Lay v AAI Limited t/as GIO
[2024] NSWPICMP 429
•3 July 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Lay v AAI Limited t/as GIO [2024] NSWPICMP 429 |
| CLAIMANT: | Dulce Lay |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Ian Cameron |
| MEDICAL ASSESSOR: | Peter Yu |
| DATE OF DECISION: | 3 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; treatment reasonable and necessary; treatment related to injury caused by the accident; past treatment; future treatment; decompression and fusion surgery; domestic assistance; physiotherapy; general practitioner consultations; past and future GP consultations; future physiotherapy consultations; decompression and fusion surgery; post-operative rehabilitation; Panadeine Forte and Lyrica; past and future domestic assistance reasonable and necessary and related to injury caused by the accident; no significant abnormalities found on examination although claimant pain focused; accident caused aggravation of pre-existing degenerative spinal condition; claimant developed chronic pain disorder; surgery not indicated where not established, persisting radiculopathy or myelopathy and having regard to pain syndrome; long-term use of codeine and Lyrica harmful and not beneficial to recovery; physiotherapy to maintain a few days of improved symptoms without demonstrable improvement not reasonable and necessary in the circumstances; Held – Medical Assessment Certificate revoked; past GP consultations and three future GP consultations for next five years reasonable and necessary and related to injury caused by accident; C5/6 decompression and fusion surgery not reasonable and necessary; post operative rehabilitation not reasonable and necessary; future physiotherapy not reasonable and necessary; Panadeine Forte and Lyrica not reasonable and necessary; past domestic assistance of four hours per week for three months reasonable and necessary and related to injury caused by accident; future domestic assistance of four hours per week not reasonable and necessary and not related to injury caused by accident. |
| DETERMINATIONS MADE: | MOTOR ACCIDENTS COMPENSATION ACT 1999 Review Panel Certificate THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: 1. The Review Panel revokes the certificate of Medical Assessor McGrath dated 9 December 2022 and issues a new certificate certifying as follows: (a) Consultations with Dr Lieng on consultations on 15 January 2019, 13 February 2019, 24 May 2019, 8 July 2019, 9 July 2019, 12 December 2019, 16 December 2019, 26 February 2020, 19 March 2020, 29 April 2020, 27 May 2020, 2 October 2020 and 2 December 2020 were reasonable and necessary in the circumstances and relate to the injury caused by the accident. (b) The consultation with Dr Lieng on 22 May 2019 is not reasonable and necessary and does not relate to the injury caused by the accident. (c) Future general practitioner visits at three per annum for the next five years is reasonable and necessary in the circumstances and relates to the injury caused by the accident. (d) The C5/6 decompression and fusion surgery on 29 May 2023 was not reasonable and necessary in the circumstances and was not related to the injury caused by the accident. (e) Post operative rehabilitation was not reasonable and necessary in the circumstances and was not related to the injury caused by the accident. (f) Future physiotherapy is not reasonable and necessary in the circumstances and does not relate to the injury caused by the accident. (g) Panadeine Forte and Lyrica 0 to 30 tablets per month for 0 to 10 years is not reasonable and necessary in the circumstances and is not related to the injury caused by the accident. (h) Past domestic assistance of four hours per week for three months following the accident is reasonable and necessary in the circumstances and related to the injury caused by the accident. (I) Future domestic assistance of four hour per week for the next five years is not reasonable and necessary and not related to the injury caused by the accident. |
STATEMENT OF REASONS
INTRODUCTION
Ms Dulce Lay (the claimant) suffered injury in a motor vehicle accident on 7 June 2017 (the accident).
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to Ms Lay under the Motor Accident Compensation Act 1999 (MAC Act) in respect of both accidents.
Ms Lay asserts she sustained the following injuries as a result of the accident:
· injury to the cervical spine;
· injury to the thoracic spine;
· injury to the lumbar spine;
· injury to the bilateral knees;
· sternum fracture and chest wall injury, and
· psychological injury.
A dispute arose between the parties about treatment and domestic assistance. This dispute was referred to Medical Assessor McGrath who issued a certificate dated 9 December 2022.
The claimant has sought a review of this certificate. It is that application for review which has been referred to this Review Panel (the Panel).
EVIDENCE BEFORE THE PANEL
The Panel issued a Direction to the parties on 7 March 2023. In response to that Direction the claimant uploaded a bundle of documents paginated from pages 1 to 304 and marked AD. The insurer uploaded a bundle of documents paginated from pages 1 to 597 and marked AD2.
The claimant subsequently uploaded to the portal clinical records of Dr Andrew Kam including an operation report dated 29 May 2023. These documents are titled Medical Records from Dr Andrew Kam. The insurer consented to the admission of those documents.
On 4 April 2024 the insurer uploaded to the portal an Application to Admit Late Documents dated 2 April 2024 (AALD 2/4/24) and on 12 April 2024 the insurer uploaded to the portal an application to Admit Late Documents dated 11 April 2024 (AALD 11/4/24).
RELEVANT LEGAL AUTHORITY
In accordance with s 58(1)(a) and (b) of the MAC Act a medical assessment matter includes a dispute as to “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
In AAI Limited v Phillips[1] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
[1] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
In Wingfoot Australia Partners Pty Ltd v Kocak Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error”.[2]
MEDICAL ASSESSMENT UNDER REVIEW
[2] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.
Certificate of Medical Assessor David McGrath[3]
[3] AD2 p 58.
The following treatment disputes were referred for assessment:
(a) whether the general practitioner (GP) consultation with Dr Lieng on 2 December 2020 is causally related to the physical injuries sustained in the accident;
(b) whether the GP consultation with Dr Lieng on 2 December 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(c) whether the GP consultation with Dr Lieng on 2 October 2020 is causally related to the physical injuries sustained in the accident;
(d) whether the GP consultation with Dr Lieng on 2 October 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(e) whether the GP consultation with Dr Lieng on 27 May 2020 is causally related to the physical injuries sustained in the accident;
(f) whether the GP consultation with Dr Lieng on 27 May 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(g) whether the GP consultation with Dr Lieng on 29 April 2020 is causally related to the physical injuries sustained in the accident;
(h) whether the GP consultation with Dr Lieng on 29 April 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(i) whether the GP consultation with Dr Lieng on 19 March 2020 is causally related to the physical injuries sustained in the accident;
(j) whether the GP consultation with Dr Lieng on 19 March 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(k) whether the GP consultation with Dr Lieng on 26 February 2020 is causally related to the physical injuries sustained in the accident;
(l) whether the GP consultation with Dr Lieng on 26 February 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(m) whether the GP consultation with Dr Lieng on 16 December 2019 is causally related to the physical injuries sustained in the accident;
(n) whether the GP consultation with Dr Lieng on 16 December 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(o) whether the GP consultation with Dr Lieng on 12 December 2019 is causally related to the physical injuries sustained in the accident;
(p) whether the GP consultation with Dr Lieng on 12 December 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(q) whether the GP consultation with Dr Lieng on 9 July 2019 is causally related to the physical injuries sustained in the accident;
(r) whether the GP consultation with Dr Lieng on 9 July 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(s) whether the GP consultation with Dr Lieng on 8 July 2019 is causally related to the physical injuries sustained in the accident;
(t) whether the GP consultation with Dr Lieng on 8 July 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(u) whether the GP consultation with Dr Lieng on 24 May 2019 is causally related to the physical injuries sustained in the accident;
(v) whether the GP consultation with Dr Lieng on 24 May 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(w) whether the GP consultation with Dr Lieng on 22 May 2019 is causally related to the physical injuries sustained in the accident;
(x) whether the GP consultation with Dr Lieng on 22 May 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(y) whether the GP consultation with Dr Lieng on 13 February 2019 is causally related to the physical injuries sustained in the subject accident;
(z) whether the GP consultation with Dr Lieng on 13 February 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(aa) whether the GP consultation with Dr Lieng on 15 January 2019 is causally related to the physical injuries sustained in the accident;
(bb) whether the GP consultation with Dr Lieng on 15 January 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(cc) whether the physical injuries give to a need for past domestic assistance from the date of the accident to the date of assessment and whether this assistance is causally related to the injuries sustained in the accident;
(dd) whether 0-20 hours per week of past domestic assistance from the date of the accident to the date of assessment is reasonable and necessary in relation to the physical injuries sustained in the accident;
(ee) whether the physical injuries give rise to a need for future domestic assistance from the date of the assessment for a further 0-10 years and whether this assistance is causally related to the injuries sustained in the accident;
(ff) whether 0-4 hours per week of future domestic assistance from the date of the assessment for a further 0-10 years is reasonable and necessary in relation to the physical injuries sustained in the accident;
(gg) whether future 0 to 22 physiotherapy consultations per year for the next 0 to 10 years is causally related to the injuries sustained in the accident;
(hh) whether future 0 to 22 physiotherapy consultations per year for the next 0 to 10 years is reasonable and necessary in relation to the injuries sustained in the accident;
(ii) whether future 0 to 22 GP consultations per year for the next 0 to 10 years is causally related to the physical injuries sustained in the accident;
(jj) whether future 0 to 22 GP consultations per year for the next 0 to 10 years is reasonable and necessary in relation to the physical injuries sustained in the accident;
(kk) whether the proposed decompression and fusion surgery recommended by Dr Darwish is causally related to the injuries sustained in the accident;
(ll) whether the proposed decompression and fusion surgery recommended by Dr Darwish is reasonable and necessary in relation to the injuries sustained in the accident;
(mm) whether a period of post-operative rehabilitation following the proposed surgery is causally related to the injuries sustained in the accident;
(nn) whether a period of post-operative rehabilitation following the proposed surgery is reasonable and necessary in relation to the injuries sustained in the accident;
(oo) whether the proposed 0 to 30 tablets of Panadeine Forte per month for the next 0 to 10 years is causally related to the injuries sustained in the accident;
(pp) whether the proposed 0 to 30 tablets of Panadeine Forte per month for the next 0 to 10 years is reasonable and necessary in relation to the injuries sustained in the accident;
(qq) whether the proposed 0 to 30 tablets of Lyrica per month for the next 0 to 10 years is causally related to the injuries sustained in the accident, and
(rr) whether the proposed 0 to 30 tablets of Lyrica per month for the next 0 to 10 years is reasonable and necessary in relation to the injuries sustained in the accident.
Medical Assessor McGrath issued a certificate dated 9 December 2022 in which he certified the following treatment relates to the injury caused by the accident:
(a) whether the GP consultation with Dr Lieng on 2 December 2020 is causally related to the physical injuries sustained in the accident;
(b) whether the GP consultation with Dr Lieng on 2 October 2020 is causally related to the physical injuries sustained in the accident;
(c) whether the GP consultation with Dr Lieng on 27 May 2020 is causally related to the physical injuries sustained in the accident;
(d) whether the GP consultation with Dr Lieng on 29 April 2020 is causally related to the physical injuries sustained in the accident;
(e) whether the GP consultation with Dr Lieng on 19 March 2020 is causally related to the physical injuries sustained in the accident;
(f) whether the GP consultation with Dr Lieng on 26 February 2020 is causally related to the physical injuries sustained in the accident;
(g) whether the GP consultation with Dr Lieng on 16 December 2019 is causally related to the physical injuries sustained in the accident;
(h) whether the GP consultation with Dr Lieng on 12 December 2019 is causally related to the physical injuries sustained in the accident;
(i) whether the GP consultation with Dr Lieng on 9 July 2019 is causally related to the physical injuries sustained in the accident;
(j) whether the GP consultation with Dr Lieng on 8 July 2019 is causally related to the physical injuries sustained in the accident;
(k) whether the GP consultation with Dr Lieng on 24 May 2019 is causally related to the physical injuries sustained in the accident;
(l) whether the GP consultation with Dr Lieng on 22 May 2019 is causally related to the physical injuries sustained in the accident;
(m) whether the GP consultation with Dr Lieng on 13 February 2019 is causally related to the physical injuries sustained in the subject accident;
(n) whether the GP consultation with Dr Lieng on 15 January 2019 is causally related to the physical injuries sustained in the accident;
(o) whether future 0 to 22 physiotherapy consultations per year for the next 0 to 10 years is causally related to the injuries sustained in the accident;
(p) whether future 0 to 22 GP consultations per year for the next 0 to 10 years is causally related to the physical injuries sustained in the accident;
(q) whether the proposed decompression and fusion surgery recommended by Dr Darwish is causally related to the injuries sustained in the accident;
(r) whether a period of post-operative rehabilitation following the proposed surgery is causally related to the injuries sustained in the accident;
(s) whether the proposed 0 to 30 tablets of Panadeine Forte per month for the next 0 to 10 years is causally related to the injuries sustained in the accident, and
(t) whether the proposed 0 to 30 tablets of Lyrica per month for the next 0 to 10 years is causally related to the injuries sustained in the accident.
Medical Assessor McGrath certified the following treatment does not relate to the injury caused by the accident:
(a) whether the physical injuries give to a need for past domestic assistance from the date of the accident to the date of assessment and whether this assistance is causally related to the injuries sustained in the accident, and
(b) whether the physical injuries give rise to a need for future domestic assistance from the date of the assessment for a further 0-10 years and whether this assistance is causally related to the injuries sustained in the accident.
Medical Assessor McGrath certified the following treatment is reasonable and necessary in the circumstances:
(a) GP consultation with Dr Lieng on 2 December 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(b) GP consultation with Dr Lieng on 2 October 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(c) GP consultation with Dr Lieng on 27 May 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(d) GP consultation with Dr Lieng on 29 April 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(e) GP consultation with Dr Lieng on 19 March 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(f) GP consultation with Dr Lieng on 26 February 2020 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(g) GP consultation with Dr Lieng on 16 December 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(h) GP consultation with Dr Lieng on 12 December 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(i) GP consultation with Dr Lieng on 9 July 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(j) GP consultation with Dr Lieng on 8 July 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(k) GP consultation with Dr Lieng on 24 May 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(l) GP consultation with Dr Lieng on 22 May 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
(m) GP consultation with Dr Lieng on 13 February 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident, and
(n) GP consultation with Dr Lieng on 15 January 2019 is reasonable and necessary in relation to the physical injuries sustained in the accident;
Medical Assessor McGrath certified the following treatment was not reasonable and necessary in the circumstances:
(a) 0-20 hours per week of past domestic assistance from the date of the accident to the date of assessment is reasonable and necessary in relation to the physical injuries sustained in the accident;
(b) 0-4 hours per week of future domestic assistance from the date of the assessment for a further 0-10 years is reasonable and necessary in relation to the physical injuries sustained in the accident;
(c) future 0 to 22 physiotherapy consultations per year for the next 0 to 10 years is reasonable and necessary in relation to the injuries sustained in the accident;
(d) future 0 to 22 GP consultations per year for the next 0 to 10 years is reasonable and necessary in relation to the physical injuries sustained in the accident;
(e) the proposed decompression and fusion surgery recommended by Dr Darwish is reasonable and necessary in relation to the injuries sustained in the accident;
(f) a period of post-operative rehabilitation following the proposed surgery is reasonable and necessary in relation to the injuries sustained in the accident;
(g) the proposed 0 to 30 tablets of Panadeine Forte per month for the next 0 to 10 years is reasonable and necessary in relation to the injuries sustained in the accident, and
(h) the proposed 0 to 30 tablets of Lyrica per month for the next 0 to 10 years is reasonable and necessary in relation to the injuries sustained in the accident.
On examination Medical Assessor McGrath found the claimant showed “voluntary spasm without observable autonomous muscle reaction” and found her global loss of subjective sensation did not confirm to any dermatomal distribution loss. He was not satisfied the claimant had any specific nerve root impairment and given his findings and the possibility of a brachial plexus injury concluded “a proposed surgical procedure to the neck is unlikely to be curative”.
Medical Assessor McGrath found the overall physical picture was of non-specific pain generators within the spine and a widespread muscle tension reaction and psychological symptoms. Referring to a bone scan dated 19 July 2018 Medical Assessor McGrath stated the scan shows “increased uptake at C4/5 which is also a poor prognostic factor for the success of any spinal surgery”. He thought the likely success of spinal surgery relatively low. He also canvassed the possibility of an underlying rheumatic disorder as diagnosed by Dr Rosario. He felt the value of prolonged medication and physiotherapy was problematic and not likely to make a positive difference to her pain and disability.
Medical Assessor McGrath stated “most of the GP visits are generally reasonable and necessary, as Ms Lay requires medical guidance and support for pain and discomfort and psychology symptoms”. In relation to domestic assistance, he stated the level of physical disability did not invoke the word “necessary” and considered some domestic tasks are therapeutic from both physical and psychological perspectives.
REVIEW PROCEDURE
The present application is a review of a medical assessment pursuant to s 63 of the
MAC Act. The relevant medical assessment was undertaken by Medical Assessor David McGrath on 9 December 2022.
An application for review of the medical assessment of Medical Assessor McGrath was lodged on 2 January 2023 within 28 days of the date on which the certificate of Medical Assessor McGrath was made available to the parties.[4]
[4] Section 63(7) of the MAC Act.
On 28 February 2023 the delegate of the President being satisfied 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 referred the medical assessment to the Panel.[5]
[5] Section 63(2B) of the MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act, 2020. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 63(3A) of the MAC Act.
On 19 June 2023 the Panel agreed an examination was required. The Panel issued a Review Panel Report and Directions to the parties on 20 June 2023 notifying the parties a medical examination had been scheduled to take place on 21 July 2023. The report also stated:
“In the event the Panel determines a need for domestic assistance is causally related to the injuries sustained in the accident and to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the Panel also proposes to determine whether domestic assistance is reasonable and necessary. The Panel proposes to undertake an assessment as to the number of hours of domestic assistance considered reasonable and necessary having regard to the evidence furnished by the parties and the history provided by the claimant during the medical re-examination.”
The parties were asked to advise in writing by 5 July 2023 if there was any objection to that course of action. On 22 June 2023 the insurer indicated consent to that proposal.
On 11 July 2023 the Panel was advised the claimant underwent surgery to her cervical spine on 29 May 2023. The medical examination on 21 July 2023 was cancelled.
On about 1 February 2024 the claimant advised it would be suitable for the claimant to be examined after 29 May 2024.
On 2 February 2024 the Panel issued a Second Review Panel Report and Directions advising of the medical examination on 7 June 2024 and directing the parties to upload any updated evidence by 12 April 2024.
On 7 May 2024 the claimant indicated consent to the proposal that the Panel undertake an assessment as to the number of hours of domestic assistance considered reasonable and necessary.
The medical examination was subsequently rescheduled to 28 May 2024.
On or about 20 May 2024 the claimant uploaded the following message to the portal:
“We note that our client is to undergo an assessment with Assessor Yu on 28 May 2024. Please find attached the following documents:
·Report of Dr Anthony Smith dated 21 December 2023;
·Report of Dr Ross Mellick dated 16 February 2024;
·Report of Dr Ross Mellick dated 23 January 2024;
·Letter from Moray & Agnew dated 4 April 2024;
·Letter from Moray & Agnew dated 4 April 2024;
Our client had a C5/6 fusion surgery on 29 May 2023. GIO had arranged for IMES with Dr Anthony Smith and Dr Ross Mellick which both assessed our client's physical injuries at over 10% WPI. GIO has also denied that our client's injuries are over 10% WPI as per letter dated 4 April 2024 on the basis of causation and that the treatment was not reasonable and necessary.
We kindly request that the C5/6 surgery and our client's Whole Person Impairment for physical injuries be included in the assessment by Assessor Yu on 28 May 2024.”
The Panel responded as follows:
“I refer to the message uploaded to the portal by the lawyers for the claimant.
The review of a medical assessment by a review Panel is governed by s 63 of the Motor Accidents Compensation Act, 1999. Section 3A states that a medical assessment is a new assessment of all the matters with which the medical assessment is concerned. It is clear that a review only applies to a medical assessment by a single medical assessor.
Where permanent impairment was not referred to Medical Assessor McGrath and it was not the subject of his medical assessment certificate it cannot be considered by the Review Panel.
The treatment dispute referred to Medical Assessor McGrath included proposed decompression and fusion surgery of the left C3/C4, C4/C5 and C5/C6.
The Panel notes Ms Lay underwent C5/6 anterior cervical discectomy and fusion surgery on 29 May 2023. Where the claimant has now undergone surgery, the subject of the dispute referred to Medical Assessor McGrath the Panel will address whether the C5/6 anterior cervical discectomy and fusion surgery on 29 May 2023 was reasonable and necessary and whether it related to the injury caused by the motor accident.”
DOCUMENTS CONSIDERED BY THE PANEL
Personal Injury Claim Form
In the Personal Injury Claim Form dated 16 June 2017 the injuries were listed as follows:
“• WAD;
· thoracic spine ligamentous strain;
· lumbar spine ligamentous strain;
· bilateral knee joint contusion with right patella fracture; and
· sternum fracture and chest wall injury.”
Pre-accident treating medical evidence
On 11 June 2011, the claimant reported knee pain for two months, left more than right, bit swollen. On 15 June 2011 the claimant underwent a scan of both knees.
On 17 September 2011 the claimant underwent a bone density scan focusing on the lumbar spine and femur.
The records of Dr Tat show complaints pertaining to either or both knees on 22 November 2011, on 24 December 2014, on 20 May 2016 and on 10 October 2016.
On 23 February 2016 Ms Lay had attempted to work a sewing job for three hours and experienced pain in her legs and back. It was reported her rheumatoid condition had been exacerbated.
On 30 June 2016 it was reported the claimant had five days of thoracolumbar spine pain with tenderness. Again, it was suggested she was suffering from an exacerbation of her rheumatoid arthritis.
It is apparent from a report of Prime Physiotherapy dated 20 July 2016 that Ms Lay presented with thoracic and lumbar spine pain as well as bilateral knee pain on 4 July 2016, pre accident.[8] She was treated with joint mobilisation of the neck, back and shoulders.
[8] AD1 p 121.
On 16 August 2016 Dr Tat reported the claimant had received a steroid injection at the left neck joint.
Dr Gotis-Graham and Dr Denise Tong rheumatologists
Ms Lay first saw Dr Gotis-Graham on 8 August 2011 with complaints of left knee pain and swelling present for two years.[9] She also reported similar pain in the right knee. On 2 September 2011 Dr Gotis-Graham reported the diagnosis was mechanical damages, inflammatory arthritis (possibly Sjogren’s syndrome) or possible crystal arthritis.
[9] AD2 p 281.
On 19 September 2011 it was reported that a recent MRI revealed a moderate effusion with widespread synovitis involving the left knee.[10] Dr Gotis-Graham diagnosed seronegative inflammatory arthritis.
[10] AD2 p 285.
On 12 October 2011, the claimant attended for arthritis. The claimant again attended on 14 December 2011 for inflammatory monoarthritis involving the left knee. It was noted she had been using methotrexate since October.
In a report dated 27 January 2012 Dr Denise Tong, rheumatologist recorded that the claimant could not walk up more than three steps due to her knee problems. It was also advised that she had developed slight patellofemoral symptoms over her right knee when going upstairs. She had a large painful effusion over the left knee. She diagnosed inflammatory monoarthritis of the left knee.
On 30 October 2012, Dr Tong reported the claimant had been experiencing mechanical pain in the medial joint line which the claimant stated was different to her usual inflammatory arthritis. She confirmed her earlier diagnoses of inflammatory monoarthritis involving the left knee, left knee medial and lateral meniscal tear and vitamin D deficiency.
On 12 February 2013, she attended for rheumatoid arthritis and was prescribed Arava, also known as Leflunomide. The claimant was again prescribed this medication on 17 September 2013, 18 March 2014, 10 June 2014, 2 September 2014, 26 May 2015, and 13 August 2015.
On 2 April 2013 Dr Tong reported an MRI scan showed the claimant had right knee chondromalacia patellofemoral compartment (grade 4) and medial compartment (grade 3) in addition to the seronegative rheumatoid arthritis.
Dr Tong referred the claimant to Dr Richard Walker for consideration of bilateral knee arthroscopy in view of the mechanical wear and tear of the cartilage and meniscus. On 7 May 2013 Dr Walker advised against an arthroscopy.[11] He noted she had seronegative arthritis. He found she had degenerative changes in the patellofemoral joint in particular.
[11] AD2 p 334.
The claimant continued to consult Dr Tong every two, three or four months. On 5 November 2015, in addition to the rheumatic arthritis the claimant attended with a new onset of low back pain with radiation into the bilateral posterior calves.[12]
[12] AD2 p 318.
On 28 January 2016 Dr Tong reported a CT scan showed no (it is assumed this is an error) facet joint arthritis at L4/5 with foraminal stenosis at L4/5 exits which could potentially touch the L5 nerve roots. She reported Endep 10 mg had been helpful.
Dr Loretta Rozario, rheumatologist
Ms Lay saw Dr Rozario on 14 December 2015.[13] She reported Ms Lay had been diagnosed with inflammatory joint disease of the seronegative variety five years earlier. She reported pain in the cervical and lumbar spine and bilateral knees. On 3 March 2016, following review of an MRI scan Dr Rozario concluded Ms Lay had symptoms as a result of significant degenerative changes particularly in the patellofemoral compartments bilaterally. She also noted minimal degenerative changes in the lumbar facet joints.
[13] AD1 p 130.
On 5 July 2016 Dr Rozario reported Ms Lay had a six week history of pain radiating from her cervical to the lumbar spine. On 3 August 2016 Dr Rozario reported the claimant’s problems related to degenerative joint disease with a mild inflammatory component secondary to the degenerative disease.[14] Dr Rozario suggested the serology was positive for Sjogren’s syndrome although she was not convinced the claimant’s problems were inflammatory.
Post-accident treating medical evidence
[14] AD1 P 134.
Ambulance report
It was reported the claimant was driving straight at low speed when another car turned in front of her and hit the front of her car at low speed.[15] The report refers to sharp sternal chest pain, some minor right knee pain, nil cervical spine pain or midline tenderness. Nil hip pain.
[15] AD1 p 267.
Liverpool Hospital
The ED Discharge referral reports Ms Lay sustained a neck sprain, soft issue injury of the right knee and a sternal fracture.[16]
[16] AD2 p 273.
Elizabeth Drive Medical Centre, clinical notes
On 16 June 2017 Dr Lieng, GP obtained a history of the accident and reported Ms Lay was taken to Liverpool Hospital with neck pain, chest pain and right knee pain. He reported since then she also had pain in the lower back, shoulders, mid back and left knee.[17]
[17] AD1 p 20.
On 13 July 2017 Dr Lieng reported Ms Lay had pain everywhere, six weeks post-accident.[18] On 11 September 2017 Dr Lieng reported ongoing neck pain and difficulty turning the neck with pain radiating to the left arm.
[18] AD2 p 467.
Ms Lay underwent a cervical spine injection on 16 October 2017.[19] On 15 November 2017 Dr Lieng reported residual neuralgic pain following injection. He also reported ongoing knee pain. On 21 March 2018 Dr Lieng reported neck and knee pain was worse.
Dr Tieu Tat, clinical notes[20]
[19] AD1 p 271.
[20] AD1 p 60.
On 9 June 2016 the claimant consulted Dr Tat who reported a sore neck, chest and knees. Thereafter, she was referred to Dr Lieng and attendances up until 16 August 2021 do not reference complaints pertaining to injuries sustained in the accident.
On 19 August 2021 the claimant consulted Dr Seeto re the accident.[21] She declined to take on her case because she had not been involved from the start and suggested she get different advice if she had exhausted Dr Lieng’s advice.
[21] AD2 p 543.
On 20 August 2021 Dr Tat reported the claimant was still having problems from the accident four years earlier, left neck, left ear, low back and numbness of the left leg.
Lurnea Medical Centre
The notes document attendances between 16 June 2017 and 29 April 2020 including consultations with Dr Lieng.
On 15 January 2019 Dr Lieng reported pain in the leg and suggested the treatment plan be reviewed after the claimant has seen Associate Professor Sheridan on 6 February 2019.[22]
[22] AD1 p 81.
On 13 February 2019 Dr Lieng reported further deterioration and “has arthritis in back now – developed from accident”. Ms Lay underwent a CT guided left C3/C4 facet joint injection.[23]
[23] AD1 p 45 and AD2 p 479.
Ms Lay underwent CT guided bilateral C3/4 and C5/6 facet joint injections on 20 February 2019.[24] Ms Lay underwent a CT guided left C5/C6 facet joint injection on 27 February 2019.[25] Ms Lay underwent a CT guided left L4/5 facet joint injection on 16 March 2020.[26]
[24] AD1 p 46.
[25] AD1 p 47.
[26] AD1 p 98.
The claimant did not attend a consultation on 22 May 2019.[27]
[27] AD1 p 80.
On 24 May 2019 Dr Lieng discussed the report of Associate Professor Sheridan with Ms Lay.[28]
[28] AD1 p 79.
The consultation on 8 July 2019 was in respect of chronic pain.
The consultation on 9 July 2019 resulted in a referral to Dr El Haddad, whilst the consultation on 12 December 2019 was for review and the prescription of analgesia.
On 16 December 2019 Ms Lay sought a further opinion and a referral to Dr Bazina was discussed.
On 26 February 2020 discussion ensured about the treatment by Dr Wallace including a facet joint injection of the cervical spine.
On 19 March 2020 there was further discussion about the left L4/5 facet joint injection and Centrelink.
On 29 April 2020 Dr Lieng discussed with Ms Lay the recommendations of Dr Wallace re cessation of Panadeine Forte and “benzo”.
On 27 May 2020 Dr Lieng reported Ms Lay was no longer finding Lyrica as effective. X-rays of both knees and an MRI scan of the lumbar spine were discussed.
The consultation with Dr Lieng on 2 October 2020 was in respect of ongoing pain and swelling of the right knee.
The consultation with Dr Lieng on 2 December 2020 was for review and the prescription of medication.
Ms Lay continued to consult Dr Lieng. On 16 August 2021 he declined to refer her to more specialists, concluding she had a pain syndrome which was not fixable.[29]
[29] AD2 p 490.
Complete Allied Health Care
The claimant underwent 16 sessions of psychological counselling with Kate Huynh of Complete Allied Health Care between 15 September 2017 and 3 October 2019. In a report dated 22 June 2018 Ms Huynh reported Ms Lay had presented with symptoms of major depressive disorder and generalised anxiety.[30]
[30] AD1 p 260.
The claimant underwent physiotherapy to her cervical and thoracolumbar spines, her chest and both knees between 18 June 2017 and 9 November 2018.[31]
[31] AD1 p 203.
Dr David Lieu, orthopaedic surgeon
On 15 December 2017 Dr Lieu reported Ms Lay had mild occasional pain in her knees prior to the injury but constant severe anterior knee pain since the accident. He reported her pain was exacerbated by walking and going up and down stairs and she had difficulties with activities of daily living. He concluded she had sustained significant exacerbation of her arthritis. He noted her cartilage loss was irreversible and will lead to progressive painful arthrosis. He also concluded she may require total knee replacement in the future.[32]
[32] AD2 p 518.
On 7 March 2018 he reported Mrs Lay had undergone an injection to her left knee.[33] He reported radiographs confirmed moderate tricompartmental osteoarthritic change in both knees.
[33] AD2 p 277.
Dr Lieu reviewed the claimant on 10 June 2020. He concluded she had stable arthritic pain in both knees and no further intervention was required.[34]
[34] AD2 p 530.
Dr Darwish, neurosurgeon
Dr Darwish reviewed Ms Lay on 5 July 2018 when he reported she continued to complain of neck pain radiating to the left shoulder and occasionally the left arm.[35] He noted the pain was associated with paraesthesia over the lateral aspect of the left forearm. Dr Darwish recommended left C3/C4, C4/C5 and C5/C6 foraminotomy and decompression of the left C4, C5 and both C6 nerve roots.
[35] AD1 p 30.
Associate Professor Mark Sheridan, neurosurgeon
Ms Law saw Associate Professor Sheridan on 7 December 2018 for a second opinion.[36] He noted the bone scan showed marked facet arthropathy in the neck at C3/4 and to a lesser extent at C5/6 and mild L4/5 inflammation. He reported the MRI scan showed persisting disc bulging at C5/6 with some nerve compression to explain the neck and arm symptoms. Associate Professor Sheridan stated she would not benefit from surgery and recommended a referral to a pain management specialist.
[36] AD1 p 34.
After reviewing Ms Lay on 15 May 2019 Associate Professor Sheridan reported Ms Lay remained quite disabled by her pain, noting she had quite diffuse whole body pain. He felt whilst there may be a role for a C5-6 anterior cervical discectomy and fusion it was not something to rush into and again suggested referral to a pain management specialist. He also suggested given her whole body pain conditions such as polymyalgia rheumatica or even fibromyalgia should be considered and suggested review by a rheumatologist.[37]
[37] AD1 p 35.
On 17 May 2019 Associate Professor Sheridan referred Ms Lay to a rheumatologist. In a letter dated 13 August 2019 the insurer denied the request on the basis the claimant’s ongoing complaints were not accident related.[38]
[38] AD2 p 162.
On 11 September 2019 Associate Professor Sheridan reported Ms Lay still had neck pain but the arm symptoms had settled and said he did not think she should consider neck surgery. Her main problems were her lower back and bilateral leg pain.[39] His opinion as to the need for surgery remained unchanged when he reviewed Ms Lay on 13 November 2019. He referred Ms Lay to Dr Wallace a pain specialist.[40]
[39] AD1 p 36.
[40] AD1 p 37.
Dr Carlos El-Haddad, rheumatologist
Dr El-Haddad saw the claimant on 30 July 2019.[41] He reported since the 2017 accident the claimant reported chronic neck pain and chronic non-specific low back pain. He reported the MRI scan of the cervical spine showed multilevel degenerative changes and a disc protrusion at the C5/6 level with some canal stenosis. He also noted multilevel neuroforaminal stenosis. On examination he did not find a radicular pattern. Dr El-Haddad reported she was considering a C5 discectomy. He said he explained it may help the neck area but there would still be pain at other sites, for example, the lumbosacral area. He concluded she had a mixture of mechanical symptoms.
[41] AD2 p 322.
Dr El-Haddad reviewed the claimant on 17 November 2020.[42] He reported she had had a flare of right knee pain with associated swelling which he thought might represent a recurrent of her previous seronegative arthritis. On 16 March 2021 he reported the local steroid injection had settled the pain and swelling in the right knee.
[42] AD2 p 324.
On 14 September 2021 Dr El-Haddad reviewed the claimant.[43] She was troubled by pain in the cervical spine radiating down the left arm and lumbosacral spine pain radiating down both legs and bilateral knee pain. He stated, “Dulce reports that these pains began primarily since her car accident” and recommended repeat scans.
[43] AD2 p 328.
Dr Laurent Wallace, pain specialist
The claimant first attended on 12 February 2020. Dr Wallace opined that the claimant’s neck pain was possibly related to her left C3/4 facet verses left C5/6 disco vertebral arthritis. Further, her lumbar spine pain was most likely related to her L3 to S1 facetogenic arthritis and her bilateral knee pain most likely related to osteoarthritis. Dr Wallace recommended that the claimant increase her physical activity. It was also reported that the claimant had high levels of catastrophic thinking.
On 22 July 2020, Dr Wallace opined that the claimant’s issues in the neck were linked to arthritis. Further, her issues in the lumbar spine were linked to joint arthritis and the bilateral knees were most likely linked to osteoarthritis. The claimant was encouraged to reduce her medication Temazepam. It was also recommended that the claimant increase her physical activity levels to at least 30 minutes of brisk walking per day. This was the claimant’s last attendance at this practice.
Alliance Medical Healthcare Centre clinical notes
Ms Lay initially saw Dr Angela Lam, GP on 9 October 2021.She obtained a detailed history including treatment undergone and noted conservative treatment was still viable with a multidisciplinary pain program with less focus on medications and more on psychotherapy. She also discussed the surgical option with the claimant and referred Ms Lay to Dr Kam for a formal neurosurgical opinion.[44]
[44] AD1 p 160.
On 31 January 2022 Dr Lam referred Ms Lay to Dr David Hall, psychiatrist for treatment of post-traumatic stress disorder arising from the accident.[45]
[45] AD1 p 189.
The insurer refused to approve further treatment so Ms Lay was placed on a public wait list to undergo surgery to the cervical spine.
Dr Andrew Kam, neurosurgeon
On 1 March 2022 Dr Kam reported the MRI scan demonstrated a C5/6 disc bulge, bilateral facet joint arthropathy, bilateral foraminal stenosis with C6 nerve root impingement and mild cord compression.[46] He reported she had an adequate range of motion in the cervical spine, full power in the upper limbs, intact sensation and was able to tandem walk. Dr Kam noted she had been symptomatic for four and a half years and recommended a C5/6 anterior cervical discectomy and fusion.
[46] AD1 p 153.
On 7 February 2023 Dr Lam reported Ms Lay continued to have ongoing pain and discomfort involving her neck, shoulder and left upper extremity. He noted her radial 3 digits were mostly involved. He reported the MRI scan showed the C5/6 disc/osteophyte complex was causing foraminal narrowing.
Dr Kam undertook an C5-6 anterior cervical discectomy and fusion on 29 May 2023.[47] In his operation report he reported the following intraoperative findings:
“Marked spondylosis and compression of the thecal sac and exiting nerve roots”.
[47] Medical records from Dr Andrew Kam p 8.
Dr David Hall, psychiatrist
Ms Lam commenced treatment with Dr David Hall, psychiatrist. In a report dated 19 July 2022 he diagnosed post-traumatic stress disorder in the context of the accident. [48]
Investigations pre-accident
[48] AD1 p 187.
MRI left knee – 21 December 2021 – the comment reads:[49]
”Patellofemoral chondromalacia mostly towards the trochlear groove where there is subchondral cyst formation and some adjacent synovitis. Joint effusion. Baker’s cyst. Some degeneration of the posterior horn of the medial meniscus without a definite tear at this stage.”
[49] AALD 11/4/24 P 15.
MRI right knee, 22 February 2013 – the report concludes:[50]
“• Grade IV chondromalacia/osteoarthritis in the patellofemoral compartment;
· Focal grade III chondromalacia in the medical compartment.
· Oedema of the lateral infrapatellar fat pad consistent with a degree of fat pad impingement syndrome;
· Joint effusion with mild synovitis;
· Popliteal fossa cyst.”
[50] AD2 p 333.
X-ray both knees, 7 May 2013 – the report states:[51]
“There is a minimal effusion in the left knee joint with minor distension of the supra-patellar pouch. Early degenerative change is noted in each patella-femoral joint.
No other bone or joint abnormality is demonstrated.”
[51] AALD 11/4/24 p 14.
MRI left knee, 22 December 2015 – the report concluded:
“Grade 3-4 chondromalacia in the patellofemoral compartment
Mild chondral thinning in the medial compartment
Small joint effusion.
Lateral infrapatellar fat pad impingement
Complex and septated popliteal fossa cyst.”[52]
[52] AD1 p 124.
MRI right knee, 22 December 2015 – the report concluded:
“Severe grade 4 chondromalacia/osteoarthritis in the patellofemoral compartment.
Grade 2 chondromalacia in the medial compartment.
Probable subtle tear of the medial meniscus.
Joint effusion.
Popliteal fossa cyst.
Lateral infrapatellar fat pad impingement.”
MRI lumbar spine, 22 December 2015 – the report concluded:
“… the L4/5 disc is dessicated and narrowed with minimal displacement but is not compression the thecal sac and the foramina are of reasonable size.
…There are minimal degenerative changes in the facet joints at the L5/S1 level.
….”.[53]
[53] AD1 p 135.
CT scan lumbosacral spine, 22 January 2016 – the report concluded:
“Minimal degenerative involving end plates in the mid lumbar spine. There is a small posterior bulge at the L4/5 level. This does not significantly narrow the canal.
No impingement upon the cauda equina or upon exiting lumbar nerve roots demonstrated.”[54]
[54] AD2 p 385.
Whole body bone/SPECT and CT scan, 19 July 2016 – the report concludes:
“Moderately active left C4/C5 facet joint arthritis. Minimal to mild endplate degenerative arthritis in the lumbar spine and thoracic spine. Early arthritis at both hip joints….
Minimal endplate degenerative arthritis in the lumbar spine….”[55]
[55] AD1 p 127.
Investigations post-accident
MRI right knee, 22 June 2017 -the report concludes:
“Significant patellofemoral chondromalacia with multifocal areas of full thickness chondral loss and reactive subchondral bony changes.
Small joint effusion and popliteal cyst.
Chondral softening at the anteromedial margin of the medial tibial condyle with associated mild reactive subchondral bony oedema.”[56]
[56] AD1 p 24.
MRI left knee, 29 June 2017 – the report concludes:
“Degenerative osteoarthritis of the patellofemoral joint with extensive areas of full-thickness chondral fissuring, subchondral cystic change and minor marrow oedema. No unstable osteochondral component.
Focal oedema in the superolateral margin of infrapatellar fat pai, a finding commonly associated with impingement symptomatology.
Meniscal degenerative change without meniscal tear. Predominantly grade 2 chondcral wear through the medial and lateral compartment with focal full-thickness chondral fissuring medial femoral condyle mid weightbearing region anteriorly.
Posterior ganglion arising from the lateral head of gastrocnemius femoral attachment, likely an incidental finding. Tiny popliteal cyst.”[57]
[57] AD1 p 26.
MRI cervical spine, 24 July 2017 – the report concludes:
“No acute cervical spine pathology. There is background spondylotic change as detailed above. Small broad-based posterior disc bulge at C5/C6. There is impingement of the left C4, C5 and potential irritation of bilateral C6 nerve roots. No significant canal stenosis.”[58]
[58] AD1 p 5.
MRI lumbosacral spine, 31 July 2017 – the report concludes:
“No fracture or bone contusion or ligament disruption in the lumbosacral spine. The cauda equina roots and conus are normal. There are multiple annular tears including the left L3/4 foraminal region, right L4/5 far lateral region, left L4/5 foraminal region and the right L5/S1 posterior paracentral region. There is no associated disc protrusion.” [59]
[59] AD1 p 6.
X-ray both knees, 16 January 2018 – the report shows early osteoarthritis in both knees with predominant patellofemoral compartment involvement but joint spaces maintained.[60]
[60] AD1 p 97.
MRI cervical spine, 17 January 2018 – the report concludes:
“Moderate left-sided foraminal narrowing at the C3/C4 level with possible contact of the exiting left C4 nerve root and moderate bilateral foraminal narrowing at the C5/C6 level with possible contact of the exiting C6 nerve roots bilaterally.”[61]
[61] AD1 p 23.
MRI of the cervical and lumbar spine, 9 December 2018 – the report concludes:
“Impression: Degenerative change in the cervical spine as described above with C5/6 most predominantly involved” and
“Impression: Mild degenerative change within the lumbar spine as described above”.[62]
[62] AD1 p 32.
Whole body bone scan, 10 December 2018 – the report concludes:
“Severe degenerative arthritis in the left facet joint at the C3-4 level of the cervical spine;
Discovertebral degenerative arthritis in the left facet joint at the C5-6 level.
Degenerative arthritis in the left facet joint at the L4-5 level of the lumbar spine.
Degenerative arthritis in the patellofemoral regions of both knee joints.” [63]
[63] AD1 p 44.
MRI lumbar spine, 7 October 2019 – the report concludes:
“Mild lumbar spondylitic change is noted… The changes at L3-4 on the left are most predominant”.[64]
[64] AD1 p 48.
MRI right knee, 13 October 2020 – the report concludes:
“• Grade IV chondromalacia/osteoarthritis in the patellofemoral compartment;
· Grade II chondral thinning in the medial compartment;
· Joint effusion;
· Large Baker’s cyst in the popliteal fossa which appears to have partially decompressed at its inferior margin.”[65]
[65] AD2 p 498.
MRI cervical spine, 26 February 2022 – the report concludes:
“1. Multilevel facet joint arthropathy with a posterior subluxation of C5-6.
2. Mild cord compression at C5-6.
3. Multilevel foraminal stenosis and root impingement.”[66]
[66] AD1 p 147.
MRI cervical spine, 18 May 2023 – the report concludes:
“1. Discovertebral changes with multilevel facet joint arthropathy.
2. Mild cord compression at C5-6.
3. Multilevel foraminal stenosis and root impingement.”[67]
Medico-legal reports
[67] Medical records from Dr Andrew Kam p 18.
Dr Ross Mellick, neurologist
The claimant was assessed by Dr Mellick who provided a report dated 21 November 2018.[68]
[68] AD2 p 207.
He reported at the time of the accident she was undertaking a TAFE course which she continued following an absence for a few days following the accident. He reported a past medical history of arthritis in the knees.
Dr Mellick reported Ms Lay complained her pain involving the neck, back, shoulders, left arm and both knees had become steadily worse with the passage of time. He reported she did little in the way of housework and cooking because of her increasing symptoms.
Dr Mellick found no evidence of any spinal injury or nerve root pressure at the cervical, thoracic or lumbar regions and diagnosed soft tissue injuries. He formed the view the claimant’s symptoms were due to secondary psychologically based pain resulting in a chronic pain syndrome which had developed together with depression and suicidal thoughts since the accident.
Dr Mellick stated he could find no evidence to establish a cause of symptoms amenable to surgical intervention.
Dr Mellick reviewed the claimant on 16 January 2024 and provided a report dated 16 February 2024.[69]
[69] AALD 2/4/24 p 14.
Dr Mellick concluded Ms Lay exhibited a chronic pain syndrome without objective signs relating to symptoms in the posterior torso, both knees and calves He found no evidence of radiculopathy or a neurological cause for the symptoms. He reported the neck pain had improved following surgery. He reported the symptoms involving the spine down to the lower back and the symptoms involving the knees and calves have increased.
Dr Mellick could not identify any specific neurological abnormalities associated with the accident to explain the chronic pain disorder. He reported at the time of his earlier examination there was a significant psychiatric disorder and considered a mood disorder may be contributing to the current clinical picture.
Dr Mellick concluded the neurological evidence did not establish evidence for a fusion procedure.
Dr Lew Pierides, occupational physician
Dr Pierides assessed the claimant and provided a report dated 2 May 2019.[70] He reviewed the pre-accident medical records. He noted Ms Lay can perform some household duties but he also reported her granddaughter helps in the house and her partner also stated he helped in the house.
[70] AD2 p 218.
He noted the Liverpool Hospital discharge letter reported a sternal fracture diagnosed ultrasound. A right knee X-ray revealed a few small bony fragments which may have possibly been traumatic although there was no knee joint effusion. He reported her current complaints were of neck and back pain of a vague nature. He reported a full range of motion of the cervical spine, no muscle spasm or guarding, brisk reflexes and no muscle wasting. He reported a full range of motion of the lumbar spine, no muscle spasm or guarding, brisk reflexes and no muscle wasting. He found mild patella femoral crepitus in both knees.
Dr Pierides diagnosed soft tissue injury to the chest and possibly a sternal fracture, a soft tissue injury to the cervical spine and to the right knee. He was of the view the accident related injuries would have resolved 12 weeks post-accident. He concluded no further treatment was required and agreed with Dr Mellick that surgery was not appropriate.
Dr Pierides found Ms Lay may have required two hours of assistance per week for six weeks post-accident and a further one hour of assistance for the following six weeks. Thereafter he considered she was fit to perform household duties without restriction.
Dr Anthony Smith, orthopaedic surgeon
Dr Smith assessed the claimant and provided a report dated 3 March 2022.[71] He noted a long history of spinal degenerative disease affecting the neck and low back and also bilateral knee osteoarthritis which he felt were superimposed on some rheumatoid like disorder that is seronegative.
[71] AD2 p 234.
He concluded there was some likelihood that she sustained an exacerbation to her pre-existing, previously symptomatic, degenerative conditions in the spine, the neck and possible both knees. However, he considered any aggravation would have resolved after three months at most and that Ms Lay was manufacturing physical signs having regard to her inconsistent presentation.
Dr Smith did not consider there was any impediment to Ms Lay engaging in normal domestic activities after a period of three months from the accident. He did not consider she required treatment after three months from the accident.
Dr Smith reviewed the claimant on 6 December 2023 and provided a report dated 21 December 2023.[72] He reported since his earlier examination Ms Lay had undergone a cervical spine fusion at C5-6 with some improvement in her neck symptoms.
[72] AALD 2/4/24 p 2.
Dr Smith reported Ms Lay had ongoing neck pain, left arm pain, low back pain, and bilateral knee pain. He concluded she had demonstrable bilateral knee joint osteoarthritis and bilateral hip joint osteoarthritis unrelated to the accident.
His opinion was unchanged. He concluded she sustained a possible aggravation of cervical degenerative disease and/or knee joint osteoarthritis from which she would have recovered within three months of the accident. He was of the view she was fitter than she made out.
Dr Smith was of the view there was no relationship between the operation and the accident. He concluded she required no treatment or gratuitous care now or in the future.
Dr Jonathan Herald, orthopaedic surgeon
Dr Herald assessed Ms Lay and provided a report dated 20 May 2020.[73] He diagnosis cervical spondylosis with C5/6 disc bulge and bilateral C6 neural compression, lumbar spondylosis with non-verifiable complaints down both upper limbs, bilateral retropatellar chondral damage, sternal fracture, healed and post-traumatic stress disorder.
[73] AD1 p 52.
In relation to future treatment Dr Herald stated:
“…she will require ongoing physiotherapy for flare ups of pain in in her neck and back and both knees. I would anticipate a flare up occurring at least once a year with treatment over a three month period for a flare up at three sessions a week …In addition she is going to require ongoing pain management and prescriptions for her anti-inflammatory tablets, analgesics and Lyrica. She will require visits of her GP approximately once a month to obtain these prescriptions and to monitor her progress. … In regard to her neck however there is a possible need for surgery on her neck in the form of a decompression and fusion.”
In relation to domestic assistance Dr Herald stated given her multiple injuries and chronic pain as a result of the accident Ms Lay required:
“… gardening and lawn care for approximately two hours per week. She would require home care for her, her daughter and he children in the form of approximately four to six hours per week and this would include not just vacuuming and mopping but also things like laundry and washing and hanging out the clothes on the line. She would also require an extra two hours per week of help with activities such as grocery shopping, carrying groceries, preparation and cooking.”
Dr Vickery, psychiatrist
Dr Vickery assessed the claimant and provided a report dated 6 June 2022.[74] Dr Vickery concluded the claimant’s symptoms satisfied the diagnostic criteria of a Somatoform Chronic Pain Disorder or she was malingering.
[74] AD2 p 248.
Certificate of Medical Assessor Doron Samuell, 6 October 2019[75]
[75] AD2 p 588.
Medical Assessor Samuell was asked to assess a treatment dispute including domestic assistance. He reported her daughter does her cooking and cleaning and she did her own shopping. He concluded there was no clear causal nexus between the accident and the claimed treatment needs from a psychological perspective. He found past and future psychological treatment, domestic assistance, GP consultations was not related to the injuries sustained in the accident and was not reasonable and necessary.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 22 December 2022.[76]
[76] AD1 p 301.
The claimant submits Medical Assessor McGrath failed to consider the consistent reports as to the claimant’s inability to carry out domestic tasks.
The claimant relies upon the opinions of Dr Darwish and Dr Kam in respect of the surgery.
The insurer’s submissions
The insurer provided submissions dated 30 January 2023 in response to the application for review.
The insurer disputed there was insufficient reasoning in the certificate of Medical Assessor McGrath referring to his findings on examination which led him to conclude the claimant had “widespread muscle tension and psychological symptoms”, thus making the “likely success of spinal surgery relatively low”. He also considered the possibility of an underlying rheumatic disorder and the uptake at C4/5 as a poor prognostic factor for the success of spinal surgery involving the lower cervical segments.
The insurer disputes Medical Assessor McGrath failed to consider the opinions of Dr Darwish, Dr Kam and Dr Lam, although it is noted the opinion of Dr Lam, a practitioner at the Alliance Medical Healthcare Centre was not before the Medical Assessor.
The insurer provided submissions dated 23 September 2021 in respect of the substantive dispute. The insurer summarises the claimant’s pre-accident history and notes following the accident she consulted Dr Lieng but does not seem to have received the file from Dr Tat so he was not aware of the pre-accident history. Whilst Ms Lay continued to consult Dr Tat she did not report any accident related complaints.
The insurer submits the MRI scans of both knees correlate to the pre-accident investigations and there is no additional pathology that could be attributed to the accident.
The insurer submits the MRI scans of the cervical and lumbosacral spines are indicative of degenerative conditions which have progressed over time. The insurer notes Associate Professor Sheridan did not consider surgery a viable option in the short term, instead suggesting a pain specialist and proposing alternate diagnoses including polymyalgia rheumatica or fibromyalgia.
The insurer relies upon the opinion of Dr Mellick who found the clinical features were consistent with a diagnosis of soft tissue injuries. He thought the claimant had developed a chronic pain syndrome and that the knee condition pre-dated the accident. He considered surgical intervention was not required.
The insurer also relies upon the opinion of Dr Pierides who considered any soft tissue injury to the cervical spine and right knee had fully recovered and no future treatment was required.
The insurer notes the opinion of Dr Herald is based on a pre-accident history which is not entirely accurate, that is that she had no symptoms in the neck or knees until the accident.
In relation to the claim for domestic assistance the insurer submits that the need for care cannot be attributed to the accident given the chronicity of the claimant’s underlying conditions.
The insurer provided supplementary submissions dated 14 June 2022.[77]
[77] AD2 p 45.
The insurer refers to the records of Dr Gotis-Graham, rheumatologist, and his opinion that the claimant had seronegative inflammatory arthritis and notes her attendances for treatment and the prescription of medication until 28 January 2016.
The insurer submits the claimant does not require any further physiotherapy treatment noting her last attendance was in November 2018.
The insurer submits that the claimant has no ongoing physical diagnosis and instead has a psychological issue relating to pain. The insurer notes that even the claimant’s own GP ceased active treatment given his view that the claimant had developed a pain condition and therefore it would be inconsistent to find that the claimant required further treatment. The insurer relies upon the following:
(a) on 21 March 2018, the claimant attended with complaints of worsening neck and knee pain. Dr Lieng discussed a pain syndrome with the claimant;
(b) on 13 February 2019, the claimant reported that she had seen Dr Sheridan who reported that she had arthritis in her back which had developed from the accident;
(c) on 24 May 2019, Dr Lieng discussed Dr Sheridan’s report. The claimant was “advised…to move on”;
(d) On 8 July 2019, Dr Lieng discussed chronic pain with the claimant. The claimant insisted on restarting opioids;
(e) on 28 June 2019, she attended Ms Hynh, psychologist where she reported that her GP has refused to give her a referral, stating that it would not be helpful, and refused to prescribe her more medication and that she would just have to “live with it”. The claimant reported feeling very disappointed in her GP and did not want to see him anymore;
(f) on 19 March 2020, the claimant reported that Centrelink was insisting that she keep searching for a job. Dr Lieng wrote that he was “unable to change certificate as the certificate is medically correct”;
(g) on 29 April 2020, the claimant reportedly “objected” to the cessation of Panadeine Forte and Benzodiazepines;
(h) on 27 May 2020, the claimant reported that she was not finding Lyrica effective;
(i) on 12 August 2020, the claimant again insisted on medication for her knee following the injection. Dr Lieng denied her request recording that he had a “forceful conversation” with the claimant regarding this issue;
(j) on 19 October 2020, the claimant reported that she had been rejected from Centrelink for a disability pension. Dr Lieng recorded that he had a “long discussion” with the claimant;
(k) the claimant last attended on 16 August 2021, where she requested more specialist referrals. Dr Lieng advised the claimant that he “cannot do that anymore as she has a pain syndrome and is not fixable”;
(l) on 19 August 2021, the clinical records of Dr Tatt refer to a consultation with Dr Seeto. The claimant reported that she had ongoing issues related to the accident which was simply listed as “MVA 2017”. Dr Seeto advised that he was “unable to take on her case” as he was not involved in the management of her details from the start. Dr Seeto suggested that the claimant get different advice if she had exhausted Dr Lieng’s advice;
(m) Associate Professor Sheridan recommended the claimant be referred to a pain specialist rather than undertake surgery, and
(n) Dr Wallace, pain specialist recommended the claimant increase her physical activity and reported she had high levels of catastrophic thinking. Dr Wallace opined that the claimant’s pain was most likely due to arthritis or osteoarthritis.
The insurer provided additional submissions dated 12 April 2024.[78]
[78] AALD 11/4/24 p 5.
The insurer compared the MRI of the left knee conducted on 21 December 2012 and the MRI of the right knee conducted on 22 February 2023. The insurer notes that the claimant was referred from Dr Tong to Dr Walker for bilateral knee arthroscopy on 2 April 2013.
The insurer relies upon the opinion of Dr Smith who concluded that the claimant had recovered from the possible exacerbation of her pre-existing cervical spine degenerative disease and the pre-existing arthritis in one of her knees. The insurer also submits that Dr Smith reiterated his view that the signs and symptoms presented by the claimant are manufactured. The insurer relies upon the opinion of Dr Smith that there is no relationship between the accident and the operation to the claimant’s cervical spine. The insurer submits the cervical fusion was not related to the accident, or reasonable and necessary.
The insurer also refers to the report of Dr Mellick dated 16 February 2024 where he states the neurological evidence did not establish a reason for the fusion surgery.
The insurer notes several practitioners have opined that there was insignificant pathology or symptomatology to justify the surgery. The insurer submits the surgery was not reasonable and necessary but even if it is found to be reasonable it cannot be found to relate to the accident. Accordingly, the insurer submits any need for care or further treatment associated with the surgery cannot be attributed to the accident.
MEDICAL EXAMINATION
Ms Lay was examined by Medical Assessor Peter Yu on 28 May 2024 at his rooms situated at Level 2, 50 Clarence Street, Sydney. She was assisted by a Mandarin interpreter Ms Helen Yang, NAATI CPN 5SZ69L.
Ms Lay is now 59 years of age. She was 52 years of age at the date of accident.
History
Past work, educational and training history
Ms Lay was born and grew up in East Timor. Her family trained her to write only with her right hand for cultural reasons. She has always favoured her left hand for most other tasks that require manual force. She finished high school. She never studied at a university.
Ms Lay did “process work” in factories across numerous industries. That work regularly involved “physical work”. She operated a fish and chips shop until 2015. Leading up to 2015, “I was running a fish and chip shop. I was the boss, and I had sometimes a family member helping me. I stopped the fish and chips shop because business was bad. Ceasing my fish and chips business wasn’t related to my health.”
At the time of the subject accident, ‘I was studying Cert 3 administration at TAFE part-time.’
Social history and sports
Ms Lay reported, “I live with my daughter and granddaughter. They look after me. My home has two levels. There are stairs [at home]. My bedroom is upstairs.” She did not receive or apply for a disability support pension before the accident.
Before that accident, she was consistently independent with all aspects of her self-care and home duties. She did most of her household’s home duties. She held and still holds an unconditional C-class driver’s licence. She has never used alcohol, never smoked, never vaped and never used any illicit substance.
Past history
Ms Lay reported, “The insurer found some notes about [my consulting my treating doctor for] neck pain before the accident. I had attended my family doctor before the accident and I had pain in my body. He referred me to Dr Rozario. It was a free doctor. I can’t remember much about my symptoms. I went to a physio too.” Ms Lay referred Medical Assessor Yu to Dr Rozario’s pre-accident records. She does not have any allergies. She did not recall any involvement in past accidents. Her usual GP was and still is Dr Tieu Tat.
History of presenting condition
Ms Lay provided the following description of the accident:
“The accident happened on 7 June 2017. I still remember it. It was in the afternoon at about 4pm. I was driving my Toyota Corolla on Cabramatta Road. I was driving my grandkids to drop them off with their tutor. My Toyota had airbags.
My 2 grandkids were in the car with me. One was sitting in the front passenger’s seat, and one of them was sitting in the back seat. It was raining like a shower, not heavy rain. There were no obvious puddles but the road surface was wet. The road surface was sealed.
I was going straight on Cabramatta Road at a T-junction. My car was going at 60 kilometres per hour. Another car was trying to turn right onto Cabramatta Road from in front of me out of the side-street at the T-junction. The front of my car hit the driver’s side of his car. My car’s airbags deployed. Then everything stopped.
During the accident, both of the front of my knees hit the dashboard. My chest hit the steering wheel. I couldn’t breathe. I thought I had died. My head moved forward but didn’t hit anything. My hands were both on the steering wheel at the time. I then unconscious for awhile.
When I woke up, I was still sitting inside my car. There was a crowd of people forming nearby. Then the police came. I hadn’t called them. I’m not sure how I got out of the car. I was unable to walk. The tow truck came. The ambulance came. I hadn’t called them.
I had pain all over my chest, my neck, my whole back and both of my knees. The ambulance took me on a stretcher to Liverpool Hospital. X-rays at the hospital showed fractures in my ribs. Both of my knees were bruised. The doctor then told me that I had fractures in my knee too. I was at Liverpool Hospital until midnight. My family came to pick me up from hospital. I was discharged home.
The neck pain spread to my whole left arm down to all of the fingers in my left hand, which felt numb. The neck pain also spread to my right upper back. I had pain in my entire back. I can’t remember when it started but I’ve had the back pain since the accident. I saw a neurologist, Dr Sheridan. He told me that I had a fracture in the right side of my pelvis. I don’t remember having a check for osteoporosis.
I went to do MRI scans for my neck. I had cortisone injections into the neck and both knees. If I had other injections, I can’t remember. I had some painkillers, which made me feel drowsy and sleepy. I had surgery for the neck last year on the 23rd of June with Dr Andrew Kam in Westmead Private Hospital. Dr Kam gave the third opinion about my need for neck surgery.
I couldn’t sleep with a normal pillow after the accident. I had to use a latex or foam pillow. I couldn’t turn my neck right or left. But now after surgery, I can twist my neck left and right, but the pain and numbness in my entire left arm down to the fingers is still here. The surgery helped me with twisting my neck but has not helped me with anything else.
All of my chest injuries have fully healed, including but not just the rib fractures. There is no more chest pain.”
Current symptoms
Ms Lay described her current symptoms as follows:
“My neck pain is still constant. I can’t walk for too long because of my neck pain. I can’t carry heavy things because of that pain. The numbness and pain in my left arm are still constant.
My upper back and low back pain are there unchanged and constant. The back of both calves feels numb up to the back of my knees. I’m not numb in the sides of the calves or in my feet or soles.
My knees have a little pain. The pain is in my kneecaps at the front of my knees, not at the back of my knees.”
Ms Lay described the following self-rated tolerances:
“(a) sitting – one hour with medication due to low back pain;
(b) standing – 30 minutes with pain-killers due to pain in both knees;
(c) walking 30 minutes with pain-killers due to pain in both knees;
(d) climbing steps – ‘I have to use the handrail due to pain in both knees’;
(e) lifting – one kg limit due to neck pain;
(f) bending and twisting – no difficulty as stretching the neck, back and knees helps to ease pain;
(g) reaching above head – unable to do due to neck pain;
(h) reaching the foot – unable to do due to neck pain;
(i) squatting – unable to do due to pain in both knees;
(j) kneeling – unable to do due to pain in both knees;
(k) driving – unable to drive due to mental health although Ms Lay has not given her licence back to the licensing authority;
(l) operating a keyboard – five minutes due to neck pain; and
(m) using a mouse – five minutes due to neck pain”.
These current symptoms were proactively conveyed by Ms Lay to Medical Assessor Yu. Medical Assessor Yu then asked Ms Lay if there was anything else about her current symptoms that she wanted recorded or wished to convey. Ms Lay firmly replied that there were no other symptoms.
Current treatment
Ms Lay takes Paracetamol with codeine (Panamax) one tablet twice daily as needed and Zolpidem 10mg each night. She takes Duloxetine 60mg daily, Pantoprazole 40mg daily only after using Celebrex and Celebrex 200mg daily as needed. Ms Lay actually uses Celebrex five times a week. She also takes Pregabalin 75mg bd. Ms Lay commented: “this medication makes me sleepy but my back pain improves [after using it]”.
Ms Lay attends physiotherapy twice a week. When asked how, if at all, physiotherapy affected her symptoms, Ms Lay initially stated each session improved her pain by one week. When asked why she attended physiotherapy twice a week if each session improved her pain for one week she said she had misspoken, and that each physiotherapy session improves her symptoms for “a few days” until she attends the subsequent session. She also reported doing exercises by herself at home.
She consults her family GP Dr Tieu Tat in Hinchinbrook and her accident specific GP Dr Angela Lam every six weeks. She also attends her treating psychiatrist Dr David Hall every seven weeks. She will next consult her treating neurosurgeon Dr Andrew Kam in December 2024.
Activities
In relation to her study activities post-accident Ms Lam stated:
“I had to continue with my part-time studies after the accident. I had no choice because I had to receive unemployment benefits. The government forced me to either study or look for work.
The insurer denied the liability and would not pay me anything. I finished the Cert 3 in administration at the end of the year. I thought my body couldn’t handle more study, but the government said they would stop my payments if I didn’t study more. So, I then studied and finished the Certificate 4 in administration.
I have not worked since the accident. My last day of paid work was in 2014 when I was running my fish and chips shop”.
In relation to domestic activities post-accident Ms Lam stated:
“After the accident, my partner had to help me with gardening, vacuuming, cleaning, washing and hanging up the clothes. He didn’t live with me. He came to help me for about three hours a day on every calendar day. He has visited me every day for the last seven years. Sometimes he stays over, sometimes he does not stay over.
My sister helped me with this also. She helps me with cooking, tidying up the bed. She helps me for three hours per day on most days of the week”.
CLINICAL EXAMINATION
Ms Lay weighed 50 kilograms and she was 1.58 metres in height.
Cervical spine
There was a 5.5cm-long scar in the left anterior aspect of her neck. Her cervical spine had normal posture. Ms Lay was non-tender to palpation of the cervical spine’s midline and paraspinal regions.
Her cervical spine’s range of motion was symmetrical, without dysmetria. For anterior flexion, Ms Lay demonstrated 3/4 of the normal range. For extension, she demonstrated 3/4 of the normal range. For flexion to her right, Ms Lay demonstrated 1/2 of the normal range. For flexion to her left, she demonstrated 1/2 of the normal range. For rotation to her right, Ms Lay demonstrated 1/2 of the normal range. For rotation to her left, she demonstrated 1/2 of the normal range.
The Spurling test produced normal findings with respect to each side of her cervical spine.
Thoracic spine
The posture of her upper back was normal. There were no scars. There were cupping bruises bilaterally throughout her upper back. On palpation, the spinal midline and paraspinal regions were non-tender.
Her thoracic spine’s range of motion was symmetrical, without dysmetria. For anterior flexion, Ms Lay demonstrated the full, normal range. For extension, she demonstrated the full, normal range. For rotation to her right, Ms Lay demonstrated half of the normal range. For rotation to her left, she demonstrated half of the normal range.
Lumbosacral spine
The posture of her low back was normal. There were no scars. There were cupping bruises bilaterally throughout her low back. On palpation, the spinal midline and paraspinal regions were non-tender.
Her lumbar spine’s range of motion was symmetrical, without dysmetria. For anterior flexion, Ms Lay demonstrated the full, normal range. For extension, she demonstrated the full, normal range. For flexion to her right, Ms Lay demonstrated three-quarters of the normal range. For flexion to her left, she demonstrated three-quarters of the normal range.
The Trendelenburg test was negative bilaterally, as was the seated Straight Leg Raise test.
Her gait was normal. Ms Lay demonstrated tandem gait normally. She walked only on her heels and then only on her toes, without difficulty or reporting any test-related symptoms. Ms Lay reported her inability to hop on either foot, citing her concern about too much pain in her neck, knees and entire back if she hopped.
Ms Lay attempted to squat but stood upright again before her tailbone became lower than the horizontal level of her knees, citing pain in both knees. In the half-squatted posture, Ms Lay took four steps forward without mechanical difficulty or reporting any half-squat-walking-related symptom.
Ms Lay stepped onto and then off a 25cm-high step whilst constantly holding and leaning onto Medical Assessor Yu’s right forearm. She cited concern about worsening her entire back pain and the pain in her knees if she did not hold and lean into Medical Assessor Yu’s forearm.
Upper limbs
Ms Lay’s upper limbs looked normal. There were no fasciculations, or any other obvious (gross) deformities.
There was no muscle wasting (no atrophy) in her upper limbs. At 10cm proximal to the ipsilateral elbow olecranon with the elbow fully extended, the right arm’s circumference was 23.5cm. At that level, the left arm’s circumference was also 23.5cm. At 10cm distal to the ipsilateral olecranon with that elbow fully extended, her right forearm’s circumference was 20cm. At that level, her left forearm’s circumference was also 20cm.
The tone of her upper limb muscles was normal. With respect to each joint in each of Ms Lay’s upper limbs, Medical Assessor Yu rated her muscle power at 5 out of 5 using the Medical Research Council (MRC) criteria.
Upon testing, Ms Lay had normal (2+) tendon reflexes at each upper limb’s distal biceps tendon, distal triceps tendon, distal brachioradialis tendon, and the tendons of the deep flexors of her fingers.
Medical Assessor Yu tested her ability to sense light touch with a calibrated monofilament that exerted precisely 10 grams of pressure onto each area of skin tested. Ms Lay reported normal sensitivity to that touch. She reported impaired sensitivity to tests of pinprick sensation in the left C7 dermatome. Her ability to discriminate between two points of touch in the left C7 dermatome required those points to be separated by at least 8mm.
Elsewhere in her upper limbs, her accurate response to tests of 2-point discrimination only required a point-separation of 6mm.
Lower limbs
There was a three cm-long scar at her right kneecap and a 0.5cm-long scar at her left kneecap. With respect to these scars, she stated, “When I was a child, I was running and fell down.”
As she lay supine, the distance between each anterior superior iliac spine (ASIS) and the ipsilateral ankle’s medial malleolus was 80cm for each of her legs.
There was no muscle wasting (no atrophy) in her lower limbs. As Ms Lay lay supine, her right thigh’s circumference was 36cm at 10cm proximal to the ipsilateral patella’s (kneecap’s) proximal-most verge. At that level, her left thigh’s circumference was also 36cm. At 10cm distal to the ipsilateral patella’s distal-most verge, each calf’s circumference was 31cm.
The tone of Ms Lay’s lower limb muscles was normal. With respect to each joint in each of her lower limbs, Medical Assessor Yu rated her muscle power at 5 out of 5 using the MRC criteria.
Upon testing without reinforcement, Ms Lay had normal (2+) tendon reflexes at each lower limb’s patellar tendon, medial hamstring tendon and tendoachilles. The Babinski reflex was normal in each lower limb.
On testing of her sensitivity to light touch with a calibrated monofilament that exerted exactly 10g of pressure when clinically used, Ms Lay reported anaesthesia in the lateral half of her distal left calf but normal sensitivity throughout both feet and elsewhere in the lower limbs. This is a non-dermatomal pattern, and does not correlate with any compression, irritation or other clinically active condition of any specific spinal nerve root. Tests of pinprick sensation yielded only normal findings throughout each of her lower limbs.
Knees
Other than the scars mentioned above, the knees looked grossly normal. There was no valgus or varus deformity in either knee. There was no evidence of swelling in either of her knees. The vertical length of each patella was 5cm. At 2.5cm distal to the proximal-most verge of each patella, the ipsilateral leg’s circumference was 34cm.
On palpation of each knee, there was tenderness at each patella but no other joint line tenderness.
At each knee, Ms Lay consistently demonstrated an active range of flexion of 130 degrees, and an active extension range to 0 degrees.
Tests of each knee’s collateral ligaments, Drawer signs and McMurray signs yielded only normal findings. The patellar grind tests yielded palpable crepitus in each knee.
IMAGING
Ms Lay brought with her a large bag of imaging films from medical imaging investigations. Ms Lay complained repeatedly that dragging and moving the bag was difficult for her.
Imaging of the spine
Software images of a CT of the cervical spine dated 9 May 2024 demonstrated a C5/C6 vertebral fusion, which correlates with her history of cervical fusion surgery.
Images of an MRI of the lumbar spine dated 6 October 2019 demonstrated multilevel degeneration (spondylosis).
Imaging of the knees
Images of an MRI of the right knee dated 22 June 2017 and 18 October each show patellofemoral joint space narrowing with multiple surface irregularities in the posterior aspect of each patella. These correlate with the clinical findings made by Medical Assessor Yu when he examined the claimant’s right knee.
Images of an MRI of the left knee dated 20 October 2021 demonstrated patellofemoral narrowing with multiple surface irregularities in the posterior aspect of each patella. These correlate with the clinical findings made by Medical Assessor Yu when he examined the claimant’s left knee.
PANEL DELIBERATIONS
Consistency of presentation
Medical Assessor Yu felt the claimant was very focussed on her pain and impairments.
Diagnosis
The spine
The Panel finds Ms Lay had a pre-existing degenerative disease of the spine which may have been indicative of inflammatory joint disease as suggested by Dr Rozario, rheumatologist.
The Panel finds the accident caused an aggravation of that pre-existing degenerative spinal condition and Ms Lay has now developed a chronic pain condition. Liverpool Hospital reported Ms Lay sustained a neck sprain, soft tissue injury of the right knee and a sternal fracture as a result of the accident. On 16 June 2017 Dr Lieng GP reported Ms Lay also had pain in the lower back, shoulders, mid back and left knee and on 21 March 2018 Dr Lieng reported the neck and knee pain was worse. Ms Lay underwent physiotherapy to her cervical and thoracolumbar spines, her chest and both knees between 18 June 2017 and 9 November 2019.
On 21 March 2018 Dr Lieng discussed a pain syndrome with Ms Lay and on 8 July 2019 he discussed chronic pain. Whilst Assoc Prof Sheridan reported the MRI scan of the cervical spine showed persisting disc bulging at C5/6 with some nerve compression to explain the neck and arm symptoms he did not consider Ms Lay would benefit from surgery. Indeed, on 15 May 2019 he reported quite diffuse whole body pain and suggested review by a rheumatologist. On 30 July 2019 Dr El-Haddad rheumatologist reported chronic neck and non-specific low back pain. Without ruling out surgery he seemed reluctant to support it noting whilst it may help with the neck area, there would still be pain at other sites. On 11 September 2019 Assoc Prof Sheridan reported the arm symptoms had settled and did not think Ms Lay should consider neck surgery. He referred Ms Lay to a pain specialist.
Pain specialist Dr Wallace reviewed Ms Lay on 12 February and 22 July 2020 when he concluded the issues in the neck were linked to arthritis. He encouraged Ms Lay to reduce her medication and to increase her physical activity levels. He also noted high levels of catastrophic thinking.
Whilst Dr Kam did not identify radiculopathy when he assessed Ms Lam on 1 March 2022 he reported she had been symptomatic for four and a half years and recommended a C5/6 anterior cervical discectomy and fusion. Dr Kam had some support for his opinion from Dr Herald. On 20 May 2022 Dr Herald reported the possible need for surgery in the form a decompression and fusion although Dr Herald mistakenly believed the claimant had no symptoms in the neck prior to the accident.
Dr Mellick neurologist diagnosed a chronic pain syndrome, reporting there was no evidence of any spinal injury or nerve root pressure at the cervical, thoracic or lumbar regions which would be amenable to surgical intervention. He diagnosed soft tissue injury although when he reviewed the claimant on 16 January 2024, he reported the neck pain had improved following surgery. Both Dr Pierides and Dr Anthony Smith concluded surgery was not appropriate. Dr Smith reviewed Ms Lay following the surgery and whilst he noted some improvement in her neck symptoms he concluded the surgery was not related to the accident.
On examination Medical Assessor Yu reported Ms Lay noted some improvement in turning her neck post-surgery, however, she still had constant neck pain together with numbness and pain in her left arm.
The Panel has the benefit of hindsight where the outcome of the surgery undergone by the claimant can be considered. Ms Lay stressed she continues to experience significant pain and Medical Assessor Yu was given to understand there has been no measurable benefit from the surgery, other some improvement in turning her neck. He reported Ms Lay continues to present as significantly disabled and did not describe any measurable improvement in her ability to undertake household tasks or other activities of daily living following the surgery.
The Panel finds surgery was not indicated. Ms Lay had a pre-existing degenerative disease of the spine, noting she had been diagnosed with an inflammatory joint disease with pain in the cervical and lumbar spine and both knees. The development of a chronic pain syndrome was foreshadowed shortly after the accident where Dr Lieng reported Mr Lay had pain everywhere only six weeks after the accident. The Panel notes Dr El-Haddad was reluctant to support surgery having regard to the presence of pain at other sites and Associate Professor Sheridan concluded Ms Lay had developed a pain syndrome which was unlikely to be responsible to surgical intervention. In addition, Ms Lay did not have established and persisting radiculopathy or myelopathy.
Dr Mellick, Dr Pierides and Dr Anthony Smith all concluded surgery was not appropriate in circumstances where there was no evidence of any spinal injury or nerve root pressure which would be amenable to surgical intervention.
The Panel also notes pain specialist Dr Wallace reported levels of catastrophic thinking. The Panel is of the view the claimant’s unhelpful beliefs about her injury, albeit honestly held, her poor coping strategies and the passive role she adopted towards her recovery have been counter-productive to her recovery and indicative of the poor outcome she was likely to achieve from the surgery.
Accordingly, the Panel finds the surgery was not reasonable and necessary in the circumstances.
The Panel also finds the surgery was not related to the injury caused by the accident where the accident related injury was the aggravation of a pre-existing degenerative spinal condition followed by the development of a chronic pain syndrome. The Panel agrees with the opinion of Drs Mellick, Pierides and Smith that there is no evidence the accident contributed to any spinal injury or nerve root pressure which would be amenable to surgical intervention.
Bilateral knees
Clinically the diagnosis for each knee is patellofemoral pain syndrome. A degenerative condition of each patellofemoral joint is likely to underly that syndrome.
However, the Panel notes the consistent complaint pertaining to the knees following the accident. Right knee pain was noted in the Ambulance Report and in the emergency department discharge referral of Liverpool Hospital. On 16 June 2017 Dr Lieng reported pain in both the right and left knee. On 22 June 2017 Ms Lay underwent an MRI of the right knee and on 29 June 2017 she underwent an MRI of the left knee.
On 15 December 2017 Dr Lieu reported mild occasional pain in the knees prior to the accident but constant severe anterior knee pain since the accident causing difficult with walking and going up and down stairs. Dr Lieu concluded Ms Lay had sustained significant exacerbation of her arthritis in the accident.
Dr Anthony Smith concluded the claimant had sustained a short lived exacerbation of her pre-existing degenerative condition in both knees.
On examination Medical Assessor Yu reported the knees looked grossly normal with no valgus or varus deformity or evidence of swelling in either knee. patella was 5cm. He noted there was tenderness at each patella but no other joint line tenderness.
Medical Assessor Yu reported Ms Lau complained of a little pain in the knees and activities of daily living including standing, walking, using stairs, squatting and kneeling continued to be affected by knee pain.
The Panel is satisfied that the accident has led to the persistent aggravation of the pre-existing patellofemoral pain syndrome.
Sternum fracture and chest wall injury
Ms Lay sustained a fracture of the sternum and associated chest wall injury caused by the accident. However, on examination by Medical Assessor Yu it seems these injuries have clinically resolved.
TREATMENT DISPUTES
Consultations with Dr Lieng on 15 January 2019, 13 February 2019, 22 May 2019, 24 May 2019, 8 July 2019, 9 July 2019, 12 December 2019, 16 December 2019, 26 February 2020, 19 March 2020, 29 April 2020, 27 May 2020, 2 October 2020 and 2 December 2020
The Panel notes the claimant did not attend a consultation with Dr Lieng on 22 May 2019 so does not find this consultation was related to the injury caused by the accident where it did not occur.
The remaining consultations took place in 2019 and 2020. The Panel finds the remaining consultations relate to the injury caused by the accident having regard to the clinical records.
It is apparent from the clinical notes that Ms Lay attended Dr Lieng seeking treatment to alleviate her chronic pain. Not only did she obtain prescriptions of analgesia she also sought and obtained referrals for further investigation and specialist review including pain management. She underwent CT guided injections to both the cervical and lumbar spine in 2019 and 2020. Whilst it does not seem the treatment was particularly effective the Panel finds it was reasonable for the claimant to attend her general practitioner to seek relief from the chronic pain she apparently experienced and to obtain the requisite referrals.
Accordingly, the Panel finds the consultations on 15 January 2019, 13 February 2019, 24 May 2019, 8 July 2019, 9 July 2019, 12 December 2019, 16 December 2019, 26 February 2020, 19 March 2020, 29 April 2020, 27 May 2020, 2 October 2020 and 2 December 2020 were reasonable and necessary in the circumstances and relate to the injury caused by the accident.
Future GP visits between 0 and 22 per annum for 0 to 10 years
The Panel notes it is now seven years since the accident. The claimant continues to have a chronic pain condition and to take medication including Paracetamol with codeine (Panadeine) Zolpidem, Duloxetine, Pantoprazole, Celebrex and Pregabalin.
Whilst the Panel considers the long term use of narcotics (codeine) and Lyrica to be harmful and not beneficial to the claimant’s recovery the Panel is of the view the claimant requires medical supervision to develop a treatment strategy designed to facilitate a move towards self-management including the gradual cessation of medications including Panadeine Forte and Lyrica, a move away from passive strategies and towards more active treatment strategies. The Panel considers three general practitioner visits per annum for the next five years to be reasonable and necessary in the circumstances.
The Panel considers three GP visits per annum for the next five years to be related to the injury caused by the accident.
C5/6 decompression and fusion surgery on 29 May 2023
As indicated above the Panel finds the C5/6 decompression and fusion surgery on 29 May 2023 was not reasonable and necessary in the circumstances.
As indicated above the Panel finds the C5/6 decompression and fusion surgery on 29 May 2023 was not related to the injury caused by the accident.
Post-operative rehabilitation
Where the Panel finds the C5/6 decompression and fusion surgery on 29 May 2023 was not reasonable and necessary in the circumstances the Panel also finds the post-operative rehabilitation was not reasonable and necessary in the circumstances.
Where the Panel finds the C5/6 decompression and fusion surgery on 29 May 2023 was not related to the injury caused by the accident the Panel finds the post-operative rehabilitation was not related to the injury caused by the accident.
Future physiotherapy between 2 to 22 consultations per annum for 0 to 10 years
Ms Lay currently attends physiotherapy twice a week but with limited benefit. Ms Lay informed Medical Assessor Yu that each physiotherapy sessions improves her symptoms for a few days.
The only specialist who recommended ongoing physiotherapy was Dr Herald and that was only in respect of flare-ups once or twice a year. Dr Lieu concluded the claimant had stable arthritic pain in both knees and no further intervention was required. Dr Wallace recommended Ms Lay increase her physical activity.
Future physiotherapy would only be reasonable and necessary if it had a demonstrable effect on Ms Lay’s health outcomes including her occupational outcome. The Panel finds physiotherapy to maintain a few days of improved symptoms without any demonstrable improvement in domestic or social participation is not reasonable and necessary in the circumstances.
The Panel does not consider ongoing physiotherapy, seven years after the accident, to be related to the injury caused by the accident.
Panadeine Forte and Lyrica 0 to 30 tables per month for 0 to 10 years
The Panel is asked to determine whether 0 to 30 Panadeine Forte and 0 to 30 Lyrica tablets per month for 0 to 10 years is reasonable and necessary in the circumstances and whether it relates to the injury caused by the accident.
The Panel notes in 2020 and 2021 attempts were made to encourage Ms Lay to reduce her medication intake. On 29 April 2020 Dr Lieng discussed with Ms Lay the recommendations of Dr Wallace re the cessation of Panadeine Forte and “benzo” or benzodiazepines. At that time the claimant was taking Temazepam. The Panel notes on 27 May 2020 Dr Lieng reported Ms Lay was no longer finding Lyrica as effective. The claimant did not see Dr Wallace, pain specialist after 22 July 2020 when he encouraged her to reduce her intake of Temazepam and to increase her physical activity levels. On 9 October 2021 Dr Lam, GP suggested Ms Lam commit to a multidisciplinary pain program with less focus on medications and more on psychotherapy.
Lyrica is used to treat neuropathic pain and epilepsy and can be associated with both abuse and dependence. Ms Lay does not have neuropathic pain or epilepsy. Use of Lyrica together with opioids such as Panadeine Forte can result in sedation and the Panel notes that Ms Lay reported drowsiness after taking painkillers. Regulatory guidance cautions against the long term use of these medications.
The Panel considers the use of long-term narcotics such as Panadeine Forte and Lyrica harmful, they can magnify the impairment and prevent Ms Lay from participating in life and society.
The Panel finds the claimant has a chronic pain syndrome and any improvement in her condition will depend on the treatment strategies recommended and pursued by her GP, psychologist and pain management specialist. The Panel notes Ms Lay should be encouraged to move towards self-management with a reduction in treatment frequency, a reduction in passive strategies and the cessation of Panadeine Forte and Lyrica.
The Panel does not consider the use of either Panadeine Forte and or Lyrica on an ongoing basis to be reasonable and necessary in the circumstances and nor does it consider it related to the injury caused by the accident.
Past domestic assistance
The Panel is asked to determine if the physical injuries give rise to a need for past domestic assistance of 0 to 20 hours per week from the date of the accident to the date of assessment and whether the assistance is related to the injuries caused by the accident.
On 13 July 2017 Dr Lieng reported Ms Lay had pain everywhere, six weeks post-accident. On 15 May 2019 Assoc Prof Sheridan reported Ms Lay was quite disabled by her pain and on 30 July 2019 Dr Le-Haddad reported chronic neck pain and chronic non-specific low back pain. On 21 November 2018 Dr Mellick reported the claimant’s pain involving her neck, back, shoulders, left arm and both knees had steadily worsened over time. He also noted she did little in the way of housework and cooking because of her increasing symptoms. He thought a mood disorder might be contributing to the clinical picture. Dr Pierides recommended a need for domestic assistance limited to 12 weeks post-accident whilst Dr Smith found there would be no impediment to domestic activities three months post-accident. Dr Herald considered Ms Lay required domestic assistance of four to six hours per week, two hours for shopping and cooking per week and two hours for gardening and lawn care per week.
Ms Lay informed Medical Assessor Yu she has received assistance since the accident from her partner and her sister with gardening, vacuuming, cleaning, washing, and cooking.
In replies to further and better particulars dated 30 November 2018 Alliance Compensation and Litigations Lawyers reported the claimant was residing in a two storey, four bedroom, two bathroom brick home of 382 square metres.[79] The back yard is 50 square metres of which 20% is grass and the front yard is 70 square metres of which 40% is grass.
[79] AD2 p 190.
Medical Assessor Yu reported before the accident, Ms Lay was consistently independent with all aspects of her self-care and home duties. The Panel notes Ms Lay reported difficulty with sitting, standing, walking, climbing steps, lifting, bending, reaching, squatting and kneeling.
On examination Medical Assessor Yu reported symmetrical yet restricted range of motion of the cervical, thoracic and lumbar spine. However, she had normal posture of her cervical, thoracic and lumbar spine. No significant abnormalities were apparent on examination although Ms Lay was pain focused. She found it necessary to hold and lean into Medical Assessor Yu’s forearm when stepping onto and off a 25cm-high step due to her concern about worsening her entire back pain.
The Panel has found the accident has caused a persistent aggravation of the underlying degenerative condition. The Panel agrees with Dr Smith, that based on the physical examination, Ms Lay is fitter than she makes out. However, it is apparent there is a degree of psychological overlay and catastrophic thinking which has reinforced her perception of her chronic pain and contributed to her presentation as significantly disabled.
The Panel is satisfied that having regard to the aggravation of the degenerative change in her cervical, thoracic and lumbar spine Ms Lay was unfit for heavier domestic tasks, including vacuuming, cleaning the bathroom, lifting and carrying heavy objects and heavy gardening tasks for a period of three months after the accident.
Thereafter, optimum treatment for the chronic pain condition Ms Lay developed should have facilitated a move towards self-management including a regular exercise programme and the use of pacing strategies to undertake household tasks with a view to gradually increasing her tolerance for activity and movement.
The Panel accepts Ms Lay genuinely believes she is disabled by her pain as evidenced by her pain avoidant behaviour but the Panel finds Ms Lay’s recovery is dependent on a move away from passive strategies and a gradual move towards increased exercise and activity including domestic tasks.
The Panel finds past domestic assistance of four hours per week including three hours for heavier domestic tasks and one hour per week for gardening tasks for a period of three months following the accident to be reasonable and necessary in the circumstances and related to the injury caused by the accident.
Future domestic assistance
The Panel is asked to determine whether 0-4 hours per week of future domestic assistance from the date of the assessment for a further 0-10 years is reasonable and necessary in relation to the physical injuries sustained in the accident.
The Panel finds Ms Lay’s continued reliance on the assistance of her partner for domestic tasks has reinforced her perception of her invalidity. The Panel finds this is not in accordance with recovery orientated frameworks for recovery and is not reasonable and necessary in the circumstances.
The Panel finds 0-4 hours per week of future domestic assistance from the date of the assessment for a further 0-10 years is not reasonable and necessary in the circumstances and is not related to the injury caused by the accident.
CONCLUSION
Consultations with Dr Lieng on consultations on 15 January 2019, 13 February 2019, 24 May 2019, 8 July 2019, 9 July 2019, 12 December 2019, 16 December 2019, 26 February 2020, 19 March 2020, 29 April 2020, 27 May 2020, 2 October 2020 and 2 December 2020 were reasonable and necessary in the circumstances and relate to the injury caused by the accident.
The consultation with Dr Lieng on 22 May 2019 is not reasonable and necessary and does not relate to the injury caused by the accident.
Future GP visits at three per annum for the next five years is reasonable and necessary in the circumstances and relates to the injury caused by the accident.
The C5/6 decompression and fusion surgery on 29 May 2023 was not reasonable and necessary in the circumstances and was not related to the injury caused by the accident.
Post operative rehabilitation was not reasonable and necessary in the circumstances and was not related to the injury caused by the accident.
Future physiotherapy is not reasonable and necessary in the circumstances and does not relate to the injury caused by the accident.
Panadeine Forte and Lyrica 0 to 30 tablets per month for 0 to 10 years is not reasonable and necessary in the circumstances and is not related to the injury caused by the accident.
Past domestic assistance of four hours per week for three months following the accident is reasonable and necessary in the circumstances and related to the injury caused by the accident.
Future domestic assistance of four hour per week for the next five years is not reasonable and necessary and not related to the injury caused by the accident.
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