Nasr v AAI Limited t/as AAMI
[2023] NSWPICMP 224
•24 May 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Nasr v AAI Limited t/as AAMI [2023] NSWPICMP 224 |
| CLAIMANT: | Tony Nasr |
INSURER: | AAI Limited trading as AAMI |
| REVIEW Panel | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| DATE OF DECISION: | 24 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Assem of 12 July 2022; MA had found that an annular tear L4/5 in the lumbar spine was a minor (now threshold) injury; claimant injured on 27 June 2020; claimant had MRI scan on 5 January 2021 detecting an annular tear at the L4/5 level; the MA found that the claimant’s pathology was not trauma related, was inconsistent with a significant accident and was minor in nature; claimant did not report complaint of his injuries until three months post-accident; claimant had provided a statement that if he took time off work because of pain arising from accident related injuries then he would lose his job; claimant had provided evidence that he was highly motivated to continue working due to financial constraints; the Panel accepted that the claimant could have continued working as a plant operator without complaint to his employer or doctor given his financial imperative; the insurer submitted that the claimant’s annular tear was degenerative in nature and not causally related to the accident; the Panel accepted that the annular tear was causally related to the accident and therefore a non-threshold injury; the claimant’s pathology was below the L4/5 level and was an acute change and not degenerative in nature; Held – Medical Assessment Certificate of MA Assem revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the certificate of Medical Assessor Assem of 12 July 2022. 2. The Panel determines that the claimant suffered the following injury; (a) Lumbar spine – Annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root and descending left L5 nerve root, which is a non-threshold injury (b) Left L5 radiculopathy of the lumbar spine |
STATEMENT OF REASONS
BACKGROUND
This is a review of a certificate of Medical Assessor Assem (the Medical Assessor) dated 12 July 2022.
The following injuries were referred by Personal Injury Commission for assessment:
(a) Lumbar spine – Annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root and descending left L5 nerve root for assessment of whether it is a minor injury.
The Medical Assessor found;
“All the injuries referred to me for assessment have been assessed and determined not caused by the motor accident.
A decision as to whether these injuries are a minor injury is not required for the purposes of the Act.” (the Motor Accident Injuries Act)
The accident
On 27 June 2020, Mr Nasr was the sole occupant of a 2007 model Toyota Hilux vehicle travelling along MacArthur Road, Guildford. As he was passing a double parked vehicle, it suddenly drove in his path causing him to collide into the driver’s side of the offending vehicle. After impact, his vehicle was pushed to the other side of the road colliding into two parked cars.
The claimant reported to the Medical Assessor that he believed his body was thrown from side to side. He was wearing a seat belt restraint. The airbag facility was not deployed. The police and ambulance did not attend the scene. His vehicle was drivable but later written off for insurance purposes.
Issues for determination
The claimant seeks a decision by way of PIC Review Panel Assessment that the injuries sustained in the motor accident are not minor injuries.
The Panel must determine whether the injury;
(a) Lumbar spine – Annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root and descending left L5 nerve root,
Is a minor injury.
The claimant’s submissions
The injuries sustained in the motor accident are not minor injuries.
The claimant notes that he underwent an MRI investigation of his lumbar spine on 5 January 2021 which detected that he had sustained an annular tear at the L4/5 level as well as a left disc protrusion with contact on the exiting left L4 nerve root and descending to the left L5 nerve root.
The claimant submits that his treating orthopaedic surgeon, Dr Gurigis, confirmed in his report dated 23 March 2021 that the diagnosis of the claimant’s injuries was:
“An injury to the L4-5 intervertebral disc in the form of a left centro- oblique posterior annular tear associated with a shallow posterior and to the left disc protrusion extending backwards to indent into the anteriolateral surface of the thecal sac and into the left nerve root exit tunnel and contact with the exiting left L4 nerve root and also the descending left L5 nerve root.”
The claimant says that the Medical Assessor reached the conclusion that:
“Had the subject accident caused an L4/5 lumbar disc displacement associated with an annular (sic) contacting the left L4 nerve root, it is highly unlikely that he would have been able to work over the next few days. The fact that he was performing heavy manual work for more than three months would prevent any reasonable relationship to be established between the alleged injury to his lumbar spine in June 2020 and the reporting of his back symptoms in October 2020”.
The claimant submits that the Medical Assessor’s finding that the pathology was not trauma related was inconsistent with the fact that the motor accident was “significant” and “not minor in nature” – noting the fact that the claimant’s vehicle was “pushed across the road into two parked vehicles”
The claimant submitted that Mr Nasr is a plant operator. He is not a heavy manual labourer. The claimant says that when the accident occurred, he hoped that it was a muscular strain that would subside within 6 weeks or so. When the pain did not subside but got worse at three months post-accident then he consulted doctors for appropriate treatment.
The claimant says that the Medical Assessor has made an assumption with no material facts or contemporaneous evidence from clinical notes or other evidence that the claimant suffered the injury due to his employment rather than this significant car accident. It is submitted that the accident was not minor in nature, the claimant was pushed across the road into two parked vehicles.
The claimant submits that the following comments in the Medical Assessors Certificate represent a material error:
“I have reached the conclusion that if he did sustain a musculoligamentous strain or soft tissue injury to the lumbar spine in the subject motor vehicle accident, his symptoms would have subsided within a few days and not interfered with his work activities. Had the subject accident caused an L4/5 lumbar disc displacement associated with an annular contacting the left L4 nerve root, it is highly unlikely that he would have been able to work over the next few days. The fact that he was performing heavy manual work for more than three months would prevent any reasonable relationship to be established between the alleged injury to his lumbar spine in June 2020 and the reporting of his back symptoms in October 2020.”
The claimant submits that the above contention is contradictory, and Mr Nasr has proven that he has been able to work pre and post-accident in his employment as a machine operator. Therefore, it does not make sense to assert that the claimant would not have been able to work post-accident with this injury when he has demonstrated that he is in fact able to do. He takes frequent rest breaks and avoids the labouring duties. The claimant provided a statement in support of this and which was annexed to the application.
The claimant submits that as noted in the referral of the claimant’s general practitioner, Dr Hanna, dated 19 January 2021, he suggested that the claimant was suffering from radiculopathy wherein he commented “injured back sciatica left.”
The claimant submits that he reported experiencing tingling and pain down the inner left thigh, across his left hip and buttocks. The CT scan dated 2 October 2020 occurred and referenced in the clinical notes that the reason for the referral was that the claimant had “left sciatica” and the MRI investigation clinical notes stated “left-sided pain radiating to buttock.”
The claimant submits that he has also been referred for electrophysiological studies for the left lower limb by Dr Guirgis which indicated that the claimant was suffering from radiculopathy, enough so that it warrants further investigations to be performed, as a result of the L4 and L5 left sided nerve contact.
The claimant submits that due to the evidence of an annular tear at the L4/5 level as well as a left disc protrusion with contact on the exiting left L4 nerve root and descending to the left L5 nerve root, the claimant is clearly suffering from a non-minor injury.
The claimant submits that the ligament tear injury to the lumbar spine is a non-minor injury in accordance with section 1.6(2) which states a minor injury is, “not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.” (claimant’s emphasis).
The insurers submissions
The claimant first consulted with his GP regarding an alleged Back injury in relation to a motor vehicle accident on 12 January 2021 – some 7 months post the date of the subject accident.
The claimant’s GP diagnosed him with a back injury (insurers emphasis).
A CT scan of the lumbar spine was undertaken on 2 October 2020 which identified mild spondylotic changes, no definitive neural impingement. It was additionally noted that there was no cause for the patient’s left sciatica demonstrated (insurers emphasis).
In January 2021, an MRI scan of the lumbar spine was undertaken which showed a slight reduction of disc height and hydration at L3/4 level. At the L4/5 level there was a reduction of disc height and hydration with a shallow posterior disc displacement but no central canal stenosis. There was a left lateral annular rent extended into the left neural exit foramen with likely contact to the exiting left L4 nerve root and descending left L5 nerve root reported. The insurer submits that the findings on the MRI scan suggest the presence of degenerative changes in light of the reduction of disc height and dehydration at the L3/4 level (the disc above the protrusion) – clear degenerative features.
Following the MRI scan the claimant was referred to an Orthopaedic Surgeon, Dr Guirgis. He noted the claimant provided a history of a motor vehicle accident on 1 September 2020 (sic) and sustained injuries to his neck, shoulders, and lower back. The insurer submits however the injuries and motor vehicle accident date are inconsistent with what the claimant submitted in his application for personal injury benefits in February 2021.
The insurer noted that the diagnosis of injury provided by Mr Dong, physiotherapist is of an acute back strain with disc pathology and recurrent pain in the Cervical and Thoracic Spine (whiplash injury) The insurer says that is not correct as he refers to an acute strain sustained to his back and neck due to the motor vehicle accident of 26 June 2020.
The insurer noted the temporal delay of submitting a compulsory third-party (CTP) claim, reporting the symptomology and the reference to an “acute back strain” by the claimant’s physiotherapist, when in actual fact, the subject motor vehicle accident was June 2020.
The insurer says that should the Panel accept that the lumbar spine symptomology is causally related, then the insurer submits the claimant’s lumbar spine injury is of soft tissue in nature, on the background of the mechanism of injury, and therefore a ‘minor’ injury.
The insurer submits there is no available medical evidence that demonstrates the claimant’s lumbar spine injury satisfies the criteria set out in Part 5.8 of the Motor Accident Guidelines 2021 (“the Guidelines”) that being, the presence of genuine radiculopathy pertaining to a specific lumbar spinal nerve root injury.
The claimant was diagnosed with a back injury by his general practitioner (GP) with no verifiable radiculopathy signs arising from injury to or impingement of specific lumbar spinal nerves being assessed or noted. There is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the low back as a direct result of the subject accident. See CT of lumbosacral spine undertaken 2 October 2020 and MRI of lumbar spine 5 January 2021.
The insurer says that it is apparent from the Certificate that the Medical Assessor relied on the following when making his determination as to causation:
(a) The absence of complaint of lower back pain or symptoms by the claimant in the clinical records for some three months post-accident;
(b) The claimant’s history to the Medical Assessor that on the day following the accident, there was “mild” pain in the lower back, that he resumed his usual work activities and did not seek medical attention until three months later as he “sucked it up and kept on working to pay off my mortgage” (pg. 3);
(c) The CT and MRI scans which were before the Medical Assessor, which disclosed degenerative changes in the lumbar spine;
(d) The insurer says that the claimant’s history to the Medical Assessor that his employment required him to perform tasks such as driving a bulldozer and lifting bags of cement (pg. 6);
(e) Medical Assessor Assem’s own clinical judgement and reasoning.
LEGISLATIVE BACKGROUND
Jurisdiction
The claim of the claimant is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the CTP insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
Minor injury
A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Clauses 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
This is a was dispute about whether the applicant’s injury caused by the accident was a minor injury for the purposes of the MAI Act. The dispute was referred to the Commission. Medical Assessor Assem conducted a medical assessment and determined in a certificate dated 20 July 2022 that the injuries caused by the accident were minor injuries for the purposes of the MAI Act and the treatment and care in dispute is reasonable and necessary.
The claimant sought a review of the decision of the assessor and the delegate of the President considered that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect pursuant to s 7.26 of the MAI Act.
Whilst the terminology of a minor injury has changed recently, for the purposes of this application, a minor injury is now referred to as a threshold injury and will continue to be referred to by the Panel as a minor/non minor injury for the purposes of assessment.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
FOR CONSIDERATION
Does the claimant have cervical radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in minor injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in clause 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Medical evidence
The claimant was treated by Dr Guirgis. He provided a report to the claimants GP of 23 March 2021.
Dr Guirgis provided a diagnosis of an injury to the L4/5 intervertebral disc in the form of a left centro-oblique posterior annular tear associated with a shallow posterior and to the left disc protrusion extending backwards to indent into the anterolateral surface of the thecal sac and into the left nerve root exit tunnel and contact with the exiting left L4 nerve root and also the descending left L5 nerve root.
A letter dated 19 July 2021 from the claimant’s physiotherapist, Mr Dong, to the claimants GP reported that initially the claimant experienced severe pain with radiating sensation to the left buttock and left leg. He also had some numbness and tingling sensation in the left leg. Mr Dong said that it was his impression that the claimant had sustained a severe facet joint strain at L4/5 and L5/S1 with neural irritation to the left L5 and S1 nerve.
Clinical records of the claimants GP have been provided together with various certificates of capacity and have all been considered.
No other medical records of note have been relied upon by the insurer.
The claimant was initially assessed by the Medical Assessor who provided his certificate dated 12 July 2022.
Medical Assessor Assem acknowledged the presence of an annular tear. He did not accept however that this was trauma related and arising from the accident but said that it was as a consequence of degenerative changes in the nature of the claimant’s work. The Medical Assessor concluded that the claimant had suffered a musculoligamentous strain or soft tissue injury to his lumbar spine in the accident. He said that his symptoms would have subsided in few days and not interfered with his work activities. Annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root
The Medical Assessor said that had the accident caused an L4/5 lumbar disc displacement associated with an annular disc tear contacting the left L4 nerve root then it is highly unlikely that the claimant would have been able to work over the next few days.
The Medical Assessor said that the fact the claimant was performing heavy manual work for more than three months would prevent any reasonable relationship to be established to the alleged injury to his lumbar spine in June 2020 and the report of his back symptoms in October 2020.
The Medical Assessor said that he had difficulty reconciling alleged injuries the claimant sustained in the pathology identified on radiological imaging to perform heavy manual work in a regular and reliable manner for three months before seeking medical attention.
The Medical Assessor did not accept that an annular disc tear at L4/5 was causally related to the accident.
The claimant lodged a late document being a certificate of Medical Assessor Hyde Page dated 9 March 2023 going to treatment and care of the claimant.
Medical Assessor Hyde Page concluded that there appeared to be evidence that the claimant did suffer an injury to his lumbar spine and to a lesser extent, his cervical spine in the motor vehicle accident. The Medical Assessor said that this was noted by his treating GP, Dr Hany Hanna, as well as his treating Orthopaedic Surgeon, Dr Medhat Guirgis. It was also noted by the physiotherapist, Peter Dong.
Medical Assessor Hyde Page concluded that the motor vehicle accident did cause injuries to his cervical and lumbar spine that needed treatment and investigation. He further concluded that there was a need for scans of the lumbar and cervical spine as a consequence of the motor vehicle accident and there was no other cause
Panel medical examination
The claimant was examined by Medical Assessor Dixon on behalf of the Panel. The examination occurred on 8th February 2023. His report follows;
The Minor Injury dispute was:
Lumbar spine – annular disc tear at L4/5. Disc protrusion contacting left L4 nerve root and descending left L5 nerve root- whether this is a minor injury.
The CT scan of the lumbosacral spine on 2 October 2020 showed disc bulges at L4/5 and L5/S1 and he was advised to continue work. When one looks at the actual image of the CT scan, there is a bulge of the L4/5 disc on the cross sectional view to the left.
He needed Panadeine Forte and continued work despite pain.
He was subsequently referred for an MRI of his lumbar spine on 5 January 2021 which showed a disc displacement at the L4/5 level with a lateral annular tear extending into the neural exit foramen with likely contact of the left L4 nerve root and descending left L5 nerve root.
This corresponds to the pain he described in his left buttock and thigh.
He had physiotherapy treatment with Mr Peter Dong in February 2021 who noted there was increased pain in the claimant’s lower back radiating to his left leg.
His treatment only provided temporary relief and he continued to have difficulty doing heavy manual work such as lifting a bag of cement.
He continued to have low back pain but struggled on at work driving a bulldozer which involved using both legs and using levers. He reported the pain radiating from his back into the left buttock and thigh increased during the working day. He reported no paraesthesia. He had difficulty sitting on a bulldozer because it was bouncing about and aggravating his back. He had difficulty with prolonged sitting and standing in the one spot and had a sitting tolerance of half an hour and a standing tolerance of 20 minutes and a walking tolerance of half an hour and a driving tolerance to a maximum of one hour after which his back pain and left sciatica became too severe.
He takes medicinal cannaboids (THC plus CBD) with a vaporiser. This has enabled him to come off medication such as Lyrica and Panadeine Forte. He takes occasional Panadol.
He is not seeing a spinal specialist at present but sees his local GP regularly. He has intermittent treatment. He is not doing hydrotherapy.On examination today the claimant was 175cm tall and weighed 87kg. He was straight forward in presentation.
In his lumbar spine there was tenderness over the spinous process of L4/5 vertebra in the paralumbar region on the left adjacent to the lumbosacral facet joint. His flexion was decreased by one third with slow and jerky recovery with left sided erector spinae muscle spasm and pain on back extension which was decreased by one third. Lateral flexion to the left was decreased by one third and that to the right by one quarter.
He was able to climb on and off the examination couch. His straight leg raise was 60 degrees on the left and associated with left buttock and thigh sciatica and that on the right was 70 degrees. He reported that previously when he had a straight leg raise done on the right, he had a cross straight leg raising sign with pain in his buttock and thigh on the left. His sciatic nerve root compression test was mildly positive on the left and negative on the right.
There was 2cm of wasting of his left thigh and 1cm of wasting of his left leg below the knee. His knee jerks were present. His medial hamstring jerks were depressed more so on the left and his ankle jerks were present. His power was grade 5 out of 5. There was no objective sensory loss and his Babinski signs were negative.
His normal gait and toe walking were satisfactory but heel walking was associated with low back pain and left buttock and thigh sciatica. His squat test was satisfactory.
His investigations include a CT of the lumbosacral spine on 2 October 2020, MRI of the lumbar spine on 5 January 2021. It is important to note that there was an L4/5 disc protrusion on MRI on 5 January 2021 with an annular tear extending into the left exit foramen, contacting the left L4 nerve root and the descending left L5 nerve root, which is consistent with his findings of L5 radiculopathy today on the left. The CT and MRI viewed sequentially on my PC, which enlarges the images, showed a definite left L4/5 disc protrusion with annular tear.
His diagnoses are low back strain injury with L5 radiculopathy clinically, which is consistent with his limitation of straight leg raise, positive sciatic nerve root stretch test and atrophy of his left thigh and calf and confirmed by his L4/5 disc lesion with annular tear and impaction on the L4/5 and L5/S1 nerve roots.
The motor vehicle accident as described was a major accident and he experienced back pain immediately after the accident but it was three months before his saw his GP, Dr Hanna, and subsequent CT scans and MRIs have confirmed the L4/5 disc lesion. When he is on his bulldozer at work, he does have exacerbation of his back complaint but kept working albeit with analgesia and was at one stage taking Lyrica for neuropathic pain.
The physiotherapist, Mr Peter Dong on 19 July 2021 noted back complaints and the claimant self-reported that when they did straight leg raise on the right, he had a cross leg straight raising sign, which is consistent with a significant disc lesion clinically.
The conclusion is that the claimant was involved in a major MVA which has left him with L4/5 disc lesion with annular tear, impaction on the L4 and L5 nerve roots and now has symptoms and signs consistent with L5 radiculopathy.
It is acknowledged by the claimant that he does do heavy manual work as a plant operator but he has to pay off his mortgage and had to keep working and has used up all his annual leave and sick pay and RDOs to attend the physiotherapist on Saturdays as he normally does a six day week.
The claimant denied any previous back injuries or complaints.
In the MVA on 27 June 2020 he sustained a back strain injury with radiological evidence of an L4/5 disc bulge to the left on CT scan with an annular tear on MRI impacting on the L4 and L5 nerve root. He gave a reasonable explanation for the delay in presentation to his GP in that he persevered with pain at work because he needed to pay off his mortgage.
The lumbar spine injury with annular disc tear at L4/5 with disc protrusion contacting the left L4 and L5 nerve roots with L5 radiculopathy clinically was caused by the subject MVA
This claimant has manifested with low back pain with dysmetria, erector spinae muscle spasm and left L5 radiculopathy and therefore is a non-minor injury for the purposes of the Act.The Panel adopts the examination report and findings of Medical Assessor Dixon.
Causation
The Motor Accident Guidelines
The Motor Accident Guidelines identifies the test for causation at clauses 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Assessor 4 Guides.
The authorities
In Ackling v QBE Insurance (Aust) Ltd, [2] Johnson J indicated the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one.” His Honour also observed that when undertaking the task of assessing causation, a review panel will derive practical assistance from the Guidelines.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW,)[4] Campbell J adopted the Justice Johnson’s approach with a caveat touching upon the Civil Liability Act (CLA):
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the Medical Assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Medical Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)).”[5]
[5] At [27].
The CLA
69.As mandated by Justice Campbell in Owen, section 5D of the CLA needs to also be considered when assessing causation.
70.Section 5D of the CLA provides:
“General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”
There are two elements to address when assessing causation under s 5D(1):
(a) “factual causation”;[6] and
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
(b) “scope of liability”.[7]
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
(a)Assessing “factual causation” and “scope of liability” involves the making of value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”.
(b)Following the guidelines, the Panel must consider whether the injury suffered by the claimant was caused or materially contributed to by the accident. Following on from that, did the accident cause or contribute to a worsening of the impairment. The accident does not have to be a sole cause as long as it is a contributing clause.
(c)The accident occurred on 27 June 20. The claimant had a CT scan of his lumbosacral spine on 2 October 2020. This was generally unremarkable and it was reported that there was no CT because of the patient’s left sciatica demonstrated. However, it was said that if persistent symptoms occurred then an MRI scan was warranted.
(d)In the clinical notes of Dr Hanna of 2 October 2020, when the claimant consulted Dr Hanna, the reason for contact was noted as back pain. The notes record that diagnostic imaging was requested of the lumbar spine.
(e)While the accident occurred on 27 June 2020, it appears from the clinical notes of Dr Hanna that the claimant did not seek treatment for any accident related injuries until 2 October 2020. This is a period of just three months.
(f)Subsequently, the claimant did see his GP on 8 October 2020 when a care plan was prepared and then on 26 October 2020 there was a complaint of back pain then another consultation on 17 December 2020 when a certificate of health was prepared. On 6 January 2021 the radiology insults were discussed in detail and in person. On 12 January 2021 the clinical notes refer to joint pain, back pain and left-sided sciatica with an MRI scan noted as having occurred on 5 January 2021.
(g)The Medical Assessor noted that there was radiological evidence of an L4/5 vertebra disc displacement associated with an annual tear that was likely contacting the left L4 nerve root. At the time of examination by the Medical Assessor, he said that the claimant had radicular symptoms in his left leg but he did not satisfy the criteria for lower lumbar radiculopathy set out in paragraph 5.9 of the guidelines apart from atrophy of his left thigh and calf, there are no other confirmatory signs of lower limb radiculopathy.
(h)The Medical Assessor said that there was radiological evidence of an annular tear but that this could be caused by trauma due to accelerated degenerative changes as a consequence of the nature and conditions of the claimant’s employment. The Medical Assessor said had the accident caused an acute disc lesion with an annular tear, it would have experienced severe pain soon afterwards that interfered with the claimant’s mobility and prevented him from performing any manual work such as driving a bulldozer and lifting bags of cement, even if he was highly motivated due to financial constraints.
(i)In the claimant’s statement 10 August 2022 which was initially objected to by the insurer but such objection has not been pursued, he said that his injuries did not gradually develop over time but he experienced pain of the nature and extent that he had not experienced before, until the accident. The claimant said that whilst he had severe pain in his back it was not yet debilitating, and he had not realised the extent of his injuries. He said that he genuinely believed that was just a muscular whiplash and that the pain would resolve in a few weeks or months. After three months, the claimant then consulted his GP. The claimant’s statement makes it clear that if he had stopped working then he would have been replaced and out of the job and he had financial obligations including payment of mortgage which he had to manage. He said that was not possible for him to take time off work and risk losing his job.
(j)The insurer says that should the Panel accept that the lumbar spine symptomatology is causally related then the insurer says that the claimant’s lumbar spine injury is of a soft tissue in nature on the background of the mechanism of injury and is therefore a minor injury.
(k)The insurer submits that there is no available medical evidence that demonstrates the claimant’s lumbar spine injury satisfies the criteria set out in part 5.8 of the guidelines. The Panel does not agree with this. The Panel is satisfied that the claimant has suffered a lumbar spine injury at the time of the accident causing an annular tear and that this tear is within exclusion of section 1 .6 of the Act.
(l)The Panel accepts that the claimant was driven by financial imperatives. The Assessor did not accept that the claimant would have taken three months to investigate an acute disc lesion with an annular tear. The Medical Assessor said the claimant would have experienced severe pain soon afterwards and that this would have interfered with his mobility and prevented him from performing any manual work such as driving able to those and lifting bags of cement. The claimant has however explained in his statement that whilst he was operating heavy machinery, he was not sitting at a desk and was seated within a bulldozer for the majority of the day. He said that he was not regularly performing heavy manual labour and was not regularly lifting 20 kg bags of cement.
(m)The Medical Assessor said that while there was radiological evidence of an annular tear that this could have been caused by trauma due to accelerated degenerative changes.
(n)The Panel accepts the claimant’s statement about financial imperatives and a need to work otherwise he would lose his job. The Panel accepts that whilst the claimant was working in a heavy labour industry, he was not actually performing heavy labour himself whilst working in a bulldozer.
(o)The insurer says that the findings of the MRI scan of January 2021 evidence clear degenerative features in light of the reduction of disc height and dehydration at the L3/4level being the disc above the protrusion. The Panel responds and says that whilst there are features of degeneration there is clear evidence of an acute annular tear and disc protrusion of the L4/5 disc which is consistent with the reported onset of symptoms.
(p)The insurer also says that if the panel were to conclude that the lumbar spine symptomatology is causally related, there is no available medical evidence that demonstrates that the claimant’s lumbar spine injury satisfies the criteria set out in Part 5.8 of the guidelines being, the presence of genuine radiculopathy pertaining to a specific lumbar spinal nerve root injury.
(q)Part 5.8 says that radiculopathy means the impairment caused by dysfunction of a spinal nerve root nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with Part 6 of the guidelines. The clinical signs are;
(a) loss of asymmetry of reflexes
(b) positive sciatic nerve root tension signs
(c) muscle atrophy and/or decreased limb circumference
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
(r)Part 5.9 of the guidelines says that where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.
(s)Of the five categories of clinical signs of radiculopathy, clinical examination revealed;
(a) Wasting of the left thigh and leg
(b) Positive sciatica nerve root stretch test
(c) Asymmetrical depression of the medial hamstring jerks (L5) more marked on the left.
(t)The Panel is satisfied that at the time of Medical Assessor Dixon’s examination, the claimant satisfies the statutory test of radiculopathy.
CONCLUSION
(u)The Panel determines that the claimant suffered the following injury:
(a) lumbar spine – annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root and descending left L5 nerve root,
which is a non-minor injury.
(b) Left L5 radiculopathy of the lumbar spine.
Determination
(v)The Panel revokes the certificate of Medical Assessor Assem of 12 July 2022.
(w)The Panel determines that the claimant suffered the following injury;
(a) Lumbar spine – Annular disc tear at L4/5. Disc protrusion contacting the left L4 nerve root and descending left L5 nerve root, which is a non threshold injury.
(b) Left L5 radiculopathy of the lumbar spine.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
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