Mehmood v AAI Limited t/as GIO
[2023] NSWPICMP 66
•2 March 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Mehmood v AAI Limited t/as GIO [2023] NSWPICMP 66 |
| CLAIMANT: | Faisal Mehmood |
| INSURER: | AAI Ltd t/as GIO |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Tai-Tak Wan |
| DATE OF DECISION: | 2 March 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 6 September 2017 when he was in a vehicle rear ended by the insured vehicle; the medical dispute was whether the degree of impairment of the injury caused by the motor accident was greater than 10%; the claimant had a chronic pre-existing lumbar spine condition; Panel found that the injury to the lumbar spine resolved adopting history that symptoms had settled to pre-accident levels; based on the circumstances of the motor accident, the contemporaneous complaint of neck pain, the likelihood that this type of accident would aggravate pre-existing pathology and the worsening shown in cervical spine pathology from the pre-accident condition, the Panel was satisfied that the motor accident aggravated the pathology at C6/7 resulting in further cervical symptoms and left sided radicular symptoms; the pathology aggravated by the motor accident was susceptible to further progressive symptoms which appear to have deteriorated in the latter part of 2018 which ultimately led to the spinal fusion; Held – claimant assessed at 20% permanent impairment in respect of the cervical spine after a deduction of 5% for the pre-existing condition; original Medical Assessment Certificate revoked. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 63(4) IS AS FOLLOWS: The Panel revokes the certificate of Medical Assessor Moloney dated 10 June 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is GREATER THAN 10%: · cervical spine, and · lumbar spine (resolved). |
REASONS
BACKGROUND
Mr Faisal Mehmood (the claimant) was injured in a motor accident on 6 September
2017. Mr Mehmood was in his vehicle stopped at a pedestrian crossing and was hit from behind by the insured vehicle.[1][1] Claimant’s bundle, p 8.
The insurer insured the owner and driver of the vehicle for liability to pay Mr Mehmood any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Mr Mehmood claims that he suffered impairment of his cervical and lumbar spine. He ultimately came to cervical spine surgery in the form of C6/7 anterior cervical discectomy and fusion on 12 May 2020.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[4] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[4] Section 60 of the MAC Act.
The medical assessment was issued by Medical Assessor Moloney on 10 June 2022. The Medical Assessor found that the motor accident caused a soft tissue injury to the cervical spine which was not causative of the subsequent cervical spine surgery. The claimant otherwise suffered an aggravation of a symptomatic low back condition which did not rate in assessable impairment.
REVIEW
The application for referral of the medical assessment to a review panel was made by the claimant within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought.[5]
[5] Section 63(7) of the MAC Act.
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 63(2B) of the MAC 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 new review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
[7] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure 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 matter solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective bundles. The claimant filed an updated report from Dr Habib. The insurer filed submissions in reply to this report (set out in full later) but did not seek to file any evidence in reply.
The further report from Dr Habib repeated a history from earlier reports previously served in the matter. It made some further observations which were of limited assistance.
We have considered the insurer’s submissions and addressed these in our Reasons. In these circumstances there was no other prejudice raised by the insurer and the report is admitted.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5 – 1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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.
1.6 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 non-medical informed judgement.
1.7 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.”The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[11]. In Raina v CIC Allianz Insurance Ltd[12] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see
s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”[11] See s 3B(2) of the Civil Liability Act 2002.
[12] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
EVIDENCE
The parties filed bundles of documents in accordance with the initial Direction. The claimant filed a further report of Dr Habib dated 18 November 2022. The insurer filed further submissions in response to this report. It did not seek to file any evidence in reply to the late report.
Pre-accident material
A bone scan dated 17 April 2013 noted mild reaction at T10/11 suggestive of arthritis.[13] A CT scan of the thoracic spine dated 8 July 2013 confirmed degenerative disc disease at T10/11.[14]
[13] Claimant’s bundle, p 80.
[14] Claimant’s bundle, p 81.
The MRI scan of the lumbar spine dated 30 August 2013 showed no significant intervertebral disc pathology.[15] The MRI scan of the lumbar spine dated 27 May 2014 showed minor disc degeneration at T10/11 and T11/12 and minor degree of disc degeneration at L5/6 and L6/S1 (six lumbar vertebrae were noted).[16]
[15] Claimant’s bundle, p 57.
[16] Claimant’s bundle, p 86.
On 26 August 2013, Dr Darwish, neurosurgeon, noted low back pain radiating to both limbs which were radicular in nature.[17] Subsequent reports noted ongoing thoracic and low back pain.[18]
[17] Claimant’s bundle, p 49.
[18] Claimant’s bundle, pp 50-54.
Dr Raymond White, rheumatologist, provided a report dated 9 February 2015 noting chronic back pain.[19] The doctor opined that the pathology at T11/12 was consistent with Scheuermann’s disease although this did not explain the severity and duration of the complaints. He also suggested testing to ensure that there is no sacroiliitis.
[19] Claimant’s bundle, p 121.
An MRI scan of the cervical spine dated 25 August 2015 recorded a clinical history of neck pain extending to the left arm. The C6/7 disc is reported as showing a left paracentral disc protrusion associated with an annular tear with flattening of the left anterior aspect of the thecal sac causing slight canal stenosis.[20]
[20] Claimant’s bundle, p 97.
The MRI scan of the full spine dated 20 October 2015 showed small protrusion at C6/7 with potential impingement of the left C7 nerve root.[21]
[21] Claimant’s bundle, p 98.
On 12 October 2015 Dr Darwish also recorded neck symptoms.[22]
[22] Claimant’s bundle, p 55.
On 14 March 2016 Dr Darwish noted neck pain radiating to the left arm. MRI scan dated 20 October 2015 showed left C6/7 disc protrusion potentially compressing the left C6/7 nerve root with no signal change in the spinal cord at that level. The doctor recommended a left C7 perineural injection.[23]
[23] Claimant’s bundle, p 56.
Dr Habib’s clinical records commence on 23 January 2013.[24] Neck pain is noted in April 2013. There are frequent references to low back and thoracic pain.
[24] Claimant’s bundle, pp 69-78.
Dr Habib provided a detailed report dated 6 December 2016 relating to treatment and symptoms over the previous three years.[25] Dr Habib then assessed the cervical spine, albeit pursuant to AMA 5, at 0% noting “resolution of radiculopathy following non-surgical treatment (guided steroid perineural injection)”.[26] The lumbar spine was assessed at 7% and the thoracic spine at 5%. These assessments were made pursuant to AMA 5 which allow an amount of up to 3% for the effects on the activities of daily living.
[25] Insurer’s bundle, p 48.
[26] Insurer’s bundle, p 50.
On 23 August 2016, Dr McKechnie, neurosurgeon, noted chronic thoracic and lower back pain with intermittent radiation through both legs.[27]
[27] Claimant’s bundle, p 79.
An MRI scan of the lumbar spine dated 4 August 2016 was comparable to the previous study showing a small left protrusion at L5/6 with slight displacement of the left L5 nerve root.[28] An MRI scan of the thoracic spine dated 26 August 2016 showed disc protrusions at T10/11 and T11/12.[29]
[28] Claimant’s bundle, p 142.
[29] Claimant’s bundle, p 138.
Proceedings were commenced in the District Court in 2016 alleging injury to the low back between 2012 and July 2013.[30]
[30] Insurer’s bundle, p 14.
The clinical note of the general practitioner dated 21 August 2017 noted chronic back pain.[31]
Post-accident material
[31] Insurer’s bundle, p 411.
Dr Habib
Dr Sheikh Habib, surgeon, provided a report dated 26 November 2018.[32] The doctor noted that Mr Mehmood had been under his care prior to the accident for thoracolumbar pain. Examination on 6 September 2017 was for neck pain from sudden extension/flexion trauma with tenderness at C5-7. Follow up on 12 September 2017 showed no change to that condition.
[32] Claimant’s bundle, p 18.
On 18 October 2017 Mr Mehmood reported radiating pain to the left shoulder which was confirmed by the MRI scan dated 27 October 2017. Subsequent attendances related to neck pain. When last seen on 20 November 2018, Mr Mehmood reported ongoing neck pain radiating to the left shoulder.
On 27 November 2018 Dr Habib noted neurological examination suggestive of left C7 and C8 sensory alteration with an absent triceps jerk bilaterally. The claimant was then referred to Dr Damodaran.[33]
[33] Claimant’s bundle, p 20.
Dr Habib provided a report dated 14 February 2019.[34] That report is consistent with the report dated 18 November 2022 set out below. The report dated 18 November 2022 summarised the treatment following the motor accident when the doctor stated:
“Mr Mehmood was seen and examined soon after the said MVA of 06/09/17 which took place just meters away from my consulting rooms. He complained of neck pain more to the right accompanied with headache. The neck movements were asymmetric and restricted.
The examination on 07/09/17 for increased neck pain and headache showed tenderness of the neck from C5 to C7 areas with painful restricted movements.
Mr Mehmood returned on 18/10/17 complaining of neck pain with radiation to the left shoulder and arm. On examination tenderness and asymmetric neck movements persisted. He was recommended MRI scan of the cervical spine and prescribed Lyrica capsules 75mg twice a day for referred left arm pain.
Review on 07/11/17 with MRI cervical spine dated 27/10/17 showed left C6/7 paracentral focal disc protrusion compromising the left C7 nerve root. He was referred to Dr A Mayat, radiologist on 07/11/17 for left C7 perineural steroid infiltration. He had some relief in the left arm symptoms but only partial and temporary. I discussed with him the options of further injections plus medications or consider the surgery for the removal of the offending disc.
He returned on 05/03/18 reporting to having been overseas to Pakistan to try some form of alternative option. According to him he had a lot of pain in the neck despite the medication, radiating to the interscapular area. He had been having physiotherapy / exercises since his return organised by his GP.
He was further reviewed on 13/11/18 and 27/11/18 for continuing neck pain, restricted painful movements and arm pain radiation. Clinically he had signs of sensory alteration in the left C7 distribution and weakness of the left elbow extension.”
[34] Claimant’s bundle, p 26.
Dr Habib noted that the photograph of damage showed extensive rear end damage and on the right side which “could technically have had a greater sudden extension”. This forceful impact “resulted in severe aggravation injury to the neck resulting in the development of left brachialgia (C6/7 disc originated)”.
Dr Habib also noted that the decision to consult the neurosurgeon 18 months post- accident followed the failure of non-operative conservative management including a peri-neural nerve block.
Dr Damodaran
Dr Omprakash Damodaran, neurosurgeon, provided a report dated
22 September 2017.[35] The doctor noted chronic back pain for years secondary to a work-related injury. Mr Mehmood had been off work “for the last several years” due to ongoing axial back pain. The motor accident was not referenced in this report and there was no reference to the cervical spine.[35] Claimant’s bundle, p 13.
On 6 October 2017 Dr Damodaran noted that back pain was predominantly musculoskeletal, discogenic with a small element of degenerative facet arthroplasty.[36] Again there was no reference to the motor accident and/or the cervical spine.
[36] Claimant’s bundle, p 14.
On 3 December 2018 Dr Damodaran noted progression of symptoms in the last week with C7 radiculopathy. The doctor recommended transforaminal injection targeting the C7 nerve root.
Dr Damodaran provided a further report dated 28 December 2018 when he recommended discectomy and fusion at C6/7 noting conservative treatment was unsuccessful.[37]
[37] Claimant’s bundle, p 25.
Dr Damodaran provided a further report dated 6 August 2019.[38] The doctor noted that the natural history of this disease is multiple recurrent episodes and consistent with the radiculopathy. A cervical spine fusion was again recommended.
[38] Claimant’s bundle, p 31.
Hospital records
Mr Mehmood was admitted to hospital and underwent a C6/7 anterior cervical discectomy and fusion under Dr Damodaran on 12 May 2020.[39]
[39] Claimant’s bundle, p 32.
On 20 July 2020 McKechnie noted ongoing chronic thoracic and low back pain and referred Mr Mehmood to the Liverpool Hospital pain clinic.[40]
[40] Claimant’s bundle, p 146.
Police report/photographs
The police report confirms the manner of the accident as alleged by the claimant.[41] The photograph of the claimant’s vehicle shows substantial damage to the back passenger side.[42]
[41] Insurer’s bundle, p 31.
[42] Insurer’s bundle, p 45.
Claim form
The claim form was completed by the claimant on 14 November 2017 and referred to the motor accident and injuries to the neck (left), shoulder (left), back and psychological.[43]
[43] Claimant’s bundle, p 11.
Radiology
An MRI scan of the cervical spine dated 27 October 2017 noted a clinical history of neck pain radiating to both arms and questionable in the C7/8 distribution.[44] The scan showed left C6/7 paracentral focal disc protrusion with C7 root compression and possible right C7 compression.
[44] Claimant’s bundle, p 15.
An MRI scan of the cervical spine dated 25 November 2018 showed left paraforaminal C6/7 disc protrusion with C7 root compression which had progressed from the
October 2017 study.[45] A further study was performed on 9 December 2018.[46][45] Claimant’s bundle, p 16.
[46] Claimant’s bundle, p 22.
A bone scan and SPECT CT dated 12 December 2018 showed moderately active discovertebral arthritis at C6/7.[47]
[47] Claimant’s bundle, p 24.
A further MRI scan of the cervical spine dated 25 May 2019 showed C6/7 left paracentral and pars foraminal annulus tear and disc protrusion with C7 root compression.[48]
[48] Claimant’s bundle, p 30.
Dr Bentivoglio
Dr Peter Bentivoglio, neurosurgeon, was qualified by the insurer and provided a report dated 14 September 2020.[49] The doctor recorded a history of back pain since 2013 and prior neck and left arm made worse by the accident. The claimant reported that the back pain was not significantly exacerbated by the motor accident.
[49] Insurer’s bundle, p 122.
Dr Bentivoglio noted cervical spine surgery on 12 May 2020. The claimant stated that this relieved the left arm pain, but the neck pain persisted. The doctor opined that the motor accident had exacerbated the neck issues requiring the claimant to undergo neck surgery.[50]
[50] Insurer’s bundle, p 126.
Dr Bentivoglio provided a supplementary report dated 23 February 2021[51] which followed the review of further documentation. The doctor stated that the claimant did not start “complaining about his cervical spine for approximately a year after the motor accident, either to his treating specialist not his GP”.[52]
[51] Insurer’s bundle, p 129.
[52] Insurer’s bundle, p 130.
In light of that history, Dr Bentivoglio opined that the motor accident did not exacerbate the neck condition.
Dr Fearnside
Dr Michael Fearnside, neurosurgeon, was qualified by the claimant and provided a report dated 29 September 2020.[53] The doctor opined that the motor accident aggravated previously symptomatic cervical and lumbar conditions. The history was the low back pain had settled back to pre-injury levels and otherwise assessed at 0%.
[53] Claimant’s bundle, p 37.
Dr Fearnside assessed the cervical spine at 25% based on the fusion with a deduction of 5%. The doctor’s reason for the deduction for pre-existing were:[54]
“Mr Mehmood had a prior symptomatic history of neck and left arm pain and had required treatment including a left C7 nerve root block (see paragraph 3.1)
There was therefore a symptomatic pre-existing history of neck symptoms and an MRI scan of the spine dated 20/10/15 showed a small left paracentral disc protrusion at C6/7. There was therefore a history of symptomatic pre-existing condition. Mr Mehmood would be assessed, prior to the subject accident as DRE Cervicothoracic Category II, 5% WPI.”
SUBMISSIONS
[54] Claimant’s bundle, p 46.
[55] Insurer’s bundle, p 1.
The insurer noted the claimant had a significant pre-existing medical history having injured his back in 2013 and making prior complaints of neck pain. The insurer referred to various documents relating to the back injury including the proceedings brought in the District Court.
The insurer referred to the opinion of Dr Damodaran after the motor accident which did not refer to the motor accident and did not reference symptoms in the neck or shoulders.
The insurer reference Dr Habib’s report dated 6 December 2016 which detailed treatment from 2013 to 2016. It noted that Dr Habib found resolution of radiculopathy following an injection undertaken on 18 March 2016 and he assessed the claimant at 0% for the neck, 5% for the thoracic spine and 7% for the lumbar spine.[56]
[56] Insurer’s bundle, p 3.
The insurer referred to prior psychological evidence such as Mr Neilsen, psychologist and Dr Lewin, psychiatrist who noted complaints of back and neck pain.
The insurer referred to the clinical records of Ingleburn Medical Centre which shows pre-accident mediation which is extensive. It also referred to the pre-accident treating reports of Dr White and Dr McKechnie which reported chronic back pain.
The insurer referred to the opinion expressed by Dr Peter Bentivoglio in reports dated 14 September 2020 and 23 February 2021. Dr Bentivoglio opined that the claimant did not complain of neck pain following the accident to his general practitioner or
Dr Damodaran and opined that the neck only became symptomatic 12 months after the motor accident.The insurer referred to the notes of Ingleburn Medical Centre post-accident which do not reference the motor accident until 14 October 2018.
The insurer referred to the records of Dr Habib post-accident which did refer to neck and left arm symptoms.
The insurer noted the photographs of the motor accident without comment. It also referred to the claimant’s overseas travel from 12 December 2017 returning to Sydney on 22 February 2018.
Insurer’s submissions dated 1 August 2022[57]
[57] Insurer’s bundle, p 10.
These submissions were filed opposing the application to review the medical certificate. It noted that the Medical Assessor was aware of the injection to C7 in 2016 which provided improvement in symptoms.
The insurer submitted that the Medical Assessor was aware of the contemporaneous complaint of neck and left arm symptoms to Dr Habib. It noted that the
September 2017 complaints to Dr Damodaran did not reference the motor accident and the neck. Further, there was a spontaneous worsening of neck symptoms 14 months after the motor accident which the Medical Assessor was entitled to conclude based on a reading of the medical reports. In this regard the Medical Assessor was entitled to have regard to the opinion expressed by Dr Bentivoglio.The insurer submitted that Dr Fearnside’s opinion cannot be safely relied upon “as it is missing a clear timeline of the treatment and attendance upon Dr Damodaran and the various complaints made to Dr Damodaran”.[58]
Insurer’s submissions filed in in portal following further report from Dr Habib
[58] Insurer’s bundle, p 12.
The insurer’s response to the further report is set out in full:
“The insurer notes that a late report from Dr Habib dated 18 November 2022 has been provided. The insurer notes that Dr Habib saw the claimant on the day of the accident and to date he has provided the following evidence:
i. Medical certificate dated 9 November 2017;
ii. Report dated 26 November 2018;
iii. Supplementary report dated 27 November 2018;
iv. Report dated 14 February 2019;
v. Report dated 20 May 2019; and
vi. Various clinical notes.
Dr Habib seeks to comment upon the extent of motor vehicle damage and, however, notwithstanding his long association with the claimant, makes next to no reference to his pre-existing medical status and the involvement of his neurosurgeon, Dr Damodaran.
On page 3 of Dr Habib’s report, he refers to the claimant’s onset of pain following the motor vehicle accident and states as follows:
‘Mr Mehmood has had neck pain from aggravation injury of the neck condition hitherto asymptomatic. Since then he had ongoing neck symptoms with left arm radiation (brachialgia) from left C6/7 disc protrusion since the said MVA. As he was not in any receipt of any help from the insurer he had to undertake some light work and other daily activities as his wife was also injured in the same MVA. He had standard non surgical conservative management initially including the peri-neural nerve block. Because of the failure of the non operative treatment and signs of ongoing pressure on the left C7 nerve root at C6/7 level, decision was made for him to see the neurosurgeon for decompression surgery.’
The insurer notes that in its reply to the whole person impairment dispute the insurer made the point that the claimant consulted Dr Damodaran just 13 days after the motor vehicle accident and the claimant made no reference to the subject accident or any subsequent injury, disability or impairment.
The insurer has asserted that the first reference to a related problem to the motor vehicle accident would seem to have occurred some 14 months after the subject accident.
The insurer would accordingly submit that it there would appear to be no cogent reason for a person who has sustained an injury to not report such a problem to a treating specialist.”
Claimant’s submissions dated 1 July 2022[59]
[59] Claimant’s bundle, p 1.
These submissions were filed seeking a review of the original assessment. The claimant submitted that he underwent an elective C6/7 anterior cervical discectomy and fusion on 12 May 2020. There was no evidence that surgery was warranted prior to the motor accident.
RE-EXAMINATION
Mr Mehmood was examined Medical Assessor Gorman on 8 February 2023. The examination report is as follows:
“a. Who attended the assessment
Mr Mehmood was examined by Assessor David Gorman at the rooms of PIC, Level 8, 1 Oxford St, Sydney on 8 February 2023. He was unaccompanied but a telephone interpreter on speaker phone was used.
History
b. Pre-accident medical history and relevant personal details
Mr Mehmood is a 37-year-old man who migrated from Pakistan 2010. He has worked various jobs as a painter and more recently a traffic controller and an Uber driver.
He states that he was divorced and lives with his sister. He does not have children.
When he first arrived in Australia, he had been working at Woolworths as a packer when he sustained a work-related low back pain in 2013. He also had a cervical spine injury in the gym which was investigated with an MRI, and he states that he got good relief from a nerve block injection at the left C7 level - this was organised by Dr Habib in 2016.c. History of the motor accident
Mr Mehmood was the driver of his car on 6 September 2017 with his wife, sister and her children. He was stationary when his car was hit from the rear. He was wearing a seatbelt at the time. The air bags did not go off. However, his car was damaged and was a write off.
The accident occurred at the front of the treating doctor Dr Habib who consulted him immediately after the accident. Mr Mehmood had widespread pain. He reported his head was thrown forward. He also had pain in the low back as well as left scapula and left arm.d. History of symptoms and treatment following the motor accident
He was referred to a neurosurgeon, Dr Damodaran who he consulted on 19 September 2017. His first consultation was for chronic axial back pain after the work injury. Neck pain was not reported at this consultation – Mr Mehmood did not know why his neck pain was not mentioned but presumed that it was because the consultation was for the low back pain. The panel also notes that there was no interpreter present and that Mr Mehmood has poor English.
Dr Damodaran arranged an MRI which was performed on 24 September 2017. This showed multilevel degenerative disc disease with mild to moderate foraminal narrowing from L3 to S1.
He reported that his neck pain remained severe. An MRI was arranged by Dr Habib and performed on 26 October 2017 – this showed a left C6/7 paracentral disc protrusion with C7 nerve root compression. There was reported to also be possible right C7 nerve root irritation.
His neck continued to be painful but this escalated later in 2018.
He had a consultation with Dr Damadaran on 27 November 2018 for severe cervical pain and a transforaminal injection targeting the C7 nerve root was organised.
An MRI performed on 9 December 2018 demonstrated left paracentral and lateral disc protrusion causing marked left sided exit foraminal stenosis and compression of the exiting C7 nerve root. When compared with the previous study the this study was described as showing a “slight progression of the C6/7 changes”.
On 12 May 2020, Mr Mehmood was admitted to Nepean Hospital with Dr Damodaran did an elective C6/7 anterior cervical discectomy and fusion.
He continued to have low back pain. In 2022 he had a lumbar spinal injection for this.He reported that it took a year to revover. He finally started work 2 weeks before this consultation for 15 hours per week as a painter and decorator.
e. Details of any relevant injuries or conditions sustained since the motor accident
There have not been any relevant injuries or conditions sustained since the motor accident.
f. Current symptoms
At present Mr Mehmood suffers from persistent left sided neck pain which radiates down the left arm and in particular into the left scapula region. He feels that he has weaker grip in the left hand gets occasional pins and needles in the middle and ring fingers on the left.
There is also lower back pain which radiates into both legs to the feet including the soles. This pain is increase with any bending and lifting or walking more than 20 minutes and he gets relief with lying down. He states that he is a poor sleeper due to pain.
He is not bending or lifting at work. He can get dizzy if he exerts himself too much.
He lives with his sister who does the cooking. He helps with shopping.g. Current and proposed treatment
His medication is Celebrex 200 mg to 3 per week or Voltaren or Mobic. He takes Panadol Osteo 1 to 2 per day or Panamax and Lyrica 75 mg when needed. He takes Endep at night help sleep.
Panadeine forte has been discontinued. No physical therapy is being undertaken at presentClinical Examination
h. General presentation
Mr Mehmood is a well looking young man who walked into the rooms with a normal gait and sat comfortably during the interview. He is right-handed. His height is 185 cm and weight was 84 kg.
i. Cervical spine (cervicothoracic)
Over the cervical spine there was a fine scar from the anterior discectomy.
There was a normal contour and on testing range of movement flexion/extension was two thrirds of expected range. Lateral flexion was three quarters normal to the right and only one half normal to the left.
On palpation there was no guarding or tenderness.
On neurological examination of the upper limbs, reflexes were equal bilaterally with no sensory changes noted and normal power. Subjectively he reported the left hand to be weaker but there was no objective loss of power. No muscle wasting was apparent.
Mr Mehmood gets pain and some pins and needles now only intermittently in his left middle and ring fingers.j. Lumbar spine (lumbosacral)
Mr Mehmood walked with a normal gait and was able to walk on his heels and toes and squat normally. On testing range of movement, flexion/extension were three quarters of expected range and side bending three quarters of expected range with no asymmetry.
Straight leg raising lying was 70° bilaterally with no radiating pain except hamstring tightness – this was a negative sciatic nerve root tension sign.
On palpation, there was tenderness over the upper lumbar vertebrae but no guarding in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. There was a full range of movement of the hips and knees.k. Upper extremity
On inspection of the shoulders no muscle wasting was apparent and on palpation there was mild tenderness in the left trapezius muscle but not the glenohumeral joint.
On passive movement no crepitus was detected.
Active movement was measured using a goniometer and repeated three times.
Impingement tests were negative. There was no referral of pain from the cervical spine to the left shoulder with neck movement.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 180° 170° Extension 50° 50° Adduction 50° 50° Abduction 180° 170° Internal Rotation 80° 80° External Rotation 80° 80°
l. Comments on consistency
There were no inconsistencies observed at the time of my examination.
m. Permanent impairment
Lumbar spine
He has ongoing pain in the lumbar spine on a background of pre-existing lumbar spinal pain.
He has a symmetrical reduction in range of motion with no true “non-verifiable radicular” symptoms. His symptoms radiate to the soles of both feet. The panel believes that he has a DRE I impairment giving him 0% WPI.
Cervical spine
He has had a cervical fusion but has no persisting radiculopathy. Paragraph 6.145 on page 96 of the NSW Guidelines 2020 states that “multi-level structural compromise includes spinal fusion”. This assessment and also the assessment of Assessor Moloney did not demonstrate cervical radiculopathy. Without radiculopathy “multi-level structural compromise” is assigned DRE IV. Using Table 72 this indicates a 25% WPI.
He had pre-existing cervical spinal symptoms with radiation to the left upper limb. The Panel assesses him as have a DRE II impairment before the accident giving him a WPI of 5%.
As stated in the NSW Motor Accident Guidelines 2020 paragraph 6.31 page 94, the pre-existing impairment is subtracted from the current impairment.
Therefore, the impairment caused by the accident is 20%.
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident |
| Lumbar spine | Table 72 on page 110 of AMA 4 | Yes | 0% | 0% | 0% |
| Cervical spine | Paragraph 6.145 on page 96 and paragraph 6.31 on page 94 of NSW Guidelines 2020; Table 73 on page 110 of AMA 4 | Yes | 25% | 5% | 20%” |
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
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[60] and Insurance Australia Ltd v Marsh.[61]
[60] [2021] NSWCA 287 at [40], [41] and [45].
[61] [2022] NSWCA 31 at [11], [21], [64].
We adopt the joint examination findings of the Medical Assessors supplemented by the following further reasons.
Lumbar spine injury
There is a chronic pre-accident history of middle and low back pain. We interpret that the claimant was consulting his neurosurgeon shortly after the accident because of his pre-existing lumbar spine condition.
The history recorded by Dr Fearnside in September 2020 is that the lumbar spine symptoms had recovered to the pre-accident level. Given the severity of the pre-accident symptoms and the related treatment, the Panel is satisfied that the exacerbation of the lumbar spine caused by the motor accident was short term.
In these circumstances it is unnecessary to assess permanent impairment as the lumbar spine condition caused by the motor accident has resolved. However, we otherwise note the findings of Medical Assessor Gorman that the lumbar spine is assessed at 0%.
Cervical spine injury
The insurer has referred to the absence of complaint to Dr Damodaran shortly after the motor accident and the deterioration of neck symptoms in late 2018. It submitted that the motor accident was not causative of the cervical spine surgery.
The absence of complaint to other doctors, specifically to Dr Damodaran, cannot logically detract from the immediate complaint of neck symptoms following the motor accident to Dr Habib and the referral by that doctor in October 2017 for an MRI scan of the cervical spine.
Injury to the neck is otherwise mentioned in the claim form dated 14 November 2017 which is relevant to the issue of injury: Bugat v Fox.[62]
[62] [2014] NSWSC 888 (Bugat) at [31]-[32].
The claimant was asked about Dr Damodaran’s absence of neck complaint. We accept that the cervical spine was not mentioned to Dr Damodaran at that time. We do not agree with the insurer’s submission that there is no reason why the neck would not have been mentioned because the claimant was consulting the specialist for his lumbar spine.
The sudden flexion and extension of the cervical spine from the motor accident can worsen the claimant’s pre-existing pathology in the cervical spine. This pathology was susceptible to an aggravation from a rear end collision which would have resulted in a sudden extension and flexion of a diseased neck. In these circumstances it is medically plausible that the motor accident aggravated a susceptible diseased disc.
The findings recorded in the pre and immediate post-accident scan indicate a worsening of pathology. The pathology in the October 2017 scan showed left C7 paracentral focal disc protrusion compromising the left C7 nerve root which is a worsening of pathology from the 2015 scan which is expressed in terms of possible compression. The left C7 perineural steroid injection undertaken in November 2017 is consistent with treatment for the C6/7 disc exacerbated by the motor accident.
The history recorded by Dr Habib on that day of the motor accident of cervical symptoms with recorded left radicular symptoms noted in October 2017 is consistent with aggravation by the motor accident.
The history articulated by Dr Bentivoglio in his second report is wrong and ignores the contemporaneous complaint of pain to Dr Habib, the MRI scan in October 2017 and the C6/7 injection in November 2017. The absence of a proper history in the second report undermines the value of the supplementary opinion. Those errors greatly undercut the value of the supplementary opinion provided by Dr Bentivoglio as it is not based on a fair climate.[63]
[63] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
Based on the circumstances of the motor accident, the contemporaneous complaint of neck pain, the likelihood that this type of accident would aggravate pre-existing pathology and the worsening shown in cervical spine pathology from the pre-accident condition, the Panel is satisfied that the motor accident aggravated the pathology at C6/7 resulting in further cervical symptoms and left sided radicular symptoms.
It is sufficient that the motor accident materially contributed to the need for the spinal fusion. The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[64] That means that there can be other non-related causes for the need for treatment including pre-existing pathology.
[64] [2018] NSWSC 1710 (Phillips) at [29].
We accept that the claimant had ongoing neck problems aggravated and exacerbated by the motor accident that was treated with an injection which probably provided some short-term relief. The pathology aggravated by the motor accident was susceptible to further progressive symptoms which appear to have deteriorated in the latter part of 2018. A decision was then made that the claimant undergo cervical fusion which was intended to treat at least the radicular symptoms.
We are satisfied that the claimant has satisfied the test of causation based on our conclusion that the motor accident aggravated the cervical spine pathology and symptomatology which ultimately led to the surgery.
The Medical Assessor has otherwise explained why the claimant is now assessed for the cervical spine at DRE IV.
Pre-existing injuries causing impairment
We adopt the reasoning in QBE Insurance (Australia) Ltd v Kumar[65] concerning the issue of onus.
[65] [2022] NSWPICMP 66 at [118]-[120].
Clause 1.31 of the Guidelines requires a deduction for “pre-existing impairment” where there is “objective evidence of a pre-existing symptomatic permanent impairment”.
There is obvious pre-existing pathology and a history of radicular symptoms. It is not clear, and we do not accept that the claimant was DRE III immediately prior to the motor accident as we were not referred to and we are otherwise not satisfied that the were two signs of radiculopathy at that time.
We are prepared to accept that the claimant was DRE II prior to the motor accident based on the opinions expressed by Medical Assessor Gorman in his examination report and the opinion expressed by Dr Fearnside.
Permanent impairment
In the present case the claimant has undergone cervical spine fusion which we have found is causatively related to the motor accident. We are satisfied that the impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
CONCLUSION
For these reasons we conclude that the assessment dated 29 July 2022 is revoked. The new certificate is attached at the commencement of these Reasons.
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