Marques v QBE Insurance (Australia) Limited
[2022] NSWPICMP 302
•26 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Marques v QBE Insurance (Australia) Limited [2022] NSWPICMP 302 |
| CLAIMANT: | Elia Marques |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL: | Member John Harris Medical Assessor Clive Kenna |
| DATE OF DECISION: | 26 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 10 November 2019 when she stopped her vehicle suddenly to avoid colliding with a vehicle travelling through a red light; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 (2017 Act); the Panel concluded that the claimant suffered an annular tear in the motor accident based on: absence of pre-existing low back symptoms; onset of low back pain immediately following the motor accident; the age of the claimant and the tear limited to one level; clinical findings made by Medical Assessor; opinions of two treating specialists; positive discogram findings supporting the annular tear as the source of the low back pain; the outer layer of the vertebral disc is known as the annulus fibrosus; the annulus fibrosus is a ring of cartilage and ligamentous fibres which contains nerve receptors; an annular tear is a tear of the annulus fibrosus which due to the presence of nerve fibres can result in significant back pain; an annular tear constituted a non-minor injury within the meaning of the 2017 Act; Held — original assessment revoked; finding made that claimant sustained a non-minor injury to the low back. |
DETERMINATIONS MADE: | Review Panel Assessment of Minor Injury Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the certificate dated 20 December 2021 and issues a new certificate determining that: The lumbar spine injury is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017. |
REASONS
BACKGROUND
Ms Elia Marques (the claimant) suffered injury in a motor accident on 10 November 2019 when another vehicle travelled through a red light at speed and almost collided with her vehicle, forcing her to stop suddenly.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Ms Marques any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Ms Marques’ injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Assem who issued a medical assessment certificate dated 20 December 2021.[2] Medical Assessor Assem concluded that Ms Marques sustained a lumbar spine injury which is a minor injury for the purposes of the MAI Act.
[2] Claimant’s bundle, page 175.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[3]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by Ms Marques within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[5]
[5] Section 7.26(10) of the MAI Act.
On 22 March 2022, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
1 March 2021, the new review provisions apply.The review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.
The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.
The Panel issued a further Direction directing Ms Marques to produce the following scans:
(a) CT lumbar spine dated 4 December 2019;
(b) MRI lumbar spine dated 22 August 2020;
(c) bone scan dated 15 January 2021; and
(d) Discogram dated 8 June 2021.
The original scans were produced and viewed by both Medical Assessors on the Panel.
A further direction requested the production of Dr Mobbs’ report. This report was served by the claimant. In the direction the insurer was invited to make submissions on the contents of Dr Mobbs’ report. No submissions were received.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[12].
[12] See s 3B(2) of the Civil Liability Act 2002.
ASSESSMENT UNDER REVIEW
Medical Assessor Assem found that Ms Marques suffered from chronic mechanical low back pain with non-specific symptoms involving the left leg. The referred pain did not conform to any specific dermatomal distribution.
The Medical Assessor concluded that Ms Marques sustained a soft tissue injury to the lumbar spine from the motor accident which was a minor injury within the meaning of the MAI Act.
SUBMISSIONS
Claimant’s submissions dated 17 March 2021[13]
[13] Claimant’s bundle, page 7.
The claimant submitted that she suffered immediate pain in the lumbar spine and thereafter attended St George Hospital. She had no prior problems in the middle or low back.
Dr Saeed Kohan provided a report dated 26 November 2020. He noted the MRI scan dated 22 August 2020 and opined that the motor vehicle accident caused an overloading of the lumbosacral disc which disrupted the internal structure. It was otherwise submitted that the motor vehicle either caused or aggravated the vertebral end plate lesion identified by Dr Kohan.
The claimant in her statement referred to shooting pain down the left leg. This was reported to Dr Shahrian Chowdhury, general practitioner, who noted paraesthesia in the left leg in a certificate dated 10 July 2020. In a referral dated 28 July 2020,
Dr Chowdhury noted neuropathic pain down the left leg which was worsening.The claimant submitted that these complaints “are consistent with the requirements of [clause] 5.8 of the Guidelines”.[14]
[14] Claimant’s bundle, page 10.
The claimant indicated that she intended making further submissions upon receiving further clinical records.
Claimant’s submissions dated 20 August 2021[15]
[15] Claimant’s bundle, page 87.
These submissions were made following the receipt of various clinical records. The claimant acknowledged that the radiology indicated “some level of degenerative changes in her lumbar spine”.[16]
[16] Claimant’s bundle, page 87.
The claimant submitted that the journal article referenced by the insurer was not admissible on the basis that it was not relevant to the issues in dispute (cl 67(1)(a) of the Personal Injury Commission Rules, 2021). It was submitted that the article must be considered by an appropriate expert and examined in light of the claimant’s symptoms and analysis of competing causes for the condition. The insurer did not qualify an expert and introduces “meritless speculation” concerning the application and relevance of the journal article.
The claimant accepted that the rules of evidence do not apply but that the article was either irrelevant or given no weight.
The claimant submitted that her statement that she was asymptomatic in the lumbar spine prior to the motor accident is consistent with the clinical records of the Centahealth General Practice and St George Hospital.
The claimant submitted that the common law test of causation applies (see cl 6.7 of the Guidelines) and that it was sufficient that the motor accident was a contributing cause which is more than negligible. The insurer’s submission that the motor accident must be the “sole cause” of the pathology was incorrect.
The opinion of Dr Kohan, the only medical opinion, was that the end plate compression was caused by the subject accident which is non-minor injury for the purposes of the MAI Act.
The claimant noted the respondent’s submission of prior radicular pain from left hip. This pain was different from what the claimant suffered following the motor accident. The only clinical notes referable to these complaints are on 29 August 2017 and
1 September 2017. The difference in the left leg symptoms were noted by
Dr Chowdhury on 16 March 2021.The clinical records of Boon Health Medical Centre noted that the claimant was referred for an ultrasound and cortisone injection of the left hip in October 2020 and that by November 2020 the injection had helped.
Claimant’s submissions dated 14 February 2022[17]
[17] Claimant’s bundle, page 187.
These submissions were directed to persuading the President’s delegate of error by the Medical Assessor and are not particularly relevant to our task because this is a new assessment.
The claimant submitted that the Medical Assessor did not give proper weight to the radiological evidence, did not consider whether the end plate lesion was related to the motor accident and made findings inconsistent with the treating evidence.
The clamant noted that the Medical Assessor referenced unidentified studies on the value of discograms in circumstances where both Dr Kohan and Dr Mobbs relied on it as a legitimate diagnostic tool.
Insurer’s submissions dated 26 May 2021[18]
[18] Insurer’s bundle, page 1.
The insurer noted that Ms Marques previously suffered left leg pain attributable to a bursa in her hip. In a report dated 26 November 2000, Dr Kohan noted that
Ms Marques had “no radicular symptoms as such”.The insurer submitted that the opinion provided by Dr Chowdhury does not identify two clinical signs and only refers to symptoms. The imaging to date does not indicate radicular pathology and the opinion expressed by Dr Kohan of discogenic back pain is “speculative and not final”.[19]
[19] Insurer’s bundle, page 3.
The radiology demonstrates pre-existing and degenerative spinal pathology. The research in the journal article concluded that “vertebral end plate lesions tended to accompany decompressed discs and were common and incidental findings in the context of degenerative spial changes”.[20] Even if the pre-existing vertebral end plate lesions was aggravated by the motor accident, the pathology did not “solely” originate from the motor accident.
[20] Insurer’s bundle, page 3.
Insurer’s submissions dated 4 March 2022[21]
[21] Insurer’s bundle, page 49.
These submissions were filed opposing the application proceeding to a Review Panel.
The insurer noted that the Medical Assessor carried out a clinical examination and the neurological examination of the lower extremities was normal. The radicular symptoms did not conform to any specific dermatome and radiculopathy within the meaning of the Guidelines.
The Medical Assessor reviewed the scan evidence because he made observations of the pathology. He otherwise used his expertise in considering the radiology and raised his concerns about a discogram being a legitimate diagnostic tool.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents in accordance with the initial direction.
Pre-accident medical records
Clinical notes of the general practitioner in the second half of 2017 refer to left hip pain.[22]
[22] Claimant’s bundle, page 113.
Motor accident
A police report dated 23 July 2020 confirms that a stolen vehicle ran a red light causing another vehicle to “brake harshly to avoid a collision”.[23] The report also noted onset of low back pain when Ms Marques arrived home.
[23] Insurer’s bundle, page 9.
Ms Marques completed a claim form dated 18 May 2020 which described the motor accident consistent with the police report.[24] The claimant was born in 1980 and described back pain requiring hospitalisation following the motor accident.
[24] Claimant’s bundle, page 17.
Statements
Ms Marques provided a statement dated 18 June 2020[25] describing the motor accident, development of low back pain and attendance at St George Hospital.
[25] Claimant’s bundle, page 41.
In a further statement dated 17 March 2021[26] Ms Marques described her ongoing low back pain. The claimant stated that she never had back pain prior to the motor accident but did have left leg pain attributable to the hip. That pain was down the side of the left leg whereas the leg pain following the motor accident was down the back of the left leg.
[26] Claimant’s bundle, page 43.
Medical evidence
Clinical notes from St George Hospital on 11 November 2019 refer to low back pain without radiation following a motor vehicle accident.[27]
[27] Claimant’s bundle, page 136.
On 14 November 2019 the general practitioner recorded low back pain after a motor vehicle accident with intermittent pain down the legs. Lyrica was prescribed and the claimant was referred for a CT scan.[28]
[28] Claimant’s bundle, page 97.
An initial certificate by Dr Shahrian Chowdhury dated 20 May 2020 referred to low back pain since the motor accident.[29] Dr Chowdhury provided several subsequent certificates which referred to ongoing and worsening low back pain and left leg paraesthesia.
[29] Claimant’s bundle, page 54.
Dr Chowdhury provided a referral to Dr Kohan dated 28 July 2020. The doctor noted low back pain since the motor accident with worsening neuropathic pain down the left leg.[30]
[30] Claimant’s bundle, page 51.
A certificate provided by Dr Shahrain Chowdhury dated 9 September 2020 noted current symptoms of lower back pain with numbness in the left side of the lower back, hip and left thigh. The doctor referred to “no previous spinal injuries”.[31]
[31] Insurer’s bundle, page 16.
Dr Saeed Kohan, neurosurgeon examined Ms Marques and provided a report dated
26 November 2020.[32] The doctor reported “no radicular symptoms as such” noting pains over the hip joints. He opined that there was no pain radiating in the dermatomal distribution and suspected that there was discogenic pain arising from the L5/S1 disc sustained when there was a slamming on the brakes causing an overloading of the disc and disrupting the internal structure.[32] Claimant’s bundle, page 45.
Dr Kohan reviewed the SPECT scan and provided a further report dated 7 April 2021.[33] The doctor note that the SPECT scan did not show any focal uptake involving the facet joint or the disc space and opined that there was no specific area to target injections. He described the back pain as “non-specific” and recommended ongoing physiotherapy and exercises.
[33] Claimant’s bundle, page 155.
Dr Kohan provided a referral to Dr Ralph Mobbs dated 20 July 2021.[34] The doctor noted the extensive investigations which pointed to L5/S1 discogenic pain.
[34] Claimant’s bundle, page 157.
Dr Ralph Mobbs, neurosurgeon, provided a report dated 16 September 2021. The doctor noted the positive discography at L5/S1 with sequestration of dye shown by the discogram. He also noted MRI scan which revealed a mid-line annular defect at L5/S1 which “is the likely generator of her pain problems”.
Dr Mobbs made certain recommendations including bilateral transforaminal injections at L5/S1 to address the discogenic pain.
Radiology
A CT scan of the lumbosacral spine dated 4 December 2019 is reported by Dr Ho as showing multilevel mild degenerative changes mainly in the posterior elements of the lower back.[35]
[35] Insurer’s bundle, page 21.
An MRI scan of the lumbar spine dated 22 August 2020 is reported by Dr Ashton as showing a small disc protrusion at T11/12 and a normal lumbar spine.[36]
[36] Claimant’s bundle, page 48.
A report of a discography dated 8 June 2021 by Dr Lee is reported as positive at the L5/S1 level.[37]
[37] Claimant’s bundle, page 156.
Journal articles
The insurer included an article by Dr Zehra et al titled “Defects of the vertebral end plate: implications for disc degeneration depend on size”.[38] The article describes a vertebral end plate as a thin layer of hyaline cartilage which provides a route for the exchange of nutrients and waste products.
[38] The Spine Journal, 17 (2017) pages 727 – 737; Insurer’s bundle, page 23.
The article concluded:[39]
“Disc degeneration has a stronger association with large of multiple end plate defects than with small or single defects (of any type). Large end plate defects probably allow greater volume changes within the disc, leading to greater nucleus decompression.”
[39] Insurer’s bundle, page 24.
A further article by Dr Wang et al titled “Lumbar Vertebral Endplate Lesions”[40] concluded that endplate lesions are common, and the various type suggest different pathogenic origins. The article noted that the endplate was a thin structure lying between the vertebral body and the intervertebral disc that is rich in blood vessels and nerve endings.
[40] Spine, Volume 37, pages 1432 – 1439; Insurer’s bundle, page 34.
The article noted that the endplate is the “weakest portion of the vertebra-disc complex and is predisposed to mechanical failure”.[41] The classification of endplate lesions are:
(a) Schmorl’s nodes thought to be the result of a chronic pathological process;
(b) fracture lesions suspected to be result of acute trauma;
(c) erosion which is spread over the whole endplate involving both the central endplate and the epiphysial rim; and
(d) calcification which is an intensive calcium deposit over the endplate.
[41] Insurer’s bundle, page 34.
The authors noted that the presence of an endplate lesions was statistically significantly associated with age.
A further journal article was by D Weishaupt et al titled “MR Imaging of the Lumbar Spine: Prevalence of Intervertebral Disk Extrusion and Sequestration, Nerve Root Compressions, End Plate Abnormalities and Osteoarthritis of the Facet Joints in Asymptomatic Volunteers”.[42] The article concluded that for patients younger than 50 years, various abnormalities including end plate abnormalities were rare and “may be predicative of low back pain in symptomatic patients”.
[42] Insurer’s bundle, page 42.
The authors concluded that the prevalence of end plate abnormalities was rare in asymptomatic volunteers and the authors opined that “end plate abnormalities may be predicative of low back pain”.[43]
RE-EXAMINATION
[43] Insurer’s bundle, page 46.
The Panel determined that Ms Marques be re-examined by Medical Assessor Kenna on 6 July 2022.[44] The scan material was viewed separately by both Medical Assessors.
[44] See also the discussion by Leeming JA in Sydney Trains v Batshon [2021] NSWCA 143 at [41], White and McCallum JJA agreeing.
The re-examination report is as follows:
“Pre-accident medical history and relevant personal details
Ms Marques is a 42-year-old female, seen on 6 July 2022.
Married with three children, she is current working, and has been for 20 years at Westpac as a risk officer.
Currently, she works from home (states as a result of her back she is simply not well enough to work from the office).
She stated and confirmed that she had no history of back problems prior to the motor vehicle accident and had not been involved in motor vehicle accidents previously (or since).
History of the motor accident
I asked her the background details with regards to the accident (as the accident itself was a little bit unusual, as she didn’t hit anything but braked hard). The incident occurred on 10 November 2019, early afternoon. She had just picked up her children after attending a function and was driving on the way home in a hired car. Her husband was a front seat passenger, and the three children were in the rear of the vehicle.
When approaching an intersection on Stony Creek Road, Penshurst, to an intersection with Penshurst Street, she was required to stop suddenly as a stolen vehicle being pursued by police went through a traffic light. Their car didn’t impact with either vehicle, but she braked hard. Her vehicle may have even skidded as a result of such. She didn’t hit any vehicle or structure. There was no impact, but the car came to a fairly sudden stop.
She noted at the time all the people in the car were wearing seatbelts and at the time immediately, she felt central lower back pain (no radiation).
Police attended and she states she did report the lower back discomfort. No assistance was provided by the police and there was no ambulance attending as no injuries were apparent.
History of symptoms and treatment following the motor accident
Subsequently, she drove home and the next day the central low back pain became severe.
She feels in retrospect she felt something go in the lower lumbar spine at the time (she was wearing a lap sash belt).
As a result of this, post-accident her back became highly problematic and the following day, her husband took her to St Georges Hospital ED, where she was examined, prescribed anti-inflammatory, but she didn’t undergo any investigations.
As a result, she saw her general practitioner on 14 November 2019, Dr Chaudry, who noted low back pain following the accident with intermittent pain now at this point in time into the legs. She was prescribed Lyrica and referred through to a CT scan which confirmed multi-level mild degenerative changes.
In retrospect, she notes within a month she was getting left leg pain (no right leg pain) and that has continued up until this year (2022) over the last three years.
As a result, she was referred through to a spinal surgeon (Dr Kohan). She had a CT SPECT scan which didn’t show any active uptake involving the facet joints or discs. There were no obvious focal inflammatory changes and therefore there was no appropriate reason for injections, being diagnosed with non-specific pain with a recommendation of physio and exercises.
As a result of increasing problematic history, she was also referred to Dr Mobbs, a neurosurgeon. He noted that he considered the pain sounded classically discogenic in that it is diffuse over the low back, worse with activity, but obtained some relief with medication and rest. That the pain had been ongoing for two years and had been extensively investigated.
In that respect, she then had a discogram which was positive at L5/S1 with sequestration of dye and a significant elevation of her usual low back pain on injection.
The bone scan which was performed was relatively silent it was stated, and MRI indicated a mid-line annular defect at L5/S1. It was considered by Dr Mobbs that this was a likely generator of her pain problems.
As a result of such, she was then referred through to Dr Shetty of PRP Radiology for an L5/S1 PRP injection, as this technique may assist with chronic annular defects. (Not enclosed in the documentation is that she did undergo those injections from Dr Shetty and she states it made little to no difference, although there may have been some temporary improvement for approximately six weeks, but it was back to square one within about six weeks post injection procedure, bringing the pain down from 7-8/10 to 4-5/10 during that time and that was relevant to both central back pain as well as the left leg pain).
She noted, therefore, and acknowledged that with the discogram she experienced increased low back pain as well as left leg symptoms.
It was considered from the radiological investigations that she had an annular tear at L5/S1 confirmed on discogram with reproduction of stated symptoms. Noting the discogram was performed on 8 June 2021, it was considered a positive discography with an extravasation of contrast from the left lateral aspect of the disc. He noted the disc was degenerate and was assuming the pain was also due not only to the degenerate changes and internal derangement, but also due to an element of chemical neuritis due to the fissure.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
Her current symptoms are central low back pain, intense, with no pain into the right leg whatsoever. Into the left lower extremity, there is intense pain at the lower edge of the buttock, i.e. similar to a tight hamstring, and then symptoms of less intensity with some intermittent paraesthesia involving the left calf and with symptoms into both the sole and dorsal aspect of the left foot, noting the symptoms of pain into the left extremity is actually quite mild, i.e. mainly central lower back pain wit intense pain into the left buttock but mild symptoms past that.
No radiation into the right lower extremity and no pain higher involving the cervical or thoracic spine.
She knows her symptoms well now and she avoids twisting or bending and prolonged sitting also aggravates her condition. She notes that a firm back support is beneficial. That activity-wise she is able to walk not comfortably for more than 20 minutes and even significantly less going uphill. On the flat, she is able to walk for 30 minutes. Sitting at a desk, she gets up and down and moves around and takes rests during the day.
Current and proposed treatment
She was previously on Lyrica and continues to take Gabapentin, Dytrex, Panadeine and Nurofen.
Clinical Examination
General presentation
She presented with a limp favouring the left leg, with the left leg slightly externally rotated, but didn’t have any walking aid per se.
Lumbar spine (lumbosacral)
All movements of the lumbar spine were guarded but it was particularly restricted into extension and side bending to the left. Flexion was decreased by 20%, extension was partially blocked reduced by 70%. Side bending to the left was reduced by 50% and combining extension and side bending to the left reproduced pain almost instantaneously. Symptoms were eased by right side bending and right rotation. Left rotation also aggravated her lower back and particularly the left buttock. There was an antalgic gait as noted.
MOVEMENTS
RANGE EXHIBITED
Flexion
20% restriction
Extension
70% restriction
Rotation to the right
? % restriction
Rotation to the left
? % restriction
Lateral bending to the right
50% restriction
Lateral bending to the left
50% restriction
NEUROLOGICAL TESTS
REFLEXES
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
SENSATION: No alteration of sensation.
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
L3
5/5
NORMAL
NORMAL
L4
5/5
NORMAL
NORMAL
L5
5/5
NORMAL
NORMAL
S1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
MUSCLE ATROPHY:
THIGH (measured 10 co above superior pole of the patella)
LEFT 42cm = RIGHT 42 cm
CALF (measured at maximum circumference of calf)
LEFT 36cm = RIGHT 36cm
No unilateral muscle atrophy present.
DURAL TENSION TESTS
TEST
RIGHT
LEFT
PRONE KNEE BEND
Normal
Normal
STRAIGHT LEG RAISE
Normal
Normal
Thigh measurements 10cm above the superior pole of the patella 42cm bilaterally. Both calves 36cm at maximum circumference. Reflexes and power were intact (there was no fatigue). She considered there was slight alteration of sensation involving the dorsal aspect of the left foot which was also somewhat similar in the sole of the foot and complained of a painful heel. She was able to walk on toes and heels. Straight leg raising carefully performed was negative.
Palpation quite tender with muscle spasm involving the lower lumbar spine at the lumbosacral junction with left paravertebral gutter spasm.
Comment
No evidence of radiculopathy.
However, Ms Marques has central lower back dysfunction with symptoms involving the left lower extremity. Whilst this could be described as non-verifiable radiculopathy, as noted the reason for this assessment, it is probable that this referred pain is due to an annular tear lesion at L5/S1.
Radiological review and comments
My view of the MRI was that there was a right posterolateral protrusion of T11/12 of no clinical significance. It wasn’t impinging posteriorly. Very small low signal. So there was no clinical consequence with regards to pathology in the upper lumbar spine. The disc at L5/S1 on straight MRI, I couldn’t see actually an annular tear. I did note a Schmorl’s node at L5 involving query the anterior superior endplate (what has been commented on as a vertebral endplate lesion at L5/S1) but I was unable to visualise any annular tear at L4/5 or L5/S1, although I noted upon discography a fissure became apparent, but not so on MRI.
Nevertheless, I accept in its entirety the comments by Dr Mobbs that on discography anyway, there was a mid-line annular defect visualised under pressure that opened up under hydrostatic pressure at L5/S1 and he considered that was the likely generator of her pain problem.
By way of note, she did try intradiscal steroid injection. That, she states, was only useful for 1-2 weeks. Subsequent to that, she had a PRP injection which she found was more beneficial, reduced the pain for longer, probably 6-8 weeks, but then was back to square one.
Positive discography, annular tear visualised.
No relevant past history of back problems prior to the motor vehicle accident.
Was becoming aware of back pain immediately following the incident, which then subsequently developed into left lower extremity symptoms, which would be considered a combination of internal derangement of the L5/S1 disc plus an element of chemical neuritis causing nerve root irritation.
Opinion
My opinion is that she sustained internal derangement of the L5/S1 disc with an annular tear. This would suffice the definition with regards to rupture or ligaments or cartilaginous tissue. I found her presentation to be consistent. Neurologically there was no deficit, but she presented with referral of symptoms in the left lower extremity, not secondary to radiculopathy, but secondary to intradiscal pathology.
Comments on consistency
She presents extremely well with no embellishment.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[45] and Insurance Australia Ltd v Marsh.[46]
[45] [2021] NSWCA 287 at [40], [41] and [45].
[46] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[47] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
[47] [2021] NSWPICMP 227 at [84] – [104].
We adopt the reasoning in Lynch v AAI Ltd[48] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.
[48] [2022] NSWPICMP 6 at [44] – [62].
The Panel adopts the examination report of Medical Assessor Kenna. We confirm that Medical Assessor Dixon has also viewed the scans and agrees with the observations by Medical Assessor Kenna on the scans and the relevance of the positive discography.
The claimant made submissions on the journal articles submitted by the insurer. The claimant’s submissions are misconceived. Journal articles can be valuable evidence before a Review Panel capable of being interpreted and analysed by both medical and the legal members on a Review Panel. The claimant’s submissions to the contrary are rejected.
In the present case, the journal articles discussed the wide-ranging deformities present on the end plate. Depending on the type of lesions they may be traumatic (a fracture lesion) and can be associated with back pain, particularly in the under 50 years age group.
Causation is fact sensitive. Factual findings on causation in other cases do not create legal precedent: Edwards v Noble.[49] Journal articles commenting on causation should be seen in the context that the medical condition discussed may be more likely to be degenerative or traumatic but always subject to the circumstances of the injured person. This is consistent with the principles discussed in EMI (Australia) Ltd v Bes[50] that a medical possibility, when considered with other lay evidence, can be established to the requisite legal onus.
[49] [1971] HCA 54 at [14] per Barwick CJ.
[50] [1970] 2 NSWR 238.
Low back injury
We accept the claimant as a reliable witness. There was no prior back pain and the prior referred pain into the left hip was of a different nature than that suffered after the motor accident.
Following the motor accident, the claimant immediately complained of low back pain suggesting a temporary connection between he motor accident and the onset of low back symptoms.
Whilst annular tears can be degenerative, the claimant’s relatively young age and the tear being limited to a single level (L5/S1) is more suggestive of causation by a traumatic event rather than as part of the degenerative process.
While the MRI scan of the back on 22 August 2020 showed a disc protrusion at T11/12, there was no obvious disc protrusion until the claimant had a positive discogram at L5/S1 on 8 June 2021 with extravasation of contrast with neuritis. In these circumstances there must be an annular tear at L5/S1. This is consistent with the claimant’s submissions that the motor accident caused an overloading of the lumbosacral disc.[51]
[51] See [30] herein.
Our conclusion is consistent with the opinion expressed by both treating neurosurgeons. Dr Kohan suspected that there was discogenic pain arising from the L5/S1 disc. Dr Mobbs opined that there was a positive discography at L5/S1 with sequestration of dye. That medical conclusion of established positive discography is undoubtedly correct. Dr Mobbs also opined that a mid-line annular defect at L5/S1 was the likely generator of her pain problems.
We accept that the sudden stopping to avoid the motor accident with the restrained seat belt would place sufficient force across the lower spine capable of damaging the disc.
For these reasons we accept that Ms Marques sustained an annular tear of the L5/S1 disc caused by the motor accident which is the pain generator of her lumbar symptoms.
As it was addressed by the parties, we conclude that we are not satisfied that, what is described as an end plate lesion, was caused by the motor accident and is the cause of the lower back pain. The scan evidence viewed by the Medical Assessors shows a Schmorl’s node at L5 involving the anterior superior endplate. This is a pre-existing condition not caused by the motor accident. We otherwise do not accept, based on the clinical findings of Medical Assessor Kenna and the opinion of Dr Mobbs, that this is the cause of the low back pain.
Based on these findings it is necessary to consider whether the annular tear caused by a motor accident is not a minor injury as defined in the MAI Act.
The outer layer of the vertebral disc is known as the annulus fibrosus. The annulus fibrosus is a ring of cartilage and ligamentous fibres which contains nerve receptors.[52]
[52] These comments are made based on the extensive medical expertise of the Panel and not based on any scientific and medical article.
An annular tear is a tear of the annulus fibrosus which, due to the presence of nerve fibres, can result in significant back pain.
A minor injury includes a soft tissue injury. However “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage” is excluded from the definition of soft tissue injury. An annular tear is therefore a partial rupture of ligaments or cartilage and excluded from the definition of soft tissue injury.
For these reasons we are satisfied that Ms Marques suffered an annular tear at L5/S1 from the motor accident. This is not a minor injury as defined in the MAI Act.
Presence of radiculopathy
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to symptoms of radicular pain without specifying how they constitute radiculopathy. No sensory loss in any dermatome is established by the reference to radicular pain down the left leg.
Dr Kohan and Medical Assessor Assem observed that the radicular symptoms were not in a dermatomal distribution.
Based on the examination findings of Medical Assessor Kenna, Ms Marques did not have radiculopathy at the recent examination.
For these reasons we conclude that Ms Marques has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.
CONCLUSION
For these reasons the Panel concludes that the certificate issued by Medical Assessor Assem is revoked. The new certificate is attached at the commencement of these Reasons.
1
6
0