Kitley v Allianz Australia Insurance Limited
[2025] NSWPICMP 124
•27 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Kitley v Allianz Australia Insurance Limited [2025] NSWPICMP 124 |
CLAIMANT: | Helen Kitley |
INSURER: | Allianz Australia Insurance Ltd |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 27 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 26 September 2017; Medical Assessor determined the claimant’s disputed treatment was not related to the injuries caused by the accident; dispute about treatment; Held – the Review Panel conducted its own examination and concluded that the treatment in dispute was not caused by the accident; Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Kuru of 21 June 2024 being that the following treatment: (a) L4/5 microdiscectomy as recommended by Dr Marc Coughlan on 11 July 2022 and L3/4 microdiscectomy on 21 July 2022, does not relate to the injury caused by the motor accident. |
STATEMENT OF REASONS
BACKGROUND
The claimant, Helen Kitley (Ms Kitley), was injured in a motor accident (the Accident) on 26 September 2017.
Ms Kitley was travelling north of the M1 at about 110kmph when she alleges that the driver of another vehicle fell asleep and accelerated to at least 125kmph, hitting the back of the vehicle she was driving and causing her vehicle to be ricochetted over three lanes of traffic. As a result, Ms Kitley was injured.
The insurer (Allianz) insured the owner and driver of the other vehicle for liability to pay
Ms Kitley any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).The issues in dispute are whether an L4/5 microdiscectomy as recommended by Dr Marc Coughlan on 11 July 2022 and an L3/4 microdiscectomy on 21 July 2022 were caused by the Accident and are reasonable and necessary in the circumstances.
Section 7.17 of the MAI Act defines a “medical dispute” to include a dispute between the parties about a medical assessment matter.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24” and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the dispute is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
The disputes were referred to Medical Assessor Robert Kuru who issued a Medical Assessment Certificate dated 21 June 2024.
Medical Assessor Kuru certified that the proposed treatment did not relate to the injuries caused by the Accident.
THE REVIEW
The President’s delegate referred the medical dispute to the Review Panel (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.
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 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 review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
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 proceedings 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.
The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this Direction.
RELEVANT LEGISLATION
Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1) An injured person is entitled to statutory benefits for the following expenses (‘treatment and care expenses’) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
....
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with Schedule 2 of the MAI Act that defines a medical assessment matter as “whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
Clause 2 (b) of Schedule 2 of the MAI Act was amended with the inclusion of the words “or to be provided” were inserted into the provision. The amendment followed a previous Commission decision rejecting the power under the MAI Act to determine a claim for future treatment.
Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(1) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
The relevant Motor Accident Guidelines 2017 (the Guidelines) giving effect to when payments may be authorised after the six- month period pursuant to s 3.28 of the MAI Act are contained in cl 5.16. Clause 5.16 of the Guidelines contains the reference to “recovery” in the context of treatment of care after a period of 26 weeks. Further defined expenses are recoverable after 26 weeks, even though the injuries are only minor injuries, if one of three conditions apply. One of those conditions is that the “treatment and care will improve the recovery off the injured person”. The clause provides:
“5.16 For a person whose only injuries are minor injuries, the payment of treatment and care expenses incurred more than 26 weeks after the motor accident is authorised if the treatment and care is:
(a) medical treatment, including pharmaceuticals
(b) dental treatment
(c) rehabilitation
(d) aids and appliances
(e) education and vocational training
(f) home and transport modifications
(g) workplace and educational facility modifications
and:
(h) the treatment and care will improve the recovery of the injured person, or
(i) the insurer delayed approval for the treatment and care expenses, or
(j) the treatment and care will improve the injured person’s capacity to return to work and/or usual activities.”
SUBMISSIONS
Insurer’s submissions of 15 May 2024
I summarise Allianz’s submissions of 15 May 2024 by way of reference to paragraph numbers:
[1.1] The dispute concerns the L4/5 microdiscectomy on 11 July 2022 and the subsequent L3/4 and L4/5 microdiscectomy on 21 July 2022, both performed by Dr Coughlan.
[1.2] Allianz maintains that these surgeries were neither related to injuries from the subject accident nor reasonable and necessary.
[1.3] Medical Assessor Kuru assessed Ms Kitley on 21 May 2024.
[1.4] Ms Kitley’s solicitors submitted updated records from Dr Coughlan, which Allianz consented to include.
[1.5] Allianz sets out the records that Dr Coughlan considered:
[a]2 Nov 2022 – Ms Kitley’s foot drop improving, bladder dysfunction likely due to neural irritation, and hip tears considered long-standing.
[b]31 Jan 2023 – Referral to Dr Michael Hunter for hip complaints.
[c]21 June 2023 – Noted increased pins and needles in right leg, gluteus medius tears, and anterior tibial tendon thickening suspected to contribute to foot drop. Ordered MRI.
[d]21 June 2023 MRI – Indicated worsened disc extrusion at L4/5 impinging on nerve roots and central focal disc protrusion at L2/3.
[e]19 July 2023 – Foot drop improved slightly; recommended L3/4 and L4/5 anterior fusion with posterior pedicle screws instead of another microdiscectomy, which he believed would fail.
[f]4 Sep 2023 – Performed L3/4 & L4/5 Anterior Lumbar Interbody Fusion (ALIF) followed by posterior pedicle screw fixation.
[g]19 Oct 2023 – Reported improvement in foot drop and gait.
[h]26 Nov 2023 CT – Possible contact on exiting left L2 and right L3 nerve roots.
[i]8 Dec 2023 – Noted Ms Kitley progressing well, planned review in the new year.
[j]6 Mar 2024 CT – Stable appearance compared to previous scan.
[1.6] On 26 April 2024, Ms Kitley’s solicitor confirmed her intent to claim costs for the L3/4 and L4/5 ALIF surgeries from 4 September 2023.
[1.7] Allianz disputes the surgeries were reasonable and necessary to the Accident, consistent with its prior submissions on earlier surgeries.
[1.8] Allianz requests inclusion of the 4 September 2023 surgery in the current dispute.
Claimant’s submissions of 19 July 2024
I summarise Ms Kitley’s submissions of 19 July 2024:
(a) Ms Kitley was examined by Medical Assessor Kuru on 21 May 2024 for the purposes of a medical dispute being a L4/5 microdiscectomy as recommended by Dr Marc Coughlan on 11 July 2022 and L3/4 microdiscectomy on 21 July 2022.
(b) Assessor Kuru in his Certificate of 21 June 2024 determined the proposed treatment did not relate to the injury caused by the motor accident.
(c) Ms Kitley asserts the certificate contains material errors which are grounds for review.
(d) Ms Kitley relies upon these submissions and its submissions dated 27 February 2023 made in reply to Allianz's Application for a Treatment Dispute.
Background
(e) Ms Kitley was born 30 September 1953 and will turn 71 years old this year.
(f) At the time of the motor vehicle accident on 26 September 2017, Ms Kitley was working 20 hours per week. Her expectation had been that she would continue working until age 75, potentially reducing her hours to 10 per week at age 72.
(g) Ms Kitley’s life expectancy is 89 years.
(h) Ms Kitley sustained injury to the cervical spine, lumbar spine, temporomandibular joint, jaw/teeth, right shoulder and arms as well as psychological deficits in the motor vehicle accident.
(i) On 20 October 2020, Ms Kitley underwent surgery to her cervical spine funded by Allianz by way of fusion of the C3/4 and C4/5 levels.
(j) On 11 and 22 July 2022, Ms Kitley underwent the subject lumbar spine surgery by way of microdiscectomies at the hands of Dr Coughlan.
(k) The claim is subject to the operation of the Motor Accidents Compensation Act 1999 (NSW) and not the MAI Act.
(l) Allianz wholly admitted liability in a s 81 notice of 12 March 2019.
(m) An earlier treatment dispute was resolved on 7 March 2019 when the Motor Accidents Medical Assessment Service (MAS) issued a determination of Medical Assessor Dr Boland that dental treatment recommended by Dr Collins being removal and replacement of a bridge and occlusal splint therapy for temporomandibular joint (TMJ) dysfunction was causally related to the motor vehicle accident.
(n) The Commission issued a certificate dated 15 March 2021 relative to the physical injuries determining Ms Kitley had a permanent impairment greater than 10% whole person impairment (WPI) confirming the entitlement to claim non-economic loss damages. Amongst the injuries found to have been caused by the motor vehicle accident contributing to the assessment of WPI was an injury to Ms Kitley’s lumbar spine.
(o) The matter was to be listed for an assessment of Ms Kitley’s entitlement to damages before Member Hugh Macken on 1 June 2023.
(p) The assessment hearing was vacated due to Allianz lodging the present treatment dispute on 21 December 2022 seeking to resolve the following disputes:
(i)whether Ms Kitley’s surgery performed by Dr Marc Coughlan on 11 July 2022 in the form of an L4/5 microdiscectomy is compensable and related to the motor vehicle accident on 26 September 2017, and
(ii)whether Ms Kitley’s surgery performed by Dr Marc Coughlan on 21 July 2022 in the form of an L3/4 microdiscectomy is compensable as against the motor vehicle accident on 26 September 2017.
(q) The matter was allocated to a Medical Assessor Dr Robert Kuru (the Medical Assessor) who assessed Ms Kitley on 21 May 2024.
The Medical Assessment
(r) On 26 May 2024, Ms Kitley wrote a letter of complaint to her solicitors addressing her observations of the Medical Assessor’s clinical assessment and what she regarded as a predetermined attitude towards the matter and negative commentary directed towards her longstanding treating neurosurgeon Dr Coughlan.
(s) The Medical Assessor’s certificate was issued by the Commission on 21 June 2024.
(t) Within the certificate, the Medical Assessor determined that on the balance of probabilities, Ms Kitley had not satisfied the Commission that her lumbar spine surgeries on 11 and 21 July 2024 were causally related to her motor vehicle accident.
(u) Within this certificate, the Medical Assessor provided the following findings and reasons:
“In May of 2022, Ms Kitley developed worsening back pain and then pain into her right leg. Imaging demonstrated a right-sided L4/5 disc extrusion. She went on to have this treated surgically on 11/07/2022. With incomplete resolution of symptoms, post-operative imaging was undertaken demonstrating residual disc material. She underwent a revision surgical procedure 10 days following her index operation on 21/07/2022. The indication for both surgical procedures was a right L4/5 disc extrusion. This pathology was not evident on imaging up to 25/06/2020 (in excess of 2½ years after the motor vehicle accident). The passing of 4½ years between the motor vehicle accident and the onset of symptoms consistent with and demonstration of a right L4/5 disc protrusion indicates that, on the balance of probabilities, the disc protrusion was unrelated to the motor vehicle accident.”
Ms Kitley’s review is predicated upon the following errors/grounds:
(a) The Medical Assessor failed to take or consider a complete history, leading to an analysis based upon an incomplete factual matrix.
(b) The Medical Assessor failed to give any or any sufficient weight to the opinions of the treating neurosurgeon Dr Coughlan, Medical Assessor David McGrath, and the independent medical examiner (IME) opinion of Dr John Bentivoglio.
(c) The Medical Assessor erred in applying an incorrect test with respect to his approach to the assessment of causation of lumbar spine pathology and consequent need for the subject surgery, including an all but complete reliance on radiology reports.
(d) The Medical Assessor failed to comply with the statutory requirement to give sufficient reasons.
(e) The Medical Assessor failed to provide reasons as to why the injury to the lumbar spine had resolved or was not relevant to persisting complaints of lumbar pain in 2022, despite consistent complaints of symptoms to that point.
(f) The Medical Assessor made observations that legitimately caused Ms Kitley concern regarding the impugning of the treating surgeon, Dr Marc Coughlan’s motivations and medical opinion in a manner that was inappropriate and extraneous to the Medical Assessor’s role.
The approach to causation required is a medical and non-medical assessment of causation.
The non-medical approach is by reference to the common law test of causation and requires a decision maker to determine causation by the application of the legal notion of causation: see, for example Allianz Insurance Australia v Mackenzie [2014] NSWSC 67; see also Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 and Nelkovska v Motor Accidents Authority of NSW [2012] NSWSC 819.
Although the Guidelines in clauses 6.6 and 6.7 provide an incomplete statement of some of the legal principles to be applied, the legal principles in respect of causation must be applied, including s 5D of the Civil Liability Act 2002 (NSW) (CLA).
In essence the above requires a detailed analysis by the Medical Assessor as to whether Ms Kitley’s constant and persisting complaints relative to low back pain and discomfort post injury in comparison to the sporadic references in voluminous treating records pre injury that are “cherry picked” by Allianz in its submissions) arose as a consequence of the subject motor vehicle accident.
Noting of course that the pre-history of low grade back issues is embraced by all medical examiners (including Drs Lim and Stephens for Allianz) and a general acceptance that the motor vehicle accident aggravated that condition.
The Medical Assessor, however, does not engage with the history or the persistent complaints relative to the deteriorating back condition leading the surgical intervention by Dr Coughlan.
The non-medical approach on causation then required an approach consistent with that in Varga v Galea [2011] NSWCA 76 at [9] i.e. a consideration of whether the motor vehicle accident was a necessary condition of the harm: Warth v Lafsky [2014] NSWCA 94.
Section 5D of the CLA provides:
“(1) A determination that negligence caused harm comprises:
(a) That the negligence was a necessary condition of the harm (‘factual causation’), and
(b) That it is appropriate for the scope of liability to extend to the harm (‘scope of liability’).”
The two-step process in s 5D encompasses the common law position.
In Wallace v Kam the plurality confirmed a determination of causation involved two questions “a question of historical fact as to how a particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person”. The court held that the determination under s 5D(1)(a) involved “nothing more or less than the application of a “but for” test of causation. The court noted:
“That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of the harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absence the negligence.”
The Medical Assessor failed to engage with his obligation in this regard and fell into error.
The Medical Assessor’s reasoning as to causation is scant, but he ultimately finds:
“In May of 2022, Ms Kitley developed worsening back pain and then pain into her right leg. Imaging demonstrated a right sided L4/5 disc extrusion. She went on to have this treated surgically on 11/07/2022. With incomplete resolution of symptoms, post-operative imaging was undertaken demonstrating residual disc material. She underwent a revision surgical procedure 10 days following her index operation on 21/07/2022. The indication for both surgical procedures was a right L4/5 disc extrusion. This pathology was not evident on imaging up to 25/06/2020 (in excess of 2½ years after the motor vehicle accident). The passing of 4½ years between the motor vehicle accident and the onset of symptoms consistent with and demonstration of a right L4/5 disc protrusion indicates that, on the balance of probabilities, the disc protrusion was unrelated to the motor vehicle accident.”
The non-medical analysis required a detailed reasoning process with respect to whether the need for the surgeries was due to the accepted injury to the lumbar spine and if not an explanation as to why in the presence of overwhelming evidence of escalating symptomatology in the lumbar spine following the motor vehicle accident that it was not; the Medical Assessor simply identifies the passage of time and points to reporting of radiology and goes no further.
The lack of a clearly defined path of reasoning and thus an inherent lack of reasons is a clear failing on the Medical Assessor’s part.
It is not incumbent on a Medical Assessor to address every piece of evidence, however, as was observed in Campbell City Council v Vegan (2006) NSWCA 284, where more than one conclusion is open, it is necessary for an assessor to give some explanation for their preference of one conclusion over another especially when he reaches a contrary conclusion from that reached by other medical practitioner(s) as set out in the reports before them.
In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389, Sackville J explained that for reasons to be adequate they need “…to be genuine, realistic, or a directed at the information.” As held by the Supreme Court in Allianz v Francica [2012] NSWSC 1577, Medical Assessors are required to consider and comment on the evidence produced in support of the central issues, and to provide sufficient reasons in support of their decision.
In AAI Limited v Fitzpatrick [2015] NSWSC 1108, the Supreme Court held that where there is a medical controversy over a particular issue, a more expansive explanation needs to be given and express consideration revealing the use the assessor made of the information provided is required.
In Dogon v Redmond [2010] NSWSC 1329 it was held that a mere recitation or summary of the evidence as it appears in the respective report followed by a statement as to causation is not a sufficient performance of the medical assessor’s obligations.
Ms Kitley submits that merely making cursory findings as to what pathology was or was not caused by the motor accident fell well short of the Medical Assessor’s obligation to provide proper or lawful reasons for his conclusions as to the cause and need for the lumbar surgery.
In circumstances where Allianz has raised an important medical controversy regarding the need for lumbar surgery it required the Medical Assessor to provide a more expansive explanation particularly with reference to Ms Kitley’s not uninvolved medical history and express consideration revealing the Medical Assessor’s consideration of same and its relevance to the dispute at hand.
The above requirement was the subject of comment from Harrison AsJ at [96] in Brammer v AAMI Limited t/as AAMI [2021] NSWSC 1058:
“While I accept that a Medical Assessor is entitled to reach her own conclusion as to causation, it has to be based upon some medical evidence that was relied upon by the parties. There was no medical evidence relied upon by the parties of a pre-existing injury or pre-existing problems in the plaintiff’s left ankle, nor was there evidence that such an injury was impending or would have occurred without the intervening accident. If the Medical Assessor had an alternate cause in mind, she could have sought submissions from the parties. The medical assessor erred in law in finding that an injury would have occurred when there was no evidence to support it. In so doing the Medical Assessor erred in law by reaching her decision based on no evidence...”
The Medical Assessor failed to discharge his legal duty to explain why he did not find that Ms Kitley had suffered injury to the lumbar spine and why he found soft tissue injuries to the remaining body parts when other conclusions seemed more likely.
In Meeuwissen v Bodeni [2010] NSWCA 253, the Court of Appeal held (with reference to a threshold dispute) that for an error to be considered material to a medical assessment it does not need to be able to change the outcome of the assessment from above the threshold to below, or vice versa. Rather, the error just needs to be considered to not be “trivial, insignificant or immaterial”’.
Insurer’s submissions of 6 August 2024
I summarise Allianz’s submissions of 6 August 2024 by way of reference to paragraph numbers:
[1] Preliminary submissions
1.3 Ms Kitley contends that Assessor Kuru’s Certificate is materially incorrect due to:
(a) Failure to take or consider a complete history;
(b) Failure to give sufficient weight to the opinions of Dr. Coughlin, Assessor McGrath, and Dr. Bentivoglio;
(c) Application of the incorrect test for causation;
(d) Insufficient reasoning;
(e) Inappropriate comments during the assessment.
1.4 Allianz disputes that any material errors exist and submits that the Application should be dismissed as Ms Kitley has not demonstrated reasonable cause to suspect an incorrect assessment.
[2] Failure to take or consider a complete history
2.1 Ms Kitley submits that Assessor Kuru relied on an incomplete factual matrix due to failure to take or consider a complete history.
2.2 Ms Kitley submits that the Assessor overlooked persistent complaints of a deteriorating back condition leading to surgical intervention. However, no substantive evidence is provided to support the claim of "overwhelming evidence of escalating symptomatology in the lumbar spine following the MVA."
2.3 Ms Kitley’s Chronology of Lumbar Spine Complaints was not before Assessor Kuru, and Allianz disputes its significance.
2.4 Assessor Kuru recorded Ms Kitley’s history, including reports of lower back pain post-accident and subsequent symptom progression in 2022, as noted in paragraphs 9, 10, 16, and 18 of his Certificate.
2.5 Allianz submits that Assessor Kuru properly considered Ms Kitley’s history, and no failure occurred.
[3] Failure to give any or sufficient weight to opinions of Dr. Coughlan, Assessor Mcgrath, or Dr. Bentivoglio
3.1 Allianz disputes that Assessor Kuru failed to give proper weight to medical opinions.
3.2 Assessor Kuru’s Certificate explicitly references Dr. Bentivoglio’s and Dr. Coughlan’s opinions and records, demonstrating consideration of their views.
3.3 While Assessor McGrath’s Certificate is not specifically mentioned, Assessor Kuru was not required to reference every report before him.
3.4 Ms Kitley does not explain how omitting Assessor McGrath’s findings resulted in a material error. Moreover, Assessor McGrath’s conclusions aligned with Assessor Kuru’s findings.
[4] Incorrect test for causation
4.1 Allianz disputes that Assessor Kuru applied an incorrect test for causation under Section 5D of the Civil Liability Act 2002.
4.2 Section 5D requires factual causation and an assessment of whether negligence was a necessary condition of the harm.
4.3 Assessor Kuru determined that Ms Kitley’s L4/5 disc extrusion was unrelated to the motor vehicle accident, given the absence of evidence on imaging until 2022, 4.5 years post-accident.
4.4 Allianz submits that Assessor Kuru’s findings correctly align with legal causation principles.
[5] Failure to provide sufficient reasons
5.1 Ms Kitley alleges that Assessor Kuru failed to sufficiently explain why the lumbar spine injury had resolved or was irrelevant to ongoing complaints in 2022.
5.2 Established case law requires Assessors to disclose their reasoning path when causation is in dispute.
5.3 Assessor Kuru’s Certificate outlines his reasoning, noting that:
(a).Ms Kitley developed worsening back pain in May 2022;
(b).Imaging revealed an L4/5 disc extrusion;
(c).No such pathology was evident in imaging up to June 2020;
(d).The 4.5-year gap undermined a causal link to the accident.
5.4 Allianz submits that Assessor Kuru provided clear and cogent reasons for his conclusions.[6] Assessor Kuru’s conduct
6.1 Ms Kitley raises a dispute with Assessor Kuru’s conduct during the assessment.
6.2 Allianz submits that if Ms Kitley regarding conduct should be addressed through a complaint to the Commission, not as grounds for a Review.
Claimant’s submissions of 14 August 2024
I summarise Ms Kitley’s submissions of 14 August 2024 by way of reference to paragraph numbers:
[3] Ms Kitley submits that she did suffer an injury to her lumbar spine as all of her other injuries have been accepted and her credit should not be in doubt.
[4] The chronology is designed to provide a clear summary of the back complaints to highlight the material errors and omissions in the Medical Assessor's history.
[5] Ms Kitley submits neither this history of continuous complaint, nor the statements in evidence have been properly considered.
[6] She further submits that the Medical Assessor fails to observe the full clinical picture, relying upon parts only and/or brief aspects of the imaging. He fails to observe the disc bulges, the pathology identified in the surgery by the surgeon for which his opinion is based, nor to comment upon the complaints by Ms Kitley of tripping and falling, consistent with neurological back compromise, which were only present following her injury.
[7] Allianz’s submission seeks to suggest that the Medical Assessor, in merely referring to the opinions of Dr Bentivoglio and the treating Neurosurgeon Dr Marc Coughlan, has sufficiently discharged his obligation to read and understand these documents. No explanation for failing to even refer to Assessor McGrath is provided.
[8] Ms Kitley submits that these expert opinions offer consistent and credible medical analysis, which directly contradicts the Medical Assessor’s conclusions. The Assessor provides no reasoning for disregarding these opinions, despite their clear relevance to the key issues in dispute.
[9] The submission concerning causation does not deal with the issues raised on behalf of Ms Kitley and consist of no more than the text of s5D and a bald restatement of the previous submissions.
[10] Ms Kitley submits that the correct test for causation, as outlined in their appeal, should be applied.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundles of documents in accordance with the Direction. The following is a summary of this material relevant to the dispute.
Post motor accident
Clinical Notes from Mr Kitley’s general practitioner, Dr Massie, highlights longstanding back and right leg symptoms pre-dating the accident.
Report by Dr Porteous dated 10 February 2021 notes Ms Kitley having reported back pain subsequent to the accident but noting that it had settled and was intermittent.
Report of Dr Bentivoglio dated 29 March 2023 notes aggravation of lower back pain subsequent to the accident. He concludes proceeding with surgery on the lumbar spine was reasonable on the basis that the indication was aggravation of pre-existing degenerative disease.
Clinical notes from Dr Coughlan dated 27 July 2020 reviewing Ms Kitley for neck pain. There is no mention of lumbar spine pathology until correspondence from him in June and July of 2022.
Report by Dr Stephen dated 25 June 2021 where he assesses no impairment attributable to the lumbar spine at the time of assessment.
CT lumbar spine on 15 November 2013 showed L3/4 degenerative spondylolisthesis with no significant neural compression.
MRI lumbar spine of 29 April 2016 showed L3/4 degenerative spondylolisthesis with no significant neural compression.
Sacroiliac joint injection on 27 January 2021
CT lumbar spine of 15 July 2022: Post-operative study demonstrating right L4/5 hemi-laminectomy. Persistent L4 disc extrusion and L3/4 degenerative spondylolisthesis.
MRI lumbar spine of 18 July 2022 showed Persistent right sided L4 disc extrusion and L3/4 degenerative spondylolisthesis with central stenosis. Persistent right L4 disc extrusion and L3/4 central stenosis.
CT lumbar spine of 28 November 2023: L3/4, L4/5 anterior lumbar interbody fusion, L3-5 posterior instrumentation with right L4 screw lateral to spine.
CT lumbar spine of 6 March 2024: L3/4, L4/5 anterior lumbar interbody fusion, L3-5 posterior instrumentation with right L4 screw lateral to spine.
ASSESSMENT UNDER REVIEW
The Review Panel summarises the certificate of Medical Assessor Kuru dated 21 June 2024 by way of reference to paragraph numbers:
[1] Assessor Kuru discussed the dispute whether the treatment provided or to be provided was or is reasonable and necessary in the circumstances and whether such treatment relates to the injury caused by the motor accident under s 58 (1)(b) of the Act.
[2] Assessor Kuru notes the treatment dispute concerns whether the L4/5 Microdiscectomy as recommended by Dr Marc Coughlan on 11 July 2022 and L3/4 microdiscectomy on 21 July 2022 is causally related to the injuries sustained in the Accident and weather such treatment is reasonable and necessary
[3] Ms Kitley submits that the aforementioned procedures are reasonable and necessary and relies on the report and opinion of Dr Bentivoglio dated 29/03/2023.
[4] Allianz submits that the requirement to undergo the said procedures is unrelated to the Accident, relying on the opinion and report of Dr Stephen of 25 June 2021.
[5]-[6] Assessor Kuru lists the documents considered in his report.
[7] Ms Kitley attended the assessment alone.
[8] Assessor Kuru sets out Ms Kitley’s pre-accident medical history, noting some lower back pain since 2000.
[9] Assessor Kuru outlines the history of the motor accident.
[10] Assessor Kuru notes that around 2021 or 2022, following the accident, Ms Kitley developed pain in her right leg. He notes that she was referred to Dr Coughlan, Neurosurgeon. A clinical letter dated 25/06/2022 notes ‘Helen has severe right leg pain in L3. She has a small, sequestered fragment at the L3/4 disc compressing the right L3/4 nerve root.’ An operation report dated 11/07/2022 documents an L4/5 decompression involving discectomy. Subsequent operation report dated 21/07/2022 then documents L3/4, L4/5 microdiscectomy. Then subsequently she has gone on 04/09/2023 to have an L3/4, L4/5 anterior lumbar interbody fusion with then supplemental posterior instrumentation and decompression on the following day, 05/09/2023.
[12] Regarding current symptoms, Assessor Kuru notes:
“Ms Kitley has persisting numbness over her first and second toe with cramping in the right foot and ankle. She has persistent weakness of dorsiflexion and power of the right ankle. She has cramping in her hip.”
[13] “Ms Kitley attends gym for physiotherapy and rehabilitation 3-4 sessions a week. She is thinking of returning to swimming. She is not taking any medications for her lumbar spine.”
[14] Assessor Kuru sets out his clinical examination:
“On examination, she was a well looking woman in no obvious distress.
Trendelenburg’s test is normal. Heel-toe stance demonstrates weakness of right sided ankle dorsiflexion. Formal neurological examination of the lower limbs demonstrates symmetrical knee and ankle reflexes with down going Babinskis. There is grade 2/5 power of tibialis anterior and extensor hallucis longus on the right. There are no tension signs in the lower limbs.”
[15] Ms Kitley was co-operative throughout the assessment.
[16] Assessor Kuru summarises the relevant documentation that he notes in his report.
[17] Assessor Kuru summarises relevant radiological and medical imaging.
[18]-[19] Assessor Kuru sets out his determinations:
“In May of 2022, Ms Kitley developed worsening back pain and then pain into her right leg. Imaging demonstrated a right sided L4/5 disc extrusion. She went on to have this treated surgically on 11/07/2022. With incomplete resolution of symptoms, post-operative imaging was undertaken demonstrating residual disc material. She underwent a revision surgical procedure 10 days following her index operation on 21/07/2022. The indication for both surgical procedures was a right L4/5 disc extrusion. This pathology was not evident on imaging up to 25/06/2020 (in excess of 2½ years after the motor vehicle accident). The passing of 4½ years between the motor vehicle accident and the onset of symptoms consistent with and demonstration of a right L4/5 disc protrusion indicates that, on the balance of probabilities, the disc protrusion was unrelated to the motor vehicle accident.
The indication for the primary and revision procedures was right L4/5 disc extrusion. As above, the disc extrusion was not the consequence of the motor vehicle accident. Hence, the L4/5 microdiscectomy undertaken on 11/07/2022 and the revision procedure on 21/07/2022 are not reasonable and necessary in the circumstances for the injuries caused by the motor accident.”
RE-EXAMINATION BY THE PANEL
The Review Panel determined that Ms Kitley was to be examined by Medical Assessor David Gorman on 29 January 2025.
“Ms Kitley attended the assessment alone.
Pre-accident medical history and relevant personal details
Ms Kitley was 71-year-old right hand dominant woman who worked as a teacher.
She was married with two stepdaughters.
She was a non-smoker and would have an occasional glass of wine.
She stopped work in March 2020 – she had reduced her work to 2 days per week but after the accident her voice was not as strong and her neck and shoulder pain interfered with her work.
She stated prior to the accident she was reasonably well. She did have asthma and had previously had Hepatitis C – this was medically acquired after surgery on the left knee many years ago.
She was on a statin.
Ms Kitley told Assessor Gorman that she had had some low back pain since 2000.
She had a cervical spinal fusion in September 2000 and had recovered well. Dr Little, the surgeon, took bone from the right pelvis and she had continuing bursitis. She kept up Pilates and swimming.
She continued to travel from the Central Coast to work in Sydney as a teacher until 2020.
History of the motor accident
Ms Kitley was driving on the M1 on 26 September 2017. A vehicle in a lane next to her was pushing her off the freeway. She told Assessor Gorman she believed the other driver fell asleep. She can recall heading towards a barrier on the side of the road and was able to stop her car by impacting the barrier. An ambulance attended.
She was taken to Royal North Shore Hospital where she was kept overnight.
She had struck her head. She had fractured teeth and jaw pain. She had a vitreous dislocation in her right eye.
She was mainly concerned about the state of her previous cervical fusion she reported. She had also developed an ache in her lower back.
History of symptoms and treatment following the motor accident
She initially saw a chiropractor for her neck and back pain. Her back pain was severe on occasions by March 2018 she reported.
She remained on Income Protection payments from One Path for 2 years after the accident. She had ongoing cervical spinal, dental pain and jaw pain, lumbar pain and headaches she reported – these stopped her working full time.
She was back to working as a teacher 10 hours per week by mid-2019. As outlined above, she stopped work in March 2020 – she had reduced her work to 2 days per week but after the accident her voice was not as strong and her neck, back and shoulder pain interfered with her work.
She went on to have cervical spinal surgery in September 2020 (C3/4 and C4/5 fusions by Dr Marc Coughlan). She recalls having right leg pain develop around the time of the operation worsening by Christmas 2020.
By 2021 her right leg pain had worsened. She had spinal injections.
By mid-2022 her low back pain and leg pain was severe she reported.
She was re-referred to Dr Coughlan, Neurosurgeon. A clinical letter dated 25/06/2022 notes ‘Helen has severe right leg pain in L3. She has a small sequestered fragment at the L3/4 disc compressing the right L3/4 nerve root’ [emphasis added].
On 3 July 2022 she presented to Gosford Hospital with severe right sciatica. The discharge summary states that ‘she has known L4/5 entrapment following complications from an MVA in 2017’ [emphasis added].
On 11 July 2022 she had an L4/5 decompression with discectomy.
A subsequent operation on 21 July 2022 was an L3/4 and L4/5 microdiscectomy.
She has gone on 04 September 2023 to have an L3/4, L4/5 anterior lumbar interbody fusion by Dr Marc Coughlan followed by supplemental posterior instrumentation and decompression on the following day (05 September 2023).
Current symptoms
Ms Kitley has neck pain radiating to the right ear.
She has aching pain in the low back. It is not nearly as severe as before.
She gets pain down the right leg on occasions and cramping in the right foot.
She has persistent weakness of dorsiflexion and power of the right ankle and still trips because of a ‘drop foot’.
She says overall she manages much better now after the fusion operation.
She does the cooking and shopping but, if a ‘big shop’ her husband does it.
Current and proposed treatment
She attends gym for physiotherapy 3-4 sessions a week.
She takes Nexium for reflux and Panadol for her neck and back pain. She takes Magnesium and B12 supplements.
Clinical examination
On examination, she was a well looking woman older women.
Her height was 61.5kg and her height 153cm.
She walked with a stick in her left hand and when she walked she had a slight foot drop on the right.
She had a good range of lumbar movements – flexion, extension and lateral flexion were all within normal limits.
There was decreased sensation in the right 1st and second toes (plantar and dorsal surface).
Power of dorsiflexion of the right great toe was 4/5.
There were reduced but equal reflexes in the lower limbs (ankle jerks and knee jerks).
There are no nerve tension signs in the lower limbs.
Ms Kitley was co-operative throughout the assessment.
Summary of relevant radiological and medical imaging and other investigations
15/11/2013: CT lumbar spine: L3/4 degenerative spondylolisthesis with no significant neural compression.
29/04/2016: MRI lumbar spine: L 3/4 degenerative spondylolisthesis with no significant neural compression.
27/01/2021: Sacroiliac joint injection.
24/6/2022: MRI lumbar spine: right posterolateral L4/5 disc extrusion/sequestration compressing the traversing right L4 nerve within the subarticular/lateral recess. Degenerative changes were also noted at L2/3 and L3/4.
15/07/2022: CT lumbar spine: Post-operative study demonstrating right L4/5 hemi-laminectomy. Persistent L4 disc extrusion. L3/4 degenerative spondylolisthesis.
18/07/2022: MRI lumbar spine: Persistent right sided L4 disc extrusion. L3/4 degenerative spondylolisthesis with central stenosis. Persistent right L4 disc extrusion. L3/4 central stenosis.
28/11/2023: CT lumbar spine: L3/4, L4/5 anterior lumbar interbody fusion. L3-5 posterior instrumentation with right L4 screw lateral to spine.
06/03/2024: CT lumbar spine: L3/4, L4/5 anterior lumbar interbody fusion. L3-5 posterior instrumentation with right L4 screw lateral to spine.
Mrs Kitley gave a history of continuous (albeit varying) lumbar pain since the motor vehicle accident in 2017 in association initially with cervical spine pain, jaw and dental pain and headache.
She had pre-existing L3/4 degenerative spondylolisthesis with intermittent low back pain. However, she continued working full time as a high school teacher in Sydney, commuting from the Central Coast daily until the accident when she was in her mid-60s.
The most contemporaneous IME report was from Dr Mastrioianni (an experienced Occupational Physician) who in his report on 13 September 2018 felt that she had lumbar disc disease aggravated by the subject accident.
She recalled her right leg pain commencing around the time of cervical spinal surgery in 2020. The lumbar pain worsened in 2021. Investigations revealed the cause of the leg pain to be L3/4 and L4/5 disc protrusions which were treated surgically initially on 11 July 2022 and 21 July 2022.
Dr Marc Coughlan, her treating Neurosurgeon, stated on 6 October 2022 that ‘Helen has ongoing issues from her polytrauma following the MVA in 2017. We addressed the neck pain first however recently her lumbar pain has been more troublesome’ [emphasis added].
The motor vehicle accident could have injured the disc and aggravated the existing spondylolithesis at L3/4. The injury to the disc weakened it such as there was progression of disc protrusions at L3/4 and L4/5 causing radiculopathy and necessitating decompression surgery.
While she did have pre-existing degenrative disease, the Panel finds that ‘but for’ the subject motor vehicle accident, she would not have required discectomy and fusion. There was no reason to believe that there would be an inevitable progression of her degenerative disease.
The Panel finds that the motor vehicle accident did injure the disc and aggravated the existing spondylolithesis at L3/4. The Panel finds that injury to the disc weakened it such as there was progression of disc protrusions at L3/4 and L4/5 causing radiculopathy and necessitating decompression surgery.
While she did have pre-existing degenrative disease, the Panel finds that ‘but for’ the subject motor vehicle accident, she would not have required discectomy and fusion.
Treatment and Care – reasonable and necessary?
The indication for the primary and revision discectomy procedures was right L4/5 disc extrusion. She continues to have a right lumbar radiculopathy and the appropriate treatment for this was the microdiscectomy at L4/5 initially and then decompression and discectomy at L3/4.”
Second meeting of the Panel on 12 February 2025
At the second Review Panel meeting, there was an extensive discussion of the issues.
The following points were discussed during the second Medical Review Panel meeting:
[1] It was a moderately severe accident at high speed.
[2] As well as a head injury and fractures to her teeth with jaw pain and a vitreous dislocation in her right-eye, Ms Kitley was concerned about the state of her previous cervical infusion. She had developed an ache in her lower back.
[3] Ms Kitley’s pain was severe on occasion and by 2018 she had attended a chiropractor for cervical and lumbar pain and for headaches, and she had stopped working full-time in her role as a school-teacher.
[4] Medical Assessor Kuru had noted that Ms Kitley had the Accident on 26 September 2017, but it was not until around 2021 or 2022 when she developed pain in her right leg.
[5] Ms Kitley was originally thought to present with right-sacroiliac pain, and had an injection for this on 27 January 2021.
[6] Prior to that, and before the Accident, she had a CT of her lumbar spine on 15 November 2013, which showed L3/4 degenerative spondylolisthesis with no significant neural compression.
[7] In the year before the Accident, on 29 April 2016, she had an MRI of the lumbar spine showing the same changes with no neural compression.
[8] It was not until 24 June 2022 when she developed radicular complaints with right-sciatica that she had an MRI of her lumbar spine which showed a right-posterolateral L4/5 disc extrusion/sequestration compressing the right L4 nerve within the lateral recess.
[9] As Ms Kitley was developing severe pain in her right leg in an L4 distribution with a sequestered fragment at L4/5 compressing the right L4 nerve root, her spinal surgeon, Dr Marc Coughlan, performed an L4/5 decompression laminectomy and discectomy.
[10] Even after the surgery by Dr Coughlan, Ms Kitley still had some radicular complaint, so she had revision decompression laminectomy at L3/4 and L4/5 with discectomy.
[11] Subsequently, on 4 September 2023, Ms Kitley had an L3/4 and L4/5 Anterior Lumbar Interbody Fusions (ALIF) and this was supplemented by posterior fusion using segmental fixation with pedicle screws and rods on 5 September 2023.
[12] The Panel, at the second meeting, discussed whether the surgery provided by Dr Coughlan was causal and whether it was reasonable and necessary in the circumstances.
[13] Medical Assessor Kuru felt that although the disc extrusion at L4/5 was an indication for both surgical procedures, pathology was not evident until 25 June 2020 in excess of 2.5 years from the date of the Accident.
[14] Based on that temporal gap, Medical Assessor Kuru considered that on the balance of probabilities, the disc protrusion was unrelated to the Accident.
[15] The Panel further discussed that while there was pre-existing degenerative spondylolisthesis in the lumbar spine, earlier imaging studies in 2013 (CT) and 2016 (MRI) showed no disc protrusion or neural compression, and it was not until the imaging on 26 June 2022 it showed a right L4/5 posterolateral disc extrusion sequestration compressing the right L5 root.
[16] The post-operative MRI of the lumbar spine on 13 July 2022 showed persistent right L4 disc extrusion and a revision discectomy at L4/5 and L3/4 was performed.
[17] Although degenerative spondylolisthesis had been symptomatic for Ms Kitley for quite some time, there was no evidence in the immediate post-accident period of radicular complaint or radiculopathy, and it was not until June 2022 that she had radicular complaint with L4/5 disc lesion compressing the L4 nerve root.
[18] Ms Kitley presented as a stoic person who despite intermittent low back pain with pre-existing L3/4 degenerative spondylolisthesis continued to work full-time as a high school teacher in Sydney, commuting from the Central Coast until the accident when she was in her mid-sixties, and it was not until 2020 when she recalled having developed right sciatica.
[19] The Panel further discussed that although in cases of claimants with pre-existing spondylolisthesis, there may be disc lesion above or below with degenerative slip, in this particular case, there was a 2.5 year gap between the Accident and the onset of sciatic pain.
[20] But for this temporal gap, Ms Kitley would have had a reasonable case for the Accident being considered causative, but on the balance of probabilities, the disc protrusion was unrelated to the Accident.
[21] Although Ms Kitley did require surgery for her radicular complaint, it was difficult to find a causal nexus in that the radicular complaint was not proximal to the Accident.
[22] After discussing this further the Panel concluded that the Medical Assessment Certificate of 21 June 2024 should be confirmed.
CONCLUSION
For the reasons set out in detail above, following the second Medical Review Panel meeting, the Review Panel concludes that the treatment in dispute was not caused by the accident.
The Review Panel confirms the certificate of Medical Assessor Kuru of 21 June 2024.
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