Insurance Australia Limited t/as NRMA Insurance v Miller
[2025] NSWPICMP 260
•15 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Miller [2025] NSWPICMP 260 |
CLAIMANT: | Amy Miller |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 15 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of treatment and care; causation; C5/6 cervical discectomy and fusion; pre-existing cervical degenerative changes; neck, shoulder and arm; pain with upper limb paraesthesia; loss of sensation on the left in the C6 distribution; consistency in presentation; disc prolapse C5/6; compressing the left C6 nerve root: pre-existing degenerative disease aggravated by the motor vehicle accident; Held – discectomy and fusion relate to the injuries caused by the accident and is reasonable and necessary in the circumstances; MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT AND CARE – CAUSATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) The Panel confirms the findings of Medical Assessor Drew Dixon dated 17 July 2024 and certifies: 1. The following treatment and care relates to the injuries caused by the motor accident: · the request for C5/6 anterior cervical discectomy and fusion (ACDF) as recommended by Dr Steven Nshuti and A/Prof Kevin Seex on 28 March 2023. 2. The following treatment and care is reasonable and necessary in the circumstances: · the request for C5/6 anterior cervical discectomy and fusion (ACDF) as recommended by Dr Steven Nshuti and A/Prof Kevin Seex on 28 March 2023. |
STATEMENT OF REASONS
INTRODUCTION
Amy Miller (the claimant) is a 37-year-old woman who was injured in a motor vehicle accident which occurred on 18 March 2022. Following the motor vehicle accident she lodged an application for personal injury benefits and thereafter sought a concession from the insurer that she had sustained a non-threshold injury. Following an internal review the insurer declined to make this concession and accordingly the claimant lodged an application for an assessment of threshold injury. She was assessed by Medical Assessor Phillip Truskett on 16 December 2022 who in a certificate dated 30 December 2022, determined that the injury she sustained to her neck, thoracic spine and lumbar spine is a threshold injury for the purposes of the Act.
Thereafter, the claimant has lodged assessments of treatment and care and whether they are reasonable and necessary. Relevantly, in a certificate dated 9 August 2023 Medical Assessor Shahzad determined that the MRI and CT scan of the lumbar spine is reasonable and necessary in the circumstances. Following this the claimant lodged an application for assessment of treatment and care with a request that the C5/6 anterior cervical discectomy and fusion as recommended by Dr Nshuti and A/Prof Kevin Seex arises from the motor vehicle accident and is reasonable and necessary. In a certificate dated
24 July 2024 Medical Assessor Drew Dixon issued a certificate that the proposed treatment is reasonable and necessary in the circumstances.
The insurer sought a review of this certificate and in a certificate dated 3 October 2024 the President’s delegate, Tajan Baba, certified that they were satisfied there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect and accordingly the matter has been referred to this Medical Review Panel.
The Panel issued directions for the uploading of additional material which is yet to be provided to the Panel. Noting these matters the Panel determined that it was appropriate that a re-examination of the claimant take place once all the material as requested by the Panel has been uploaded on to the portal.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The claimant attended the Commission’s Medical Suites on 5 March 2025 and was examined by Medical Assessor David Gorman. She was unaccompanied.
Ms Miller is a 37-year-old woman. She has two children aged 12 and 14 years who live with her ex-partner in Queensland having moved there after the accident. She smokes 6-12 cigarettes per day. She does not drink alcohol.
At the time of the subject accident she was self-employed in e-commerce and made candles and body products for retail. She had been doing this for 7-9 months. She has not been able to return such work since the injuries received in the subject motor vehicle accident. She had a neck strain injury in a motor vehicle accident in 2023 which settled with physiotherapy treatment. There were “bulging discs” she reported on scans. She has been diagnosed in the past with fibromyalgia. She has widespread psoriasis involving her extremities and trunk. This has flared up since the subject motor vehicle accident. She has a history of a caesarean section, laparoscopy, removal of her gall bladder and tonsillectomy. She was the business owner of Belle Arome from 8 August 2021 until 18 March 2022 and before that was a cleaner for Glam and Shine from 2016 to 2019. Before that she worked for two years as an apprentice hairdresser.
History of the motor accident
On 18 March 2022 she was stationary behind a car which was also stationary waiting for a bus to come out at Cranebrook when she was rear ended at speed and pushed into the car in front. She was near her home and subsequently drove home but her car was subsequently written off. She reported that she had immediate neck and back pain with left arm pain, headache and nausea.
History of symptoms and treatment following the motor accident
Ms Miller did not require ambulance attention or hospitalisation but did attend Nepean Hospital. She had imaging studies and blood tests performed at Nepean Hospital and was discharged early in the morning the following day. She then attended her local doctor,
Dr Ivan Goh at Richmond who advised her to return to the Emergency Department which she did. More imaging studies were performed of her brain and an EEG as she had headaches with a sensation of burning in her face. She was admitted for approximately nine hours and then discharged.
She was subsequently referred by Dr Goh to Dr Liu, neurosurgeon, and a bone scan was performed. The report of Dr Shinuo Liu (neurosurgeon) dated 7 April 2022 described neck, shoulder and arm pain with some upper limb paraesthesia which occurred at the time of the subject motor vehicle accident three weeks prior to his review. He noted she had occipital pain and headaches and that she had recent low back pain without dermatomal paraesthesia. He noted that her neck movements were restricted but did not feel there was neurological abnormality in the upper limbs.
She was referred to Dr Dutta, a pain specialist, in July 2022. Further scans were arranged of her neck. She had further review by Dr Liu who at that stage felt that surgery was not required but may be needed in the future. Because of headaches he had arranged for a brain scan which he described as unremarkable and he noted an MRI of the cervical spine showing disc osteophytes complex at C5/6. His report on 28 April 2022 noted an MRI of the thoracolumbar spine and of the brain which showed no evidence of a CSF leak. A subsequent whole body bone scan with SPECT/CT showed no evidence of increased uptake, no spinal fracture or traumatic arthritis.
She attended Hawkesbury Physiotherapy from August 2022. She developed post-traumatic stress disorder and saw a psychologist, Dr Nguyen and had psychological counselling and group therapy at St Johns God of God. She saw Dr Peter Puhl, neurologist and he noted imaging of the cervical spine on 22 April 2022 showed narrowing of the cervical canal between C2 and C6 with cord contact around C3/4 and at C5/6 with minor flattening of the cord without evidence of myelomalacia with evidence of bilateral C6 nerve root impingement. At that stage, he found significant muscle tenderness at the shoulders and that power and reflexes were normal. He concluded that Ms Miller sustained a whiplash injury with rebound in the subject motor vehicle accident and developed sensory changes with numbness in her left arm - nerve conduction studies of her arms which showed no abnormality.
She was referred to neurosurgeons A/Prof Kevin Seex and Dr Steven Nshuti on
28 March 2023. She reported neck pain and stiffness with left arm pain in a C6 distribution with numbness and a feeling of weakness in her left hand. She reported that she was dropping things. He found on examination there was loss of sensation on the left in the C6 distribution and on review of her MRI of the cervical spine in July 2022, he noted a disc prolapse at C5/6 with neuroforaminal stenosis on the left, mainly compressing the left C6 nerve root.
Ms Miller reported to me that A/Prof Seex had said that the original report had understated the severity of the disc changes. A/Prof Seex and Dr Nshuti noted she had exhausted all non-operative management and that she would like to proceed with surgery - they advised anterior cervical fusion at C5/6.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
She has continuing headaches with pain down the whole spine from the neck to the lumbar spine. There are “pins and needles” in her left arm. She has a loss of feeling in her left thumb and index finger and she drops things from this hand. She also has some leg pain on the left side with loss of sensation in the left foot. She has a driving tolerance of between 30 to 45 minutes. She has difficulty looking up to do overhead tasks at home and because of neck pain and left shoulder and arm pain. She has difficulty lifting heavy groceries and laundry and is reliant on her parents for help with domestic chores and yard work. She has difficulty washing and doing her hair. She is unable to play sport and does limited recreational walking. At times she has difficulty dressing and doing her hair and showering.
Current and proposed treatment
She uses Norspan 5mcg/hr patches every seven days and takes sertaline (200mg), an anti-depressant for post-traumatic stress disorder and Panadol Osteo for pain relief. A psychiatrist also started brexoriprazole in August 2024. Dr Dutta prescribes the Norspan patch. She is no longer doing physiotherapy. She sees her local doctor regularly. She has not seen A/Prof Seex (her neurosurgeon) recently. She continues psychological counselling.
CLINICAL EXAMINATION
General presentation
She was 156cm tall and weighed 70.2kg – she was 63kg before the accident. Her weight had increased after the accident but more recently had decreased. She had widespread psoriasis on the arms.
Cervical spine
On examination of the cervical spine flexion was decreased to 2/3 normal. Neck extension which was decreased to ½ normal. Rotation was ½ normal to the left and 1/3 normal to the right. There was tenderness the left trapezius muscle. Her cervical foraminal compression test was positive on the left – looking to the left with the neck extended caused pain down the left am. There was sensory alteration in the left upper extremity with altered sensation in the left index finger and thumb. Her grip strength, thenar power and intrinsic power were grade 4 out of 5 in the left hand and grade 5 out of 5 in the right hand. Her supinator and biceps jerk on the left were reduced when compared with the right. Left shoulder flexion was limited to 130 degrees and abduction limited to 120 degrees by her left trapezius pain.
Comments on consistency
She was consistent in presentation.
Summary of relevant radiological and medical imaging and other investigations
CT of the cervical spine on 19 March 2022 - showed no cervical spine fracture seen.
MRI of the cervical spine on 23 March 2022 - showed disc bulges from C2 to C6 with anterior cord contact at C3/4 and subtly at C4/5 and mild foraminal narrowing at C5/6 with a potential irritation of the C6 nerve root bilaterally. No fracture or haematoma was seen or ligamentous tear nor rupture described.
X-ray of the cervical spine at Blacktown Hospital on 21 April 2020 - showed mild reversal of upper cervical lordosis with degenerative change at C5/67 and no bony injury.
MRI of the whole cord at Blacktown Hospital on 22 April 2022 - showed minor disc bulges at C3/4 and C5/6.
MRI of the cervical spine in July 2022 - noted a disc prolapse at C5/6 with neuroforaminal stenosis on the left, mainly compressing the left C6 nerve root.
DETERMINATIONS
Treatment and Care – Causation
Ms Miller sustained significant injury to her cervical spine due to the double collision and this is associated with residual radicular complaints in her left upper extremity with C5/6 disc protrusion. She had pre-existing degenerative disease in the cervical spine which was aggravated by the motor vehicle accident. That aggravation has persisted.
The effects of the 2023 accident had resolved. The report of Dr Rajib Dutta, pain physician, on 6 June 2022 also noted the Ms Miller had a previous motor vehicle accident one year ago which had settled and he noted she had a whiplash injury in the subject motor vehicle accident and commenced pain management. This is the history also given to Medical Assessor Gorman.
The neck pain prior to the subject accident was associated with degenerative disease with disc protrusions prior to the subject accident. However, there were no persistent left arm symptoms nor any documentation of radiculopathy prior to the subject accident.
The Panel notes that she has had a Commission assessment by Medical Assessor Phillip Truskett in his MAC dated 30 December 2022. He found the neck, thoracic spine and lumbar spine injuries causally related to the subject accident but they were deemed a minor injury for the purposes of the Act. There is, however, evidence now (as there was at Assessor Dixon’s examination) of cervical radiculopathy particularly in a C5/6 distribution with sensory change, asymmetrical reflexes and positive foraminal compression test.
The Panel notes the assessment by Dr Ross Mellick (neurologist) dated 23 August 2025. Unlike Medical Assessor Dixon and Medical Assessor Gorman and this Panel he found inconsistent presentation. This may have been related to her psychological distress she presented with on that day during the examination by Dr Mellick. Dr Dixon on 24 July 2024 and Medical Assessor Gorman on 5 March 2025 both found radiculopathy. The Panel is satisfied that the claimant has sustained an aggravation of pre-accident degenerative changes.
The motor accident led to the C5/6 disc injury which caused left arm pain from the time of the accident but which has subsequently worsened with signs of radiculopathy now present. The need for surgery at that level does relate to the accident.
Treatment and care reasonable and necessary
She has had extensive conservative treatment including physiotherapy, Norspan patches, analgesic medication and pain management and has had neurosurgical review. Ms Miller has had a long trial of conservative management following a severe whiplash injury to her neck and has evidence of C6 radiculopathy today with a disc lesion at C5/6. The request for C5/6 ACDF is reasonable and necessary.
I note that A/Prof Seex has told her that she should stop smoking to improve the chance of the fusion being successful. She has not been able to cease smoking so far because of stress but reassured me that she will try to reduce again. Her smoking does not contraindicate the procedure but it is better that she ceases.
CONCLUSION
The following treatment and care relates to the injuries caused by the motor accident
The request for C5/6 anterior cervical discectomy and fusion (ACDF) as recommended by
Dr Steven Nshuti and A/Prof Kevin Seex on 28 March 2023.
The following treatment and care is reasonable and necessary in the circumstances
The request for C5/6 anterior cervical discectomy and fusion (ACDF) as recommended by
Dr Steven Nshuti and A/Prof Kevin Seex on 28 March 2023.
0
0
0