Miscera v QBE Insurance (Australia) Limited
[2023] NSWPICMP 668
•11 December 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Miscera v QBE Insurance (Australia) Limited [2023] NSWPICMP 668 |
| CLAIMANT: | Giovanni Miscera |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 11 December 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained injury in a rear end collision on 14 August 2015; injuries referred for assessment were the cervical spine, lumbar spine, and scarring; whether L2-5 laminectomy and rhizolysis surgery was reasonable and necessary in the circumstances and whether it relates to the injury; whether lumbar fusion surgery was reasonable and necessary in the circumstances and whether it relates to the injury resulting from the accident; Held – surgery reasonable and necessary in the circumstances but not related to the injury caused by the accident but arose by reason of the pre-existing spinal stenosis and L5 anterolisthesis on S1; claimant sustained an exacerbation of the pre-existing spinal stenosis which now resolved; no permanent impairment of the lumbar spine related to the accident; scarring not related to the injury caused by the accident; claimant had 15% whole person impairment (WPI) due to the pre-accident C3-7 decompression surgery; accident caused exacerbation of the pre-existing cervical spinal stenosis which now resolved; certificate of Assessor Dixon revoked; injuries caused by accident give rise to 0% WPI. |
| DETERMINATIONS MADE: | Review Panel Certificate The Panel revokes the certificate of Medical Assessor Drew Dixon dated 9 June 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 (WPI) of 0% which is not greater than 10%: · cervical spine – exacerbation of underlying cervical spinal stenosis, and · lumbar spine – exacerbation of underlying cervical spinal stenosis. The Panel determined the following injury was not caused by the accident: · Scarring to the cervical and lumbar spine. ASSESSMENT OF TREATMENT AND CARE The Panel revokes the certificate of Medical Assessor Dixon dated 9 June 2023 and issues a new certificate determining that: · the L2-5 laminectomy and bilateral rhizolysis surgery performed on 20 February 2019 was reasonable and necessary in the circumstances; · the L2-5 laminectomy and bilateral rhizolysis surgery performed on 20 February 2019 does not relate to the injury resulting from the motor accident; · the anterior lumbar interbody fusion surgery with disc screws inserted at L5/S1 performed on 10 February 2021 was reasonable and necessary in the circumstances, and · the anterior lumbar interbody fusion surgery with disc screws inserted at L5/S1 performed on 10 February 2021 does not relate to the injury resulting from the motor accident. |
REVIEW PANEL REASONS FOR DECISION
BACKGROUND
On 14 August 2015 Giovanni Miscera (the claimant) was stationary in his motor vehicle waiting to turn right when it was rear ended by another vehicle (the accident). Mr Miscera asserts he sustained injury to the cervical and lumbar spine.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
A further dispute is whether treatment, namely surgery performed on 20 February 2019 and surgery performed on 10 February 2021 relates to injury caused by the accident and whether it was reasonable and necessary in the circumstances. This also constitutes a medical dispute within the meaning of the MAC Act.
RELEVANT LEGAL AUTHORITY
Permanent impairment dispute
Causation of injury is addressed in the Guidelines:
“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.”
In Norrington v QBE Insurance (Australia) Ltd[2] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[2] [2021] NSWSC 548, Norrington.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[3] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[3] [2016] NSWCA 229, McGiffen.
Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[4] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[4] [2021] NSWSC 804, Kinchela.
Treatment dispute
In accordance with s 58(1)(a) and (b) of the MAC Act a medical assessment matter includes a dispute as to “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
In AAI Limited t/as AAMI v Phillips[5] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act.
[5] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
DOCUMENTS BEFORE THE REVIEW PANEL
The Review Panel issued a Direction to the parties on 9 August 2023 which required each party to file an indexed, paginated bundle of documents.
In response to this direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 845 and labelled Insurer’s bundle. The solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 33 and labelled Claimant’s bundle.
MEDICAL ASSESSMENT UNDER REVIEW
Certificate of Medical Assessor Dixon
Medical Assessor Dixon issued a certificate dated 9 June 2023.[6] He certified the following injuries caused by the accident gave rise to a permanent impairment of 19% and is greater than 10%:
· cervical spine – specific injury with muscle guarding and non-verifiable radicular complaints to his cervical spine;
· lumbar spine – aggravated a pre-existing injury of the canal stenosis at the L3/4 level and aggravated a pre-existing spondylolisthesis and foraminal narrowing at the L5/S1 level, and
· scarring to cervical and lumbar spine.
[6] Insurer’s bundle p 10.
Medical Assessor Dixon also certified that the following treatment related to the injury caused by the accident and was reasonable and necessary in the circumstances:
· the L2-5 laminectomy and bilateral rhizolysis surgery performed on 20 February 2019, and
· the anterior lumbar interbody fusion surgery with disc screws inserted at L5/S1 performed on 10 February 2021.
The following injuries were referred to Medical Assessor Dixon for assessment as to whole person impairment (WPI):
· cervical spine – specific injury with muscle guarding and non-verifiable radicular complaints to his cervical spine;
· lumbar spine – aggravated a pre-existing injury of the canal stenosis at the L3/4 level and aggravated a pre-existing spondylolisthesis and foraminal narrowing at the L5/S1 level, and
· scarring to cervical and lumbar spine.
The following treatment disputes were referred to Medical Assessor Dixon for assessment:
· whether the L2-5 laminectomy and bilateral rhizolysis surgery performed on 20 February 2019 is causally related to the injury sustained in the motor accident;
· whether the L2-5 laminectomy and bilateral rhizolysis surgery performed on 20 February 2019 is reasonable and necessary in relation to the injury sustained in the motor accident;
· whether the anterior lumbar interbody fusion surgery with disc screws inserted at L5/S1 performed on 10 February 2021 is causally related to the injury sustained in the motor accident, and
· whether the anterior lumbar interbody fusion surgery with disc screws inserted at L5/S1 performed on 10 February 2021 is reasonable and necessary in relation to the injury sustained in the motor accident.
Medical Assessor Dixon concluded the claimant had had a whiplash injury to his neck and has aggravated cervical facet arthralgia with a background of decompression laminectomy in 2013 with a good result. The found the aggravation was ongoing associated with right shoulder brachalgia with trapezial muscle pain and occipital cervicogenic headaches and radicular complaint with intermittent paraesthesia in his hands.
He also found the claimant had a low back strain injury with aggravation of lumbar spondylosis and L5/S1 spondylolisthesis since the accident which required decompression laminectomy from L2 to L5 and then interbody fusion with segmental fixation at L5/S1.
Medical Assessor Dixon found the aggravations were ongoing and were causally related to the accident.
Medical Assessor Dixon concurred with the assessment of Dr Sheehy as to permanent impairment. He assessed the impairment of the lumbar spine with the lumbar fusion as Diagnosis-related estimates (DRE) IV and deducted one quarter for the pre-existing lumbosacral spondylolisthesis with pars defects resulting in 15% WPI arising out of the accident.
He agreed with Dr Sheehy the assessment for the cervical spine was DRE II or 5% WPI and he deducted one-tenth for the previous cervical spondylosis and decompression laminectomy resulting in a total 5% WPI of the cervical spine.
Medical Assessor Dixon reported the surgical scaring had healed well and did not concern the claimant.
REVIEW PROCEDURE
The insurer filed an application for review of the medical assessment of Medical Assessor Dixon.
On 4 August 2023 the delegate of the President being satisfied 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 referred the medical assessment to the Review Panel (the Panel).[7]
[7] Section 63(2B) of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the 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.[8]
[8] Clause 1.2 of the Guidelines.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[10]
EVIDENCE BEFORE THE PANEL
[10] Section 63(3A) of the MAC Act.
Personal injury claim form
The medical certificate which accompanied the claim form signed by Dr Puglisi on 14 August 2015 reported “cervicothoracolumbar strain” and the clinical findings were reported as “limited neck and back movts. No obvious neurological deficit”.[11]
Photographs of the claimant’s vehicle[12]
[11] Insurer’s bundle p 212.
[12] Insurer’s bundle p 820.
Photographs of the claimant’s BMW vehicle show some damage to the rear offside of the vehicle including the left rear taillight, the bumper bar, the number plate housing and the boot.
Treating medical records
Clinical records of Dr Sam Puglisi
On 23 April 2014 and on 30 April 2014 Dr Puglisi reported Mr Miscera wanted to try some physio for his low back.[13] On 21 May 2014 Dr Puglisi reported low back pain with nervous shock sensation both legs at times. Dr Puglisi prescribed Lyrica. Mr Miscera attended Dr Puglisi regularly in respect of his lower back including on 27 June 2014, 11 July 2014, 8 August 2014, 1 October 2014 when he reported cervical myelopathy, 6 February 2015, 20 February 2015, 6 March 2015, and 24 June 2015 when he reported low back is better with physio.
[13] Insurer’s bundle p 84.
On 14 August 2015 Dr Puglisi reported:
“MVA today 1pm…driver…hit from behind by fast moving car…? 60 km..
c/o neck upper and low back pains since accident…some pins and needles in hands at the moment
Examination:
limited cervical spine movts…esp tender left neck area
lumbar movt restricted also
no obvious neurological deficit
or physio”[14]
[14] Insurer’s bundle p 72.
The clinical notes record further attendances on Dr Puglisi and attendances on Maria Nepomuceno, physiotherapist.
Dr Puglisi provided a report dated 10 March 2016.[15] He stated he had been treating Mr Miscera since 10 December 2010. He reported:
“He has a history of cervical myelopathy requiring C3-7 decompression surgery in 2013. Following this surgery, he had ongoing symptoms of low back pains with bilateral leg muscle pains. These symptoms eventually began to settle by the end of June 2015 and by then was complaining of some mild leg pains requiring no treatment. His neck was asymptomatic at the time of his MVA.
Examination on 14/8/2015 revealed limited cervical spine movements generally with tenderness over his left neck strap muscles posteriorly. Lumbar movements were generally restricted also. There was no obvious neurological deficit in his upper and lower limbs.
His examination findings were consistent with the history of MVA described above. A diagnosis of whiplash injury to his neck and lower back was determined based on the examination findings. …
Just prior to the MVA he was attempting most duties around the house and some work supervisory duties….”
[15] Insurer’s bundle p 800.
On 11 April 2016 Dr Puglisi reported general limitation of lumbar movements especially anterior and lateral flexion but no obvious neurological deficit.[16]
[16] Insurer’s bundle 63.
On 17 February 2017 Dr Puglisi reported the claimant was in too much back pain and needed epidural steroid injection due to his lumbar canal stenosis.[17]
[17] Insurer’s bundle p 56.
On 16 February 2918 Dr Puglisi reported Mr Miscera had had some back injections which had helped (under the care of Dr Dandie).
On 1 March 2019 Dr Puglisi reported Mr Miscera had undergone recent L2-5 laminectomy and his leg pains were feeling better.
Westmead Hospital
Mr Miscera was admitted on 28 March 2013 and underwent C3-C7 decompressive laminectomy and lateral mass fixation under the care of Dr Dandie.[18] The presenting complaint was recorded as:
“… 4 week history of multiple falls due to unsteady gait, neck pain radiating to both arms, progressive bilateral lower limb weakness and upper limb dysesthesia on a background of chronic lower back pain.”
[18] Insurer’s bundle p 194.
Dr Shaun Watson, neurologist
Mr Miscera first saw Dr Shaun Watson, neurologist in respect of nocturnal episodes on 1 November 2013.[19] He commenced Lyrica and on 10 December 2013 Dr Watson reported the nocturnal episodes had ceased and his daytime walking was much improved. On 24 June 2014 Dr Watson reported some problems had crept back. Mr Miscera complained he was very stiff in the legs after sitting for more than half an hour, he was walking for 8 to 10km every morning and was stiff for the first 3km before warming up. On 19 August 2014 Dr Watson reported Mr Miscera still experienced the electricity/shuddering sensation in his left leg which he thought was related to scar tissue within the cervical spine.[20]
[19] Insurer bundle p 362.
[20] Insurer’s bundle p 329.
On 21 July 2015 Dr Watson reviewed Mr Miscera. He reported he remained off all medication and was almost back to his old self. He had no sleeping problems and no problems walking around, just some tightness in the backs of his legs when he first gets up and moves around which he felt came from the lower back/sacroiliac region.[21]
[21] Insurer’s bundle p 334.
Active West Physiotherapy Centre
On 2 June 2014 Active West Physiotherapy Centre reported Mr Miscera had attended five sessions for treatment to his lower back. On examination residual stiffness at levels L3, L4, L5 and both SIJ’s (sacroiliac joint) were present with para-spinal muscle spasm resolving.[22]
[22] Insurer’s bundle p 200.
On 1 December 2017 Dr Bandi, neurosurgical registrar reviewed the claimant and reported as follows:
“… he states that since an accident in July 2016 he has been progressively worsening with bilateral hand numbness and clumsiness in his hands, gait disturbance with radicular pain bilaterally in particular pain involving the left leg travelling down the buttock to the lateral aspect of the leg, to the medial aspect of the foot. The current issue that is causing his greatest difficulty is the bilateral leg pain where his legs give way”.[23]
[23] Insurer’s bundle p 256.
On 4 May 2018 Dr Chatha, neurosurgical registrar reported Mr Miscera had significant pain relief from bilateral L3 and bilateral L5 nerve root injections. Dr Chatha reported following discussion with Dr Dandie:
“We would consider a laminectomy rhizolysis plus he would likely need interbody fusion at L5/S1 level because he has got L5 anterolisthesis on S1.”[24]
[24] Insurer’s bundle p 258.
On 26 July 2018 Dr Seevaratnam, neurosurgical registrar reported on examination Mr Miscera had 5/5 power in his lower limbs, complaining of bilateral L5 radiculopathy pain, left greater than right, but with normal sensation in all his dermatomes. Mr Miscera was offered an L2 to L5 lumbar laminectomy in the next 12 months with the view of an L5/S1 fusion surgery post the lumbar laminectomy.[25]
[25] Insurer’s bundle p 262.
On 5 February 2020 Ragovan Manoharan, neurosurgery advanced trainee reviewed Mr Miscera and reported the presence of right leg pain starting in the back down the back of the right leg consistent with an S1 distribution. He was pain free in the left leg and back pain was not a major component. He reported on the recent MRI scan concluding the likely cause of the claimant’s symptoms was at L5/S1 where he had bilateral pars defects with a grade 1 slip and bilateral foraminal and lateral recess narrowing.[26]
[26] Insurer’s bundle p 609.
On 11 November 2020 Mr Miscera saw Andreas Fahlstroem, neurosurgical spine fellow at Westmead Hospital.[27] He reported initially Mr Miscera responded well to the L2 to L5 laminectomy in February 2019 due to neurogenic claudication. He subsequently developed axial back pain radiating down the right leg consistent with an S1 distribution. Mr Miscera reported his pain had become more intense and his walking abilities were severely affected. He noted the MRI demonstrated L5/S1 bilateral pars defects with a grade 1 slip and bilateral foraminal and lateral recess narrowing. Surgery, namely ALIF (anterior lumbar interbody fusion)at L5/S1 together with percutaneous screws was recommended.
[27] Insurer’s bundle p 606.
On 10 February 2021 Mr Miscera underwent surgery, namely L5/S1 ALIF and percutaneous pedical screw fixation under the care of Dr Dandie at Westmead Hospital.[28]
[28] Insurer’s bundle p 422.
Imaging
The following reports were available for review.
CT cervical spine, 19 January 2013[29]
[29] Insurer’s bundle p 185.
“Multilevel disc space degenerative change. Multilevel canal stenosis most marked at the level of C5/6. Multilevel significantly advanced tight bilateral foraminal stenosis throughout. Multilevel facet osteoarthritis perhaps most marked at the level of C3/4 on the right and C4/5 on the left.”
CT lumbar spine, 12 March 2013[30]
[30] Insurer’s bundle p 193.
“Significant narrowing of the lateral recesses and central spinal canal demonstrated at L1/2, L2/3, L3/4 and L4/5 levels. Severe degenerative changes in the lumbar spine with disc osteophyte protrusions at various levels. Grade 1 anterolisthesis of L5 on S1 with spondylolysis of L5 noted.”
MRI spine, 25 March 2013[31]
[31] Insurer’s bundle p 298
“Findings:
At the cervical region there is a broad based midline posterior disc protrusion at C3-4 with indentation across the anterior theca and mild contact against the midline anterior cord.
At C4-5 there is a broad based posterior disc protrusion with degenerative changes at the facet joints. There is severe degenerative central canal stenosis at this level, with flattening of the cord contour and compete effacement of the surrounding CSF space. There is ill-defined increased STIR signal at the cord at this level, in keeping with degenerative myelopathy with or without an additional contusion component.
At C5-6 there is complete loss of disc height with mild posterior lipping. No posterior disc herniation or significant overall central canal stenosis is seen. There is localised thinning of the cervical cord at this level, with a well defined linear areas of degenerative myelomalacia within the cord on either side the midline. These changes appear longstanding.
At C-7 there is loss of disc height with anterior bony lipping and mild degenerative end-plate signal changes. No central canal stenosis or cord signal abnormality is seen at this level.
At the thoracic region …
At the lumbar region there are degenerative changes at all levels. At L1-2 there is mild central canal narrowing by posterior bulging toward the left with mild to moderate left foraminal narrowing.
At L2-3 there is a broad based posterior disc protrusion with facet joint degenerative change resulting in moderate central canal stenosis with moderate to severe bilateral foraminal narrowing.
At L3-4 there is loss of disc height with posterior disc building and facet joint degenerative change resulting in mild central canal stenosis with severe right and moderate left foraminal narrowing.
At L4-5 there is posterior bulging with advanced facet joint degenerative change resulting in moderate central canal stenosis and severe bilateral foraminal narrowing.
At L5-S1 there is mild (7 m) L5 anterolisthesis due to bilateral L5 pars defects. Severe bilateral foraminal narrowing is shown.
Comment: There are multilevel degenerative changes as described above. Increased cord signal shown at the cervical spine at the level of C4-5 and C5-6. At C5-6 there is cord thinning without central canal stenosis, suggesting a longstanding degenerative myelomalacia. At C4-5 there is ill-defined increased cord signal in association with severe degenerative central canal stenosis. This would be in keeping with degenerative myelomalacia plus or minus an additional contusion component.”
X-ray cervical spine, 4 April 2013
“C3 to C5 laminectomies and posterior fusion from C3 to C7 utilising spinal rods and screws are noted….”
MRI spine, 17 November 2013[32]
[32] Insurer’s bundle p 320
“Conclusion: No residual canal stenosis demonstrated in the cervical spine. Chronic myelomalacia within the cervical cord from C4-C6 noted. There is moderate-/high-grade disc and facet joint degeneration demonstrated within the lumbar spine with the multilevel moderate-/high-grade foraminal stenosis as potential caused of bilateral leg sciatica. Clinical correlation with the distribution of symptoms is essential to assess the clinical significance. Moderate L2/3 canal stenosis also present. Compared to prior MRI from March 2013, the lumbar disc degeneration is similar to prior, without acute disc protrusion/extrusion. Bilateral L5 pars defects with grade 1 anterolisthesis at L5/S1 noted.”
CT lumbosacral spine, 30 June 2014[33]
[33] Insurer’s bundle p 302
“Disc osteophyte complexes at L1/2, L2/3, L3/4 and L4/5. Marked facet joint degenerative changes at L2/3, L3/4 and L4/5. Anterolisthesis of L5 on S1 measuring 8mm with bilateral pars defects. Significant bilateral foraminal stenosis at that level.”
Whole body bone scan, 16 July 2014[34]
[34] Insurer’s bundle p 202
“Facet joint arthritis (moderate) involving L5/S1 bilaterally and L4/5 on the right associated with moderate focal degenerative change at L3 (associated with osteophyte formation) and at L5/S1 anteriorly.”
CT lumbosacral spine, 9 November 2015[35]
[35] Insurer’s bundle p 341
“Conclusion: Significantly marked multilevel disc degenerative changes in lumbar spine. Multilevel canal stenoses, perhaps most marked at the levels of L2/3 and L3/4. Significantly marked multilevel foraminal stenoses. Multilevel facet OA. L5/S1 with spondylolisthesis.”
CT cervical spine, 4 November 2016[36]
“Previous C3 to C6 fusion and laminectomy noted. Minimal anterolisthesis of C6 on C7 noted. Mild to moderate right sided foraminal stenosis with right sided lateral recess stenosis most marked at C4/5 level and bilaterally at C5/6.”
MRI lumbar spine, 28 November 2016[37]
“Conclusion: Extensive multilevel spondylotic change of the lumbar spine. Canal stenosis of L2/3, L3/4, L4/5 level. Bilateral foraminal stenosis of L2/3 level with impingement of L2 nerve root. Right foraminal stenosis of L3/4 level with impingement of right L3 nerve root. Bilateral foraminal stenosis of L4/5 and L5/S1 level with impingement of the L4 and L5 nerve roots.”
MRI lumbosacral spine 22 September 2019[38]
“Conclusion: Posterior laminectomy of L3/4 and L4/5 since previous study. Persistence of bilateral foraminal stenosis of L4/5 level with impingement of the L4 nerve roots as well as narrowing of the exit foramen of L3/4 level with impingement of the right L3 nerve root. Bilateral foraminal stenosis of L5/S1 level with grade 1 spondylolisthesis and bilateral pars defect with impingement of the L5 nerve root.”
Medico legal reports
[36] Insurer’s bundle p 340
[37] Insurer’s bundle p 250
[38] Insurer’s bundle p 290
Dr John Bosanquet, orthopaedic surgeon
Dr Bosanquet assessed the claimant at the request of the insurer and provided a report dated 24 August 2016.[39] He concluded the accident had caused an aggravation of the underlying degenerative changes in the claimant’s cervical and lumbar spine. He concluded the soft tissue aggravation to the cervical and lumbar spine caused by the accident will cease but the underlying degenerative changes will progress and there is a possibility he will require future decompressive surgery to his lumbar spine like the surgery undergone to the cervical spine.
[39] Insurer’s bundle p 255.
Dr Bosanquet reviewed the claimant and provided a report dated 2 March 2022.[40]
[40] Insurer’s bundle p 19.
He reported Mr Miscera saw his general practitioner the day following the accident with neck and back pain. He reported since his earlier report Mr Miscera had developed pain in his left leg. Due to neurogenic claudication, an L2 to L5 laminectomy was performed in February 2019 which gave him good relief of his left pain. Mr Miscera then developed symptoms in his right leg and underwent a further operation in the form of a spinal fusion.
Dr Bosanquet reported the claimant aggravated severe underlying degenerative changes in the cervical and lumbar spine. He viewed photographs of the claimant’s vehicle and concluded it was a minor accident with minimal damage. Dr Bosanquet was of the view the effect from the accident had long since resolved and any complaints of disability were not related to the accident.
D Bosanquet concluded both surgeries to the lumbar spine were reasonable and necessary but unrelated to the accident. He reported the need for surgery recommended by Dr Chatha was the “L5 anterolisthesis on L5/S1 seen in the CT scan” and not the motor accident.
Dr Richard Deveridge, general surgeon
Dr Deveridge assessed the claimant and provided a report dated 16 March 2017.[41] He found as a result of the accident the claimant had sustained a material aggravation and exacerbation of the pre-existent neck condition (advanced degenerative spondylosis, four level spinal fusion and spinal canal stenosis). He noted the ongoing disability was frequent neck pain, stiffness, headaches and non-verifiable radicular complaints referred to the left upper limb.
[41] Insurer’s bundle p 812.
He also found material aggravation and exacerbation of the pre-existent advanced lumbar degenerative spondylosis with spinal canal stenosis and spondylolisthesis. He reported Mr Miscera had ongoing low back pain, stiffness and radicular symptoms in the left lower limb.
Dr Deveridge concluded, on the balance of probabilities, the worsening of the neck and back condition was caused by the accident where the pre-existent changes in his spine left him at increased probability of deterioration with that type of impact. He considered the effects of the aggravation would be ongoing and long-lasting.
Dr John Sheehy, neurosurgeon
Dr Sheehy assessed the claimant and provided a report dated 20 June 2022. He concluded:
“Mr Miscera continues to be symptomatic with regard to an aggravation of his cervical spine. It is of note that he has had previous cervical surgery. He complained of electric sensations radiating into both legs following the motor vehicle accident and has been managed with the decompressive procedure from L2-L5 and subsequently an L5/S1 fusion. In the motor vehicle accident, he aggravated an underlying problem affecting his cervical spine and has aggravated a pre-existing canal stenosis at the L3/L4 level and aggravated a pre-existing spondylolisthesis and foraminal narrowing at the L5/S1 level, requiring surgical intervention in the form of a decompression from L2-L5 and subsequently an L5/S1 fusion.”
Dr Sheehy provided a supplementary report where he provided an assessment of WPI.[42] In respect of the lumbar spine, he assessed 20% WPI based on a category 4 lumbar DRE and allowed a further 2% for ADL’s (activities of daily living). He also assessed a further 2% for the further operation and a further 2% for the surgery at the two additional levels. He concluded the lumbar spine impairment was 26% WPI but deducted 10% for the pre-existing condition resulting in a final lumbar spine impairment of 23% WPI.
[42] Claimant’s bundle p 29.
In respect of the cervical spine Dr Sheehy reported a specific injury with muscle guarding and non-verifiable radicular symptoms satisfying DRE category 2 which equates to a 5% WPI. Noting there had been previous surgery to the cervical spine he concluded it was necessary to deduct 10% resulting in 4% WPI for the cervical spine.
Dr Sheehy assessed a total 26% WPI arising out of the accident.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 9 May 2022 in respect of the permanent impairment dispute.[43]
[43] Insurer’s bundle p 7.
In relation to the treatment dispute the insurer notes Dr Chatha recommended the claimant undergo a laminectomy rhizolysis at L2-5 and an interbody fusion at L5/S1 level because he had L5 anterolisthesis on S1. However, the insurer notes the anterolisthesis L5 on S1 was present when the claimant underwent the CT scan of the lumbosacral spine on 30 June 2014, prior to the accident. Accordingly, the insurer submits the need for surgery in the lumbar spine related to the age related degenerative changes as opposed to acute injury caused by the accident. This is consistent with the opinion of Dr Bosanquet.
The insurer submits, consistent with the opinion of Dr Bosanquet whole person impairment should be assessed at 0%.
The insurer notes the claimant underwent a C3-7 decompression surgery on 19 April 2013 which would be assessed as DRE III or 15% WPI as a minimum prior to the accident.
The insurer notes the CT scan of the lumbar spine of 12 March 2013 showed a Grade 1 anterolisthesis of L5 on S1 with spondylosis of L5, the CT scan of 30 June 2014 showed discogenic disease and multilevel foraminal stenosis with facet joint degenerative changes and anterolisthesis of L5/S1; and the whole body bone scan on 17 July 2014 showed facet joint arthritis involving L5/S1 bilaterally and L4/5 on the right with focal degenerative change at L3 and at L5/S1 anteriorly.
The claimant’s general practitioner reported the claimant was pursuing physiotherapy on 24 June 2015, eight weeks before the accident for his lower back pain.
The insurer submits the lumbar spine would at a minimum be assessed as DRE II or 5% WPI prior to the accident.
The insurer provided submissions dated 3 July 2023 in support of the review application.[44]
[44] Insurer’s bundle p 3.
The insurer submits Medical Assessor Dixon failed to consider the report of Dr Bosanquet whose report provided findings as to the claimant’s prior pathology and functioning relating to the assessment of whole person impairment.
The insurer submits Medical Assessor Dixon failed to engage with the following arguments regarding the pre-existing pathology in the claimant’s cervical and lumbar spine:
· the CT scan of the lumbosacral spine of 30 June 2014 revealed degenerative changes and pathology in the lumbar spine;
· that the need for surgery was due to age related changes as per the findings of Dr Bosanquet where the L2-5 laminectomy and bilateral rhizolysis occurred three and a half years after the accident and the anterior lumbar interbody fusion surgery occurred five years and six months after the accident, and
· Dr Bosanquet found no permanent impairment where the prior C3-7 decompression surgery in 2013 and the lumbar spine pathology and surgeries were due to age related changes.
The insurer also submits Medical Assessor Dixon failed to apply the correct deductions for pre-existing injury. The claimant underwent a C3-7 decompression surgery on 19 April 2013 which the insurer asserts is assessed as DRE III or 15% WPI as a minimum. However, Medical Assessor Dixon assessed the current cervical spine WPI at 5% and only deducted 1% for pre-existing injury.
Claimant’s submissions
The claimant provided submissions dated 18 July 2023.[45]
[45] Claimant’s bundle p 3.
The claimant disputed Medical Assessor Dixon failed to have regard to the evidence as suggested by the insurer where he failed to refer to the report of Dr Bosanquet.
The claimant disputed Medical Assessor Dixon failed to respond to the argument raised by the insurer.
The claimant submits that even if the correct assessment is DRE III of the cervical spine resulting in 15% WPI it would not have a material effect on the outcome of the assessment as the claimant would still have sustained greater than 10% WPI.
The claimant submits the deduction made by Medical Assessor Dixon of 1% WPI for the pre-existing injury to the cervical spine is based on a careful history, a thorough examination and a review of the all the pertinent records and studies.
The claimant provided submissions dated 4 July 2022 in reply to the insurer’s submissions dated 9 May 2022.[46]
[46] Claimant’s bundle p 7.
The claimant submits whilst the CT scan of the lumbosacral spine of 30 June 2014 took place prior to the accident, he did not experience pain in his lower back at the time of the accident and his condition deteriorated significantly after the accident.
The claimant notes in his report of 21 July 2015 Dr Watson reported:
“I saw Giovanni on 21 July 2015. He remains off all medication, is almost back to his old self. He has no sleeping problems and no problems when he is walking about, just some tightness in the backs of his legs when he first gets up and moves around. He feels it comes from the lower back sacroiliac region. He feels the real benefit came from some fairly simple back exercises and also ongoing hydrotherapy; he continues at the Blacktown Aquatic Centre.”
The claimant notes on the date of the accident Dr Puglisi reported “limited cervical spine movements” and “lumbar movements restricted also”. The claimant also relies on the Medical Certificate attached to the Personal Injury Claim Form where Dr Puglisi nominated a back injury and limited back movements as consistent with the circumstances of the accident.
For these reasons the claimant submits the surgeries on 20 February 2019 and 10 February 2021 were reasonable and necessary and that the need for the surgery arose from the accident.
THE MEDICAL EXAMINATION
Mr Miscera was examined by Medical Assessors Moloney and Stubbs at the medical suites of the Commission on 29 November 2023. Barbara Dias Fiegel NAATI CPNZ WHO75 attended as interpreter. Mr Miscera attended unaccompanied and travel to the Commission rooms by Uber.
Pre-accident history
Mr Miscera is 79 years old. He is married with two adult sons who live independently and work in the business he established making pre-packaged pasta and pizza dishes for wholesale supply to restaurants and caterers.
Mr Miscera has had a largely supervisory role in the business for the past decade following cervical spine surgery in 2013 after a fall at work and the onset of cervical myelopathy. This surgery was for cervical stenosis and he reported a good outcome with only a few residual symptoms.
At the time of the accident, he was fully independent in his personal care, supervised the business, relied on his wife to do the housework of their single story three bedroom flat and his sons to assist with any yard maintenance.
History of the accident
The accident occurred on 14 August 2015 when he was driving to his food preparation business in a BMW six series. His vehicle was hit from behind on the drivers-side which caused his car to slew around. He was able to exit from his vehicle and give comfort to the female P plate driver who was very upset. Police and ambulance did not attend the accident. He was able to drive his vehicle to the factory though it was subsequently not deemed to be worth economic repair. It has been since replaced by another vehicle.
Mr Miscera thought he had hit his head on the windscreen but otherwise was initially apparently uninjured. His son took him to Blacktown Hospital and a CT scan was performed. He was referred to Westmead Hospital for further evaluation but allowed home the same day.
Subsequent history and treatment
Mr Miscera attended Dr Puglisi, his regular general practitioner and a course of physical therapy was arranged. Mr Miscera had been seeking treatment from Dr Puglisi for low back pain for around 12 months prior to the accident but considered that his low back pain was settling at the time of the accident.
Further physical therapy was prescribed but his symptoms worsened to the point where he had an injection in the low back with temporary partial improvement. The low back pain and stiffness caused Mr Miscera increasing difficulty in mobilising. He was referred for further specialist opinion to the outpatient neurosurgical department at Westmead Hospital.
Mr Miscera had surgery, which was understood to be a decompressive laminectomy for lumbar spinal stenosis in February 2019 with some initial improvement but later deterioration. This was not helped by an anterior L5/S1 interbody fusion for spondylolisthesis two years later.
Current symptoms
Mr Miscera has an unsteady gait that is prone to stumble. He has been given a walking stick for this but hates to use it. He travelled by uber from his food preparation plant to the Commission. He tries to walk for exercise, but he develops increasing low back and leg pain after about two suburban blocks and has to sit to ease his leg symptoms. Prolonged sitting tends to make his back stiffness worse. He believes his neck is worse since the accident in terms of stiffness and occipital headaches. He thought his back was much worse following the accident.
However, he is still actively involved in the family business in a supervisory fashion, can travel limited distances independently, drive and can carry out his own personal care.
Clinical examination
Mr Miscera has an engaging energetic manner. He walks quite slowly, really, he shuffles. He cannot tip toe walk or heel toe walk, he cannot hop. He can attempt single leg stands but is heavily reliant on the examiner steadying him. He stands 156cm high and weighs 65kg. He has a stooped posture with a flattened lumbar lordosis. He was able to dress and undress himself, get on and off the examination couch without assistance and performed a partial sit up without assistance.
Cervical spine
His natural posture is a nearly full extension due to the lack of lumbar lordosis and a moderate degree of age related thoracic kyphosis. From the neutral position he shows one quarter range of motion in flexion. Side bending and rotation are symmetrical right and left but equally restricted at one quarter range. There is local tenderness but no spasm or guarding. There is a posterior scar consisted with a prior laminectomy.
Upper limb reflexes are symmetrical but depressed. Grip strength in all the other upper limb muscles are 5/5. There is reduced sensation on the left but with no specific anatomical distribution. Tone in the upper limbs is normal. Girth of the upper limbs is 29cm right and 28cm left in the arm and 24cm in both forearms. Compression/distraction and nerve root tension signs are negative. Tone is normal. He has no problems doing and undoing buttons.
In the upper limbs shoulder flexion is 160° right equals left, abduction 140° right equals left, external and internal rotation of full extension is 40° on both sides. Mr Miscera has some minor bony thickening about his metacarpophalangeal and interphalangeal joints consistent with osteoarthritis and a very good range of elbow wrist and hand movement. There is no residual upper limb injury.
The Panel concluded there were no upper motor neuron signs in the upper limbs. He has had a good outcome from his surgery and there appears to be no progression of the previous cervical myelopathy.
Lumbar spine
The low back is stiff and lacks functional extension. Flexion brings his fingertips to mid-thighs and side bending brings his fingertips to the joint level. Rotation is by far his best movement at 4/5 of normal.
There is an 8cm posterior scar consistent with a multilevel decompressive laminectomy which is somewhat spread with suture marks and is pale. The scar from the anterior fusion of the lumbar spine seen on the left side of the lower abdomen is almost undetectable.
There are no sensory disturbances in the lower limbs. Straight leg raising is 90° on the right, 80° on the left with calf tightness only on ankle dorsi flexion. The knee and ankle jerks are mildly brisk with up going toes on Babinski’s testing on both sides. Girth of the thighs is 38cm right equals left and the calves 33cm on the right and 32cm on the left.
In the lower limbs there is excellent flexion in the hips, the knees and the ankles and good stability in all the lower limb joints. On formal testing motor strength was 5/5 in all groups. Mr Miscera’s problem is balance and not strength. There is no residual lower limb injury.
There are signs of a minormotor neurone lesion equally in both lower limbs consistent with a diagnosis of lumbar spinal stenosis. Mr Miscera notes a decline in sexual functioning following the first of the two lumbar operations. He has some persistent problems with proprioception and the use of a stick for balance is encouraged. Overall, though this is a good outcome.
CONSISTENCY.
The panel found Mr Miscera to be straight forward and consistent in his history and fully cooperative in the clinical examination.
IMAGING STUDIES
At the request of the Panel Mr Miscera collected imaging studies on five CD-ROMs which he made available for review by Medical Assessors Stubbs.
A CT scan of the lumbar and cervical spine dated 12 March 2013 of PAC Blacktown was read by Medical Assessor Stubbs with Radiant. The views show degenerative scoliosis in the lumbar spine where L3 and L4 have almost completely lost disc space. The bridging osteophyte noted 10 years later is not yet fully complete. The anteroposterior distance of the spinal canal is less than 10 mm. There is degenerative spondylolisthesis occurring at L5/S1, multiple level disc space narrowing and vacuum phenomenon. The cervical spine imaging was not readable on this disc. Medical Assessor Stubbs noted the presence of well-established degenerative lumbar spinal canal stenosis.
An MRI scan of the lumbar spine of Blacktown Hospital dated 28 November 2016 was read with DICOM and included sagittal views. Medical Assessor Stubbs noted there was multilevel disc degeneration. Intervertebral canal stenosis seemed most pronounced at L2-3 but severe all levels. There was a bridging osteophyte L3/4. All discs were dark, all vertebral end plates were regular and there was a mixture of Modic type 2 to 3 changes in the vertebrae. Transfers views show multiple level fatty atrophy in the musculature, gross spinal canal stenosis and multilevel outlets stenosis. The principal cause is hypertrophy in the facet joints. Canal stenosis was most pronounced in the mid lumbar region. In the upper lumbar region, the spinal nerve roots are all linked together with almost no room for spinal fluid.
Blacktown and Mount Druitt Hospital imaging application – no DICOM files extractable. This folder is labelled MRIs of the lumbar spine on 23 March 2013, 17 November 2013, CT scan 4 November 2016 an MRI the lumbar spine 22 September 2019.
A CT scan 9 November 2015 of Western imaging was viewed by Medical Assessor Stubbs. Transverse images showed gross spinal canal stenosis. Useful 3D reconstructions confirmed the presence of multiple osteophyte formation, bridging osteophytes fusing effectively L3/4 principally to the right-hand side and a degenerative spondylolisthesis at L5/S1 with reaction. Disc space was grossly narrow. There was obvious progress noted between the CT scan of 2013 and these studies.
A CT scan of the lumbar spine of Westmead Hospital dated 11 February 2021 was read using DICOM viewer. The Scout lateral projection showed an extensive posterior laminectomy and anterior interbody fusion between S1 and L5 with a supplementary posterior fusion at the same level. AP views showed extensive disorganisation of the lumbar vertebrae with loss of intervertebral disc height, large osteophyte formation about the vertebral bodies and extensive decompression from S1 through to L2. The posterior opponent of the L5/S1 fusion is marked by a lot of hypertrophic bone formation may not be fully secure though the anterior part of the interbody fusion looks sound. In the lateral views there is considerable reduction in the distance between the posterior vertebral bodies in the anterior components of the posterior structures. The spontaneous bridging osteophyte is seen at L3/4.
After reviewed the imaging the Panel finds Mr Miscera has both cervical and spinal stenosis. There is scoliosis present which may be one of the contributors to spinal stenosis, but the principal features are of a degenerative pattern progressing over the series of images over time.
DIAGNOSIS AND CAUSATION
Mr Miscera feels that the accident is the cause of the subsequent spinal surgery. His history, however, reveals that he had significant low back symptoms before the index accident. Mr Miscera sought physiotherapy when he consulted Dr Puglisi in April 2014, he was prescribed Lyrica for low back pain with nervous shock sensation on 21 May 2014 and he consulted Dr Puglisi on 6 February 2015, 20 February 2015, 6 March 2015 and 24 June 2015 in respect of low back complaints.
The radiology studies show spinal stenosis was already very well developed in 2013. On 4 May 2018 Dr Chatha recommended the L2-5 laminectomy due to the presence of the L5 anterolistheses on S1 which was first reported when Mr Miscera underwent a CT scan on 12 March 2013, well before the accident. The CT scan of 30 June 2014 showed discogenic disease and multilevel foramina stenosis with facet joint degenerative changes and anterolisthesis of L5/S1; and the whole body bone scan on 17 July 2014 showed facet joint arthritis involving L5/S1 bilaterally and L4/5 on the right with focal degenerative change at L3 and at L5/S1 anteriorly.
The symptoms of spinal stenosis and the accompanying neurological changes often wax and wane over short periods of time, but the overall course is one of relentless progression. The Panel finds the accident did not contribute to the subsequent surgery. The Panel finds given the pattern of deterioration demonstrated by the imaging on and after 2013 if the accident had not occurred the claimant would have required surgery in any event and over the same timescale.
Whilst Dr Watson reported the claimant remained off all medication and was almost back to his old self on 21 July 2015, the Panel notes the natural history of spinal stenosis is of intermittent variation in symptoms and whilst the course of the disease is relentlessly progressive there are periods of reduced symptoms, although these become shorter and less complete.
The Panel notes in medical terms an aggravation means a permanent deterioration in a condition whilst an exacerbation means a temporary increase that reverts to the pre-exacerbation state. The Panel concurs, in part, with the opinion of Dr Bosanquet but does not adopt his terminology. The Panel finds the accident caused the claimant to sustain a soft tissue exacerbation of his underlying cervical spinal stenosis and lumbar spinal stenosis. The soft tissue exacerbation to the cervical and lumbar spine ceased whilst the progression of the underlying spinal stenosis led to the claimant undergoing a laminectomy rhizolysis at L2-5 and subsequently an interbody fusion at L5/S1.
TREATMENT DISPUTE
L2-5 laminectomy and bilateral rhizolysis surgery and interbody fusion
The Panel finds the L2-5 laminectomy and rhizolysis surgery on 20 February 2019 and the interbody fusion at L5/S1 on 10 February 2021 was reasonable and necessary in the circumstances having regard to the progress of the underlying spinal stenosis and the pre-existing L5 anterolisthesis on S1.
The Panel finds the L2-5 laminectomy and rhizolysis surgery on 20 February 2019 and the interbody fusion at L5/S1 on 10 February 2021 was not related to the injury caused by the accident but arose by reason of the pre-existing spinal stenosis and L5 anterolisthesis on S1 as discussed above.
PERMANENT IMPAIRMENT
Cervical spine
In evaluating permanent impairment, it is necessary, in accordance with cl 6.31 of the Guidelines, to have regard to the presence of an impairment in the same region that existed before the accident. Mr Miscera underwent C3-7 decompression surgery on 19 April 2013 which would be assessed as DRE Category III or 15% WPI.
The Panel concluded there were no upper motor neuron signs in the upper limbs. Mr Miscera has had a good outcome from his surgery and there appears to be no progression of the previous cervical myelopathy.
The Panel has found the claimant sustained an exacerbation of the pre-existing cervical spinal stenosis which has now resolved. Any ongoing symptoms are caused by the underlying spinal stenosis. The assessment of 15% WPI relates to the pre-existing condition and where the exacerbation has resolved there is no permanent impairment related to the accident.
Lumbar spine
The Panel has found the lumbar surgery was not related to the injury caused by the accident.
The Panel has found the claimant sustained an exacerbation of the pre-existing lumbar spinal stenosis which has now resolved.
Where the exacerbation has resolved there is no permanent impairment of the lumbar spine related to the accident.
Where the Panel has determined that the lumbar surgery was not related to the injury caused by the accident any scarring is not related to the injury caused by the accident and has not resulted in any whole person impairment.
CONCLUSION
The Panel revokes the Certificate of Medical Assessor Drew Dixon dated 9 June 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI of 0% which is not greater than 10%:
· cervical spine – exacerbation of underlying cervical spinal stenosis, and
· lumbar spine – exacerbation of underlying cervical spinal stenosis.
The Panel determined the following injury was not caused by the accident:
· scarring to the cervical and lumbar spine.
In relation to the treatment dispute the Panel revokes the certificate of Medical Assessor Dixon dated 9 June 2023 and issues a new certificate determining that:
· the L2-5 laminectomy and bilateral rhizolysis surgery performed on 20 February 2019 was reasonable and necessary in the circumstances;
· the L2-5 laminectomy and bilateral rhizolysis surgery performed on 20 February 2019 does not relate to the injury resulting from the motor accident;
· the anterior lumbar interbody fusion surgery with disc screws inserted at L5/S1 performed on 10 February 2021 was reasonable and necessary in the circumstances, and
· the anterior lumbar interbody fusion surgery with disc screws inserted at L5/S1 performed on 10 February 2021 does not relate to the injury resulting from the motor accident.
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