Jones v IAG Limited trading as NRMA Insurance
[2022] NSWPICMP 54
•22 March 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Jones v IAG Limited trading as NRMA Insurance [2022] NSWPICMP 54 |
| CLAIMANT: | Brett Jones |
| INSURER: | IAG Limited trading as NRMA Insurance |
| REVIEW PANEL: | Member Alexander Bolton |
| DATE OF DECISION: | 22 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Medical review; causation; pre-accident medical condition and treatment; radiological examinations by comparison before and after accident in near proximity to accident; complaint of exacerbation of cervical spine injury; post-accident surgery recommended for C6/7 fusion and discectomy; claimant not initially challenged about inconsistent answers by Medical Assessor; Panel review questioning of claimant but no medical re-examination; consideration of clauses 1.8 and 1.9 of Motor Accident Medical Assessment Guidelines (the Guidelines) and section 5D of the Civil Liability Act; the Panel was satisfied that there was a temporary aggravation of the claimant’s cervical spine symptoms but that the accident did not cause or contribute to a worsening of the impairment; the definition of causation in the Guidelines requires two arms of the definition to be satisfied and the Panel was not satisfied that this was the case; Held- Panel satisfied that no permanent cervical injury was caused by the accident. |
DETERMINATIONS MADE: | 1. The Panel revokes the Certificate of Medical Assessor Wallace dated 27 April 2021 and issues a new certificate determining that: (a) surgery for the claimant for a fusion and discectomy at the C6/7 level recommended by Dr Bazina does not arise out of the accident on 17 August 2016. |
REASONS
BACKGROUND
Brett Jones (the claimant) was involved in a motor vehicle accident on 17 August 2016. The driver of an oncoming car lost control and swerved onto the incorrect side of the road towards Mr Jones. Mr Jones took evasive action but a collision occurred with the left front and passenger side of Mr Jones’ car.
The claimant has made a 2A Application for damages.
The insurer submitted a treatment dispute application on 2 October 2020 pursuant to a direction of Member Cassidy.
The Panel issued a direction to the parties requesting provision of the parties respective bundles of documents that should be considered. These were provided and have been considered by the Review Panel (the Panel).
The claimant alleges injury to his cervical spine, lumbar spine and psychological sequelae arising from the accident.
The treatment dispute was commenced by the insurer to determine if surgery for C6/7 fusion and discectomy arose out of the accident. The claimant’s treating neurosurgeon, Dr Bazina, recommended anterior cervical C6/7 fusion surgery and discectomy. The insurer denies that the need for this surgery arises out of the accident.
The insurer submits that the proposed surgery is not related to the accident as the claimant was suffering from a pre-existing cervical spine condition at the time of the accident. The claimant says that the proposed surgery does arise out of the accident.
The dispute was referred to Assessor Wallace who determined that C6/7 surgery and discectomy do not relate to injuries caused by the accident. He provided his decision and reasons on 27 April 2021.
The claimant has sought a review of the decision of Assessor Wallace.
The President’s delegated officer, Sarah Edwards, determined on 4 August 2021 that there was reasonable cause to suspect an error in Assessor Wallace’s decision and the Panel has been convened.
Section 44 of the Motor Accidents Compensation Act 1999 (the Act) provides that the Authority may issue guidelines with respect to the treatment and care of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Medical Assessment Guidelines (the Guidelines) were issued pursuant to s 44 of the Act.
The present application is a review of a medical assessment pursuant to s 63 the Act.
The application for referral of a medical assessment to a Review Panel was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought – s 63(7) of the Act.
On 4 August 2021, the delegate of the President referred the medical assessment to the Panel as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application – s 63(2) b) of the Act.
Pursuant to s 63(3) of the Act and Sch 1, cl 14F(2) of the Personal Injury Act 2020 (PIC Act), the Panel consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
As the treatment dispute is one involving a question of causation, the Panel was satisfied that a physical examination of the claimant was not required.
The claimant’s solicitors had submitted that questioning by Assessor Wallace and inconsistent answers by the claimant should have been explored by the Assessor but were not. The Panel decided that a video conference with the claimant could clarify any issues about inconsistencies. This took place on 24 January 2021.
Clause 14F of Sch 1 of the PIC Act provides that 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 Sch 1 of the PIC Act. As the medical assessment, the subject of the review, was made after 1 March 2021, the new review provisions apply.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 63(3A) of the Act.
SUBMISSIONS AND DOCUMENTATION
The Panel has had the benefit of and has considered the claimant’s bundle of documents R1-R26, including the claimants submissions of 3 and 12 February 2021 at R1 and further submissions dated 29 June 2021 at R25.
The Panel has also had the benefit of and has considered the Insurer’s bundle of documents 1a-o and 2a-c including the Insurer’s submissions.
The insurer’s lodged a treatment dispute application on or around 2 November 2020. The claimant did not lodge his Reply until on or around 3 February 2021 which was out of time. The Reply of the claimant should have been lodged on or around 10 December 2021. It is not known if the insurer’s consent was sought and obtained by the claimant to the late lodgement of a Reply. The claimant then lodged further submissions on 12 February 2021.
With the initial submissions of 3 February 2021, the claimant sought to rely on a further report of Dr Matthew Giblin of 17 June 2019 in addition to his report dated 10 October 2017. The claimant within the submissions acknowledged that the report of 17 June 2019 had not been lodged initially, due to “an administrative oversight”. Neither of the reports of Dr Giblin of 10 October 2017 and 17 June 2019 form part of the bundle of documents upon which the claimant relies for this review.
The claimant also sought to rely on a further report of Dr Bazina dated 25 January 2021.
Clause 3.19 of the Medical Assessment Guidelines provides that a Reply to an Application must be lodged within 20 days of the application being sent to the Medical Service.
Clause 3.23 provides that a Reply lodged after the time limit in cl 3.19 has expired may be accepted by the Authority or the proper officer if they are satisfied that there is a reasonable explanation for the delay. A Reply sought to be lodged after the time limit in cl 3.19 has expired must attach an explanation for the delay and must first have been provided to the Insurer’s, in this case, who is to be given an opportunity to make a submission on the issue. The only explanation provided by the claimant was that the delay in lodging the documentation was an administrative oversight.
The insurer has not raised any objection to the late Reply, in this Review application.
Clause 16.14.3 of the Guidelines provides that if the proper officer is satisfied that further information or documentation is required, then the proper office may admit into evidence any document despite non-compliance with any time limit in relation to that document or service of it. In any event, the documentation now forms part of the review application and as it is a new hearing, the Panel accepts this as part of that application.
This review is by way of a new assessment of all the matters with which the medical assessment of Assessor Wallace is concerned. All relevant documentation forming the respective bundles of the claimant and the insurer have been considered by the Panel.
The insurer had included in its application for a treatment dispute, reports of Dr Bazina, the claimant’s treating neurosurgeon, dated 6 April 2019 and 2 September 2020. The insurer also included a report of Dr Giblin dated 10 October 2017. All three of these reports were part of the claimant’s Reply. The insurer also included clinical notes of Dr Bazina as at 19 May 2020 and another report of hers of 8 October 2018, in addition to other documents it relied on.
The report of Dr Bazina of 25 January 2021 does not follow a further examination of the claimant but is a response to a number of questions raised by the solicitors for the claimant. The report contains no new information upon which Assessor Wallace could have acted. The report of Dr Giblin of 17 June 2019 is similar in content to his report of 10 October 2017 and does not add any new information.
The claimant submitted that Assessor Wallace did not put to the claimant alleged inconsistencies in relation to the claimant’s pre-accident medical history as provided by the claimant and referred to at p 3 of the findings of Assessor Wallace. It is apparent from the reasons that Assessor Wallace did not question the claimant about the evident inconsistencies relating to his pre-accident and post-accident history
The Panel arranged to discuss with the claimant, his pre-accident medical history and his post-accident symptoms. This occurred on 24 January 2022 by video link between the claimant and the three Panel members.
The purpose of this teleconference was to question the claimant about his pre-accident medical condition and the disabilities which occurred after the accident by way of aggravation or permanent disability.
The claimant was asked about his pre-accident medical condition and history in light of his post-accident complaints. The claimant said that he is getting symptoms now which he has never had previously.
The claimant acknowledged that he had a number of radiological investigations prior to the accident but said that this was mainly whilst he was under the care of Dr Fernandez who was treating him for sinus problems. He said that Dr Fernandez wanted an MRI of his neck which took place about one month before the accident as the doctor wanted to check for any referred pain.
The claimant said that he could only ever recall muscular pain in his neck before the accident. The claimant said that before the accident, his problems were degenerative and not traumatic.
The claimant in the course of questioning did not acknowledge any previous injury or symptoms. He related some cervical discomfort to heavy physical work although pre-accident it was documented that he was very limited for any work activity, particularly noting that he made an application for a disability pension.
The Panel is of the finding that no permanent cervical injury was caused by the accident. There was an exacerbation of symptoms that essentially settled in the short term, then with ongoing and probable increasing cervical symptoms, reflecting the expected natural increase in the pre-existing cervical degenerative changes with time. There is no radiological evidence of physical injury from the accident.
It is apparent from the radiological investigations that post accident;
a. there is no specific nerve root compromise accompanied by corresponding symptoms/physical findings, that is, no radicular component, and
b. there is no instability demonstrated at any level
While Dr Bazina initially advised that no surgery was required, she later changed her opinion to recommend one level and then later two level fusion without obvious cogent objective reasons.
Causation
The Motor Accident Guidelines provide the test for causation at cl 1.8 and cl 1.9 as follows:
1.8 Causation is defined in the Glossary at page 316 of the AMA 4 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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b)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.
1.9 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.
In Ackling v QBE Insurance (Aust) Ltd (2009) 75 NSWLR 482; [2009] NSWSC 881 (Ackling), Johnson J pointed out that it should be kept in mind “that the assessment of the degree of permanent impairment of an injured person as a result of injury caused by a motor accident is to be undertaken by medical practitioners acting as medical assessors at first instance or as members of a review panel”. His Honour said the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one”, and that it is “important that the process is not rendered unduly complex by legal terminology”.
Johnson J commented at [87] that in undertaking the task of assessing causation, a review panel will derive practical assistance from clauses 1.7 to 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650, Campbell J at [27] agreed with Johnson J’s approach in Ackling. However, he made a further comment concerning the use of s 5D of the Civil Liability Act 2002 (NSW) by a review panel with respect to the similar provisions in the Permanent Impairment Guidelines. Campbell J said:
“[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 assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling 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 5D. (See s 3B(2)).”
Accordingly, cls 1.8 and 1.9 of the Guidelines must be read in conjunction with the common law, as modified by s 5D of the Civil Liability Act 2002. Section 5D reads:
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”
The assessment of causation under s 5D involves two elements: “factual causation” under s 5D(1)(a) and “scope of liability” under s 5D(1)(b): Adeels Palace Pty Ltd v Moubarak(2009) 239 CLR 420; [2009] HCA 48 at [42] (Adeels Palace); Wallace v Kam(2013) 250 CLR 375; [2013] HCA 19 at [12]. The consideration of factual causation under s 5D(1)(a) is a statutory restatement of the “but for” test. That is, but for the negligent act or omission, would the harm have occurred (see Adeels Palace at [45]). The determination of scope of liability under s 5D(1)(b) involves a value judgment, as does the determination of factual causation.
There is a conflict between s 5D and cls 1.8 and 1.7 of the Guidelines. Section 5D(1)(a) mandates the use of the “but for” test, however, the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.
Consequently, while a review panel must take into account legal notions of causation (s 5D and the common law principles), it is also permitted to seek guidance in cls 1.7 to 1.9 of the Guidelines (which does not necessitate the use of the “but for” test, but rather involves a determination of material contribution) and it is not strictly bound to apply the true legal test for causation – see Pham v NRMA [2015] NSWSC 360.
Dr Bazina has recommended anterior cervical C6/7 fusion surgery and a discectomy for the claimant. This has been the subject of a Medical Assessment Service treatment dispute and is for consideration by this Panel.
The claimant alleges injury to his cervical spine, lumbar spine and psychological sequelae arising out of the accident on 17 August 2016. The insurer submits that the surgery is not related to the accident as the claimant was suffering from a pre-existing cervical spine condition at the time of the accident. The insurer says that this treatment is not accident related.
Assessor Wallace discussed in detail the radiological and medical imaging brought to the assessment. This included a CT examination of the cervical spine dated 22 June 2016, two months prior to the accident, indicating symptomatic multilevel degenerative cervical spondylosis. Assessor Wallace also referred to a letter of Dr Tablante dated 8 September 2015, 11 months prior to the accident, in which the claimant was noted to be suffering from significant symptomatic multilevel degenerative cervical spondylosis with recurrent discs prolapse and nerve root impingement causing pain affecting both arms in the C5/6 and C6/7 regions.
Assessor Wallace then considered a bone scan examination of 19 June 2018 evidencing no increased uptake at the C6/7 level. A further bone scan on 2 July 2020 showed moderately increased uptake at the C6/7 level which was not present two years previously.
The Panel has considered the medical evidence within the party’s respective bundles of documents. Concerning the claimant’s medical evidence, the Panel provides the following summary, which is not exhaustive of all of the documentation of the parties respective bundles of documents;
General Practitioner (GP) notes Dr Tablante
Pre-accident:
13 August 2014 - complaints of right wrist worsening pain secondary to arthritis and impingement syndrome.
Report Dr Scott, Hand surgeon 22 August 2014 - investigation for pain both wrists.
25 August 2014 - arthritis affecting right wrist, right elbow epicondylitis possible cortisone injection.
11 December 2014 - root impingement affecting the bilateral C6 and C7 region with pain worse on the left C6. Suggest cortisone injection under CT guidance, trial of OxyContin.
27 April 2015 - shingles affecting the left C8 nerve root. Medical certificate 3 months.
11 May 2015 – Medical Report:
Chronic Pain Syndrome with secondary severe depression and recurrent anxiety
Worsening pain tolerance
Severe arthritis affecting cervical and lumbosacral spine with associated multiple
Nerve root impingement
Recurrent back pain with associated recurrent disc prolapse affecting the lumbosacral spine as well as the cervical spine.
Reduced mobility and dexterity, difficulty in lifting, carrying, or manipulating objects greater than 2 kg.
Ongoing severe bilateral wrist pain.
Unable to do his profession as a direct result of ongoing severe pain. Poor dexterity, power of both hands.
Severe bilateral shoulder pain secondary to recurrent nerve root impingement associated with bilateral C6-C7 region secondary to arthritis/recurrent disc prolapse affecting the cervical spine.
Planned treatment: referral to neurosurgeon, Dr Bazina. Pain Clinic Liverpool Hospital.
Progressive deterioration of neck pain and stiffness with gradual onset of arthritis affecting the cervical spine primarily directly related to his profession as a massage therapist.
Unfit for work.
8 July 2015 - MRI of wrists shows multiple arthritic changes.
18 August 2015 - shingles affecting the left C6 nerve root distribution.
Report Dr Tablante 8 September 2015:
1.“Cervical spine arthritis with associated recurrent disc prolapse with associated severe recurrent tension headaches with associated nerve root impingement causing nerve pain affecting both arms in the C5-C6, C6-C7 regions. This condition is chronic. Unfortunately, it can only deteriorate rather than improve.”
Bilateral wrist pain, currently self-employed, but unable to do his normal duties due to the chronic severity of his pain.
“Due to the above conditions, it is in my opinion … that he is unfit to do any form of work that he has been trained and had experienced with including massage therapy and spray painter. In regards to the above conditions as stated above, they are all chronic in nature with little chance of improvement.”
14 September 2015 - patient had multiple cortisone injections to the wrists and base of the thumb. Now complaining of moderately severe pain. Neck discomfort. Endone or Panadeine Forte suggested.
28 September 2015 - shingles affecting the right C5 region. Endone prn.
11 November 2015 - “Patient has also been increasing frequency of dropping things without knowing. On examination, power okay on both arms and hands but sensation obviously altered as a result of nerve root irritation affecting the cervical spine secondary to arthritis and disc prolapse.”
29 January 2016 - script provided for Endone for ongoing severe pain non-responsive to non-narcotics.
17 February 2016 - patient unable to work long hours because of the severity of his disability.
2 March 2016 - patient still in a lot of pain. Wants to retrial Endone.
24 April 2016 - requesting referral to psychiatrist, due to worsening anxiety/depression associated with the chronic pain syndrome that he is experiencing.
20 May 2016 - severe pain still persistent. Endone.
2 June 2016 - ongoing depression and recurrent anxiety attacks probably secondary to chronic pain syndrome.
6 June 2016 - report Dr Fernandez, Plastic Surgeon. Dr Fernandez had been reviewing Mr Jones for bilateral wrist and left thigh symptoms. He recommended CT scans, including CT cervical spine, (presumably to exclude any cervical pathology contributing to the bilateral hand symptoms).
1 July 2016 - multiple disc prolapse affecting the thoracic and lumbar spine on background of arthritis, but no definite nerve impingement. Referral to Dr Bazina raised.
8 August 2016 - referral from Dr Tablante to Hand Clinic for ongoing review of his ongoing painful bilateral wrist pains. Osteoarthritis affecting the lumbosacral spine and cervical spine noted.
Report Dr Chan, Hand Surgeon 8 August 2016. Bilateral wrist symptoms (bilateral hamato-lunate impingement and right cubital tunnel syndrome).
MVA 17 August 2016:
18 August 2016 Dr Tablante, GP - since motor accident has been complaining of neck pain with stiffness, associated mild headaches and dizziness, range of movements limited on examination secondary to paravertebral muscles spasming, bilateral rib pain and anterior chest pain, left thigh aggravation of the chronic pain that he has, right upper limb mild paraesthesia worsening and mid thoracic pain.
On examination, multiple soft tissue injuries.
Endone script provided.
Review if worsening symptoms for possible bone scan and review bone scan and physiotherapy (+/) orthopaedic specialist review.
24 August 2016 - acute aggravation of arthritis affecting the cervical spine, now with radiculopathy affecting the bilateral C6-C7 nerve root post motor vehicle accident. MRI and review.
29 Aug 2016 - MRI of neck shows multiple disc level swelling, but no nerve root irritation. Post Traumatic Stress Disorder and suggestion of counselling and physiotherapy to the neck.
Also, referral to neurologist for nerve conduction study as patient is still getting paraesthesia.
13 September 2016 - ongoing neck pain secondary to MVA, therefore physiotherapy this afternoon.
28 September 2016 - recurrent gastritis.
28 October 2016 - left rib myalgia. Tenderness on springing left anterior rib cage.
7 November 2016 - left shoulder blade skin tag.
18 November 2016 - chronic severe sinusitis once again.
29 November 2016 - ongoing worsening pain affecting the lower pelvic region requiring further investigation and management.
3 January 2017 - acute on chronic sinusitis.
13 & 23 January 2017 - chronic lethargy investigated.
22 February 2017 - increase Zoloft for worsening pain.
10 March 2017 - cryotherapy warts affecting the posterior neck.
13 March 2017 - acute aggravation of arthritis affecting the lumbosacral spine with associated disc prolapse.
11 April 2017 - constant pain because of anaesthetic wearing off after nerve root cortisone injection. Endone.
3 May 2017 - ongoing nerve root irritation post injection to the lower back. Retrial Lyrica.
12 May 2017 - bone density showing osteopenia.
23 May 2017 - sinusitis.
Panel Comment: no reference to specific cervical spine injury or symptoms from September 2016 to June 2017 in GP notes, that would imply resolution of the flare of cervical symptoms from the motor accident.
9 June 2017 - referral to Dr Bazina with worsening lower back pain with Paraesthesia affecting both legs with nerve root irritation.
27 June 2017 - to see Dr Bazina tomorrow regarding possible surgery to cervical spine disc prolapse causing bilateral upper limb paraesthesia and weakness which has been getting worse over the last few months aggravated by the motor vehicle accident that he had.
Note: recent worsening of cervical symptoms.
11 July 2017 - Regular Endone for ongoing severe pain.
16 July 2017 - post injection under CT on the neck. Continuing dizziness and neck pain.
16 August 2017 - bilateral carpal tunnel syndrome mild only. Return to hand surgeon For possible carpal tunnel release.
31 October 2017 - persistent peripheral neuropathy painful. Re trial Lyrica plus Endone.
28 November 2017 - ongoing severe pain affecting the right sinusitis.
26 June 2018 - acute aggravation of arthritis affecting the cervical spine. Patient attending Dr Bazina.
19 September 2018 - Severe pain affecting the cervical and lumbosacral spine. Endone and Lyrica.
18 January 2019 - Further discussion of RF treatment to the multiple irritated nerves affecting the cervical spine.
Dr Katzen Ear Nose and Throat Surgeon
Dr Katzen 29 June 2010 - Dr Katzen noted ‘severe cervical myositis’. Noted referred pain from neck to face.
Panel Comment: unclear terminology used by Dr Katzen; however, presumably definite clinical signs in the cervical spine with cervical origin of pain.
Dr Katzen reports 18 October 2016 & 3 March 2017 - no reference to motor accident of August 2016.
Dr Katzen 5 July 2017 - his neck is better than it was. He has got numerous problems with his neck and back and has just recently been involved in another motor vehicle accident where a drunk driver hit him.
INVESTIGATIONS:
CT Scan Cervical Spine 22 June 2016
Clinical Information: “Skateboard injury 1976 ? Cervical spine and lumbosacral pathology”
“C5/6: There is loss of disc height with both an anterior and posterior disc osteophyte complex and thecal sac compression and potential cord compression. There is foraminal narrowing bilaterally and probable C6 root compression.
C6/7: More prominent posterior disc osteophyte complex with probable cord compression and bilateral C7 foraminal root compression. Facet joint arthropathy.”
Panel Comment: Discovertebral degenerative change most marked at C5/6 and C6/7 with probable cord compression and foraminal nerve root compression bilateral C7. This pathology apparently symptomatic and documented about two months pre-accident.
MRI Scan of the Cervical Spine 26 August 2016
Clinical Information: “Previous MVA, neck pain with paraesthesia of the hands”
Report: “At the C5/6 level, posterior bulging of the disc annulus is present with flattening of thethecal sac but no encroachment on the cord. Bilateral uncovertebral osteophyte development is present. No discrete nerve root compromise is seen.
At the C6/7 level, there is circumferential bulging of the disc annulus without discrete nerve root compromise.”
Panel Comment: The MRI noted no discrete nerve root compromise and no ‘bulging’ of the annulus encroaching on the cord. Stable changes considering the MRI report of 21 June 2017.
MRI Scan of Cervical Spine 21 June 2017 Dr Ganeshan
In conclusion, “disco vertebral changes most marked at C3/4, C5/ 6 and C6/7 with potentially right C4 and bilateral C6 root compression.”
Panel Comment: When compared to the previous study of August of 2016, the discovertebral changes remain stable.”
Nerve Conduction Tests, Dr Griffith 14 August 2017: mild bilateral median nerve entrapments at each wrist and mild sensorimotor peripheral neuropathy.
CT Scan Cervical Spine 26 June 2020 Dr Ganeshan
Foraminal narrowing noted bilaterally, with C7 root impingement.
Panel Comment: Bilateral C7 foraminal root compression documented pre accident (CT 22 June 2016).
No change on sequential scan reports.
Whole Body Bone Scan with SPECT CT 19 June 2018 Dr Kok
Generalised degenerative changes, nil specific in cervical spine, two years post-accident.
Cervical Spine Bone Scan with SPECT CT 2 July 2020 Dr Brittain
Discovertebral changes in the cervical spine with severe degenerative arthritis noted at facet C4-5, and mild at C5-6 level.
Panel Comment: Consistent with increased degenerative changes at C4-5 with time, distant from motor accident, and not related to any focal changes at anticipated operative level.
Prime Physiotherapy, P Cormack 16 September 2016. Presented on 14 September 2016 with neck, shoulder and upper back pain following an MVA. Moderate limitation of shoulder and neck movement. There were no neurological signs. There was tenderness of the paravertebral muscles.
The physiotherapist noted that he has chronic pain affecting these areas with the accident seeming to be an exacerbation of these injuries.
Noted that he already received regular pain management counselling that preceded the accident. A specific stretching regimen was given.
Reports Dr Price Occupational Physician
6 September 2017 - noted that in September 2017 still intermittently playing bass guitar with ‘Highway to Hell’ and still working one day a week as a massage therapist. Skateboarding accident of 1995 noted with left femur fracture. Chronic pain syndrome management noted in April 2016.
Dr Price said (at p 6) Mr Jones had long-term pre-existing degenerative disease of the cervical spine and had a chronic pain condition and suffered an aggravation of those conditions with soft tissue injury.
Noted that the aggravation caused by the accident had largely settled and that the prognosis is for ongoing pain and discomfort related to his pre-existing condition. Also, no further treatment, medication or specialist treatment required in relation to the accident, with any intervention required relating to his pre-existing condition.
10 May 2019: report noted - Dr Price advised that as far as the accident is concerned, Mr Jones has recovered.
Reports Dr Renata Bazina, Neurosurgeon
Dr Bazina 6 April 2017.
Suffering chronic pain syndromes including facial pain, neuropathic pain in the lower limbs( - no reference to the cervical spine}.
Dr Bazina, 14 June 2017.
Noted Mr Jones was involved in MVA 16 August 2017 [sic], suffering from neck pain from cervical spondylosis.
Noted he had an MRI [sic] scan dated 22 June 2016 that showed disco-vertebral change in the C5/6 and C6/7 disc with foraminal stenosis. Noted that following the MVA, Mr Jones had exacerbation of his neck pain, pins/needles down the arms with subjective weakness.
Dr Bazina noted the MRI dated 26 Aug 2016 reported considerable change in the interval period with acute disc herniations at 5/6 and 6/7, suggesting this may be related to the car accident.
Panel Comment: (a) no MRI report available of 22 June 2016; cervical CT scan of that date noted.
(b) on reviewing the reports available (June & August 2016), no change identified pre/post motor accident. See MRI report 21 June 2017 documenting no change in progress MRIs.
(c) further, the clinical examination of Dr Bazina documented no specific abnormality, and a further MRI scan was recommended.
Dr Bazina 29 June 2017 - “MRI scan shows the disc osteophyte at C5/6, C6 nerve root compression…” Nerve block suggested.
Panel Comment: The MRI of 21 June 2017 reported ‘potential’ for C6 root compression.
Dr Bazina 8 August 2017 - mild improvement with peri radicular block. Dr Bazina noted,
“I would not recommend surgery at this point particularly as we have this undiagnosed issue as to why he drops things with both hands. Mr Jones will complete nerve conduction/EMG studies, with review by a neurologist. He is also awaiting bilateral wrist surgery. This may be multi factorial but I can reassure you there is no cervical myelopathy, no cord compression.”
Dr Bazina 4 September 2017 –
“In terms of his neck pain, there is no surgical pathology at the moment but I have him on a 2 year recall system for follow up MRI scans. He has tried various concoctions of neuropathic medications with no benefit. I have not recommended anything new.”
Panel Comment: Advised no surgical pathology. Neuropathic medications continued from before the motor accident.
Dr Bazina 27 April 2018 - constantly dropping things with his upper limbs and question of deterioration. No evidence of cord compression, myelomalacia or signal change on imaging.
Main issues are pain management with persistent neck pain. No benefit from C5/6 blocks.
Dr Bazina 31 May 2018 - advised that the dropping of items probably related to small fibre peripheral neuropathy, maintaining Lyrica. Issue of radiofrequency rhizotomy for musculoskeletal pain but would not treat the neuropathy.
Report Dr Bazina 8 October 2018 to Brydens Lawyers:
Item 1 – reference to an attendance on 8 February 2019 not correct
Item 2 - neck and back pain, no verifiable radiculopathy, Whiplash Associated Disorder grade II
Item 3 - neck pain, dizziness, headaches, UL paraesthesia non dermatomal
Item 4 - “He has no capacity to return to pre MVA work as a masseuse”
Item 5 - Diagnosis WAD type II. Prognosis for recovery poor.
Panel Comment: Pre-accident symptoms documented. No reference to surgery for neck and no indication on diagnosis.
WAD II (neck problems and musculoskeletal signs) documented before motor accident and not an indication for cervical fusion.
Dr Bazina 6 June 2019 - continuing neck symptoms but nil further advised. Lumbar symptoms dominant.
Dr Bazina 26 June 2019 - noted MRI of lumbar region - no indication for lumbar surgical intervention; no reference to cervical spine/upper limb.
Dr Bazina 21 February 2020 - report of cervical radio frequency is mild improvement but too early to tell at this point in time. Otherwise references to lumbar spine and femur.
Dr Bazina 27 March 2020 - consultation regarding final review of his status having neck and back symptoms exacerbated by motor vehicle accident 2016.
Panel Comment; It was noted, “The radiofrequency treatment has had very minor impact on his cervical pathology and therefore the other option for treatment was a cervical fusion for C5/ 6 and C6/ 7. He may require this sometime in the next five years.”
Dr Bazina 6 April 2020 to Brydens Lawyers
Item 2 - whiplash associated disorder and aggravation of cervical spondylosis of C6/7 and C5/6 discovertebral changes.
Item 3 - NCS exclude nerve root injury suggest mild carpal tunnel syndrome and sensorimotor peripheral neuropathy unrelated to MVA.
Item 5 – Dr Bazina noted no improvement in his symptoms rather worsening of radiological changes and that the cervical discovertebral pathology on probability will progress and require surgery within 5 years.
Panel Comment: Motor accident probably caused some exacerbation of chronic pain that had been associated with longstanding ‘cervical spondylosis of C6/7 and C5/6 discovertebral changes’ - any such exacerbation essentially resolved on the medical documentation, considering the progress GP notes, physiotherapy report of 16 September 2016, Dr Katzen’s post-accident reports, Dr Price’s reports and Dr Bazina’s initial report of 6 April 2017.
Dr Bazina 2 September 2020 - Suggestion by Dr Bazina to be put on waiting list regarding the C6/7 surgery.
Panel Comment: No reference to motor accident causing the requirement for surgery.
Dr Bazina 25 January 2021 to Brydens Lawyers
Item 4 - Note: capacity for employment. Mr Jones not engaged in material massage work pre-accident; continuing disability related to symptoms dating from before the motor accident, on the medical evidence available.
Item 5 - “C5/6, C6/ 7 discovertebral disease and bilateral foraminal impingement secondary to whiplash injury following MVA. Had it not been for the motor vehicle accident the patients symptoms may have well remained quiescent for a further decade”.
Panel Comment: These changes present and radiology well documented pre-accident, with no material change between pre and post-accident radiology and significant longstanding cervical and upper limb symptoms precluding effective employment, pre accident. No evidence that the motor accident accelerated any potential for surgery.
Item 6 - “Your treatment recommendations, Anterior cervical discectomy and fusion”
Panel Comment: No obvious indication for surgical fusion, in the context of longstanding stable cervical degenerative changes, without investigative evidence of neural compromise reflected in specific clinical findings, and in the context of widespread chronic pain, CTS and bilateral wrist pathology.
Item 7 – Your opinion as to whether the C6/7 surgery is reasonable and necessary in the circumstances. -Surgery is reasonable and necessary in the circumstances as the patient continues to complain of symptoms, has not responded to conservative treatment and remains disabled in terms of employment.
Panel Comment: The complaint of symptoms in the context of pre-existing chronic pain explains the non-response to usual conservative treatments; non-response to specific spinal diagnostic/therapeutic injections is usually interpreted as a contraindication to surgery.
Non-response to conservative treatment is not an indication for fusion surgery per se.
Item 8 - “Yes I confirm that the planned surgery C6/7 anterior cervical discectomy and fusion is causally related to the accident as it precipitated the symptoms of what was otherwise asymptomatic degenerative change.”
Panel Comment: Dr Bazina gives no context to this statement regarding causation; symptoms well entrenched and chronic before the motor accident. Dr Bazina has apparently not taken into consideration the medical documentation referred to. Progress investigations do not support any structural change caused by the motor accident.
Medico-Legal Reports Dr M Giblin Orthopaedic Surgeon
Dr Giblin 10 October 2017 – Dr Giblin outlined no specific cervical radicular symptoms or signs and a full range of motion of both shoulders.
Under ‘Opinion & Prognosis’ he says that there is an aggravation of pre-existing asymptomatic degenerative change of the cervical spine.
Panel Comment: No obvious consideration given by Dr Giblin to the pre-accident medical documentation of cervical spine symptoms/impairment.
Further, Dr Giblin advised that, “Surgical intervention is not anticipated in the future”.
Dr Giblin 17 June 2019 - Dr Giblin outlines no cervical radicular symptoms, noting no major change in his condition since October 2017. He defines no cervical radicular signs.
Under ‘Opinion & Prognosis’ Dr Giblin says that there has been an aggravation of pre-existing asymptomatic cervical degenerative changes.
Panel Comment: Dr Giblin has not considered the pre-accident medical documentation. He refers to no indication for surgical intervention for the cervical spine.
Prior to the accident the claimant had a well documented medical history as seen from the clinical notes of Dr Tablante. In December 2014 the claimant had nerve root impingement affecting the bilateral C6 and C7 region. In May 2015 he was noted to have severe bilateral shoulder pain secondary to recurrent nerve root impingement associated with bilateral C6/C7 region secondary to arthritis/recurrent disc prolapse affecting the cervical spine. This was reported as a progressive deterioration of neck pain and stiffness with gradual onset of arthritis affecting the cervical spine primarily directly related to his profession as a massage therapist. This was reported on again by Dr Tablante in a report of 8 September 2015.
In this report, 11 months prior to the accident, Dr Tablante noted the claimant to be suffering from significant symptomatic multilevel degenerative cervical spondylosis with recurrent discs prolapse and nerve root impingement causing pain affecting both arms in the C5/6 and C6/7 regions.
The claimant also had a bone scan examination of 19 June 2018 evidencing no increased uptake at the C6/7 level. A further bone scan on 2 July 2020 showed moderately increased uptake at the C6 track seven level which was not present two years previously.
Within the notes of Dr Tablante, references to pain and chronic pain were reported on 29 January 2016, 17 February 2016, 2 March 2016, 24 April 2016, 20 May 2016, and 2 June 2016. The claimant then had a CT scan of the cervical spine on 22 June 2016 and, following the accident, an MRI scan of the cervical spine on 26 August 2016.
A CT examination of the cervical spine dated 22 June 2016, two months prior to the accident, indicated symptomatic multilevel degenerative cervical spondylosis.
The Panel notes that with the investigation of 26 August 2016 there was no discrete nerve root compromise and no bulging of the annulus encroaching on the cord.
From September 2016 to June 2017 there is no record in the clinical notes of Dr Tablante of a cervical spine injury or symptoms which is suggestive of resolution of the symptoms arising from the accident.
The claimant had another MRI scan of the cervical spine on 21 June 2017. When compared with the previous study of 26 August 2016, the discovertebral changes remained stable.
A CT scan of the cervical spine on 26 June 2020 evidenced bilateral C7 foraminal root compression which was documented in the CT scan of 26 June 2016. A sequential review of the MRI scan and CT scan reports evidences no change. A whole-body bone scan with a SPECT CT of 19 June 2018 indicated generalised degenerative changes but nothing specific in the cervical spine, two years post-accident.
Whilst Dr Bazina in her report of 14 June 2017 noted the claimant’s accident, when discussing the MRI scan dated 26 August 2016, she reported a considerable change between the scan of 22 June 2016 and the MRI of 26 August 2016. She reported change with acute disc herniations at C5/6 and C6/7, suggesting this may be related to the accident. However, a review of the reports of 22 June 2016 and 26 August 2016 evidences no change identified between the pre and post-accident intervals.
The panel is of the finding after reviewing all of the medical reports and discussing the claimant’s pre-and post-accident condition with him that the accident probably caused some exacerbation of chronic pain that had been associated with long-standing cervical spondylosis of C6/7 and C5/6 discovertebral changes. That exacerbation resolved shortly after the accident with no further complaints being made which were attributable to the accident. No cervical injury was caused by the accident of a permanent nature. There was a short-term exacerbation.
The Panel considered whether the factor of the accident and injuries arising could have caused or contributed to a worsening of the claimant’s impairment. The Panel concluded that this was the case albeit in the very short term. However, the Panel concluded, when asking the question whether that factor did cause or contribute to a worsening of the impairment that this was not the case. The definition of causation in the Guidelines requires both arms to be satisfied. The Panel is not of the finding that this is the case.
PANEL FINDINGS
The claimant sought approval from the insurer for C6/7 fusion and discectomy surgery by Dr Bazina. The insurer did not agree. The Panel has considered all of the medical evidence and has questioned the claimant about his pre and post-accident medical condition.
The Panel concludes that no permanent cervical injury was caused by the accident. The Panel says that there was an exacerbation of symptoms that settled in the short term. Thereafter any increasing cervical symptoms reflected the expected natural increase in the pre-existing cervical degenerative changes with time. There is no radiological evidence of physical injury arising from the accident. Any consideration of cervical surgery by way of a fusion and discectomy is not relevant to an injury arising out of the accident.
The Panel further says that the indications are not present on the medical evidence to proceed to cervical discectomy and fusion for chronic axial pain.
There is no specific nerve root compromise accompanied by corresponding symptoms/physical findings such as a radicular component.
There is no instability demonstrated at any level.
There is no permanent cervical injury caused by the accident.
There was an exacerbation of symptoms that settled in the short term, then with ongoing and probable increasing cervical symptoms, reflecting the expected natural increase in the pre-existing cervical degenerative changes with time.
The Panel concludes that surgery for the claimant of a fusion and discectomy at the C6/7 level recommended by Dr Bazina does not arise out of the accident on 17 August 2016.
Member Alexander Bolton
Medical Assessor Drew Dixon
Medical Assessor Rhys Jones
Personal Injury Commission
0
6
0