McCartney v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 293
•9 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | McCartney v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 293 |
| CLAIMANT: | Judith McCartney |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 9 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant suffered injury in a motor vehicle accident on 6 February 2020; a dispute arose as to whether the physical injuries to the lumbar spine, right leg, right foot, and thoracic spine are threshold injuries; the Medical Review Panel conducted an examination of the claimant; Held – Medical Assessor’s determination of threshold injuries partially confirmed; the thoracic spine was a soft tissue injury which has resolved. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the determination of Medical Assessor Ian Cameron of (a) thoracic spine – soft tissue injury, is a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017 (the Act). 2. The Review Panel susbsitutes the determination and instead certifies that the: (b) lumbar spine – soft tissue injury; (c) right leg – soft tissue injury, and (d) right foot – soft tissue injury, are THRESHOLD INJURIES for the purposes of the Act. Note: The Review Panel has not included the injury to the thoracic spine as it has determined that the thoracic spine was a soft tissue injury which has resolved. |
STATEMENT OF REASONS
INTRODUCTION
Judith McCartney (the claimant) was involved in two motor vehicle accidents, the first on
6 February 2020 and the second on 4 July 2021.Medical Assessor Ian Cameron assessed the claimant in relation to both matters on
26 May 2023, and issued two identical certificates dated 26 May 2023. Both certificates assessed the threshold injuries caused by the separate motor accidents, for the purposes of the Motor Accident Injuries Act 2017 (the Act).These are the Reasons for the Panel’s Review in relation to the first accident on
6 February 2020, in the matter R-M10537693.The Review of the certificate of Medical Assessor Cameron for the second accident, on
4 July 2021, was considered by the same Review Panel consisting of Terence Stern, Mohammed Assem and Shane Moloney, in the matter R-M10537703/22 and previously published.The claimant was born in March 1948.
The claimant was injured in a motor vehicle accident on 6 February 2020, when she was the driver of a vehicle, stationary at traffic lights, which was hit from behind.
The insurer, NRMA Insurance, alleged that the injuries sustained by the claimant were threshold injuries.
This was disputed by the claimant. The dispute was referred to Medical Assessor Ian Cameron who, on 10 June 2023, certified that the injuries caused by the motor accident were threshold injuries for the purposes of the Act.
The claimant applied for a Review of this determination.
In this Review, Ms McCartney submitted that Medical Assessor Cameron did not adequately set out the path of his reasoning in providing an opinion which led to his determination there was no sign of radiculopathy and a threshold injury classification for the motor accident dated 6 February 2020.
The insurer disagreed and submitted that the Medical Assessor had carried out his assessment of radiculopathy at the claimant’s lower limbs without error in regard to the motor accident dated 6 February 2020.
Background
Ms McCartney was injured in a motor vehicle accident on 6 February 2020, when she was the driver of a vehicle, stationary at traffic lights, which was hit from behind.
She alleged that she developed back pain, symptoms of which continued to trouble her.
She saw a general practitioner (GP), Dr Maria Demesa, of Hunter River Medical Practice, and she referred the claimant to an orthopaedic specialist, Dr Hardeep Salaria.
Ms McCartney was able to return to her part-time work, as an assistant transport officer for school children with disabilities, to some extent after this.
Ms McCartney reported developed driving problems after this, with panic attacks in a vehicle, and she consulted a psychologist.
In a letter to Dr Demesa, on 1 June 2021, Dr Salaria reported that Ms McCartney said she had increasing right leg pain and weakness, pins and needles along the back of the leg, and was afraid of falling because of the leg giving way. The worst pain was radiating down the back of the thigh and calf.
Given her increasing pain and disability, she wanted to have surgery as soon as possible.
In a further report of 13 April 2021, Dr Salaria reported that the MRI scan, apart from showing degenerative disease at L3-4 and L4-5, levels with wedging of vertebrae at T11-12, also showed foraminal stenosis at right L3-4 due to disc protrusion, and her symptoms that corresponded with that.
Dr Salaria continued that he had organised a trial of L3-4 foraminal steroid injections, and that the claimant would also start a physiotherapy program. As the claimant had had L4-5 decompression surgery in the past, and there were degenerative changes at multiple levels. If the pain exacerbation does not stop, she might require more extensive surgery in the form of L2-L5 anterior and posterior lumbar interbody fusion surgery.
As Medical Assessor Cameron noted in his history, the claimant said she had ongoing problems from her lower back and there was also pain in the right thigh anteriorly and posteriorly.
There is a dispute between Ms McCartney and the insurer about: whether the injury caused by the motor accident is a threshold injury under Schedule 2, s 2(e) of the Act.
CERTIFICATE UNDER REVIEW
The assessment by Medical Assessor Cameron of 10 June 2023
The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Cameron for assessment:
(a) lumbar spine – injury to lumbar spine;
(b) leg - referred sciatica pain and disability of right leg stemming from back injury;
(c) foot - referred sciatica pain and disability of right foot stemming from back injury, and
(d) thoracic spine - exacerbation of thoracic spine injury.
Medical Assessor Cameron summarised the submissions at [3]- [4]:
[3] Ms McCartney, via her solicitor, states that the injuries are not “threshold” injuries.
[4] The insurer states that the injuries are “threshold” injuries.
Medical Assessor Cameron took a pre-accident history medical history at [8].
Medical Assessor Cameron took a history of the current symptoms [12] of low back pain and pain in the right lower extremity. The claimant also had “significant anxiety.”
At [13], he noted Ms McCartney’s current medications.
He conducted a clinical examination. At the level of the cervical spine there was a mildly and symmetrically reduced range of motion without muscle spasm or guarding and absent dysmetria. There were no non-verifiable radicular complaints.
There was a full range of motion in both shoulders.
The thoracic spine was moderately and symmetrically reduced in range of motion without muscle spasm or guarding, dysmetria, or non-verifiable radicular complaints.
At the lumbar spine there was moderately and symmetrically reduced range of motion, without muscle spasm or guarding, without dysmetria, and with no non-verifiable radicular complaints.
Medical Assessor Cameron gave his Diagnosis and Reasons at [18]. He said that in the first accident, the claimant developed an exacerbation of low back pain, noting that the claimant had had previous vertebral compression fractures and degenerative changes, which were exacerbated by that accident.
Medical Assessor Cameron diagnosed the injury to the lumbar spine, caused by the subject accident, as a soft-tissue injury, and that was the description he applied to her injuries to the right leg, right foot, and thoracic spine.
He concluded that the listed injuries were threshold injuries because they fitted the definition of ‘threshold’ set out in the Act. There was no radiculopathy on clinical examination, and such had not been present following the subject accident.
Medical Assessor Cameron sets out the documents which were available to him at [16].
REVIEW OF THE EVIDENCE
Diagnostic imaging
MRI report of 17 March 2021
Dr Laura Mason provided a report of an MRI of the lumbosacral spine conducted on 17 March 2021, prior to the subject accident, to Dr Maria Demesa.
Dr Mason commented:
“There is a compression fractures (sic) of T12, with approximately 40-50% anterior vertebral body wedging... There is mild wedging of L1, with approximately 30% loss of anterior vertebral body height.
Previous L3-L5 laminectomy is noted.
L1-2: There is mild loss of disc height. There is no disc protrusion. There is no canal stenosis or foraminal stenosis.
L2-3: There is severe loss of disc height. There is prominent facet joint hypertrophy. There is mild right paracentral disc protrusion, which abuts the traversing right L3 nerve root, without evidence of compression of the nerve root. There is no canal stenosis. There is mild right foraminal narrowing.
L3-4: There is severe loss of disc height, predominately right-sided, with osteophytosis. There is facet joint hypertrophy. There is mild broad-based right extraforaminal disc bulge. There is no canal stenosis. There is severe bilateral foraminal stenosis. There may be a degree of compression of the exiting nerve root on the right. There is enhancement of the endplates on the right, consistent with Modic type 1 endplate changes.
L4-5: There is prominent loss of disc height. There are Modic Type 2 endplate changes. There is a mild broad-based disc bulge. No canal stenosis. There is mild right foraminal, and severe left foraminal stenosis….
…There are compression fractures of T12 and L1. There is an indeterminant 11mm bone lesion within the right side of T12. This could be further assessed with CT +/- bone scan. This may represent oedema related to the fracture if the injury is recent.
There is an indeterminant 11mm bone lesion within the right side of T12. This could be further assessed with CT +/- bone scan. This may represent oedema related to the fracture if the injury is recent.
There is degenerative change … most prominent L3-L4, with a right extraforaminal disc bulge. There is severe bilateral foraminal stenosis at this level, with a degree of compression of the exiting nerve root possible on the right. There is also severe left foraminal stenosis at L4-L5.”
CT scan of 8 July 2021
Dr Damien Hellwege conducted a CT scan of the claimant’s lumbosacral spine, one week after the second accident, and reported to the claimant’s GP on 8 July 2021.
Dr Hellwege reported:
“There is mid [sic – read ‘mild’] lumbar spine curvature to the left. There is minor posterior displacement of L3 in relation to L4. There is irregularity of endplates and vertebral bodies. There are compression fractures of vertebral bodies, particularly at Tl2 and also adjacent levels of T12 and L1. This change is probably chronic however.”
Dr Hellwege noted degenerative changes of the lumbar discs at L2-3, L 3-4, and L4-5, facet joint, and narrowing of the foramina on the left and right.
MRI of the lumbosacral spine, dated 17 March 2021
The MRI report listed the following conclusion:
“There are compression fractures of T12 and L1… There is an indeterminant 11 mm bone lesion within the right side of T12. This could be further assessed with CT/bone scan. This may represent oedema related to the fracture if this injury is recent. There is degenerative change most prominent at L3/4, with right extraforaminal disc bulge. There is severe bilateral foraminal stenosis at this level, with a degree of compression of the exiting nerve root possible on the right. There is also severe left foraminal stenosis at L4-L5. …”
MRI report of 26 November 2021
Dr Phillip Janke reported on an MRI of the claimant’s lumbosacral spine, conducted on 26 November 2021:
“…longstanding compression fractures T12 and L1 resulting in 45% and 20% height reduction respectively. Severe generalised disc degeneration manifesting as various degrees of loss of height and T2 signal and small posterior disc protrusions.”
Reports of Dr Hardeep Salaria, treating orthopaedic surgeon
The claimant was referred by her GP to Dr Hardeep Salaria, orthopaedic surgeon.
On 11 February 2021, Dr Salaria commented on Ms McCartney’s worsening of back pain.
Dr Salaria reported on the claimant’s presenting symptoms on 13 April 2021:
“Mrs McCartney's back and right leg pain both have worsened for the last two weeks and she is struggling to walk and manage without a stick. She is limited to stay inside at home and feels very disabled because of it.”
On examination, Dr Salaria recorded:
“The pain is along the front of the thigh and leg towards the top of the foot and corresponds with L4 radiculopathy.
She has a very antalgic gait and right ankle dorsiflexion is Grade 4+. The sciatic nerve stretch test is positive at about 60.”
Dr Salaria diagnosed degenerative disc disease at L2-3, L3-4, and L4-5, and foraminal stenosis at right L3-4. He ordered a trial of L3-4 foraminal steroid injection and physiotherapy.
On 1 June 2021, Dr Salaria reviewed Ms McCartney and documented that:
“The worse pain is radiating along the back of the thigh and calf – L5/S1 radicular pain but she also has pain at the front of the leg and the giving way sensation which would correspond with the L3-4 radiculopathy. The neurological examination and sensations are normal. Motor examination is a little bit unreliable because of the severity of the pain.”
On 16 December 2021, Dr Salaria examined the claimant and recorded:
“She has antalgic gait and the lumbosacral back pain is radiating along the front and the back of the thigh. The right knee extension and the ankle dorsiflexion and EHL strength is grade-4.”
He continued:
“Her disabling back and leg pain are due to exacerbation of the Lumbar degenerative scoliosis and foraminal stenosis due to the accident. She…. had been functioning okay until the accident.”
Dr Salaria examined the claimant again on 25 January 2022. He reported that the MRI of the lumbar spine showed:
“…foraminal stenosis due to exacerbation of the L2-3, L3-4 and L4-5 spondyloarthropathy due to the MVA.”
He commented that:
“[the claimant’s] pain exacerbation and severe disability has been mainly since her [sic] recent accident, she should be covered for the treatment by the motor accident compensation process.”
Dr Salaria continued:
“[the claimant] would require the two stage surgery in the form of L2-LS Oblique/ lateral lumbar interbody fusion followed by posterior instruemented [sic] fusion.”
Dr Salaria provided a report to the insurer on 26 April 2022. He diagnosed:
“…disabling back pain radiating to the right lower extremity. She also has major weakness of the right lower extremity- Grade 4 strength of the right quadriceps, ankle dorsiflexors and extensor hallucis muscles of the big toe.”
With respect to causation, Dr Salaria commented:
“[after] The accident in July 2021 when her car had to be written off after being hit from the side, the back and right leg pain and weakness has worsened a lot more…
… both accidents have contributed to the worsening of her spine, but the recent accident would be the main cause of her current disability and urgency for surgery.”
Certificate of capacity, 1 December 2021
Ms McCartney listed “chronic back pain due to previous accident” on the Certificate of Capacity dated 1 December 2021.
In Medical certification, the treating medical practitioner, Dr Maria Demesa, provided a diagnosis:
“exacerbation of chronic back pain secondary to the accident”
Medico-legal reports
Report of Dr Chris Harrington, orthopaedic surgeon, of 24 June 2022
Dr Harrington reported to the insurer on a medicolegal basis on 24 June 2022, following an examination of the claimant.
On examination (page 3) Dr Harrington noted:
“Her pain is localised in the lower lumbar levels around L4-5 or L5-S1. There is no tenderness to light touch around the lumbar levels. She can flex to her knees, associated with some spasm. She is very cautious when rising from flexion into extension. Her knee and ankle reflexes on the right aren’t as brisk as the other side. I couldn't detect any weakness in her leg.”
He continued:
“There is some altered sensation on the lateral part of her right thigh which isn't consistent with a dermatome pattern. There is a scoliosis on x-ray although this isn't obvious on clinical examination. She has a good range of movement of her artificial right hip.”
Dr Harrington described the claimant’s injuries [1] as:
“…an aggravation of pre-existing changes in the lumbar spine.”
With respect to a diagnosis, he commented [10]:
“…I don't think we have a clear diagnosis to explain her reported symptoms. We know that her back wasn't normal with this extensive laminectomy and altered mechanics. The most appropriate diagnosis might be failure of the lumbosacral segment.”
Submissions of the claimant of 20 June 2023
The Review Panel briefly summarises the submissions by reference to paragraph number:
[4]Medical Assessor Cameron failed to provide adequate reasons for his finding of threshold injury in relation to the lower back.
[5]The Medical Assessor failed to explain how and why the two clinical signs of radiculopathy he had observed and recorded did not satisfy the definition of radiculopathy set out in the Act (the Guidelines). The claimant submits this would take their lower back injury outside the definition of a threshold injury.
[6]-[7]Refers to cl 5.8 and cl 5.9 of the Guidelines.
[9]-[10]Refers to the Medical Assessor’s diagnosis at [18] and [20].
[11]Submits that the Medical Assessor had fallen into error by concluding that there was no evidence of radiculopathy. Alleges that during his clinical examination of the claimant the Medical Assessor observed and recorded two clinical signs of radiculopathy.
[12]-[13]Submits that absent reflex in the right lower extremity, recorded in the clinical observations by the Medical Assessor at [14], is indicative of radiculopathy. Refers to cl 5.8 of the Guidelines.
[14]Submits that the decreased left leg circumference, also recorded by the Medical Assessor is a sign of radiculopathy.
[15]Refers to [20] of the certificate where the Medical Assessor reports “no evidence of radiculopathy.” Submits that this statement is an error that rendered the assessment incorrect in a material respect pursuant to s 7 .26 of the Act.
[16]Submits that the Medical Assessor did not address or explain why he did not consider the above two clinical findings to be two clinical signs of radiculopathy, thereby taking the claimant outside the threshold injury definition in relation to the lower back.
[17]Refers to Wingfoot Australia Partners PIL v Kocak [2013] HCA 43, [48] and Frost v Kourouche [2014] NSWCA 39. Argues that the Medical Assessor is required to show his “actual path of reasoning” in the Reasons.
[18]Refers to AAI Limited v Fitzpatrick [2015] NSWSC 1108 per Schmidt J.
Submissions of the insurer in reply of 18 July 2023
The Review Panel briefly summarises the reply to submissions by reference to paragraph number:
[7] The insurer disagrees that there is material error contained within the Commission’s Certificate in relation to the motor accident dated 6 February 2020.
The insurer submits that due to the absence of receipt of medical documentation in relation to the motor accident dated 4 July 2021, the insurer is unable to comment if there had been a material error in relation to the to the accident dated 4 July 2021.
[9]The insurer submits it is evident that the Medical Assessor has carried out his assessment of radiculopathy at the claimant’s lower limbs without error in regard to the motor accident dated 6 February 2020 and the subsequent accident dated 4 July 2021.
[10]The insurer noted that the Assessor had obtained a history from the claimant as recorded on pages 2-3 of the Commission’s Certificate. This was noted to include the claimant had sustained two motor accidents, the one dated
6 February 2020 for which a CTP claim was lodged at NRMA and a subsequent motor accident dated 4 July 2021 which was for GIO. The
6 February 2020 motor accident involved the claimant being a stationary driver at traffic signals and being hit in the rear. The motor accident on
4 February 2021 involved an impact as a front seat passenger whilst in a roundabout with the impact being on the passenger side.
[15]The insurer noted however due to inability to obtain the documentation attached to the Application and Reply for the Commission’s assessment for the motor accident dated 4 July 2021 by the time of the completing of this Reply, the insurer could not verify the full extent of the medical information provided for the Commission’s assessment as carried out by Medical Assessor Cameron. The insurer did not have receipt of the “substantial past clinical records”, the Certificate of Capacity by Dr Demesa in relation to the motor accident dated 4 July 2021, the recovery plans, the report by Dr Harrington dated 24 June 2022, the insurer’s submissions for the accident dated
4 July 2021 and the additional documents as listed in the Commission’s Certificate.
[24]The insurer submitted therefore the treating medical evidence provided for the Commission’s assessment referred to ongoing pain back pain which referred down the right leg with symptoms of pins and needles/numbness. However, the treating medical reports from Dr Salaria reported the claimant had a normal neurological examination. Dr Salaria reported muscle strength was difficult to test due to the claimant’s referred pain. The only positive neurological finding was that reported on 13 April 2021 with a positive sciatic nerve stretch test. The insurer noted that Dr Salaria did not report on the presence of any muscle atrophy at the lower limbs within these reports.
[25]The insurer submitted that the Medical Assessor had provided a detailed examination of the claimant’s back for the presence of any possible radiculopathy symptoms. The insurer submitted evidence of this was referred to within paragraph 13 of the insurer’s submissions. The insurer submitted this was evidence of the Medical Assessor’s compliance considering if there the presence of any such signs as listed within 5.8 of the Medical Assessment Guidelines. The insurer noted the only radicular sign identified by the Medical Assessor was that of an absent reflex at the right ankle. The insurer noted that one radicular sign was not sufficient to satisfy the criteria for radiculopathy. The insurer can see no error here.
[27]The insurer submits that Medical Assessor is entitled to form his own opinion on the medical question referred to them by applying his own medical experience and medical expertise. The fact that the Medical Assessor determined the examination of the claimant did not mean the criteria for radiculopathy was met cannot by itself considered as an error and constitute a ground for referral to a review panel. The insurer submits the Medical Assessor has provided a detailed explanation on how he arrived at his determination for the presence of threshold injuries.
[28]The insurer submits that based on the documents it has access to at the time of the Reply, the Medical Assessor has conducted the assessment correctly and has correctly determined there was no evidence of radiculopathy present at the time of the Commission’s assessment.
[31]The insurer submits the claimant has failed to identify any errors and has not provided sufficient reasons to the President to have reasonable cause to suspect that the Commission’s medical assessment of the claimant by the Medical Assessor is incorrect in a material respect, pursuant to s 7.26(2) of the Act.
LEGISLATIVE FRAMEWORK
Threshold injury
Section 1.6(2) of the Act provides:
“(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.”
Section 4(1) of the MAI Regulation provides:
“4 Meaning of ‘threshold injury’, section 1.6(4) of the Act
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
CAUSATION
Guidelines
With respect to causation, (the 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 the Bench unanimously explained the test 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 his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
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 claims assessor) 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:
The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Review Panel’s re-examination of the claimant
Medical Assessor Shane Moloney examined the claimant for the Review Panel on 29 November 2023 for both this matter and the related matter (R-M10537703/22).
Medical Assessor Moloney took a history, both pre-accident and of the accident, as well as with respect to current symptoms.
Pre-accident history
The claimant stated that she lives with her husband and was in good health prior to the accident. She had been working for five hours a day as a supervisor on a bus for disabled children. This occupation started five years prior to the accident. About eight years ago there was a history of low back pain with a disc bulge which had resulted in decompression surgery at L4-5 and L5-S1.
History of motor accident and subsequent treatment
On 6 February 2020, Ms McCartney was the driver of her car which was stationary when hit from the rear. She stated she was wearing a seatbelt at the time and hit the steering wheel with the impact. She was able to get out of the car and drove home. Neither ambulance nor police officers attended the scene of the accident. Two days after the accident she consulted her GP, Dr Maria Demesa, who organised physiotherapy due to low back pain radiating to the level of the knees bilaterally. She also referred her to an orthopaedic surgeon, Dr Salaria, who organised cortisone injections to the lumbar spine and continued physiotherapy. In August 2020, she was hospitalised for a few days as she had regressed due to persistent pain. The claimant then returned to her previous occupation for five hours a day. Physiotherapy had been discontinued before the second accident.
On 4 July 2021, Ms McCartney was the front seat passenger in a car driven by her husband. They were driving in a roundabout when another car failed to give way and collided with the passenger side and front of the car. They were able to drive home but the car was later a write-off. There were further consultations with her GP due to an aggravation of the low back pain which again radiated to the level of the knee.
Physiotherapy was restarted and there was a further referral to Dr Salaria, who organised an MRI of the lumbar spine and recommended surgery as well as further cortisone injections. The claimant stated that sometimes her legs give way when walking and she considered that the pain is worse in the legs since the second accident.
Current symptoms
Low back pain radiated into the right buttock and had a global distribution to the level of the right knee and there was pain radiating into the left buttock and thigh which had increased lately.
Since the last accident, the claimant drives only short distances restricted by the possibility of panic attacks.
Present medication
The claimant takes Metformin for her diabetes, Coversyl for hypertension and Nexium for reflux. She takes Panadol when needed and uses a Fentanyl patch every three days. However, she takes a break from the patches once a month. No manual therapy is being undertaken and she consulted her GP when needed as well as a psychologist.
Clinical examination
Ms McCartney walked into the rooms with a normal gait and sat comfortably during the interview. She stated that she is left-handed. The height was measured at 156cm and weight, 84kg.
Lumbar spine
The claimant had a normal gait but was unable to walk on heels and toes. Squatting was very limited due to low back pain. On testing range of movement, flexion/extension was 50% of expected range and side bending with 70% of expected range bilaterally with no dysmetria. On palpation, no guarding or spasm was noted in the lumbar musculature but there was tenderness over the L3-S1 spines and sacroiliac joints. Straight leg raise when lying was 60° bilaterally and limited by low back pain but when seated with 80° bilaterally with negative sciatic nerve root tension signs. On inspection, there was a surgical scar from
L3-L5 due to a previous laminectomy. The claimant has also had a right hip replacement.On neurological examination of the lower limbs, reflexes were bilaterally weak at the knees and ankles with no asymmetry. No sensory changes were noted and there was normal power on testing. No muscle wasting was apparent with the circumference of the lower thighs 42cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 37cm on the right and 36cm on the left. There was a full pain free range of movement of the knees.
There was a full pain free range of movement of both feet and the claimant stated that her right foot is asymptomatic.
Thoracic spine
On testing range of movement, flexion/extension was 80% of expected range, rotation was 50% of expected range, and side bending was 70% of expected range bilaterally with no asymmetry. On palpation, there was no tenderness in the thoracic spine region.
Comments on consistency
Ms McCartney was consistent in her presentation. No radiological studies were available for inspection.
Diagnosis and causation
There was a pre-existing history of vertebral compression fractures and degenerative changes in the thoracolumbar spine which were initially aggravated causing low back pain in the first accident on 6 February 2020. The second accident on 4 July 2021 was a further exacerbation of low back pain but no significant clinical signs were recorded.
The Panel noted that Medical Assessor Cameron had stated:
“…there were no neurological abnormalities in the lower extremities, except that the right ankle jerk was absent.”
At the time of the examination by Medical Assessor Moloney, both ankle reflexes were weak but equal, i.e., there was no asymmetry. The left calf had 1cm of wasting compared to the right, which can be a sign of radiculopathy, but it was in the left leg not the right. The Panel observes that signs of radiculopathy cannot be combined for a different limb. Therefore, at the time of Medical Assessor Moloney’s examination, signs of radiculopathy were absent in the right lower limb, and 1cm wasting of the left calf is not a sign of radiculopathy as it is an isolated finding with no other clinical symptoms and signs in the left leg.
Injuries assessed
Lumbar spine – soft tissue injury which was aggravated by the accident on 4 July 2021.
There was no separate injury to the right leg or foot with some radiation of pain from the lumbar spine to the level of the knee.
Thoracic spine – soft tissue injury – this injury had now resolved and was asymptomatic.
The Panel’s consideration of submissions
Right lower limb
At the first Panel meeting on 17 October 2023, the Panel concluded it would be necessary to conduct an examination in order to address the parties’ submissions in relation to both motor accidents.
Ms McCartney submitted that the Medical Assessor failed to explain how and why the two clinical signs of radiculopathy he had observed and recorded did not satisfy the definition of radiculopathy set out in the Guidelines. The claimant submitted this would take their lower back injury outside the definition of a threshold injury.
The insurer submitted that the Medical Assessor had provided a detailed examination of the claimant’s back for the presence of any possible radiculopathy symptoms, considering the presence of any such signs as listed within 5.8 of the Medical Assessment Guidelines.
The Panel noted that Ms McCartney was claiming radiculopathy of the right lower limb.
The two signs of radiculopathy mentioned by Medical Assessor Cameron were (a) for each leg. He recorded loss of right ankle reflex.
At the time of the Panel’s examination both ankle reflexes were weak but equal. There was no asymmetry.
The Review Panel accepts that the left calf had 1cm of wasting compared with the right, which can be a sign of radiculopathy, but it is in the other leg and signs of radiculopathy cannot be combined for a different limb.
The Review Panel therefore concluded that at the time of the Panel’s examination, and in the opinion of the Review Panel, there were no signs of radiculopathy present in the right lower limb and 1cm wasting of the left calf is not a sign of radiculopathy as it is an isolated finding with no other clinical symptoms and signs in the left leg.
THE PANEL’S CONCLUSIONS
The Panel concludes that the following injuries are each a threshold injury:
(a) lumbar spine – soft tissue injury - aggravation of pre-existing pathology causing non verifiable radular symptoms in the right leg;
(b) right leg – soft tissue injury, and
(c) right foot – soft tissue injury.
Note: The Review Panel has not included the injury to the thoracic spine as it has determined that it was a soft tissue injury which has resolved.
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