Jamison v AAI Limited t/as GIO
[2024] NSWPICMP 623
•4 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Jamison v AAI Limited t/as GIO [2024] NSWPICMP 623 |
CLAIMANT: | Christopher Jamison |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 4 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI); practice and procedure; requirement for re-examination; multiple thoracic spinal surgeries; insertion of paddle implant; ketamine fusion; T7 wedge compression; thoracic spine requiring laminectomy; thoracic injury causing lumbar spinal injury; causal link between thoracic spinal injury and lumbar spinal injury; Held – Medical Assessment Certificate revoked; WPI found to be greater than 10%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical assessment – whole person impairment Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Clive Kenna dated 19 Februaury 2024 and issues a new certificate determining that the following injuries were caused by the motor vehicle accident: (a) 5% whole person impairment (WPI) consequent on lumbar spine – soft tissue injury; (b) 5% WPI consequent on thoracic spine – soft tissue injury and wedging of the T7 vertebral body with loss of height of greater than 20%; (c) chest – fractured ribs and soft tissue injury, and (d) cervical spine – soft tissue injury. 2. The claimant has suffered a WPI greater than 10%. |
STATEMENT OF REASONS
INTRODUCTION
Christopher Jamion (the claimant) is a 48-year-old man who was injured in a motor vehicle accident on 14 March 2018. Following the application for benefits lodged at the Personal Injury Commission (Commission) the claimant sought a concession from the insurer that his injuries exceeded 10% whole person impairment. The insurer did not give this concession and thereafter the matter was referred to the Commission for an assessment of whole person impairment (WPI).
The claimant was examined by Medical Assessor Clive Kenna on 5 December 2023 who, in a certificate dated 19 February 2024 determined that the cervical spine, lumbar spine, thoracic spine and chest injuries suffered by the claimant is not greater than 10% (WPI).
The claimant sought a review of this determination, which was opposed by the insurer. The matter was considered by the President’s delegate, Rachael Brittcliff who, in a decision dated 8 May 2024, determined that there is reasonable cause to suspect that the medical assessment is incorrect in a material way. This was primarily on the basis that the medical assessment was incorrect regarding the determination of causation of the lumbar spine injury. Accordingly, the matter was then referred to this Review Panel (Panel).
The Panel sought and obtained all additional documentation which was before Medical Assessor Clive Kenna including the late documents.
ASSESSMENT SUBJECT TO REVIEW
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 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
As to the threshold injury constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the Motor Accident Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The claimant has sought a review of a certificate of Medical Assessor Clive Kenna and submits that the medical material does not support a finding that the claimant sustained injuries of less than a 10% WPI.
MEDICAL RE-EXAMINATION
The claimant attended the medical suites at the Commission’s rooms in Sydney for examination on 24 July 2024 by Medical Assessor Andrew Dixon and Medical Assessor Shane Moloney. He was unaccompanied.
HISTORY
Pre-accident medical history and relevant personal details
The claimant migrated from Northern Ireland in 2015 and has been working as a property officer for the Department of community in the past three and a half years. He is married and lives with his wife and has no children.
In the United Kingdom (UK) he had a surgical removal of the left kidney due to persistent reflux but states that he has had no past injuries to those assessed today.
History of motor vehicle accident
The claimant was the driver of the work vehicle, a Toyota Camry with a co-worker as a passenger in the front seat. He was stationary when another car failed to give way whilst attempting a right-hand turn and hit the front of their car. He was able to get out of the car and was wearing a seatbelt at the time of the accident. Airbags were not deployed. The car was not driveable and was later declared a write-off. Ambulance and police officers did not attend the scene of the accident and he was driven home.
History of subsequent treatment
The claimant consulted his general practitioner (GP) the next day when he had back and neck pain and was diagnosed with rib fractures after an X-ray. He was referred for physiotherapy with acupuncture and massage. Due to persistent pain in the thoracic spine region, he was referred to a pain management doctor, Prof Sundaraj at Nepean Hospital who arranged radiofrequency neurotomies and intercostal nerve blocks. These procedures gave short-term relief only.
He then underwent a trial of a spinal cord stimulator which gave good relief initially but failed due to equipment failures. He had a total of five stimulators which were either faulty or had fractured leads. In 2019 paddle implant was undertaken between T7/T10 which gave good relief. There were problems with the batteries in one model and he changed to another pain specialist Dr Nazha who inserted a different model as well as a ketamine infusion. These procedures gave significant thoracic pain relief. In 2023 radiofrequency ablation was undertaken which gave short-term relief and this was followed by a paddle/laminectomy procedure. Unfortunately, the paddle became infected which required further hospitalisation for a surgical cleanout and antibiotic treatment. He still has problems with battery fatigue and states that the stimulator now gives 60% relief but becomes more painful as the battery goes flat. He has since had dorsal rami injections at T6/T10 and lateral and medial radiofrequency ablation which give good relief.
The claimant states that he developed severe lumbar pain in 2018 which became more obvious when he got relief from the spinal cord stimulator. He developed pain in both legs associated with pins and needles. A lumbar nerve block initially helped but three sets of Platelet rich plasma (PRP) gave no benefit.
The last battery was replaced four months ago and it was noticed that there was a T7 wedge compression after laminectomy. He has since been diagnosed as having osteopenia.
Details of any relevant injuries or conditions sustained since the motor accident.
There have been no further injuries or accidents sustained since the subject accident.
MEDICAL MATERIAL
The report of Dr Pillemer dated19 February 2024 notes evidence of L5/S1 radiculopathy. This included identified wasting of the right calf. Restricted straight leg raising on the right (40%) as opposed to the left (70%). Hyperesthesia to pin prick over the lateral border and sole of the right foot in an s1 distribution. Weakness and eversion of the right foot. Weakness and extension of the right big toe.
CURRENT
Current symptoms
There is persistent thoracic mid-level pain which radiates around the ribs to the anterior chest wall. This increases with driving more than 30 minutes associated with a burning sensation but states that the stimulator has reduced the pain. At present his neck is asymptomatic he occasionally gets a flareup of pain which is secondary to the thoracic pain.
He gets low back pain which radiates into the buttocks, lateral thigh, calves and lateral foot including the sole in both feet but worse on the left. After walking 10 to 15 minutes, he gets increased low back pain and has a poor sleep pattern due to pain.
He also states that he suffered from post-traumatic stress disorder associated with depression. He lives with his wife in a single-story house and is still under Workcover. However, he has been working part-time with two days at home and three at work for a total of 25 hours per week. He finds that he has to stand up frequently from a sitting position for pain relief. His wife works full-time.
Current treatment
The claimant present medication is Cymbalta 90mg a day, Seroquel 25mg at night and Valdoxan 25mg at night. He takes Panadol during the day and Panadol Forte two at night with occasional Targin or temgesic. He is also taking calcium, magnesium and vitamin D for his osteopenia. He follows up with his GP as needed and has a consultation booked with his pain specialist Dr Nazha in August. He occasionally consults his psychologist.
CLINICAL EXAMINATION
General presentation
The claimant walked into the rooms with a normal gait and sat comfortably during the interview. His height was 175cm and weight 78kg. He states that he is right-handed.
Cervical spine
On inspection there was a normal contour and on testing range of movement flexion/extension, side bending rotation were all 75% of expected range with no asymmetry. On palpation there was no guarding or spasm in the cervical musculature.
On neurological examination of the upper limb’s reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference the upper arms 29cm bilaterally (10cm above the olecranon process) and in the upper forearms 27cm bilaterally (5cm below the olecranon process).
Thoracic spine
There is an extensive vertical surgical scar along the midthoracic spine with some kyphosis. On palpation there was decreased sensation along the lateral borders of the scar and tenderness over all the thoracic spines. Additional surgical scars were from the insertion of the batteries in the anterior and lateral abdomen from previous procedures. On testing range of movement, flexion/extension was 50% of expected range but side bending and rotation were 40% of range to the right and 60% to the left. There were no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Lumbar spine
The claimant walked with a normal gait and was able to stand on his toes and heels. On testing range of movement, flexion was 60% of expected range in extension 40% of expected range with side bending 50% of expected range bilaterally. Straight leg raise was limited to 60° by low back pain bilaterally and sciatic nerve root tension signs were negative.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no muscle wasting was apparent with the circumference of the lower thighs 46cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 37cm bilaterally). On testing for sensation, there was decreased sensation to pinprick bilaterally in the lateral foot and calf and a generalised decreased sensation in the left leg compared to the right.
Consistency of presentation
No inconsistency was noted during my interview and examination.
RADIOLOGICAL INVESTIGATIONS
The following imaging was brought to the Medical Review Panel re-examination:
· 21 June 2024 – CT of the thoracic spine, and
· 14 February 2024 – CT of the lumbar spine.
There were non-contrast scans which showed previous T7 and T8 laminectomies and the spinal cord stimulator device at the T6/T7 level which was intact. There is loss of disc height in the lower thoracic spines which is deemed to be associated with extensive endplate schmorl’s nodes with the loss of height at T7 with about 20% anterior wedge in. There was a slight disc protrusion at L5/S1 with possible irritation of the exiting left L5 nerve which apparently is unchanged compared to previous CTs.
DETERMINATIONS
Diagnosis, causation and reasons
Cervical spine – soft tissue injury
The treating GP reported that Mr Jamison had neck pain with the first consultation after the accident. The Panel accepts that Mr Jamison had sustained a soft tissue injury to cervical spine at the time of the accident which is basically resolved with no ongoing impairment. This would be a diagnosis-related estimate (DRE) 1 with 0% on the basis of functional mobility, no neurological deficit involving either upper extremity and no muscle spasm or wasting.
Thoracic spine – soft tissue injury, rib fractures
It was documented by the treating GP that Mr Jamison had severe thoracic spine and chest pain immediately after the accident and he was referred to a pain specialist who undertook several CTs of the thoracic spine and treated him with intercostal blocks and several spine cord stimulators which failed resulting in the insertion of paddle and laminectomy. There is persistent pain in the thoracic spine region but he has had reasonable relief with a paddle stimulator. The Panel accepts that this injury was caused by the subject accident.
There was a later development of compression fracture of the T7 vertebral body with 20% loss of height. The treating pain physician, Dr Nazha noted after a consultation on 5 December 2023 that this was a recent occurrence and not related to recent trauma at that stage. After an investigation with bone mineral densitometry, he was diagnosed with significant osteopenia which has subsequently been treated with vitamin D and calcium supplements.
The Panel does not consider that the subject accident caused the compression fracture of T7 as it has occurred five years after the accident.
Whole person impairment has been assessed as a DRE 11 which is 5% WPI. This is because there was dysmetria on testing range of movement but no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region.
Lumbar spine – soft tissue injury
The claimant gives a history of developing lumbar spine symptoms and signs only after the insertion of the spinal cord stimulator. At the time of my examination, there was dysmetria on testing range of movement with a positive straight leg raise bilaterally but there were not two signs of radiculopathy. He had some nondermatomal sensory changes in the legs.
If the lumbar spine was considered to be caused by the subject accident this would give a WPI of 5% due to dysmetria with no radiculopathy.
The Panel notes that the claimant has undergone multiple surgical procedures to his thoracic spine. This has given rise to an acute thoracis injury which has become a thoraco/lumbar problem. That is, it is the Panel’s view that it is transmogrified into a lumbar segment which gives rise to an identifiable lumbar spinal complaint. The altered biomechanics of the thoracic spine have led to the lumbar spine becoming involved in the claimant’s injuries.
The Panel notes the observation of Dr P Bentivoglio in his report dated 2 November 2023 that one would have to expect that his ongoing thoracis pain is related to the motor vehicle accident and his ongoing low back pain going into his right leg is also related to the motor vehicle accident even though it came on some six months after the accident.
The Panel notes that the thoracic injury was one sustained in the motor vehicle accident, this led to the claimant undergoing multiple surgical procedures and revisions of the stimulated device inserted in his thoracic spine. It is the Panel’s view that there is a causal link between the multiple invasive treatments to his thoracic spine and the onset and development of the lumbar spine injury.
CONCLUSION
Permanent Impairment
The degree of impairment caused by the motor vehicle accident is 10%.
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