Mercimek v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 859
•7 Feb 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Mercimek v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 859 |
CLAIMANT: | Imadettin Mercimek |
INSURER: | Insurance Australia Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); permanent impairment; whole person impairment (WPI); causation; pre-existing condition; cervical spine; lumbar spine; shoulders; knee; medical review of certificate of Medical Assessor (MA) Menogue; the claimant suffered injury in a head-on collision on 30 January 2018; the dispute related to the assessment of WPI under the MAI Act of cervical spine, lumbar spine and both shoulders, right knee and chest wall; MA Menogue certified 0% WPI for cervical spine and lumbar spine; he found lumbar surgery in 2020 and 2012 was not causally related to the accident but due to chronic degenerative spinal disease affecting the discs; he certified injury to right and left shoulders not caused by accident; Held – severe T-bone crash, imaging unhelpful; well-established and chronic pain syndrome and appears very disabled; accident caused soft tissue injury to cervical spine; accident caused persisting aggravation of pre-existing degenerative change in lumbar spine; where no pre-existing complaints relating to either shoulder and contemporaneous complaints following accident claimant sustained right shoulder rotator cuff tear and rotator cuff tendinopathy and subacromial bursitis of the left shoulder; soft tissue injury to right knee (now resolved); injury to chest wall (now resolved); due to presence of dysmetria cervical spine DRE II or 5% WPI; lumbar spine pre-existing WPI of 5%; accident contributed to fusion surgery in 2020; current impairment DRE IV of 20% WPI but after deducting pre-existing impairment the WPI of lumbar spine assessed at 15%; right shoulder assessed by range of motion at 7% WPI; significant increase in range of motion of left shoulder with abnormal posture and marked muscle guarding due to T6 to pelvis fusion in March 2024; not all current loss of range of motion due to recent spinal surgery; Medical Review Panel concluded could not use range of motion to assess impairment so left shoulder assessed by analogy with mild crepitation of the glenohumeral joint at 4% WPI; certificate MA Menogue revoked and WPI assessed at 28%. |
DETERMINATIONS MADE: | 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% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Menogue dated 19 July 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment that is greater than 10% and which is 28%: · cervical spine – soft tissue injury; · lumbar spine – persisting aggravation of the pre-existing degenerative change; · left shoulder – cuff tendinopathy and subacromial bursitis, and · right shoulder – rotator cuff tear. 2. The Panel finds the following injuries were caused by the motor accident but have resolved and do not result in any permanent impairment: · right knee – soft tissue injury, and · chest – injury to the chest wall. |
REVIEW PANEL REASONS FOR DECISION
INTRODUCTION
On 30 January 2018 Mr Imadettin Mercimek (the claimant) was a front seat passenger in a vehicle when another vehicle crossed the centre line causing a head on collision (the accident). The airbags deployed, police and ambulance attended, and Mr Mercimek was taken to Westmead Hospital.
Mr Mercimek was 69 years of age at the date of accident and is now 74 years of age.
Mr Mercimek has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Mercimek under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
Mr Mercimek reported he sustained injury to the cervical spine, the lumbar spine, both shoulders, the right knee and the chest caused by the accident.
This dispute is in relation to whether the degree of permanent impairment sustained by
Mr Mercimek as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment in respect of the claimant’s physical injury was referred to Medical Assessor Menogue. He issued a certificate dated 19 July 2023.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 5 October 2023 requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 1,693 (claimant’s bundle). The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 66 (insurer’s bundle).
In accordance with a Direction made by the Panel on 6 December 2023 the claimant uploaded to the portal the clinical records of Blacktown Family Medical Centre on
7 February 2024 (Blacktown Family Medical Centre).The claimant failed to attend medical examinations scheduled to take place at the medical suites of the Personal Injury Commission (Commission) on 11 March 2024 and on
20 March 2024.The Panel was subsequently informed the claimant was unable to attend those medical examinations where he underwent lower back surgery on 5 March 2024. The Panel directed the claimant to upload to the portal the clinical notes of Norwest Private Hospital on or before 21 June 2024 and directed the claimant on or before 26 August 2024 to advise if the claimant had reached maximum medical improvement.
The file of Norwest Private Hospital was uploaded on 1 July 2024 (Norwest Private Hospital notes).
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“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 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.”
CERTIFICATE OF MEDICAL ASSESSOR MENOGUE
The injuries referred to Medical Assessor Menogue for assessment as to permanent impairment were listed as follows:
· cervical spine – soft tissue injury to the neck;
· lumbar spine – soft tissue injury to the lower area of the back;
· shoulders – injury to both shoulders;
· right knee – injury to right knee, and
· chest – injury to the right side of the chest wall.
Medical Assessor Nigel Menogue issued a certificate dated 19 July 2023. He certified the following injuries were caused by the accident:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury, and
· right knee – soft tissue injury (resolved).
He certified the following injuries were not caused by the accident:
· right shoulder, and
· left shoulder.
In relation to the shoulders Medical Assessor Menogue found there was insufficient evidence to establish a causal relationship between the accident and either shoulder. He acknowledged that ultrasounds of both shoulders were performed in the weeks following the accident but thereafter there was little by way of reference to the shoulders in the GP records or physio documents and no further imaging had been undertaken of either shoulder.
He assessed a 0% whole person impairment (WPI) arising out of the soft tissue injury to the cervical spine and a 0% WPI arising out of the soft tissue injury to the lumbar spine.
He found the claimant had chronic degenerative spinal disease affecting the discs, the facet joints and the sacroiliac joints which had been exacerbated by a combination of his Parkinsons disease and issues related to his chronic renal disease resulting in osteodystrophy.
Medical Assessor Menogue found the lumbar surgery undertaken in 2020 and 2021 was not causally related to the accident.
REVIEW PROCEDURE
Mr Mercimek has sought a review of the medical assessment of Medical Assessor Menogue.
The application was lodged on 22 August 2023 within 28 days of the date on which the Certificate of Medical Assessor Menogue was made available to the parties.[3]
[3] Section 7.26(1)(b) of the MAI Act.
On 20 September 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[4]
[4] Section 7.26 of the MAI Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 6 December 2023 the Panel agreed an examination was necessary. The examination was delayed where the claimant underwent further spinal surgery on 4 March 2024.
THE EVIDENCE
Application for personal injury benefits
In the application dated 23 April 2018 Mr Mercimek listed his injuries as follows:
“Neck, chestwall (mid sternum, right 5th rib) fracture R + L shoulder, low back, R knee, car phobia, Anxiety Nightmares.”[6]
[6] Claimant’s bundle p 13.
In respect of relevant pre-existing conditions Mr Mercimek recorded “low back”.
The Panel notes Mr Mercimek has a past medical history of:
· Parkinson’s disease;
· hypercholesterolaemia;
· hypertension;
· chronic kidney disease, solitary congenital kidney, and
· obstructive sleep apnoea.
Pre-accident treating medical evidence
Pitt Street Medical Centre clinical notes
On 27 July 2004 Dr Quach reported a muscular strain of the neck on the right side.[7]
[7] Claimant’s bundle p 714.
On 26 June 2008 Dr Salama reported persistent back pain, noting a past history of a disc lesion in the back since 1989.
On 2 November 2010 Mr Mercimek was told he had Parkinson’s disease. He also had a history of renal disease.
On 7 May 2013 Dr Salama reported back and leg pain.[8]
[8] Claimant’s bundle p 1,020.
Mr Mercimek saw Dr Andrew Cree, orthopaedic specialist on 28 August 2013 regarding his ongoing back and left lumbar radiculopathy.[9] He reported imaging was suggestive of a left L5 foraminal stenosis. He organised a left L5 foraminal injection, recommended hydrotherapy but thought surgery may be required.
[9] Claimant’s bundle p 1,282.
On 15 October 2013 Dr Kevin Seex, neurosurgeon noted at L2/3 an annular tear with a central disc protrusion causing canal and bilateral lateral recess stenosis.[10] He noted the claimant was not keen on surgery to treat his L3 radiculopathy and suggested a CT guided left L2/3 epidural injection.
[10] Claimant’s bundle p 1,378.
On 13 October 2014 Mr Mercimek saw Dr Brian Hsu, spine surgeon.[11] He noted significant lumbar degenerative disease with loss of lumbar lordosis and significant spinal canal stenosis. On 2 December 2014 he recommended a staged fusion, initially a fusion up to T10 and at six weeks post-surgery if there is significant adjacent level collapse then extend the fusion up to T2.[12]
[11] Claimant’s bundle p 1,609.
[12] Claimant’s bundle p 1,616.
On 20 February 2015 Dr Kam reported severe canal stenosis at the L2/3 level and to a lesser degree at the L1/2 level. He noted bundling of the cauda equina at the L2/3 level and degenerative facet joint disease at the L2/3, L3/4 and L4/5 levels. [13]
[13] Claimant’s bundle p 1,292.
[13] Insurer’s bundle p 1,328.
On 25 March 2015 Mr Mercimek underwent surgery under the care of Dr Kam, namely, L2 laminectomy and rhizolysis.[14] On 8 May 2015 Dr Kam reported Mr Mercimek had done extremely well following the laminectomy.
[14] Claimant’s bundle p 1,541.
On 18 January 2016 Dr Salama referred the claimant back to Dr Kam with pain in his lower back noting he had undergone surgery nine months earlier.[15]
[15] Claimant’s bundle p 1,048.
On 5 February 2016 Dr Kam reported Mr Mercimek had been feeling increasing discomfort involving his lower back.[16] On 16 February 2016 Dr Kam reported a recent MRI showed the presence of a right sided L2/3 synovial cyst arising from the facet joint causing some indentation of the thecal sac but overall, he reported Mr Mercimek felt the surgery had given him significant relief of his leg symptoms.
[16] Claimant’s bundle p 1,292.
On 24 February 2016 Mr Mercimek underwent a CT guided bilateral transforaminal L2/3 epidural injection although on 27 April 2016 Dr Kam reported it had not provided any substantial relief. He recommended an exercise program.[17]
[17] Claimant’s bundle p 1,546.
Post-accident treating medical evidence
Westmead Hospital – discharge summary
Following the accident on 30 January 2018 Mr Mercimek was admitted to Westmead Hospital. He was discharged on 31 January 2018. The discharge summary notes he was a front seat passenger in a head on collision at 40kmph.[18] Airbags were deployed and there were reports of loss of consciousness for seconds to minutes. Mr Mercimek self-extricated and mobilised at the scene complaining of neck pain, central and right chest pain and right upper quadrant pain.
[18] Insurer’s bundle p 20.
On examination there was no seatbelt sign and no abdomen bruising. Upper and lower limbs showed no abnormalities other than a superficial abrasion to the right knee. A CT Pan scan showed pulmonary contusions and CT traumas series demonstrated no acute intracranial pathology. There was no acute cervical spine fracture or dislocation. There were no acute thoracic fractures, and no lumbosacral spine, pelvic or proximal femoral fractures. There was no evidence of acute abdominal injury. A chest X-ray showed minor linear collapse in both lung bases, pulmonary venous congestion and a dilated azygos vein. There was no pneumothorax and no rib fracture seen. A pelvic X-ray showed both hip joints in good alignment, sacroiliac joints and symphysis pubis in good alignment, no fracture but degenerative change in the lower lumbar spine.[19]
[19] Claimant’s bundle p 110.
Pitt Street Medical Centre clinical notes
On 1 February 2018 Dr Salama recorded the claimant’s involvement in the accident. She reported pain and tenderness over the neck and lower back although she noted the claimant’s reflexes were brisk. On 28 May 2018 Dr Balasingham certified Mr Mercimek fit to travel.
On 12 July 2019 Mr Mercimek complained of worsening lower back pain.
Mr Mercimek continued to attend the practice in relation to other health conditions. On
27 February 2020 Dr Salama reported he had been discharged from hospital the preceding day after lumbar spine surgery.On 13 March 2020 Dr Salama reported back and leg pain worse at night and on
20 March 2020 she reported back pain.[20][20] Claimant’s bundle p 658.
City West Medical Centre
On 7 February 2018 Dr Yasnar Oner, general practitioner (GP) obtained a history of the accident. Dr Yasar Oner reported the claimant sustained a neck injury, head injury, an abdominal-chest wall injury, upper-lower back injury and right knee injury.[21]
[21] Insurer’s bundle p 14.
On examination the cervical spine was tender. He noted neck, right shoulder and left shoulder movements were painful and restricted. The chest wall was tender especially on the right side. He also reported the thoracic and lumbar-sacral region were tender. He noted
Mr Mercimek had poor renal function and was unable to take analgesics.On 11 April 2018 Dr Oner reported Mr Mercimek still had neck pain, bilateral shoulder pain, chest wall pain, car phobia, anxiety and nightmares. On 30 April 2018 Dr Oner referred the claimant for a right L4 perineural injection under CT guidance and on 17 May 2018 he referred the claimant to Auburn Physiotherapy.
On 8 August 2018 Dr Vuong GP reported chronic lower back pain and weakness, tenderness of the neck and a limping gait.
On 1 May 2019 Dr Oner reported the claimant still had severe neck pain, bilateral shoulder pain, chest wall pain and back pain. On 16 October 2019 Dr Oner reported Dr Nazha, pain specialist had referred the claimant to Dr Kam.
Blacktown Family Medical Centre
On 13 February 2019 Dr Altan Capa GP reportedly referred the claimant to Dr Kam although there is no record of the clinical consultation.
On 10 January 2022 Dr Capa reported Mr Mercimek had undergone lumbar disc surgery eight weeks earlier and provided him with sleep hygiene advice.
On 10 January 2022 Dr Sunandan Biswas reported Mr Mercimek had depression and anxiety related to his physical illness and his sleep issue.
Dr Raoul Pope, neurosurgeon
Dr Pope reviewed Mr Mercimek on 21 August 2018 and 23 October 2018 in respect of persisting lower back pain.[22] Back movement was reduced to 50% in all directions with tenderness over the lumbosacral junction and the right sacroiliac or L5/S1 joints. Dr Pope considered Mr Mercimek was suffering from facet joint arthritis or sacroiliac disruption from the accident. He stated no surgery was required and recommended review by Dr Nazha.
[22] Insurer’s bundle p 30.
Dr Alan Nazha, pain specialist
On 23 August 2018 Dr Nazha reported long-standing back pain including a L2/3 laminectomy five years earlier.[23] Dr Nazha reported an increase in right sided lower back pain over the last nine months coinciding with the accident. He considered it was likely Mr Mercimek had right-side facetogenic back pain, with the possibility of sacroiliac joint involvement.
[23] Insurer’s bundle p 31.
On 13 November 2018 Dr Nazha noted a significant flare up of pain following radiofrequency ablation/denervation to the right sided lumbosacral facet joints. Dr Nazha concluded it was likely Mr Mercimek had residual pain from sacroiliac joint involvement.
On 26 November 2018 Dr Nazha reported short term pain relief to a CT guided superior right sacroiliac joint injection. On 4 February 2019 Dr Nazha reported no change in pain following a series of platelet rich plasma (PRP) injections. He recommended sacroiliac joint radiofrequency denervation which did not proceed.[24]
[24] Insurer’s bundle p 42.
On 23 April 2019 Dr Nazha reviewed Mr Mercimek and again recommended sacroiliac joint radiofrequency denervation.[25]
[25] Claimant’s bundle p 585.
Beecroft physiotherapy
On 23 October 2018 it was recorded that the claimant had suffering from lower back pain for more than 10 years. He reported hip pain on weight bearing. There was no record of the claimant’s involvement in the accident.
Dr Kam, neurosurgeon
Mr Mercimek returned to see Dr Kam on 6 March 2019 with increasing back and buttock pain over the last 12 months.[26] Dr Kam noted significant degeneration involving the L5/S1 disc space as well as the L2/3 the site of the previous laminectomy. He noted the majority of the symptoms were in the lower lumbar region rather than the upper lumbar or thoracolumbar junction. He suggested surgery, namely an L5-pelvis fusion.
[26] Claimant’s bundle p 1,549.
Mr Mercimek was admitted to Westmead Hospital between 21 February 2020 and
26 February 2020 under Dr Kam. He underwent an L4 to iliac posterior pedicle screw fusion including left approach L4/5 TLIF and left L5/S1 facetectomy on 21 February 2020.[27][27] Claimant’s bundle p 56.
On 19 January 2021 Dr Kam reviewed the claimant.[28] He reported he was struggling with ongoing symptoms in his lower back despite a technically successful operation. He finds it difficult to walk upright and tends to slouch. He reported Mr Mercimek had further degenerative disease at two different levels above the fusion contributing to the kyphotic deformity. Noting Mr Mercimek had significant health issues and required dialysis he cautioned against a further operation and suggested he use a wheelie walker to assist with mobility.
[28] Claimant’s bundle p 1,363.
Lucy Faehmann, physiotherapist
On 1 April 2020 Lucy Faehmann, physiotherapist reported Mr Mercimek had developed neural symptoms secondary to the operation.[29] She reported he presented with decreased left lower limb strength and altered sensation in a L4/5 distribution.
[29] Claimant’s bundle p 1,576.
Dr Hsu, spine surgeon
Dr Hsu reviewed Mr Mercimek on 23 April 2021.[30] Dr Hsu noted the L4 to pelvis fusion was intact but with significant loss of lumbar lordosis and sagittal balance due to proximal degenerative disease, showing lumbar degenerative scoliosis and also loss of height and kyphosis. Dr Hsu recommended further surgery in the form of L1/2 L2/3 L3/4 ATP followed by a revision T10-pelvis stabilisation and fusion.[31]
[30] Claimant’s bundle p 1,618.
[31] Claimant’s bundle p 1,621.
Norwest Private Hospital
On 7 September 2018 Mr Mercimek underwent a right L3-S1 diagnostic medial branch block.[32]
[32] Norwest Private Hospital notes p 451.
On 9 December 2021 Mr Mercimek was admitted under the care of Dr Brian Hsu for acute back pain.[33] The clinical notes suggest Mr Mercimek underwent an L1-L4 fusion on
8 November 2021 and on 15 November 2021 he underwent stage 2, that is a T10 to pelvis stabilisation at Royal North Shore Hospital.[34][33] Norwest Private Hospital notes p 353.
[34] Norwest Private Hospital notes p 369.
Mr Mercimek was admitted to Norwest Private Hospital on 4 March 2024. On 5 March 2024 the claimant underwent a T6 to pelvis fusion under the care of Dr Brian Hsu. He was discharged from hospital on 11 March 2024.
Imaging
Ultrasound left shoulder, 12 February 2018 – findings as follows:
“Findings consistent with the presence of moderate tendinosis of the supraspinatus tendon. There is thickening of the subdeltoid bursa concerning for the presence of bursitis.”[35]
[35] Insurer’s bundle p 45.
Ultrasound right shoulder, 13 February 2018 – findings as follows:
“There are partial thickness tears of the subscapularis and supraspinatus tendons … There is thickening of the subdeltoid bursa concerning for the presence of bursitis.”[36]
[36] Insurer’s bundle p 46.
CT scan lumbar spine, 14 February 2018 – findings as follows:
“Impression: There is no evidence of an acute fracture of any of the lumbar vertebrae. There is mild to moderate degenerative spondylosis of the lumbar spine. There appears to be mild compression of the exiting right L4 nerve root which could potentially be the cause for the … patient’s symptoms. …There also appears to be mild compression of the exiting right L2 nerve root.”
CT scan cervical spine, 23 February 2018 – findings as follows:
“Impression: There is moderate to severe degenerative spondylosis of the mid cervical spine. There is no evidence of a fracture of any of the cervical vertebrae. There is no evidence of an epidural haematoma.”[37]
[37] Insurer’s bundle p 53.
Bone scan with SPECT/CT, 22 February 2018 – the report concludes:
“Recent fracture of the right 5th rib laterally and oblique linear fracture within the mid sternum.
Mild post traumatic inflammation within the right A-C joint.
Moderate focal uptake within the right medical femoral condyle posteriorly is consistent with osteochondritis.
Moderate degenerative disc disease at L2/3 and L5/S1. No vertebral compression fracture.”[38]
[38] Insurer’s bundle p 60.
MRI Lumbar spine, 13 August 2018 – the report concludes:
“Posterocentral annulus tear of L4/5 level with a right far lateral disc protrusion with suspected partial impingement of the exited right L4 nerve root, clinical correlation advised….”[39]
[39] Insurer’s bundle p 56.
MRI Lumbar spine, 17 February 2020 – the report concludes:
“Multilevel lumbar spondylotic changes, as described, similar to the study of 9 February 2016, except at L2/3, where there has been significant reduction in disc space height and extensive likely degenerative endplate oedema at L2/3.”[40]
[40] Insurer’s bundle p 59.
X-ray lumbar spine, 31 March 2020 – the report reads:
“Posterior fusion from L4 to the pelvis is noted. The rods and screws are intact. An interbody device at the L4/5 level is in good position.
A lumbar curvature convex to the left is noted. There is disc height loss at the L1/2 and L2/3 levels. Vertebral endplate sclerosis at the L2/3 level is noted. Slight retrolisthesis at the L1/2 and L2/3 levels is evidence. Previous laminectomy at the L2/3 level is also noted.”[41]
[41] Claimant’s bundle p 1,582.
X-ray lumbosacral spine, 6 July 2020 – the report reads:
“L4/5/S1 and bilateral SIJ fusion noted. Alignment is adequate. Marked reduction of disc height seen at the L2/3 level with endplate sclerosis. Incidental mild degenerative change with chondrocalcinosis in the hip joints.”[42]
[42] Claimant’s bundle p 1,590.
CT Lumbar spine, 3 May 2021 – the report concludes:
“Status post previous laminectomy at L2/L3 and posterior fusion from the level of L4 up to S2 using transpedicular screws and intervening rods.
There is a disc prosthesis present at L4/L5 level.
No complication of the hardware.
At L2/L3, there is 2.3mm retrolisthesis noted. Small posterior disc osteophyte complex. Mild indentation of anterior thecal sac. Mild facet joint OA. No left sided, moderate right sided foraminal stenosis.
At L3/L4, there is mild to moderate sized broadbased disc bulge with associated small posterior central to right paracentral and foraminal disc protrusion. Mild indentation of anterior thecal sac. No significant central canal stenosis. Mild left foraminal stenosis disc is mildly contacting exiting L3 nerve root.
At L5/S1, small posterior disc osteophyte complex. There is moderate right and mild left sided foraminal stenosis seen.” [43]
Medico-legal evidence
[43] Claimant’s bundle p 76.
Professor Michael Shatwell, orthopaedic surgeon
Professor Michael Shatwell assessed the claimant at the request of the insurer and provided a report dated 13 July 2023.
Dr Shatwell noted continuing lower back pain radiating to the buttock region slightly worse on the left side. The surgery performed in 2020 did not provide permanent relief of symptoms.
Dr Shatwell diagnosed chronic degenerative spinal disease affecting the discs, facet joints and ligamentous structures around the spine which have developed over the years exacerbated by morbid obesity and renal osteodystrophy.
Dr Shatwell reported the injury sustained in the accident would have been soft tissue strains or sprains which would have settled within a few weeks or months with pain documented in the GP records relating to the neck, sternum and upper right chest. The bone scan showed abnormalities or likely fracture of the ribs and sternal region that would have gone on to union without persisting pain. Dr Shatwell considered the ongoing chronic pain experienced from July 2018 is the result of increasing osteodystrophy in the spine and degenerative disc disease evident at all levels.
Dr Shatwell considered the need for the fusion was not related in any way to the accident. He concluded the injuries received in the accident would have settled leaving no permanent impairment and the impairment relating to the spinal degenerative disease is not related to the accident in question nor has it been aggravated by it. He concluded the shoulder stiffness is related to inactivity and chronic rotator cuff disease was not caused by the accident. He found there was no permanent aggravation of the grossly degenerative cervical spine and lumbar region caused by the accident.
Dr Shatwell opined that the longstanding musculoskeletal disabilities related to the chronic spinal degenerative disease aggravated by chronic obesity, gout and disease and there was no aggravation of this caused by the accident. In addition, Dr Shatwell considered metabolic consequences of renal impairment have significantly affected the claimant’s spinal integrity.
Dr James Bodel, orthopaedic surgeon
Dr Bodel assessed the claimant and provided a report dated 3 March 2022.[44] Dr Bodel reported continuing neck and right shoulder girdle pain, aggravated by head down posture and overhead use of the right arm. He reported lower back pain and right leg pain aggravated by prolonged sitting or bending, twisting or lifting.
[44] Claimant’s bundle p 39.
Dr Bodel reported Mr Mercimek complained of tenderness in the trapezium muscle at the base of the neck with guarding. He reported a reduced range of neck flexion, extension and rotation in all directions. He noted asymmetry of neck movement and dysmetria.
Dr Bodel reported the following range of movement of the shoulders:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
180°
Extension
30°
50°
Adduction
10°
50°
Abduction
90°
180°
Internal Rotation
50°
90°
External Rotation
50°
90°
He noted impingement in the right shoulder and tenderness over the rotator cuff. He found no restriction of elbow, wrist or hand movement. He noted grip strength was normal. There was no sensory impairment in the upper limbs. Dr Bodel noted the tremor associated with Parkinson’s disease.
Dr Bodel reported tenderness in the lumbosacral region. Straight leg raising is 70º on each side and limited by hamstring tightness. He found no evidence of persisting radiculopathy in either leg. Reflexes were present and equal.
Dr Bodel described diagnosis as difficult, noting the longstanding spinal pathology. Whilst
Mr Mercimek was symptomatic at the time of the accident Dr Bodel concluded the accident had caused increasing pain due to additional injury above the level of the previous surgery prompting the need for further surgery. He concluded the accident caused an increase in symptoms in the thoracolumbar region of the back warranting the need for surgery.Dr Bodel assessed 20% WPI for the lumbar spine, 8% WPI for the right upper extremity; 5% WPI for the cervical spine and 1% WPI for scarring resulting in a 31% WPI.
SUBMISSIONS
Claimant’s submissions
The claimant provided undated submissions in support of the application for medical review.[45]
[45] Claimant’s bundle p 1,683.
The claimant submits had Medical Assessor Menogue properly considered the claimant’s clinical history and the opinions of treating specialists including Dr Hsu and Dr Pope and the medico legal opinion of Dr Bodel the only available finding, in the absence of any pre-accident objective evidence of injury or complaint to the lumbar spine, is that the claimant’s lumbar spine impairments satisfied the DRE IV category assessment criteria post-surgery which, of itself, must result in a finding of greater than 10% WPI.
The claimant submits Medical Assessor Menogue failed to properly consider the claimant’s radicular lower limb complaints and similarly in relation to the cervical spine failed to consider the upper limb complaints.
Insurer’s submissions
The insurer provided undated submissions in response to the application for review filed by the claimant.[46] The insurer submits it was open to Medical Assessor Menogue to conclude:
· that the injury to the lumbar spine was a soft tissue injury given the evidence of Dr Kam’s notes that there was pathology and surgery prior to the accident;
· that the claimant’s chronic degenerative spinal disease had been exacerbated by Parkinson’s disease and chronic renal disease leading to demonstrable osteodystrophy;
· that the claimant had a soft tissue injury without radicular elements or signs of verifiable radiculopathy having regard to the examination noted by Dr Pope in his report, and
· that surgery was not necessary given the opinions of Dr Pope and Dr Nazha.
[46] Insurer’s bundle p 5.
Whilst Medical Assessor Menogue accepted injury to the lumbar spine there was no utility in carrying out the task of calculating pre-existing impairment where he found no impairment arising from the injury occasioned by the accident.
The claimant has not identified post-accident treating records that establish radicular symptoms and if radiculopathy was present, one would have thought a neurosurgeon of
Dr Pope’s expertise would have made the finding.Medical Assessor Menogue did not identify any inconsistency in the claimant’s presentation and said so at paragraph 19.
Medical Assessor Menogue clearly exposed his path of reasoning and accepted causation of a low back injury.
The insurer also provided submissions dated 30 March 2021 in response to the application for assessment of a permanent impairment dispute.[47] The insurer notes the claimant had an extensive history of prior lower back complaints.
[47] Insurer’s bundle p 64.
Following the surgery in May 2015 the improvement did not last as evidenced by the following:
· by early February 2016 Dr Kam reported increasing discomfort affecting the lower back;
· an MRI scan of February 2016 showed various disc changes and bulges at various levels;
· the claimant underwent transforaminal injections into the spine in February 2016 and by that time was complaining of right leg pain, and
· the claimant was encouraged to start an exercise program.
In March 2019 the claimant returned to see Dr Kam but made no mention of increasing back and buttock pain over the past 12 months (since the accident).
Dr Kam’s records make no mention of the accident.
The insurer was not asked to fund the fusion surgery the claimant underwent in February 2020.
Having regard to the contents of Dr Kam’s file the insurer submits there are real questions regarding whether the need for spinal surgery was related to the accident or to the pre-existing lumbar spine complaints.
Beecroft Physiotherapy reported on 23 October 2018 that he had suffered from low back pain for more than 10 years. No record was made of the claimant’s involvement in the accident.
MEDICAL EXAMINATION
Mr Mercimek attended for examination at the Commission medical suites on Wednesday
13 November 2024. He was accompanied by his wife, Saziye Mercimek. Ms Azize Sena Uzun, NAAT CPN80L63G Turkish interpreter was present throughout.At the commencement Medical Assessor Couch confirmed that Mr Mercimek understood the purpose of the examination. As previously noted, he spoke some English, but he said he would prefer to use the Turkish interpreter. In the event, some communication was through the interpreter and at times he answered questions directly. He also made spontaneous comments.
His wife, who is his principal carer and appeared to be intelligent, attentive and who spoke excellent English, was present. Because Mr Mercimek appeared to be very unwell, sitting slumped over in a wheelchair and speaking somewhat indistinctly, Medical Assessor Couch considered it appropriate to obtain some history from his wife.
At the commencement of the interview, Mrs Mercimek commented that her husband was “in so much pain and also paralysed” – as far as I could ascertain, she and her husband seemed to relate this to his recent hospital admission and extensive further spinal surgery by Dr Brian Hsu. The Panel notes records received from Norwest Private Hospital state that
Dr Hsu performed further fusion from T6 to the pelvis on 5 March 2024.Mrs Mercimek stated that her husband had spent about a week in Westmead Hospital and then three weeks in Norwest Hospital. She said he could not feel his leg and was taken to hospital and then had the extended fusion, commenting that “now he can’t do anything”. Medical Assessor Couch obtained the impression that both Mr Mercimek and his wife thought that he was worse rather than better since this further intervention.
Mr Mercimek was asked specifically about low back symptoms prior to the accident in 2018. He replied, “I had an operation and after I was OK – after the accident the pain started again”. Medical Assessor Couch pointed out to Mr Mercimek that in January and February 2016, he had been complaining of more pain, following surgery by Dr Kam nine months earlier. In February 2016 he underwent CT-guided bilateral transforaminal L2/3 epidural injections, but on 27 April 2016, Dr Kam reported they had not provided any substantial relief and recommended an exercise program (see paragraphs 40 to 47 above). When asked about this, Mr Mercimek replied, “It’s been seven years – I can’t remember”. Given his apparently very poor general condition, Medical Assessor Couch considered this was an unsurprising response.
Mr Mercimek and his wife also said that since the most recent surgery by Dr Hsu, he had developed severe pain around the left shoulder blade – Mr Mercimek tried to point to the left shoulder with his right hand to illustrate this.
He had last been reviewed by Dr Hsu two weeks earlier. His wife said they were waiting for further X-rays, “to see what is going on… he is waiting for some medicine from America – going to inject him and wait four days and do x-rays… he can’t enjoy his life anymore”.
Medical Assessor Couch did not consider it would be productive to question Mr Mercimek about the chronology of events and symptoms any further, nearly seven years after the accident.
Current symptoms
When asked what body part was the worse, Mr Mercimek replied, “my shoulder”.
Left shoulder
He said this had come on since the most recent operation and he did not know why it was painful. When asked how much he could move the shoulder, he actively abducted to approximately 50 degrees, crying out with pain. The pain radiates from the shoulder down the left upper limb.
With regard to the right shoulder, he said that it was generally satisfactory. He demonstrated by elevating it spontaneously to about 130 degrees.
Neck
Mr Mercimek described pain in the left side of the neck. He pointed with his right hand to the left-sided neck muscles and medial trapezius. This pain is constant.
Back
Mr Mercimek said that his back was sore as well, but his left shoulder was very bad. When asked about the location of back pain, Mr Mercimek and his wife both said this is now mostly proximally, from about the T10 level upwards and to the left side.
Activities
Mr Mercimek lives with his wife and one single son who operates a restaurant. Their other son who has left home has a separate business. Mrs Mercimek said that a nurse comes in twice a week to perform haemodialysis – the last time had been two days earlier. She described a quite limited home aged care package, supplying only five to six hours per week, which is mainly cleaning. It appeared that the Mrs Mercimek performs all the personal care, including dressing and showering. Mr Mercimek has a colostomy bag and uses a bottle for urination.
Mr Mercimek spends most of the day either lying down (for perhaps four hours a day) or sitting in a chair, and occasionally getting up and shuffling around the house a bit with a walker. He rarely goes out into the yard at all and is apparently unsafe on his feet. If he leaves home, for example for a medical appointment, his wife takes him in a wheelchair. Medical Assessor Couch understood they had travelled from their home in North Parramatta to the Commission rooms by wheelchair taxi. Mr Mercimek sleeps very poorly, he has an electric hospital-type bed and sleeps partially sitting up.
Present treatment
Mr Mercimek continues review with Dr Hsu, his most recent treating spinal surgeon. Apparently, there had been discussion about a further corticosteroid injection or injections.
He continues on twice weekly home dialysis and has an AV shunt in his left forearm for access.
For analgesia Mr Mercimek takes Panadol Osteo, two tablets six hourly, Endone 5 mg in the morning and 5 mg nocte and Amitriptyline 10 mg nocte.
Medical Assessor Couch asked about analgesic patches. Mrs Mercimek showed some Norspan (Buprenorphine) 5 mcg/hour patches, which Mr Mercimek had been instructed to apply weekly. He had apparently only tried two of these and after a day or two complained of “pain in the heart”. He was now avoiding these.
In addition, Mr Mercimek takes Pantoprazole 40 mg daily, Amiodarone 50 mg daily (“for his heart”), Irbesartan 300 mg + Hydrochlorothiazide 12.5 mg daily for hypertension, the direct acting anticoagulant Apixaban 2.5 mg twice daily and Mirtazapine 30 mg at night. For his Parkinson’s disease he takes Stalevo 150/37, 5/200, one tablet four times daily. He also takes vitamin D and magnesium supplements because of his renal failure and dialysis.
Mrs Mercimek said that her husband at times said that he will kill himself and he actually verbalised this out loud more than once during the assessment.
Physical examination
Medical Assessor Couch was initially quite shocked to see Mr Mercimek sitting in a wheelchair in the waiting area. He looked very unwell. He was unshaven and was slumped forward and to the left in his chair. As noted above, he communicated partly through the Turkish interpreter and also at times directly in English. Speech was somewhat slurred and indistinct but audible. He was wearing a loose shirt and sweater which were lifted to examine his back, loose trousers which were left on, and slip-on sandals which were removed for examination of his ankle reflexes. He remained in the wheelchair throughout the assessment. Mrs Mercimek confirmed that he can stand up and shuffle around the house a bit using a walking frame.
To facilitate examination, he was wheeled over close to the examination couch, which was lowered to its lowest extent. Mr Mercimek was encouraged to stand up with the assistance of Medical Assessor Couch and Mrs Mercimek and take a couple of steps towards the couch, but he appeared to be unable/unwilling to do so, becoming quite distressed, tearful and crying out. Examination was therefore completed as far as possible in his wheelchair.
Cervical spine
Posture of the cervical spine was very abnormal, with marked fixed forward flexion of the head and neck and partial turning to the left. On palpation he described general tenderness of the posterior neck and the paraspinal muscles were very tense. Active flexion was full. Extension was not possible beyond neutral. Rotation was nil to the right and half of normal to the left. Lateral flexion to the left was also half of normal, with no lateral flexion possible to the right.
At this point of the assessment, Mr Mercimek said with some feeling, “Some people will want money – I don’t want any of it – I just want my life back”. He became quite tearful adding, “I can’t take it anymore!”.
Upper limbs
The right (dominant side) upper arm measured 31 cm and the left 34 cm, the right forearm 28 cm and the left 30 cm, although this asymmetry was attributed to the arteriovenous shunt in the left forearm for dialysis access. The shunt was visible and palpable, with a palpable thrill, and two recent small dressings from the most recent access two days earlier. The left hand was also markedly swollen.
Biceps and triceps reflexes were normal and symmetrical but neither brachioradialis could be obtained. Light touch sensation was preserved in both hands, although Mr Mercimek described it as less marked in the left hand. Grip strength was reasonable and symmetrical.
Turning to the shoulders, there was no significant tenderness to palpation over either of the glenohumeral joints. However, Mr Mercimek described extreme tenderness over the left scapula and left periscapular muscles. There was no obvious wasting although this was difficult to determine because of his slumped and asymmetric posture.
Active range of movement (AROM) of the shoulders was measured as well as possible –
Mr Mercimek was given very gentle passive guidance as to the movements required, but they were all performed actively to his reasonable limit.Shoulder movements were as tabulated below:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion 110° 50° Extension 30° 10° Adduction 20° 10° Abduction 90° 60° Internal Rotation (at 45° abduction) 70° 70° External Rotation 70° 50°
Mr Mercimek appeared to experience considerable pain on all movements of the left shoulder but localised this to the region of the left scapula rather than the glenohumeral joint.
Thoracic and lumbar spine
Mr Mercimek showed a consistent fairly smooth kyphosis over the length of the thoracic and lumbar spine. There was a 600 mm widened, pigmented, fairly recent surgical scar from approximately T3 down to the pelvis. He reported fairly generalised tenderness over the whole spine, but more so over the left scapular area.
Rotation (which mainly occurs in the thoracic spine) was minimal at about one-quarter of normal bilaterally. No active flexion, extension or lateral flexion was observed in the lumbosacral spine – the whole thoracic and lumbar areas appeared essentially fixed. Because of this, it was not possible to properly assess for any paraspinal muscle spasm or guarding. A colostomy bag was noted in situ.
Lower limbs
Mr Mercimek was unable to climb onto even a very low couch for further examination of the lower limbs. A limited examination was possible in the wheelchair. Knee jerks were absent bilaterally but both ankle jerks were present and approximately symmetrical. He was able to perceive light touch in both feet, although he described it on the left foot as “light”. When sitting in the wheelchair he was just able to lift both knees up slightly (by hip flexion).
Medical Assessor Couch noted that at his examination 15 months earlier, Medical Assessor Menogue commented that Mr Mercimek “was able to stand on tiptoe and heel but did so with a loss of agility and associated overall muscle weakness, which is consistent with his Parkinson’s disease” and was also able to walk “with a typical slow, shuffling gait consistent with Parkinson’s disease” with a stick in his right hand. On this occasion it was obviously impractical to ask Mr Mercimek to walk or try other manoeuvres.
Considering the physical signs of Parkinsonism, there was no visible tremor and no significant rigidity. However, Mr Mercimek was generally immobile, had an impassive facies and had somewhat slurred speech. The glabellar tap sign was positive.
DIAGNOSIS AND CAUSATON
As confirmed by his wife, Mr Mercimek has clearly deteriorated markedly in his overall physical condition and functional level since Medical Assessor Menogue’s examination in July 2023. This made the Panel re-examination of somewhat limited utility.
He appeared to be generally very sick and disabled, with a very poor quality of life. He is clearly relying on extensive help from his wife.
It was noted that Mr Mercimek had apparently undergone the extended spinal fusion previously suggested by Dr Brian Hsu in 2021. As far as could be ascertained from
Mr Mercimek and his wife, he was worse rather than better since this surgery. In particular, he now described a lot of pain around the left scapular region. The cause of this is unclear.In Briggs v IAG Limited trading as NRMA Insurance Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[2] His Honour stated at [70 – 72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71.The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
5. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[2] Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372.
Cervical spine
The Panel noted that the accident in January 2018 was a head-on crash with significant impact and deployment of airbags. The Panel considers that it is common knowledge that a cervical spine “whiplash” injury would be quite likely in such an accident.
He had been placed in a cervical collar by ambulance officers at the scene. At Westmead Hospital, immediately after the crash, Mr Mercimek was complaining of neck pain. Two days after the accident, on 1 February 2018, his GP, Dr Salama, noted pain and tenderness over the neck, and Dr Oner (GP at a different practice), also diagnosed a neck injury one week later. Mr Mercimek underwent a CT scan of the cervical spine on 23 February 2019, and he referenced injury to the neck in the Application for personal injury benefits dated
23 April 2018.The Panel finds Mr Mercimek sustained a soft tissue injury of the cervical spine caused by the accident.
Lumbar spine
There was documentation of a pre-existing symptomatic condition in the lumbar spine. In 2008, Dr Salama recorded a history of persistent back pain, with a history of disc injury in 1989. Prior to the accident Mr Mercimek had consulted Dr Cree orthopaedic spinal surgeon in 2013, Dr Seex neurosurgeon in 2013, Dr Hsu spinal surgeon in 2014, and Dr Andrew Kam, neurosurgeon in 2015 for low back pain.
In 2015, Dr Kam noted severe spinal canal stenosis at L2/3, lesser stenosis at L1/2 and also degenerative facet joint disease at several levels. In March 2015 he performed L2 laminectomy and rhizolysis with reported subsequent good improvement. In January 2016, Dr Salama referred Mr Mercimek back to Dr Kam with ongoing/recurrent low back pain. In February 2016, Dr Kam reported that MRI showed a right-sided L2/3 synovial cyst arising from the facet joint, but considered surgery had still been beneficial. On 24 February 2016, Mr Mercimek had CT-guided, bilateral transforaminal L2/3 epidural injections. On
27 April 2016 Dr Kam said this had not provided significant relief and recommended an exercise program.There is no record of complaint thereafter until 1 February 2018 following the accident.
The Panel notes that the accident on 30 January 2018 was a significant frontal crash, with a potential for injury to other areas of the spine beyond the cervical spine.
The discharge letter from Westmead Hospital did not apparently mention low back pain. However, two days later, on 1 February 2018, Dr Salama recorded pain and tenderness over the lower back as well as the neck. One week later, Dr Oner, a GP at a different medical centre, also recorded upper-lower back injury and tenderness in the thoracic and lumbosacral region.
The claimant referenced injury to the low back in the Application for personal injury benefits dated 23 April 2018.
Based on these contemporaneous records, and noting the absence of complaint between
27 April 2016 and the accident, the Panel finds, whilst not the sole cause, the accident was a contributing cause which was more than negligible to the claimant’s lower back condition.The Panel finds the accident caused a persisting aggravation of the pre-existing degenerative change in the claimant’s lumbar spine.
Shoulders
The Panel notes there is no record of pre-existing complaints relating to either shoulder.
Dr Salama’s notes two days after the accident are relatively concise and mention neck and low back pain but do not mention the shoulders. However, the lengthier notes of Dr Oner at a different practice one week later, on 7 February 2018, mention painful and restricted movements in both shoulders.
One week later, Dr Oner noted that ultrasound showed a partial thickness tear of the supraspinatus and subscapularis on the right and supraspinatus tendinosis and subdeltoid bursitis on the left. Dr Oner recorded bilateral shoulder pain on multiple subsequent visits during 2018. Injury to the right and left shoulder was referenced in the Application for personal injury benefits dated 23 April 2018.
Based on these records, and considering the relative severity of this head-on crash, the Panel accepts that, on the balance of probabilities, injuries were sustained to both shoulders in this accident.
The Panel finds the claimant sustained a right shoulder rotator cuff tear and rotator cuff tendinopathy and subacromial bursitis of the left shoulder caused by the accident.
Right knee
The Panel notes there is no record of pre-existing complaints relating to the right knee.
The clinical notes of Westmead Hospital document a superficial abrasion to the right knee and on 7 February 2018 Dr Oner reported a right knee injury. Injury to the right knee was referenced in the Application for personal injury benefits dated 23 April 2018.
However, the Panel notes Dr Bodel did not obtain any history of injury to the right knee and Medical Assessor Menogue reported nil symptoms pertaining to the right knee. At the time of the re-examination no complaint was made relating to the right knee.
The Panel finds the claimant sustained a soft tissue injury to the right knee, although it has now resolved.
Chest – injury to the right side of the chest wall
The Panel notes there is no record of pre-existing complaints relating to the chest or sternum.
The Panel notes the airbags were deployed in the accident. Westmead Hospital reported central and right chest pain and right upper quadrant pain at the scene, although there was no confirmation of a rib fracture on X-ray. On 7 February 2018 Dr Oner reported an abdominal-chest wall injury and on examination he reported the chest wall was tender on the right side. Mr Mercimek referenced an injury to the chest wall (mid sternum, right 5th rib) in the Application for person injury benefits dated 23 April 2018.
The Panel finds Mr Mercimek sustained an injury to the right side of the chest wall in the accident. However, where there were no continuing symptoms at the time of the re-examination the Panel finds the injury to the chest wall has now resolved.
PERMANENT IMPAIRMENT
Cervical spine
At the re-examination (nearly seven years after the accident), Mr Mercimek was describing pain in the left side of the neck – pointing with his right hand to the left-sided neck muscles and medial trapezius. He said that the pain was constant. On examination, posture was extremely abnormal, with marked fixed forward flexion of the head and neck, and partial turning to the left. There was generalised tenderness over the posterior neck and the paraspinal muscles were very tense. There was marked dysmetria, with full flexion and no extension, rotation half of normal to the left and nil to the right, lateral flexion half of normal to the left and nil to the right. There were however no objective signs of cervical radiculopathy in the upper limbs.
Referring to the Guidelines and the AMA 4 Guides his cervical spine condition would clearly be assigned DRE Cervicothoracic Category II, giving 5% WPI.
Given the length of time that has elapsed since the accident and the very obvious deterioration in his general health, even since the assessment under review in July 2023, and the further very extensive spinal fusion from T6 to the pelvis in 2024, the Panel considered carefully whether the observed physical signs and resulting impairment were related to the accident or not.
Prior to the accident, Dr Quach reported a muscular strain of the neck on the right side in July 2004. Prior to the accident, Mr Mercimek had consulted several surgeons because of low back pain. However, there is no objective evidence of a pre-existing symptomatic permanent impairment in relation to the cervical spine that would lead to a deduction.
GP records document ongoing complaints of neck pain for at least a year after the accident. In March 2022 Dr Bodel obtained a history of ongoing neck pain and on examination he found tenderness in the trapezius muscle at the base of the neck, with guarding and reduced range of motion and dysmetria.
In July 2023, Dr Shatwell mainly addressed Mr Mercimek’s ongoing low back pain. The Panel notes Dr Shatwell apparently did not have access to the ambulance or Westmead Hospital records, although he did note that Dr Salama, recorded pain and tenderness in the neck and low back. At the time of examination, Dr Shatwell obtained a history of low back pain but did not mention the neck. On examination he wrote:
“Mr Mercimek makes cervical spine movements for approximately half the range I would have expected in a man of this age and build. There was discomfort at the extremes of movement.”
He did not describe a full neurological examination of the upper limbs, although he stated there was slightly increased tone in the left upper limb in comparison with the right. He concluded:
“Mr Mercimek has chronic degenerative spinal disease affecting the discs, facet joints and ligamentous structures around the spine which have developed over the years and have been exacerbated by morbid obesity and renal osteodystrophy…any injuries sustained in the motor vehicle accident described would have been soft tissue sprains or strains which should have settled within a few weeks or three months at most, following the accident in question. The main pain documented in the GP’s records relates to the neck, the sternum and the upper right chest.”
Medical Assessor Menogue obtained a history of constant, mid lower cervical ache and on examination stated:
“…the attitude was neutral and normal with no evidence of torticollis…there was no evidence of paracervical muscle guarding or trapezius spasm and there was no region acting as a trigger area. There was an observed fractional loss in range of movement from the expected normal of one-quarter when examining cervical flexion and extension, lateral rotation and lateral flexion and this reduction in movement was symmetrical. There was, therefore, no observed non-union loss of motion detected when assessing the cervical spines today.”
As noted above, there has clearly been a deterioration in Mr Mercimek’s overall health since Medical Assessor Menogue’s examination. One of his main complaints was pain around the left shoulder girdle since the most recent spinal fusion in March 2024. He was complaining of pain mainly on the left side of the neck. Examination showed a very abnormal posture of the cervical spine, with marked forward fixed flexion and partial turning to the left. He was unable to extend beyond neutral or rotate at all to the right. The paraspinal muscles were very tense.
The Panel notes the Guidelines state the evaluation should only consider the impairment as it is at the time of the assessment. The Panel considered that, with a well-documented injury to the neck in a significant frontal crash, and documentation of ongoing neck symptoms the dysmetria found by the Panel on re-examination resulted in an assessment of DRE Cervicothoracic Category II or 5% WPI caused by the accident.
Lumbar spine
Pre-existing impairment
There was documentation of a pre-existing symptomatic condition in the lumbar spine. In 2008, Dr Salama recorded a history of persistent back pain, with a history of disc injury in 1989. Prior to the accident Mr Mercimek had consulted Dr Cree orthopaedic spinal surgeon in 2013, Dr Seex neurosurgeon in 2013, Dr Hsu spinal surgeon in 2014, and Dr Andrew Kam, neurosurgeon in 2015 for low back pain.
In 2015, Dr Kam noted severe spinal canal stenosis at L2/3, lesser stenosis at L1/2 and also degenerative facet joint disease at several levels. In March 2015 he performed L2 laminectomy and rhizolysis with reported subsequent good improvement. In January 2016, Dr Salama referred Mr Mercimek back to Dr Kam with ongoing/recurrent low back pain. In February 2016, Dr Kam reported that MRI showed a right-sided L2/3 synovial cyst arising from the facet joint, but considered surgery had still been beneficial. On 24 February 2016, Mr Mercimek had CT-guided, bilateral transforaminal L2/3 epidural injections. Dr Kam later said this had not provided significant relief and recommended an exercise program.
Mr Mecimek stated in relation to any back symptoms prior to the accident:
“I had an operation - after I was OK – after the accident the pain started again”
However, notwithstanding this response from Mr Mercimek given the history of pre-accident complaint the panel is satisfied there was objective evidence of pre-existing, symptomatic permanent impairment of the lumbar spine at the time of the accident. With previous spinal surgery (without fusion), but in the absence of objective signs of radiculopathy, this would be assessed as DRE Lumbosacral Category II, giving 5% WPI.
Current impairment
Mr Mercimek was referred back to Dr Kam in March 2019, because of worsening low back pain over the past year. Dr Kam went on to perform an L4 to S1 posterior instrumented fusion in February 2020. Following this, according to the Guidelines and the AMA 4 Guides, the lumbosacral spine condition would have been automatically assigned to DRE Lumbosacral Category IV, giving 20% WPI.
Because of persistent symptoms, Dr Hsu performed an L1 to L4 fusion on 8 November 2021 and a second stage procedure, T10 to pelvis fusion, on 15 November 2021. Most recently, on 5 March 2024, Dr Hsu performed a further T6 to pelvis fusion.
Under the Guidelines and the AMA 4 Guides further fusion at the same level does not lead to an increase in assessable impairment. The current lumbosacral impairment therefore remains at 20% WPI.
It follows that the assessable permanent impairment of Mr Mercimek’s lumbar spine has increased from 5% prior to the accident to the current 20% WPI. The main question for the Panel is whether or not there is a causal relationship between any injuries sustained in the accident and this change in impairment, that is, was the need for the initial fusion by Dr Kam in 2020 materially contributed to by the accident.
The Panel notes the long history of lumbar low back pain prior to the accident, and multiple consultations with different spinal surgeons, leading to decompressive surgery by Dr Kam in March 2015. Nine months later his GP, Dr Salama, referred him back to Dr Kam because of recurrent pain and in February 2016, Dr Kam reported that injections had not provided substantial relief. It appears that his usual treating GP prior to the subject accident was
Dr Salama. Between February 2016 and the accident two years later, there are regular attendances because of his various chronic medical problems, but no actual mention of back pain and apparently no prescriptions for analgesics.Subsequent to the accident on 12 July 2018 he saw Dr Salama who reported:
“Lower back pain worsening…”
There are fairly regular attendances at the same practice during 2018 and 2019. On
31 March 2019, Dr Arunendran reported:“Right knee swollen, acute swelling, looks like gout, patient refuses medication…”
The next mention of low back pain is with registered nurse, Kristi Gittany, on 11 March 2019. On 12 March 2019, Dr Salama obtained a history of hip pain and noted that Mr Mercimek was walking with a limp. On 27 February 2020, Dr Salama noted that Mr Mercimek had been discharged from hospital the previous day following lumbar spine surgery.
Dr Oner, GP at City West Medical Centre, obtained a history of persistent back pain as well as neck, shoulder and chest wall pain in May 2019, and in October 2019 Dr Oner noted that Dr Nazha, Pain Specialist, had referred Mr Mercimek back to Dr Kam, his original treating surgeon.
Dr Alan Nazha examined Mr Mercimek on 23 August 2018 and obtained a history of longstanding back pain, with previous surgery by Dr Kam five years earlier. He reported an increase in right-sided lower back pain over the last nine months, coinciding with the accident. He suspected right sided facetogenic back pain with possible sacroiliac joint involvement. In November 2018, Dr Nazha noted a flare up of pain following radiofrequency neurotomy to the right-sided facet joints.
On 23 October 2018 Beecroft Physiotherapy recorded a history of more than 10 years of low back pain but did not mention the accident.
Dr Kam reviewed Mr Mercimek on 6 March 2019 with a history of increasing back and buttock pain over the past year. He noted that the majority of symptoms were from the lower lumbar region, rather than the upper lumbar or thoracolumbar junction, and recommended L5-pelvis fusion.
The Panel considers that it is difficult to determine whether an injury to the lumbar spine in the accident made a material contribution to Mr Mercimek’s need for his first fusion procedure by Dr Kam in February 2020 or not. On the one hand it could be argued he had a history of low back lumbar spine symptoms for many years, with a previous decompression procedure in 2015 and symptoms sufficient for him to be referred back to Dr Kam in 2016. It could be argued that the deterioration leading to the requirement for surgery in 2020 was simply part of the natural history of degenerative lumbar spine disease.
On the other hand, there were few mentions of low back pain between 2016 and the subject accident, despite regular attendances on Dr Salama for his other medical conditions. There was early contemporaneous documentation of low back pain after the accident. In the following two years, up until the time of surgery by Dr Kam, there were more mentions of low back pain than there had been in the two years prior to the accident.
The Panel also notes that although Mr Mercimek continued to consult his longstanding GP, Dr Salama, at the Pitt Street Medical Centre, on a regular basis, both before and after the accident (mainly for his multiple chronic medical conditions), most attendances in relation to injury sustained in the accident were in fact with Dr Oner at City West Medical Centre. Low back pain is mentioned at the first attendance, one week after the accident, and subsequently in February, April (twice), May, July, August (three times) 2018, and January, May, July and October 2019.
On balance, despite the undoubted presence of his longstanding, previous lumbar spine condition, the Panel concludes that his back symptoms became significantly and persistently worse following the accident. Noting the legal test of causation does not require scientific certainty the Panel finds the claimant sustained an injury to the lumbar spine in the accident which materially contributed to (although not being the sole reason for) his first fusion procedure by Dr Kam in 2020. The Panel therefore assesses 15%, after deducting 5% for the pre-existing condition from the current assessable impairment of 20% WPI for the lumbar spine condition caused by the accident.
Shoulders
Records from Pitt Street Medical Centre (usually Dr Salama) from 2003 until the date of the accident do not appear to mention shoulder injuries or symptoms. The Panel is well aware that degenerative rotator cuff disease is extremely common in the general population from middle age onwards. However, it has not seen any objective evidence of a pre-existing, symptomatic permanent impairment in either shoulder, which would allow for a deduction.
The Panel notes that specialist medical treatment since the accident has been mainly directed to his lumbar spine.
Reviewing the previous medicolegal assessments, Dr Shatwell in 2020 stated:
“Mr Mercimek had marked reduction of shoulder girdle movement and could not take off his jacket by himself. He had approximately 45 degrees flexion, 45 degrees abduction, 10 degrees adduction and 20 degrees extension of both shoulders. Internal rotation was approximately 70 degrees on both sides. External rotation was 20% on both sides.”
In March 2022, Dr J Bodel found a much better AROM in the shoulders, with full normal range on the left. On the right he found flexion of 120 degrees, extension 10 degrees, abduction of 90 degrees, adduction of 10 degrees, internal rotation of 50 degrees and external rotation of 50 degrees. The Panel notes that AROM recorded by Dr Bodel is very similar to that recorded by Medical Assessor Couch at the re-examination.
Medical Assessor Menogue, in his assessment under review, found very symmetrical restriction of AROM in both shoulders, similar to the findings of Medical Assessor Couch for the right shoulder.
Noting that the Panel’s recorded AROM for the right shoulder was very similar to that of
Dr Bodel, two and a half years earlier, the Panel considers that its own measured range of movement is a reliable basis for impairment assessment. Applying the tabulated range of movement above to Figures 38, 41 and 44 of the AMA 4 Guides the Panel finds a 12% right upper extremity impairment which converts to 7% WPI.However, at the re-examination there was also very markedly restricted AROM in the left shoulder, much worse than that found by Medical Assessor Menogue. The Panel also notes that at the time of the re-examination, Mr Mercimek’s worst complaint was of pain around the left shoulder, which he, in fact, dated since the extensive spinal fusion undergone in March 2024. He had a very abnormal posture and marked muscle guarding in the left upper proximal paraspinal and shoulder girdle muscles. The Panel considered that the increased restriction in range found at its own examination was not related to the injury sustained in the accident and was probably related to the sequelae of the more recent proximal spinal surgery.
Equally, the Panel decided that it could not attribute all of the current loss of AROM to the recent spinal surgery. In these circumstances, AROM cannot be used to assess impairment. The Panel therefore considered it appropriate to assess by analogy with mild crepitation of the glenohumeral joint. Referring to Tables 18 and 19 of the AMA 4 Guides this gives 3.6% WPI, which rounds up to 4% WPI.
Having regard to the Combined Values Chart at page 322 of the AMA 4 Guides the Panel finds there is a total WPI of 28%.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Menogue dated 19 July 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI that is greater than 10% and which is 28%:
· cervical spine – soft tissue injury;
· lumbar spine – persisting aggravation of the pre-existing degenerative change;
· left shoulder –cuff tendinopathy and subacromial bursitis, and
· right shoulder – rotator cuff tear.
The Panel finds the following injuries were caused by the motor accident but have resolved and do not result in any permanent impairment:
· right knee – soft tissue injury, and
· chest – injury to the chest wall.
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