Maybury v Cic Allianz Insurance Limited
[2024] NSWPICMP 229
•12 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Maybury v CIC Allianz Insurance Limited [2024] NSWPICMP 229 |
| CLAIMANT: | Justin Maybury |
| INSURER: | Allianz Australia Insurance Limited |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 12 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold injury under section 1.6(3); the claimant suffered injury in a motor vehicle accident on 15 July 2022; review of certificate of Medical Assessor (MA) Cameron dated 5 November 2023 who certified that the chest injury and surgical scar was a threshold injury; Medical Review Panel conducted a medical examination; it assessed the chest injury as a non- threshold injury; Held – the certificate of the MA was revoked, and a replacement certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Cameron, dated 5 November 2023. 2. The Review Panel substitutes its determination and certifies that the chest- rib injury was a non- threshold injury. |
STATEMENT OF REASONS
INTRODUCTION
This is a review of the certificate and reasons of Medical Assessor Cameron (the Medical Assessor) dated 5 November 2023.
The Medical Assessor found the following injuries caused by the motor accident:
(a) cervical spine – soft tissue injury;
(b) chest – rib injury and surgical scar;
(c) head – soft tissue injury;
(d) lumbar spine – soft tissue injury;
(e) left shoulder – soft tissue injury, and
(f) thoracic spine – soft tissue injury,
were threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act).
LEGISLATIVE BACKGROUND
The legislation
3.Part 7 of the Act contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.
The insurer’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Review Panel is to be constituted of a Member of the Personal Injury Commission (Commission) and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
5.Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Review Panel.
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.
Consideration of the issues by the Review Panel
Clause 5.6 of the Motor Accident Guidelines (the Guidelines) provides guidance to treating practitioners, medico-legal practitioners and medical assessors as to how to conduct a medical assessment and is set out below:
“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.”
Does Justin Maybury have radiculopathy at any level of the spine referred for assessment?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 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 ...
(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.”
For Mr Maybury’s injuries to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is now known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury has increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions to receive statutory entitlements beyond either the 26 week or 52-week limitation period.
It should also be noted that in a common law damage claim, no damages are recoverable if the claimant’s injuries are “minor”, i.e. threshold injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” i.e. a threshold injury for the purposes of the Act. The Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury…
·5.5 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury i.e. threshold 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 i.e. threshold 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.”
THE ASSESSMENT UNDER REVIEW
The assessment under review in this matter (R-M10572697/23-02-1) was the certificate of Medical Assessor Cameron of 5 November 2023.
The following injuries were referred to Medical Assessor Cameron for assessment:
· cervical spine – neck injury;
· chest – injury to ribs, consequent incision in skin due to surgery;
· head – injury to head/brain;
· lumbar spine – low back injury;
· shoulder – left shoulder injury, and
· the thoracic spine – mid back injury.
Pre-accident history
Medical Assessor Cameron took a brief history of Mr Maybury’s pre-accident history.
Mr Maybury lived at Pelaw Main with his wife, Paige and eight-year-old granddaughter.
In 2010, Mr Maybury had a workplace incident and was off work for a number of months.
In 2011 at work, a 5kg bucket of water hit him on the head and he sustained injuries to his cervical and thoracic spine. There was also subsequent right shoulder surgery. Mr Maybury completed mine work and was retrenched in 2013.
He retrained as a building designer and had been able to work about 30 hours a week in this role.
Mr Maybury told Medical Assessor Cameron that he had a history of an old injury to the thumb and index finger of the left hand with a digital nerve injury.
History of the motor accident
Mr Maybury told Medical Assessor Cameron, on 15 July 2022, he was the driver of a motor vehicle, when another vehicle did not obey a Stop or Give Way sign and there was a T-bone impact to his driver’s side.
Mr Maybury said that he hit his head on the interior of the vehicle and was generally shaken up. He said he felt he lost the improvement that he had gradually obtained after his major injury in 2011.
Mr Maybury attended John Hunter Hospital (JHH) and was assessed. He then consulted his general practitioner (GP), Dr Wasti.
Symptoms
Mr Maybury told the Medical Assessor he had experienced continuing symptoms.
There were symptoms from a left anterior costal cartilage which cardiothoracic surgeon, Dr Seah, eventually excised on 2 December 2022. There was subsequent sepsis requiring a further hospital admission.
Mr Maybury had time off work but eventually returned to work. He had ongoing chiropractic treatment and massage. He had specific chiropractic treatment to a left rib posteriorly.
Medical Assessor Cameron then went on to briefly set out the recount of Mr Maybury’s current symptoms including a left posterior rib pain in the mid-thoracic area and some neck and left shoulder region pain. There was also some right anterior chest pain and headaches. There has been input from Dr Russo, pain physician, over a long time and there have been further consultations. There are also some headaches.
Clinical examination
Medical Assessor Cameron examined Mr Maybury.
Mr Maybury was right-handed, 172cm in height and weighed 114kg.
Mr Maybury was cooperative and provided a clear history.
There was a small posterior neck scar from the old cervical surgery by Dr Spittaler.
There was tenderness over the paraspinal area on the right thoracic region.
The cervical spine was mildly and symmetrically reduced in range of motion (to 80% normal) in all planes, without muscle spasm, muscle guarding, dysmetria and with no non-verifiable radicular complaints present. Nerve tension signs were negative.
There was a full range of motion at both shoulders and at other upper extremity joints. There was pain at extremes of movement. There were no neurological abnormalities in the upper extremities.
At the thoracic spine there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, muscle guarding, dysmetria, or non-verifiable radicular complaints present. There was a 7cm surgical scar over the right anterior ribs at about the mid-sternal point.
At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative. There was a full range of motion at both knees. There was no crepitus or instability. There was a full range of motion at other lower extremity joints. There were no neurological abnormalities in the lower extremities. Circumferences of the lower extremities were right 43cm and left 43cm. Mr Maybury walked with a normal gait.
Medical Assessor Cameron at [16] summarised the relevant documents including the clinical notes of Dr Wasti of 29 July 2022, the first GP consultation (by Telehealth). The next consultation with Dr Wasti was 4 August 2022 when there were complaints of pain from the left shoulder and pain radiating from the cervical spine to the upper arm.
Dr Wasti’s referral letter o 6 February 2023, to Dr Russo, said that Mr Maybury had been in subject accident and had developed pain in the thoracic area and headaches.
Medical Assessor Cameron referred to the report of Dr Seah dated 11 November 2022 and to a letter of 18 October 2022, when Dr Seah thought the costal cartilage was “popping in and out”.
Medical Assessor Cameron came to the conclusion that Mr Maybury had as a result of the accident on 15 July 2022, sustained soft tissue injuries, particularly to the cervical spine.
Medical Assessor Cameron continued that that it was difficult to characterise the injury to his ribs but based on the available information, it was a threshold injury because there was no documented rupture of cartilage.
Medical Assessor Cameron at [20] summarised that the following injuries to the:
· cervical spine – soft tissue injury;
· chest – rib injury and surgical scar;
· head – soft tissue injury;
· lumbar spine – soft tissue injury;
· left shoulder – soft tissue injury, and
· thoracic spine – soft tissue injury;
were caused by the motor accident and were THRESHOLD INJURIES for the purposes of the MAI Act.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Maybury’s claim is governed by the provisions of the Act. This legislation provides a scheme of compulsory third-party insurance for all motor vehicles registered in New South Wales and a scheme of statutory benefits and compensation by way of lump sum damages for persons injured in motor accidents in New South Wales.
A ‘threshold injury’ is defined in the Act ss 1.6(1)(a) and 1.6(2):
“(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—
(a) a soft tissue injury
(2) A soft tissue injury is (subject to this section) an 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.”
The insurer’s application for review is made under s 7.26 of the MAI Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original Medical Assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
CAUSATION
Guidelines
With respect to causation, the MAI Guidelines provide:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a nonmedical informed judgement.
6.7 There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd[2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam[2013] HCA 19, where Allsop P explained the tests of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
SUBMISSSIONS
Claimant’s submissions of 22 November 2023.
Mr Maybury (the claimant) submits that the injury to the chest/rib is more than a threshold injury.
He submits that the reasons the costal cartilage was mobile is that it was highly likely to be ruptured. Due to the rupture, the injury to the rib should have been found to be more than a threshold injury.
Insurer’s submissions in reply of 12 December 2023.
The Review Panel summarises and refers to the insurer’s submissions by reference to paragraph number.
[8] The insurer submits Medical Assessor Cameron has failed to provide a sufficient path of reasoning regarding causation of the claimant’s alleged chest injury, in circumstances where there exists significant medical evidence demonstrable of a pre-existing injury.
[9] In AAI Limited v Fitzpatrick [2015] NSWSC 1108, Schmidt J held at [29] to [31]:
“[29] In forming his or her opinions on the dispute, the assessor must thus take into account what any clinical examination he or she conducts reveals, as well as the opinions of other medical practitioners, including those expressed in earlier certificates, by treating doctors and those who have expressed medico-legal opinions.
[30] The conclusions expressed in the certificate issued must then be explained by the assessor in the accompanying statement of the reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved. Such reasons are not, in review proceedings such as this, to be scrutinised over zealously, as discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2.
[31] As discussed in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [122], however, where there is a medical controversy over a particular issue, more expansive explanations may need to be given.”
[10] The insurer refers to paragraph 20 of Medical Assessor Cameron’s reasoning on causation and reasons, and submits that stating, “causation for injuries listed below is established based on available clinical information and the information provided by Mr Maybury”, does not amount to an actual or sufficient path of reasoning.
[11] The insurer submits this is of particular relevance, given the significant amount of medical evidence made available to the Medical Assessor that demonstrated the presence of a pre-existing injury to the claimant’s chest.
[12] The insurer refers to the clinical records of Dr Farouk Wasti, general practitioner from Weston Surgery and submits the claimant’s first complaint of an injury to the chest was made 8 months prior to the subject accident on 19 November 2021, where it was recorded “says one of his ribs is slipping and he is popping every morning”. The claimant was referred for an x-ray of the chest, which was performed on 24 November 2021, and revealed no abnormalities.
[13] The insurer refers to the subsequent consultation note dated 26 November 2021, where the claimant reported a previous injury, “says 11 years back had an injury to the thoracic spine and that started moving the rib in the sternal area. This has been going on for that long time. Now when he lies down the rib moves and causes pain”. The claimant was referred for a CT of the thoracic spine, which was performed on 1 December 2021, which again, revealed no abnormality of the thoracic spine, ribs or sternum.
[14] On 24 August 2022, the claimant was referred to Dr Peng Seah, cardiothoracic surgeon for management of his chest injury.
[15] In the report dated 18 October 2022, Dr Seah observed the claimant’s “chest wall is normal and there are no visible rib fractures” and opined the claimant to be suffering from “coastal cartilage popping in and out”.
[16] Dr Seah was subsequently provided with the clinical records of Dr Wasti, and in the report dated 11 November 2022, opined:
“I note from the notes of Dr Farouk Wasti dated 26 November 2021 that the patient said that he had an injury 11 years previously to his thoracic spine and that movement in the sternal area has been going on since that time. I note that all the chest x-rays and CT scans done subsequent to that consultation did not reveal any abnormality. I could not comment on the accuracy of Dr Wasti’s notes, but it would on face value appear that this is not related to his recent accident”.
[17] Given the significant medical evidence demonstrable of a pre-existing injury, and the presence of specialist medical opinion that the claimant’s chest injury is not causally related to the subject accident, the insurer submits that the Medical Assessor has failed to provide a sufficient path of reasoning in support of his findings on causation of a chest injury.
The insurer does not concede that the alleged injury to the chest is a non-threshold injury, however, agrees to the referral of the dispute to the Review Panel on the basis Medical Assessor Cameron has incorrectly determined causation.
TREATING MEDICAL PRACTITIONERS
Dr Peter Spittaler, consultant neurosurgeon
Mr Maybury was reviewed by Dr Spittaler on 15 February 2017 who documented:
“He seems to have a lot of trouble with his left shoulder and is seeing an orthopaedic surgeon in a few weeks. I think a large part of his issue is his shoulder although he also complains of central spinal pain, more thoracic than cervical”.
Dr Farouk Wasti, GP
On 4 August 2022, Dr Wasti reviewed Mr Maybury and diagnosed there was pain from the left shoulder and pain radiating from the cervical spine to the upper arm.
In his report of 24 August 2022 after seeing Mr Maybury again, Dr Wasti noted that:
“Justin had an MVA on 17/07/2022 and injured his thoracic area. He states that one of the ribs is moving and ‘dislocating’ and he ‘pushes’ it back in place daily. He is also having severe pain in the sternum. He has previous spinal compression fractures. The pain in the rib cage is excessive at times. He is taking pain relief during the night as he cannot sleep because of the pain in the sternal area.”
Dr Peng Seah, cardiothoracic surgeon
Dr Seah reviewed Mr Maybury on 26 August 2022 and noted that be thought it was “? costal cartilage/ rib that pops in and out… on examination Justin could [point exactly to where the discomfort was, and this is in the vicinity of the left 3rd or 4th costal cartilage”.
On 18 October 2022, Dr Seah saw Mr Maybury again and noted he “continues to be troubled by what sounds like a costal cartilage popping in and out. It causes him a lot of discomfort and pain. Nothing has changed since I last saw him on 26th August 2022. Nothing has changed since I last saw him on 26th August 2022”.
MEDICAL REVIEW PANEL
Mr Maybury attended the Commission’s Medical Examination Suites for medical examination by Medical Assessor Oates, on behalf of the Review Panel, on 21 March 2024.
HISTORY
As noted above, the examination on behalf of the Review Panel was by Medical Assessor Oates.
He took a detailed history.
Mr Maybury told the examiner he lived in the Newcastle (Hunter) area with his wife, who is a full-time disability carer, his 27-year-old daughter who is also a full-time disability carer, and an eight-year-old granddaughter.
His wife and daughter do the housework and he used a light-weight battery-operated mower for the front yard and a ride-on mower for the back yard. Before the accident, he could mow adjacent nature strips outside his yard but can no longer do this.
Mr Maybury had an injury in 2010 and was off work for several months, and then a further injury in 2011 when working as an underground coal miner, when a 5kg bucket of water fell three metres from overhead, hitting him on the head and causing injury to the cervical and upper thoracic spine, and a subsequent left shoulder injury.
He had a C6/7 foraminotomy in 2016 by Dr Spitaller (neurosurgeon) in Newcastle, and surgery in 2017 for a bursitis of the left shoulder by Dr Osborne (orthopaedic surgeon).
Following the work injury, Mr Maybury was retrenched in 2013 and then retrained as an architectural draftsperson and continued in that work. He is still doing this work for 30 hours per week at six hours per day.
His ability to work was limited by left-sided upper back pain radiating through the scapula to the neck.
Mr Maybury had attended chiropractic and remedial massage on and off since the neck injury and in 2019 the clinical notes refer to a left T3 rib dislocated, after which he developed a “slipping left 3rd rib”. Mr Maybury explained this was at the back (origin) of the rib near its insertion to the thoracic spine, and that he could get some relief by leaning his upper body weight back across the top of the bath and also gain temporary relief through chiropractic and remedial massage. This condition continued and he had an X-ray on 24 November 2021 which showed no fracture or abnormal alignment of the left ribs, followed by a CT scan thoracic spine on 1 December 2021, which was also normal.
The posterior left third rib near its attachment to the thoracic spine would slip daily out of position, which he could feel, and he would get three hours or so relief from the manoeuvre in the bath before the slipping started again. Through this self-help, he was able to string out chiropractic and remedial massage appointments from once a fortnight or once a month, to once every three or four months.
He had a previous injury in 1997 to the left thumb and index finger, with a digital nerve injury which was treated with microsurgery. This originally was a laceration with a knife when he was splicing conveyor belts.
History of the motor accident
On 15 July 2022 at about 2.45pm on a Friday, Mr Maybury was the driver of a Toyota Hilux twin cab utility with no passengers. He was passing through an intersection after having left work when another vehicle came through a “Give Way” sign on this right and T-boned the Hilux in the area between the back of the front wheel well and across the driver’s door.
Mr Maybury had a seatbelt on. He had front airbags in the vehicle, but these did not deploy. He remembers being thrown violently to one side, possibly his left and then rebounding back to the other side and hitting the right side of his head on either the door pillar or the window. The glass did not break. He was not knocked out, nor was there bleeding. He does not recall having any impact injury to other parts of the body.
He self-extricated through the driver’s door after the accident. The police attended and promptly left, as it was not deemed an accident which required their presence. A tow truck attended, and his vehicle was towed and subsequently written off.
Mr Maybury’s wife was called, and she drove him to Kurri Kurri Hospital as after he cooled down following the accident, he became aware of increasing neck pain.
He told the hospital staff about the previous neck surgery, and he was then transferred by road ambulance to JHH, arriving at about 10.30pm. He had scans which showed no interference with the previous surgery.
Mr Maybury was also complaining of left scapulothoracic and neck pain, and a new site of pain since the motor accident over the left anterior sternocostal junction, about the 3rd or 4th costal cartilage level, however he says the hospital concentrated on his cervical spine condition. He was discharged after being given the “all clear” at about 4.00am. His daughter then took him home.
Mr Maybury continued under the care of his GP, Dr Wasti Weston.
History of symptoms and treatment following the motor accident
Medical Assessor Oates then took a history of the symptoms and treatments following the accident.
After the motor vehicle accident, Mr Maybury reported there was increasing intensity of the pre-existing pain in the left upper thoracic scapular area, radiating to the neck, and the onset of a new site of pain in the left anterior chest wall in the sternocostal junction area.
Mr Maybury tried his previous manoeuvre of leaning over the top of the bath for relief and found that this no longer helped the posterior thoracic cervical pain as much as before the accident but had no effect whatever on the left anterior sternocostal pain, in fact, it made it worse.
His GP referred him to Dr Seah, cardiothoracic surgeon, in a letter made available to the Review Panel, on 24 August 2022.
A report from Dr Seah indicates he assessed him on 26 August 2022 and diagnosed a mobile costal cartilage causing anterior left chest discomfort, and separate posterior thoracic discomfort in the vicinity of the left third or fourth costal cartilage anteriorly. He ordered a CT scan thoracic spine and ribs which was done on 15 September 2022. This showed no chest wall or lung pathology.
Dr Seah suggested removal of the offending costal cartilage and that it was possibly related to trauma from the seatbelt, which would have passed directly over the affected anterior costal cartilage area, and that the costal cartilage problem was not related to his previous neck and thoracic injury or chronic pain arising therefrom.
On 2 December 2022, Mr Maybury underwent surgery for resection of the left costal cartilage at approximately the fourth level, and at surgery there was visual evidence of a vertical fracture of the costal cartilage.
The Medical Assessors note, this type of costal cartilage injury does not show up on ultrasound scan, X-ray or CT scan in general.
The pathology report dated 3 December 2022, indicated left costal cartilage showing reparative change, suggestive of prior fracture which was healing.
On 18 December 2022, he developed a stitch abscess in the surgical wound and became delirious and was taken to Cessnock Hospital, where he was on intravenous antibiotics for about one week. An undissolved suture was removed.
He was discharged from Cessnock Hospital after treatment for the stitch abscess in the surgical wound on 24 December 2022.
Mr Maybury had continuing post-operative pain in the costal cartilage area and was reviewed by Dr Seah on a couple of occasions, including in July 2023, when he suggested he could undergo possible intercostal nerve block or neurotomy.
He had been seeing pain specialist, Dr Russo, ever since the chronic pain arising from the earlier neck injury and Dr Russo only offered him a block injection in the posterior aspect of the rib adjacent to the thoracic spine, but not in the costal cartilage area. He did not proceed.
Mr Maybury said he was only off work a few days after the accident, which occurred on the Friday, and returned to work on the Tuesday or Wednesday of the following week but was only able to manage 30 hours per week, as had been the case before the accident.
Details of any relevant injuries or conditions sustained since the motor accident.
No further accident or injury was reported.
Current symptoms
Medical Assessor Oates then took a history of current symptoms and current proposed treatment.
Mr Maybury had no problem with his head injury at the site of the trauma, but does get a headache, mainly central left-sided, which has not been investigated further.
He still gets pain in the anterior chest at approximately the level of the fourth costal cartilage, but more to the right side, but also to some extent at the site of the injury over the left costal sternal junction. This will flare-up with movement of the left arm, and he also has pain from the left scapula and adjacent thoracic spine, radiating up to the left side of the neck, as far as the ear.
Mr Maybury told the medical examiner that his low back pain was minimal and can manage this with some stretch exercises.
His left shoulder joint is satisfactory but there is referred pain from the neck into the left trapezius and upper arm, and some tingling persists in the ulnar side of the left hand, which has been present since the cervical foraminotomy surgery. Mr Maybury is able to manage this.
He can no longer use a ride-on mower for longer than 30 minutes because the thoraco-cervical area and right upper chest seize up and only resolve if he lies on the lounge.
Current and proposed treatment
Mr Maybury has changed his GP to Dr Khan at the same practice as Dr Wasti. Dr Khan ceased the Panadeine Forte he was previously using. He was given Maxigesic, which he has taken but he finds them ineffective. He also has Tramadol 150mg twice daily.
He attends a chiropractor about once a month and remedial massage as required.
Mr Maybury started seeing a counsellor, as he was feeling suicidal because of the continuing pain in the chest and no prospect for further treatment.
EXAMINATION
Medical Assessor Oates then undertook an examination of Mr Maybury
General presentation
Mr Maybury was right hand dominant, 172cm tall and weighed 114.3kg. He was of solid build.
There was an old, healed scar running vertically over the lower cervical spine area posteriorly from previous cervical surgery by Dr Spitaller.
Cervical spine
There was no guarding and mild tenderness at the left base of cervical spine and adjacent left upper trapezius. The range of movement was three-quarters of normal in all directions, with no dysmetria.
There were no non-verifiable radicular complaints, though there was patchy complaint of reduced sensation in the ulnar side of the left forearm and hand.
Reflexes and power in the upper limbs were normal. Sensation was intact, except in the area of the previous left thumb/ index finger digital nerve injury, and over the ulnar border of the left hand which had been present since the previous cervical spine injury.
The upper arm girth was right 40cm and left 38cm. The forearm girth was right 32cm and left 31.5cm.
Thoracic spine
There was no guarding or tenderness. There was full thoracic rotation bilaterally. Sensation was intact over the trunk, apart from some patchy decreased sensation reported over the left scapula and lower trapezial area.
Lumbar spine
There was no tenderness and no guarding.
Range of movement was mildly reduced to three-quarters of normal in flexion, extension, lateral flexion, and rotation, with no dysmetria present.
There were no non-verifiable radicular complaints affecting the lower extremities. Reflexes, power, and sensation in the lower limbs were normal.
Thigh girth was right equals left equals 51cm, and calf girth was right equals left equals 41cm.
Straight leg raising was negative stretch test on the right and left at 70°.
Right and left shoulders
There was no focal tenderness or muscle wasting.
There was full range of movement of the right shoulder, with the left shoulder showing full range of movement apart from abduction and flexion which were to 170°, with complaint of discomfort in the left upper trapezial and adjacent cervical spine area.
Chest
There was a 65mm x 5mm keloid scar over the left sternocostal junction area at approximately the level of the fifth costal cartilage, with local tenderness and some alteration of sensation.
Consistency of presentation
Mr Maybury presented in a straightforward manner.
Imaging
No imaging was brought to this examination.
Diagnosis, causation and reasons
Medical Assessor Oates arrived at the following diagnosis and then proceeded to set out his opinion on causation and reasons.
The diagnosis was soft tissue injury to cervical spine, head, lumbar spine, and thoracic spine, with radiating symptoms from the cervical, upper thoracic spine to the left upper arm through the left shoulder, but no evidence of direct soft tissue injury to the left shoulder joint. There was also an injury to the anterior chest in the area of the left 4th or 5th sternocostal junction with operation evidence of a vertical fracture of the costal cartilage, resulting in excision of the costal cartilage with evidence on histopathology of a healing fracture in this structure.
The contemporaneous medical evidence in the file, which was available to the Review Panel, including hospital, GP, treating specialist records and imaging, indicates that the above soft tissue injuries were causally related to the subject accident.
There were pre-existing cervical spine and left posterior third rib conditions, however these conditions were not materially affected by the subject motor vehicle accident.
Second Review Panel Meeting, 2 April 2024
The Review Panel met by audiovisual link at 3.00pm on 2 April 2024, and after a discussion of the issues, concurred with the conclusions proposed by Medical Assessor Oates.
Threshold injury
The Review Panel determined that the cervical spine, thoracic spine and lumbar spine soft tissue injuries were threshold injuries because there was no evidence of two or more criteria to justify a diagnosis of radiculopathy in any of the above three spine regions, there was no injury to a nerve, and there was no imaging present to indicate complete or partial rupture of tendons, ligaments, menisci or cartilage.
The soft tissue injury to the head was also a threshold injury. Further as to the other injuries referred (excluding the chest), there was no indication of injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage.
The chest injury was shown to consist of a vertical fracture of left costal cartilage near the sternocostal junction and on the balance of probabilities, this condition was causally related to the accident, owing to pressure directly applied from the overlying seatbelt, which would have tensioned whilst the claimant was thrown from side to side in the cabin at impact. Mr Maybury said that at the time of the T-bone impact to the driver’s door, he was thrown forcefully to one side of the cab and then recoiled to the other side, resulting in a blow to the head from the driver’s door pillar or window.
In this action, with the seatbelt tensioning against that part of his chest, it was likely that a fracture of costal cartilage had occurred. This lesion was not visible on X-ray, ultrasound, or CT scan, but was directly visualised at the time of surgery for resection of the costal cartilage, leaving no doubt as to its existence.
The Medical Review Panel’s consideration of the submissions
The Review Panel resolved at the first MRP meeting, that an examination of Mr Maybury was necessary to address the parties’ submissions.
Mr Maybury submitted that the injury to the chest/ rib was more than a threshold injury. On examination, the Review Panel found that the chest injury was a non-threshold injury, as there was direct visual evidence of complete or partial rupture of cartilage, namely left costal cartilage.
Mr Maybury submitted that the reason the costal cartilage was mobile was that it was highly likely to be ruptured and therefore the injury to the rib should have been found to be more than a threshold injury. The Review Panel concluded that the chest injury was a non-threshold injury, as there was direct visual evidence of complete or partial rupture of cartilage, namely left costal cartilage.
Conclusion
The Review Panel revokes the certificate of Medical Assessor Cameron, dated 5 November 2023.
The Review Panel substitutes its determination and certifies that the chest/rib injury was a non- threshold injury for the purposes of the Act.
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