctor’s opinion that the accident caused injuries to the C4/5 and C5/6 discs.
Dr Machart, orthopaedic surgeon, reported to the solicitors acting for BJ Constructions, the claimant’s former employer. A history of the accident on 2 September 2004 is recorded. The claimant reported that he developed nausea throughout the afternoon after the accident. The doctor recorded a history that the claimant was off work for a couple of weeks and his symptoms eased. It is recorded that there was “a second injury at work soon after” when the claimant lifted a nail bag to the back of a truck. The claimant developed pain in both arms and pain radiating into the spine, and was off work for several months. The doctor recorded that the symptom severity increased gradually over several years. He denied intervening injury. When asked about subsequent motor vehicle accident(s), the claimant said that he did not hurt his neck; his car was struck in a carpark. He was not in the car. The doctor diagnosed a cervical injury as a result of the September 2004 accident. The report records that “[s]ymptoms gradually increased over time, concordant with damage to disc(s), culminating in [the] need for 2-level disc replacement conducted in April 2021”. The Panel notes that the history recorded by the doctor that the claimant was off work for a couple of weeks after the motor accident is inaccurate, as is the history of a “second injury at work soon after”. The Panel infers that this was a reference to the May 2005 injury. The Panel considers that the inaccurate history about these matters undermines the doctor’s opinion in relation to the nature of the injury the claimant suffered in the motor accident, and the Panel does not accept his opinion that the claimant suffered injuries to his cervical discs in the motor accident.
Medical assessments
Medical Assessor Oats gave a certificate and reasons dated 4 June 2007. He recorded that the claimant felt pain in the back of his neck after the accident. Two hours later he started vomiting and experienced headaches. He was off work for two weeks. He improved and “was not too bad then for a few months”. About four months after the accident the claimant bent over to pick up his nail bag and as he stood up with it he felt instant pulses of pain from the neck down to the back and into the left arm and left leg. His neck locked up with muscle spasm. Investigations were performed a herniation at C4/5 and bulging at C5/6 identified. The Medical Assessor diagnosed cervical spine strain and discogenic injury causally related to the accident.
The Medical Assessor did not record a correct history about the amount of time the claimant had off work following the accident; he recorded that the claimant was off work for two weeks, when it was actually four days. The post-accident symptoms he recorded are not consistent with the clinical notes for 2 and 6 September 2004. He refers to an incident “about four months after” the motor accident. We infer that this is a reference to the May 2005 incident, that was nine months after the accident. It does not appear that the Medical Assessor had access to, or if he did that he considered, the clinical notes from Main Street Medical Centre; the material was not referred to in his review of documentation. The history of attendances at that practice appear to come from Dr Gambin’s report of 15 February 2006, that is referred to. These matters undermine the Medical Assessor’s opinion.
Medical Assessor Ryan gave a certificate and reasons dated 22 August 2017. He certified that the C4/5 and C/5 discectomy and disc replacement did not relate to injuries caused by the accident. He did not express an opinion about causation of injury, relying on Medical Assessor Oat’s assessment in that regard. He did not believe that the proposed discectomy was likely to benefit the claimant on the basis of his symptoms and physical signs. The more likely source of his symptoms was at the left C6/7 foramen.
Surveillance
The insurer relies on surveillance of the claimant on 6 November 2020, 10 November 2020, 17 November 2020, 4 August 2021, and 5 August 2021. There are associated reports from investigators. The surveillance has been viewed and considered. The Panel notes that the claimant underwent the surgery that is the subject of the Review on 29 April 2021, prior to the August 2021 footage.
Among other things, the claimant is seen driving his vehicle, moving a waste bin, undertaking maintenance tasks, carrying groceries, and operating what appears to be a large sit-on mower. He is seen carrying objects on a work site, including large saw, and hose. He is also seen driving a bobcat or forklift. In the Panel’s view, the activities the claimant is seen performing in the surveillance are not inconsistent with, and do not preclude, a finding that the claimant has a permanent impairment of his cervical spine.
SUBMISSIONS
Claimant’s submissions
The claimant’s case is that there is ample evidence to support a finding that the C4/5 and C5/6 disc pathology was caused by the accident, that the surgery performed by Dr Salaria was reasonable and necessary in the circumstances, and the surgery related to the neck injury caused by the accident.
The claimant points to the police report, that records that the accident was a “major traffic crash”. He agrees that the force of the collision was directed on the tow bar. In this regard the Panel notes that the claim form records that the damage caused to the claimant’s vehicle was to its rear tow bar.
He argues that the disc pathology is consistent with the mechanism of the accident, that he made contemporaneous complaints of neck symptoms, attended his doctor, and did not recover before the May 2005 incident, that he says was minor when compared to the accident.
In terms of the disc pathology being caused by the accident, the claimant points to support provided by Medical Assessors Oats, Ryan, and Moloney, together with Drs Hopcroft, Davies, and Salaria, among others.
In the claimant’s submission, the findings recorded in the CT scan report of 30 May 2005 support a causal connection between the accident and the disc pathology. It is argued that the CT scan, and later MRI scan (report 27 June 2005), provide clear evidence of contemporaneous disc pathology at both C4/C5 and C5/C6 levels, which he argues persisted for a period from the accident onwards.
The claimant argues that the entry recorded in his GP’s clinical notes on 6 September 2004 does not say that there had been a complete recovery. The Panel observes that this is correct, and notes that the entry records that the claimant’s neck was “much improved”, that he had “some slight stiffness”, and was given a work clearance.
With respect to the incident at work on 27 May 2005, described by the claimant as “the nail bag incident”, was relatively innocuous in itself. It is argued that, while the claimant filled out a workers compensation form, the incident was so minor that it was not recorded by the GP until 1 August 2005.
The claimant argues that the incident at work on 27 May 2005 was an aggravation of earlier disc pathology consistent with the mechanism of the motor accident. He submits that the work incident was minor when compared to the motor vehicle accident, and that he did not recover from the injury suffered in the motor accident prior to the May 2005 incident.
The claimant submits that the motor vehicle accident involved a much more severe mechanism of injury, compared to the swinging up of his arm to throw a nail bag onto the back of the truck.
The claimant drew the Panel’s attention to the workers compensation claim form completed by the claimant dated 6 June 2005. He argues that this evidence is highly probative and “would inform the Review Panel that this incident is nothing more than an aggravation of the prior pathology which had been troubling the claimant since the original injury on 2 September 2004”. The claimant argues that the incident is described as an aggravation, not as a fresh injury, which would indicate the continuity of the symptoms that the claimant complained of between 2 September 2004 and 27 May 2005.
The Panel has considered the workers compensation claim form. The Panel must form its own opinion as to whether or not the May 2005 incident involved an aggravation of an injury to the claimant’s neck caused by the accident.
The Panel notes that the claim form lodged in relation to the motor accident is dated 10 June 2005, some four days after the workers compensation claim form lodged with respect to the nail bag incident (dated 6 June 2005), and approximately two weeks after the nail bag incident. The medical certificate attached to the CTP claim form, completed by Dr Gambin, is dated 3 June 2005. In short, the CTP claim was not made until after the nail bag incident.
The claimant argues that, despite the clear pathology that has been evident since September 2004, the insurer’s medico-legal specialists do not properly articulate where any other cause for that injury would arise.
The claimant submits that but for the motor vehicle accident and the subsequent disc pathology at C4/C5 and C5/C6, the need for surgery in the form of disc replacement at both levels would not have eventuated. It is submitted that this satisfies the test of factual causation under s 5D(1)(a) of the CLA. Alternatively, it is argued that the accident made at least a material contribution to the need for surgery which was ultimately successful. It is argued that there can be other non-related causes for the need for treatment, including age related degenerative changes.
The claimant made submissions with respect to the test as to whether the surgery was reasonable and necessary in the circumstances, and the test for causation. The submissions have been considered.
In his submissions dated 17 April 2023 the claimant submitted at [62] that the Panel should deal with the matter on the papers. This submission is repeated in his submissions dated 25 May 2023 at [22], and 1 June 2023 at [52].
Insurer’s submissions
For the purposes of the Review, the insurer relies on submissions dated 18 May 2023. The insurer submits that there is a large body of evidence which supports and confirms the surgery performed by Dr Salaria was not reasonable and necessary or causally related to the accident. The insurer points to a number of factors and evidence in support of these submissions, as recorded at [3]. Among other things, the insurer notes that after attending his GP on the day of the accident, he attended again on 6 September 2004, at which time the clinical notes record that he was “much improved”. The insurer drew the Panel’s attention to the clinical notes, that show the claimant did not return to the practice again until 27 May 2005, some nine months later, and after he had suffered an injury to his neck at work.
The insurer argues that the claimant continued to work in the field of carpentry and construction in the years that followed the accident, without any prolonged periods of time off work. It points to the history given by the claimant to Dr Rogers, that he returned to work within two weeks of the accident and his duties involved heavy manual work.
The insurer points to the history recorded by Medical Assessor Oates, that the claimant received treatment for a period of 2-3 weeks only following the accident and was then “not too bad” until his further injury, following which he underwent imaging that showed a C4/5 disc herniation and C5/6 disc bulge, and received further treatment.
The insurer relies on the history recorded by Dr Walker, treating neurosurgeon, in July 2005, that the claimant recovered from the original injury sustained by him in the accident over a few weeks with simple analgesics and rest, returned to work, and was doing reasonably well until May 2005 when the claimant threw a nail bag into the back of a truck and suddenly felt pain/stiffness in his neck which had been ongoing since.
The insurer submits that any injury suffered by the claimant in the motor accident was minor and resolved within a matter of weeks. The insurer also argues that the surgery undertaken by Dr Salaria was not reasonable and necessary given the nature of the claimant’s symptoms. The insurer relies, in this regard, on the opinions of Medical Assessor Ryan, Dr David Walker, Dr Grant Walker, Dr Davies, Dr Rogers and Dr Kuru.
“Additionally or alternatively”, the insurer submits that any need for surgery some 17 years after the accident was not caused by the accident, and is related to other intervening injuries and/or the development of underlying degenerative pathology, with or without exacerbation as a result of the claimant’s work. The insurer disputes that the surgery was reasonable and necessary.
The insurer’s submissions at [11] address the test for causation. The insurer argues that with respect to causation of injury generally, where there are multiple injuries the decision in Oakley “helpfully sets out [three] possible categories where an earlier injury is followed by a later injury”.
The insurer argues that any soft tissue injury to the cervical spine sustained by the claimant as a result of the motor accident resolved within a matter of weeks after the accident, and any symptoms that may have emerged thereafter fall into Oakley category 3. The insurer submits that the pathway of the claimant’s cervical spine symptoms beyond a few weeks after the motor accident would have remained identical regardless of the occurrence of the accident.
RE-EXAMINATION AND FINDINGS OF MEDICAL ASSESSORS
The claimant was re-examined by Medical Assessors Dixon and Gibson (Medical Assessors) by MS Teams on 16 June 2023.
A history was taken that prior to the motor vehicle accident on 2 September 2004 the claimant had suffered no serious injury to his neck. On 2 September 2004 he was driving his dual cab Toyota Hi-Ace Ute, which had a large bull bar attached, when he was hit from behind while stationary by a Mitsubishi Mirage. To take the vehicles apart, the Police attending the scene used tools to take off the tow bar so the Mirage could be moved and subsequently towed away. At the time of the accident he had been driving from work to attend TAFE.
The claimant said that he sustained acute pain in his neck after the accident and saw his GP the same day. Although he went back to work as a carpenter’s apprentice at that stage, he felt that his neck would eventually get better but was having ongoing periodic neck pain and headaches.
His GP, Dr Woodhead, arranged for an X-ray on 2 September 2004 which showed the vertebral bodies and disc spaces appeared normal with loss of normal cervical lordosis (usually due to spasm) and no abnormal soft tissue swelling and no fracture. By 6 September 2004 his neck had improved with residual stiffness and Dr Woodhead gave him a work clearance.
There was a work place incident on 27 May 2005, when he threw a nail bag into the back of his Ute. He experienced neck pain with left sided neck pain. He reported that his arm was not elevated above shoulder height, and he regarded this as a minor incident. He saw his local GP reporting left sided neck pain with painful and decreased movement with soreness in the left paravertebral region. A CT scan was requested, and he was referred to a physiotherapist, Lachlan Hamill, for neck pain and spasm. A CT scan on 3 June 2005 showed a C3/4 disc bulge and his neck was still stiff on rotation at that stage, as recorded by Dr Gambin, and he had ongoing pain and stiffness of the neck with the stiffness resolving with further physiotherapy. However, he still required further investigation.
An MRI on 27 June 2005 showed a small left paracentral disc herniation at C4/5 and a broad based disc bulge at C5/6 with mild compression on the thecal sac without any cord compression and no nerve root compromise. He was given a work certificate until July 2005.
It is apparent that the claimant had significant symptomatology from the incident on
27 May 2005 that required further investigation in the form of a CT scan and an MRI, which showed disc lesions, and that the claimant complained of some pain and tingling in his left arm, consistent with findings on MRI, and that he was off work for some two months. This is regarded as a more significant injury than the injury to his neck that occurred in the motor accident in September 2004, in that he had difficulty returning to work and required further investigation.
It is noted that the claim form dated 6 June 2005, that relates to the 27 May 2005 incident, records as follows:
“Swung [a]rm up to throw nail bag into back of truck & agrivated [sic] an existing whiplash injury sustained 2/9/04. This agrivation [sic] took place 27/5/05”
The claim form records that the claimant injured his neck. It also records as follows, in response to the question “[w]as this/these part/s of your body normal before the injury? If No, give details”:
“No – was previously injured in MVA on way to TAFE 2/9/04”
The information in the claim form has been considered. The claimant’s view, as expressed in the claim form, that the neck injury was an aggravation of the neck injury sustained in the accident, has been noted and considered. The Medical Assessors have also taken into consideration that, in his statement of 13 January 2021, the claimant stated that following the 27 May 2005 incident, he felt sharp pain in his neck at the site where he had previously experienced pain immediately after the motor accident. Ultimately, the question of whether the 27 May 2005 incident was an aggravation of a neck injury that resulted from the accident is a matter for the Panel to determine.
The claimant was referred to Dr Walker, consultant neurologist, who reported on
25 July 2005. The report has been summarised earlier in these reasons. The history recorded by the doctor, and his opinion, have been considered.
In 2008 the claimant moved to the Illawarra and he saw a new GP, Dr S Das, for persisting pain in his neck with stiffness. He subsequently had a CT scan of the neck on 17 April 2009 which showed a small paracentral focal protrusion at C4/5 impinging on the anterior thecal sac and a broad based posterocentral and left paracentral disc protrusion at C5/6 impinging on the thecal sac with some endplate osteophytes. He was referred by Dr Das to Dr Cherukuri, neurosurgeon.
He was referred to a neurologist, and nerve conduction studies were performed for his paraesthesia. The nerve conduction studies were normal but the EMG studies of the left upper limb showed reduced motor activity in the left ADM, APB and triceps suri muscles suggestive of chronic inactive denervation affecting the left C7/T1 nerve root.
He had a further motor accident on 29 September 2013 when he was stationary at lights and a vehicle ran into his new Alpha Romeo on the left hand side, pushed him forward, and he hit concrete. He reported this was a minor accident and he was able to resume his work duties. On 14 January 2014 he saw Dr Giri who arranged for a CT scan which was performed on 15 January 2014. The CT showed a moderate sized disc protrusion at C4/5 and C5/6 indenting the thecal sac and occupying the left lateral recesses. He was referred to Dr Al Khawaja, a spinal surgeon, in January 2014 because of neck and ongoing back pain.
By 20 January 2014 he had tried Celebrex but still had neck pain and left arm paraesthesia. On 24 January 2014 Dr Giri reported the pain had improved with Celebrex with less tenderness of his neck and a better range of motion. He was seen again by Dr Giri on 17 February 2014 with left hand ulnar side numbness and weakness. He was shown to have decreased sensation in the left ulnar distribution with tenderness of the left hand and forearm but no ulnar tenderness. There was neck and left upper back muscle hypertonicity and tenderness.
An MRI of the cervical spine on 8 April 2014 showed a C4/5 posterolateral disc bulge mildly compressing the cord on the left and a C5/6 posterior disc bulge mildly compressing the cord. There was mid cervical spondylosis resulting in neural compression particularly on the right at C4/5 and C6 nerves and also on the left.
The claimant was referred to Dr Day, a neurosurgeon complaining of neck pain, shoulder brachialgia and left upper limb pain. Dr Pauley noted on 17 July 2018 that there were ongoing symptoms from cervical radiculopathy affecting the left hand which worsened after increased work load doing manual tasks involving lifting. The claimant told the Medical Assessors that he would return to his duties as a carpenter which involved usually domestic jobs and occasionally commercial renovations.
Further imaging studies were done on 3 October 2018 which showed diffuse mild spondylosis and mild loss of disc height and marginal osteophyte development and C4/5 uncovertebral spurring with narrowing of the right foramen and C5/6 uncovertebral spurring involving narrowing of the left and right foramen. He was then referred to two spinal surgeons, Dr Salaria and Dr Kuru.
The notes from the John Hunter After Hours Clinic record that on 10 April 2019 there was a left shoulder and neck injury after over extending while retrieving a tool out of his truck, with marked pain on movement and decreased strength and sensation in his left arm with restricted movement of his neck. In July 2019 he was referred to Dr Spittaler, a neurosurgeon, who noted the left cervical radiculopathy with re-producible pain after performing routine tasks as a carpenter.
An MRI of the cervical spine on 19 June 2019 showed multiple levels of spinal change with bilateral C5 foraminal narrowing. He had a CT injection performed on 3 July 2019 which gave him good relief for some nine months. He had a second cortisone injection without sustained benefit.
In February 2019 he was referred by Dr Pauley to Dr Salaria, who recommended a hybrid procedure with C4/5 fusion and C5/6 disc arthroplasty.
The claimant experienced neck and left arm pain on 15 April 2021 while he was shovelling concrete as an urgent task at work and this exacerbated his symptoms significantly.
On 29 April 2021 Dr Salaria performed C4/5 and C5/6 cervical disc replacements at Lingard Private Hospital. A follow up X-ray of the cervical spine on 10 May 2021 showed the alignment was maintained of his disc replacements. By 12 May 2021 the claimant reported to Dr Pauley that the nerve pain had gone from his arm with some residual ache in his neck with some radiation to the shoulders and scapulae.
Progress X-rays of the cervical spine on 7 June 2021 and 2 August 2021 showed C4/5 and C5/6 arthroplasties were maintained in good alignment and there were no post-surgical complications.
The overview of the re-examination was that the claimant reported that all the intervening events since the accident were of a minor nature and caused transient aggravations. In the opinion of the Medical Assessors, this is not borne out by the contemporaneous evidence, as it was not until he threw the nail bag into the truck on 27 May 2005, that the claimant developed severe pain in the neck and had further investigations including a CT scan and MRI. Further, he was given a work clearance on 6 September 2004, four days after the accident, at which time Dr Woodhead recorded in his clinical notes that the claimant’s neck was “much improved” and that there was some slight stiffness. The claimant then did not return for treatment until 27 May 2005, some nine months later, following the incident at work involving the nail bag. Following that incident, the clinical notes of his GP record that he experienced “very painful” left sided neck symptoms and that his left paravertebral region was sore. He was referred for a CT scan and for physiotherapy. It was at this time that C3/4 disc pathology was reported. The complaints of very painful left sided neck symptoms correlate with the C3/4 pathology reported in the CT scan. Given that his pain had, as recorded by Dr Gambin on 21 June 2005, “gone backwards” that he was referred for an MRI scan. That scan identified a disc herniation at C4/5 and abroad based bulge at C5/6, the two levels at which Dr Salaria performed cervical disc replacements on 29 April 2021.
It was only after the 27 May 2005 incident that complaints of weakness in the left arm and hand are recorded, together with tingling on the middle and ring fingers. No such symptoms were record when the claimant saw his GP on 2 September 2004 and 6 September 2004, the only occasions he attended his GP after the accident and before 27 May 2005. It is considered more probable than not that if the claimant had reported complaints of this nature in September 2004, the GP would have recorded them in the notes. No such complaints were recorded in the notes relating to the attendances on 2 September and 6 September 2004. The inference is that no complaints of this nature were made by the claimant to his GP.
The claimant’s evidence,[14] that the pain he experienced in his neck on 27 May 2005 was at the site where he had previously had pain immediately after the accident, and where he continued to have intermittent pain about once a week in the interim period, has been taken into consideration, as have the medical records and reports. Nearly 18 years have passed since the accident. In those circumstances, while not considered to be decisive, the contemporaneous clinical records are of assistance, and are given weight, with respect to a determination about the appropriate diagnosis of the claimant’s motor accident caused neck injury.
[14] Statement dated 13 January 2021 at [26].
Exercising their clinical judgement, the Medical Assessors find that the claimant’s symptoms following the motor accident were consistent with a musculoligamentous neck strain with no disc involvement and without radicular complaint. This is because there were no symptoms consistent with radiculopathy recorded. There was no specialist referral. A CT or MRI scan was not requested. The claimant was cleared to return to work as an apprentice carpenter four days after the accident. The claimant did not return to see his GP for nine months, and only then after an incident at work on 27 May 2005.
The Medical Assessors considered whether the motor accident aggravated degenerative changes in the cervical spine, or rendered such changes symptomatic. There is no history of cervical injury or symptoms prior to the motor accident. There were no degenerative changes identified in the X-ray report dated 2 September 2004. The claimant’s age at the time of the accident was also taken into consideration. The Medical Assessors determined, on balance, that degenerative changes were not present in the claimant’s cervical spine at the time of the motor accident. Accordingly, there was no aggravation of degenerative changes, and no degenerative changes that were rendered symptomatic, as a result of the motor accident.
While the motor accident could have caused the disc pathology at C4/5 and C5/6 levels, it was determined that it neither caused nor materially contributed to that pathology.
It is considered more probable than not that the disc pathology at C4/5 and C5/6 levels was caused by the work incident on 27 May 2005. In this regard, the Medical Assessors find that:
(a) the action of swinging his arm up to throw a nail bag into the back of his truck[15] on 27 May 2005 is the type of incident that could cause a disc injury at these levels, and did cause disc injury at these levels;
(b) the claimant’s reported left sided neck symptoms and very painful neck, with left paravertebral soreness, as reported in the clinical notes for 27 May 2005, are consistent with the disc pathology at C4/5 and C5/6 reported in the CT and MRI scans;
(c) the development of left arm and hand symptoms following this incident, such symptoms not having been reported following the motor accident;
(d) there was a referral to physiotherapy;
(e) there was specialist referral to Dr Walker;
(f) the claimant was unfit for work for some months, in contrast with the claimant having been given a work clearance four days after the motor accident, and
(g) there were regular attendances on his GP following this incident (in contrast to the two attendances following the motor accident, and no further attendances for nine months until this incident occurred).
[15] See description of the incident in the claim form dated 6 June 2005.
The Medical Assessors determined that the claimant would have suffered C4/5 and C5/6 disc injuries (left paracentral disc herniation at C4/5 and a broad-based disc bulge at C5/6) had the motor accident not occurred. This is because the neck injury caused by the accident did not involve the C4/5 and C5/6 discs. Further, the mechanism of the May 2005 injury was sufficient to cause the disc injuries, and did, in the clinical judgement of the Medical Assessors, cause those injuries.
It was determined that the surgery does not relate to the neck injury caused by the motor accident. The accident did not make a material contribution to the need for the surgery. The surgery related to the C4/5 and C5/6 disc pathology, that was neither caused, nor materially contributed to, by the motor accident. The surgery was, however, considered to be reasonable and necessary in the circumstances. Available alternative treatments had been tried and the treatment was considered to have been appropriate. Further, the surgery has relieved the claimant’s neck pain and radicular complaint in his left upper limb. On that basis, it is considered to have been effective.
Clause 1.34 of the Impairment Guidelines states that if there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated.
The claimant underwent C4/5 and C5/6 cervical disc replacements at the hands of Dr Salaria on 29 April 2021. Prior to the surgery, Dr Salaria had documented signs of radiculopathy associated with relevant muscle weakness at the C5 and C6 levels. This constitutes multilevel structural compromise as referred to in the Impairment Guidelines, as this category includes spinal fusion and intervertebral disc replacement. Multilevel structural compromise is DRE Impairment Category IV (Impairment Guidelines Table 7), which according to AMA4[16] is 25% permanent impairment.
[16] Table 73.
Following the motor accident, there were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were clinical findings as detailed in the Impairment Guidelines, being evidence of muscle spasm as suggested by the loss of lordosis on plain X-ray imaging, and the clinical notes of the GP recorded after the subject accident. On the basis that neck symptoms following the accident did not completely resolve, it is considered that the cervical spine injury caused by the motor accident would be assessed at DRE Impairment Category II, a 5% permanent impairment.
DETERMINATION
The Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh.
The Panel adopts the findings of the Medical Assessors and the conclusions of the Medical Assessors based on the examination of the claimant and specific findings pertaining to diagnosis, causation and the assessment of the claimant’s permanent impairment.
The Panel finds that, as a result of the motor accident, the claimant suffered a musculoligamentous neck strain with no disc involvement and without radicular complaint.
With respect to the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident, the clauses in the Guidelines that address causation have been reproduced earlier in these reasons. Clauses 1.9, 1.17 and 1.28 have been considered, as has cl 1.34.
The Panel finds that there was no pre-existing impairment; the claimant had no history of serious injury to his neck prior to the motor accident. It has, however, been found that there was a subsequent injury, on 27 May 2005. In this regard, we have found that the disc pathology at C4/5 and C5/6 level was caused by the work incident on 27 May 2005.
The Panel finds that the first Oakley category does not apply because the disc pathology at C4/5 and C5/6 level would have occurred had he not injured his neck in the motor accident. Further, he would have suffered the permanent impairment as a result of the disc injuries had he not injured his neck in the motor accident.
The Panel finds that the second Oakley category does not apply because the disc pathology at C4/5 and C5/6 level, and consequential impairment, is not an aggravation of the injury suffered in the motor accident; they are separate and distinct injuries.
The Panel finds that the C4/5 and C5/6 injuries and consequential impairment results from a subsequent incident, on 27 May 2005, which would have occurred even if the claimant had not suffered the musculoligamentous neck strain as a result of the earlier motor accident. The Panel further finds that the impairment sustained to the claimant’s cervical spine includes no element of aggravation of the earlier injury.
The injury caused by the 27 May 2005 incident was the disc pathology at C4/5 and C5/6 level. This disc pathology was not caused by, or materially contributed to by, the motor accident. The injury suffered on 27 May 2005 was not an aggravation of the injury caused by the motor accident. That being the case, the third Oakley category applies, and the subsequent incident and impairment is found to be causally independent of the earlier motor accident. In these circumstances, cl 1.34 is engaged.
Clause 1.34 of the Guidelines requires a calculation of: (a) the value of the permanent impairment resulting from the subsequent unrelated injury; and (b) the value of the permanent impairment resulting from the relevant motor accident. In Slade, Wright J held at [92] that cl 1.34 “…does not require the assessor to subtract one value from the other in every case. Such a subtraction might[17] be appropriate if the situation fell within the third category in Oakley…”.
[17] Emphasis added.
The claimant has a 25% permanent impairment of his cervical spine resulting from a subsequent and unrelated injury. There is a 5% permanent impairment resulting from the injury caused by the motor accident. No subtraction is considered to be required or appropriate; the impairment as a result of the injury caused by the motor accident has been determined. That impairment is not greater than 10%. Given these findings, the Panel finds that the degree of permanent impairment of the claimant as a result of the injury to his cervical spine caused by the motor accident is not greater than 10%.
The Panel finds that the neck injury suffered in the motor accident did not make a material contribution to the need for surgery. The Panel finds that the C4/5 and C5/6 cervical discectomy and disc replacement does not relate to the injury caused by the motor accident.
The Panel finds that the C4/5 and C5/6 disc replacement surgery was reasonable and necessary in the circumstances. The Panel is satisfied that available alternative treatments had been tried. The Panel finds that the treatment was appropriate, and has considered the cost of the surgery, which it considers was reasonable. The Panel notes that the surgery has relieved the claimant’s neck pain and radicular complaint in his left upper limb, and finds that it has thus been effective. The Panel finds that the C4/5 and C5/6 cervical discectomy and disc replacement was reasonable and necessary in the circumstances.
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