Neamah v AAI Limited t/as AAMI
[2024] NSWPICMP 685
•30 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Neamah v AAI Limited t/as AAMI [2024] NSWPICMP 685 |
CLAIMANT: | Karrar Neamah |
INSURER: | AAI Limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 30 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Lumbar spine; L5/S1 disc herniation; back and sciatica; reports of radiculopathy; loss of symmetry and reflexes; positive sciatic nerve root; tension signs; sensory loss; muscle atrophy; muscle weakness; radiculopathy present has been present since accident; no requirement that radiculopathy be present at the time of assessment; consistent history and documentation; lumbar disc injury; Held – Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment – Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Anil Nair dated 12 December 2023 and issues a new certificate confirming: (a) right shoulder – soft tissue injury: is a threshold injury for the purpose of the Motor Accident Injuries Act 2017. (b) Right knee – soft tissue injury: is a threshold injury for the purpose of the Motor Accident Injuries Act 2017. (c) Lumbar spine – L5/S1 disc herniation: Is a non-threshold injury for the purpose of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
BACKGROUND
KARRAR NEAMAH (THE CLAIMANT) IS A 30-YEAR-OLD MAN WHO WAS INVOLVED IN A MOTOR VEHICLE ACCIDENT WHICH OCCURRED ON 6 JANUARY 2020. THE ACCIDENT OCCURRED WHEN THE INSURED DRIVER COLLIDED WITH THE PASSENGER’S SIDE FRONT OF THE VEHICLE WHICH HE WAS DRIVING.
FOLLOWING THE ACCIDENT AN APPLICATION FOR PERSONAL INJURY BENEFITS WAS LODGED WITH THE PERSONAL INJURY COMMISSION (COMMISSION) AND THE CLAIMANT SOUGHT A CONCESSION FROM THE INSURER THAT THE INJURIES HE SUSTAINED OUGHT TO BE CONSIDERED AS NON-THRESHOLD INJURY. THE INSURER DECLINED TO MAKE THIS CONCESSION AND THEREAFTER THE CLAIMANT FILED AN APPLICATION WITH THE COMMISSION FOR AN ASSESSMENT OF THRESHOLD INJURY. THE CLAIMANT WAS EXAMINED BY MEDICAL ASSESSOR ANIL NAIR ON 29 SEPTEMBER 2023 WHO ISSUED A DETERMINATION THAT THE INJURIES SUSTAINED BY THE CLAIMANT TO HIS RIGHT SHOULDER, RIGHT KNEE AND LUMBAR SPINE OUGHT TO BE CONSIDERED A THRESHOLD INJURY FOR THE PURPOSES OF THE MOTOR ACCIDENT INJURIES ACT 2017 (MAI ACT).
A REVIEW WAS SOUGHT AND IN A CERTIFICATE DATED 24 APRIL 2024 THE PRESIDENT’S DELEGATE, STEPHANIE WIGGAN ISSUED A CERTIFICATE STATING THAT SHE WAS SATISFIED THERE WAS A REASONABLE CAUSE TO SUSPECT THAT THE MEDICAL ASSESSMENT WAS INCORRECT IN A MATERIAL RESPECT AND ACCORDINGLY THE MATTER WAS THEN REFERRED TO THIS REVIEW PANEL.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accident Injuries Act 2017 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
The claimant was examined by Medical Assessor Michael Couch at the Commission’s rooms, 1 Oxford Street, Sydney on 24 July 2024. The claimant had the assistance of an Arabic interpreter who was present throughout the examination.
Pre-accident medical history and relevant personal details
The claimant confirmed that he grew up in Baghdad in Iraq and had emigrated to Australia with his family as a refugee. They had spent about one and a half years in Turkey before coming to Australia. He described attending school in Baghdad until year 7 or 8 and spoke no English on arrival here. He said that he was too old to resume high school in Australia. He had not attended any English as a second language (ESL) classes and had simply picked up English over time.
In Sydney he had lived in the Smithfield and Fairfield areas. His father had died. He is single and lives with a single brother and their mother. (He said they had been renting the same house privately since arrival here and had an accommodating landlord.)
The claimant said that he had worked in security and as a crane operator. He had obtained tickets as a dogman and crane driver but not as a rigger. (He said that his crane ticket had since expired.)
As mentioned in Medical Assessor Nair’s certificate, the claimant had returned to Iraq in 2019/2020 and married. His wife had not come back to Australia. They have since divorced and have no children.
The claimant was asked specifically about any previous accidents or injuries or musculoskeletal conditions. He denied these. He said that prior to the accident he was mostly working in security, working late at night in various venues around the Sydney central business district (CBD). He described himself as “really fit” and was going to a gym three times a week, including using weights and cardio work.
History of the motor vehicle accident
The claimant stated that on 6 January 2020 he was alone driving a Toyota Yaris (a small car) near his home in a 60kmph zone. He was wearing a seatbelt. The crash occurred at an intersection controlled by traffic lights. He was going straight ahead on a green light when an oncoming car turned right across his path. (The Medical Assessor clarified the details of the impact with the claimant with the aid of a diagram.) He confirmed that the other car had struck the left front corner of his vehicle, which then spun around. He recalled “I shut down and then I woke up and I’d had an accident”. He clarified that he had not struck his head or been knocked out but was stunned or shocked by the impact. His front airbags activated and because of the fumes he thought there might be a fire.
His driver’s door was jammed, and bystanders helped him out of the car. (The claimant added that someone had been killed in a crash near the family home a few days earlier.) Police, ambulance and fire brigade attended. His car was towed away and subsequently written-off by the insurer. He was taken by ambulance to Fairfield Hospital Emergency Department.
The claimant was asked if there had been obvious damage to his driver’s seat – he replied that there had not been, but that his car’s bodywork had been pushed in.
History of symptoms and treatment following the motor accident
The claimant was asked about initial symptoms. He replied that he recalled pain “everywhere”. More specifically he described seatbelt bruising on his abdomen, pain in the right shoulder, pain in the right knee and low back pain. He said that he did not know if he had struck the right shoulder on any part of the inside of the car and did not know if he had struck his right knee either, explaining that everything happened too fast.
He was kept at Fairfield Hospital overnight and his brother took him home the next day. He recalled that initially his back was very painful, and he simply rested at home. He was asked how long it took him to become reasonably active again – he replied, “two to three years but there is a lot of stuff I can’t do – I’ve put on a lot of weight ... a lot of side effects of the medications – mental – maybe lazy – not wanting to work”.
The claimant went on to say that at one stage he became addicted to cannabis. He started to use this when conventional medications failed to work. He also abused cocaine and alcohol to control his symptoms, stating that “the insurance don’t want to pay or do treatment for me”. He said that the insurance company had only approved 10 sessions of physiotherapy.
On questioning he thought that a specialist had recommended some sort of surgery, but did not have details. He had not in fact had any surgical procedures or injections to the painful areas. He was asked whether an exercise programme had been recommended – he said this had been suggested but at the time he was affected by lots of medications.
The claimant went on to say that he had avoided all illicit drug use for the past six or seven months, but continues to take prescription medications. He also said that at one stage he had taken an overdose of “liquid G” (probably gamma-hydroxybutyrate (GHB)) and was kept in Fairfield Hospital overnight. He added “I’ve lost my wife – everything!”
He was asked if he thought that he had improved at all compared with the first year after the accident. The claimant responded that he was now leading a healthier lifestyle having stopped all illicit drugs, but that his low back pain was not better and probably worse now.
Details of any relevant injuries or conditions sustained since the motor accident
The claimant denied any such injuries or conditions.
REVIEW OF DOCUMENTATION
The Review Panel notes the discharge summary from Fairfield Hospital which notes that the claimant sustained pain in the lower back. The Review Panel also notes that the clinical records of Dr Hanna, the claimant’s general practitioner (GP), who saw the claimant four days post-accident and identified “musculoskeletal: joint pain. Back pain. Sciatica R.” The back pain and sciatica were noted in the GP examination notes in the months following the accident noting the claimant was attending upon his GP every few weeks following the accident.
The correspondence from the claimant’s GP to the insurer dated 4 February 2020 states that the claimant was “still having back pain radiated to the right leg.”
Most importantly, the claimant notes the numerous reports of Dr Guirgis which were included in the material. As it is noted in the claimant’s submissions Dr Guirgis opined that radiculopathy was present consequent on the claimant’s lumbar spinal injury. The reports of radiculopathy are included in the numerous reports. In his report dated 1 November 2021 he notes that the claimant suffered the following:
· LOSS OF SYMMETRY AND REFLEXES;
· POSITIVE SCIATIC NERVE ROOT TENSION SIGNS;
· REPRODUCEABLE SENSORY LOSS THAT IS ANATOMICALLY LOCALISED TO AN APPROPRIATE SPINAL NERVE ROOT DISTRIBUTION;
· MUSCLE ATROPHY AND/OR DECREASED LIMB GIRTH, AND
· MUSCLE WEAKNESS THAT IS ANATOMICALLY LOCATED TO AN APPROPRIATE NERVE ROOT DISTRIBUTION.
The report of Dr Guirgis dated 14 December 2020 states:
“RIGHT S1 RADICULOPATHY CAUSED BY AN INJURY TO THE L5/S1 INTERVERTERBRAL DISC WHERE THERE WAS MRI EVIDENCE OF A RIGHT CENTRO-OBLIQUE POSTERIOR DISC PROTRUSION EXTENDING BACKWARDS TO INDENT INTO THE ANTEROLATERAL SURFACE OF THE THECAL SAC AND IMPINGE ON THE RIGHT S1 NERVE ROOT.”
He identified more than two objective signs of radiculopathy.
The material supports the contention that the radiculopathy has been present since the motor vehicle accident.
Current symptoms
The claimant confirmed that low back pain was his main problem. He described symptoms in further detail as follows:
Low back pain
The claimant stood up and pointed to the right side of the lower back, with radiation to the right buttock, posterolateral thigh, the posterolateral calf, but not to the foot or toes. He said that sometimes pain also radiates to the left lower limb. He described sudden spasms or jolting in the right leg, and in addition numbness and pins and needles in the right leg.
Pain varies and can resolve briefly but is present every day. He is most comfortable lying down. Pain increases with prolonged sitting or standing. On questioning he denied significant relief from walking around, but did describe “changing postures every five minutes”. He went on to say that he spends 75 to 80% of the day lying on a bed or couch for relief.
He was asked about jolting – for example going over a speedbump in a car or missing a step when walking. He described these episodes as painful, with increased pain in the right leg. Coughing and sneezing also causes pain in the right leg.
Right knee
The claimant described intermittent discomfort, particularly in winter and cold weather. He pointed to the medial aspect of the knee. He described some “cracking noises” but no swelling, locking or giving way.
Right shoulder
He denied any significant symptoms of the right shoulder, commenting that “I don’t work – I don’t do anything”. He is able to sleep on his right side.
Current treatment
The claimant said that earlier he had taken other medications including Lyrica (Pregabalin) and Tramadol and also Endone but was now avoiding these. He does take some Paracetamol and also described taking Targin when pain is bad – he said that he tried to avoid this and was probably only taking it about twice a week. (He was not sure of the dose.) He is not having any physical treatment or seeing any specialists. He had been referred to an Arabic-speaking psychiatrist by his GP (through Medicare).
Present activities
The claimant said that he had not returned to work at all since the accident four years earlier and that he had “been lazy”. He had not received any benefits from the insurer after six months. He had not received any Centrelink benefits apart from some special provisions during the worst of the COVID pandemic. His brother (who lives with him and their mother) works doing waterproofing. He said he was being financially supported by his family. When asked if he helped around the home, he said he did not do much. He added that they do not have any lawn to be tended.
Lifestyle factors
The claimant said that he was smoking “a lot” – he said he had smoked cigarettes very occasionally prior to the accident but this had increased greatly. He has the occasional alcoholic drink but tries to avoid this.
Physical examination
The claimant attended promptly. He presented as a big man at height 186cm and weight 113kg – he said that when he had been much more physically active and fitter prior to the accident he only weighed 90kg. He had a friendly, open manner and there were no difficulties with communication. The interpreter was only required once or twice to clarify questions. He looked as though he had been strong in the past.
There were extensive tattoos over his trunk. He did appear to be somewhat fearful of aggravating pain, with some abnormal pain behaviours including flinching and crying out, but he was generally cooperative. He showed good effort with requested active movements and there was no apparent self-limitation or inconsistency.
He was wearing a tracksuit, short socks and sneakers and undressed to his tracksuit pants for examination. He was able to sit during the interview. He was somewhat slow climbing on and off the examination couch but could lie prone and then roll over to lie supine.
Cervical spine
This was clinically normal, with normal posture, no tenderness to palpation and a full symmetrical active range of movement (AROM) – he did complain of some low back pain during neck movements.
Lumbosacral spine
Palpation of the lumbosacral spine with the claimant lying prone showed slight to moderate tenderness over the distal lumbosacral spine, in the midline and to the right of the midline. The Medical Assessor attempted to examine for any lumbar paraspinal muscle spasm by asking the claimant to stand and slowly move his bodyweight from one foot to the other – normally the muscles on the weightbearing side relax. However, the claimant was unsteady when balancing on one foot and assessment was inconclusive.
Active range of movement of the lumbosacral spine was measured carefully with the claimant standing with knees straight. Flexion was about half of normal, able to reach his fingertips only to above the knees, with low back pain described. In contrast, lumbar extension was full and more comfortable. Lateral flexion was two-thirds of normal bilaterally.
Upper extremities
Hands were clean and soft, consistent with limited recent physical activity. The right (dominant) upper arm measured 40cm in circumference, the left 39cm, the right forearm 31cm and the left 30.5cm. Both upper limbs were neurologically normal, with intact and symmetrical biceps, triceps and brachioradialis reflexes. Power and sensation were normal bilaterally.
Abnormalities in the upper limbs were restricted to the right shoulder. The claimant did not describe tenderness to palpation over either glenohumeral joint and there was no detectable muscle wasting. There was a full range of AROM in the left shoulder-as tabulated. In the right shoulder AROM as measured with a goniometer was reproducibly reduced. Flexion was restricted, with pain described mostly in the axilla rather than laterally. It was noted that to compensate for reduced right shoulder abduction, the claimant tended to lean his whole body to the left.
Right
Left
Flexion
100°
170°
Extension
50°
50°
Abduction
100°
180°
Adduction
40°
40°
External rotation
90°
90°
Internal rotation
80°
80°
51. There was reproducible palpable clicking on active flexion of the right shoulder. Impingement signs were negative bilaterally. The clinical impression was of a definitely abnormal right shoulder. The picture was not typical for rotator cuff disease or impingement.
Lower extremities
52. Right leg measured 10cm proximal to the patella, the right (dominant side) thigh measured 58cm and on the left 57cm. The right calf measured 41cm and the left 40.5cm. Knee jerks and ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve root) and ankle eversion (S1 nerve root) was normal and symmetrical. Sensation to light touch was preserved in both lower limbs.
Straight-leg-raising tested supine was 30 degrees on the right and 40 degrees on the left. In both lower limbs sciatic stretching by passive ankle dorsiflexion reproduced buttock and posterior thigh pain – more marked on the right.
Both knees were normal to inspection. There was full AROM from 0 to 120 degrees flexion bilaterally without crepitus. Ligaments were clinically intact, and no patellofemoral pain could be reproduced on patellofemoral grinding or Clark’s test. Although Mr Neamah localised some pain to the medial right knee, there was no detectable tenderness to palpation.
A few functional activities were observed. Mr Neamah was able to take a few steps first with weight on his forefeet and heels off the floor, and then on his heels with forefeet off the floor. Without using hand support, he could squat two-thirds of the way down to the floor before stopping and recovering.
DETERMINATION
The claimant presents as a now 30-year-old man who describes being physically active, fit and strong prior to the subject motor vehicle accident four and a half years earlier. He had been working both as a crane operator and doing security work.
He describes being involved in a moderately severe offset frontal/“T-bone” crash in which airbags activated and his small car was towed away and written-off. His driver’s door had initially been jammed. He was taken by ambulance to Fairfield Hospital, where there was evidence of superficial injuries from seatbelt/airbags. He gives a consistent history of troublesome low back pain since then. He sustained a right knee injury (possibly from direct contact with the inside of his small car) but this has largely resolved. He also sustained an injury to the right shoulder which remains abnormal.
He presents a convincing picture of moderately severe persistent mechanical low back pain with tenderness to palpation, restricted AROM (particularly in flexion, with dysmetria), non-verifiable radicular complaints in the right lower limb and positive neural tension on examination. Whilst the claimant did not demonstrate two objective signs of lower limb radiculopathy at today’s examination the Review Panel is satisfied that the material bears out more than two prior radicular complaints notwithstanding, they were not present on the testing at the re-examination of the claimant. The Review Panel concurs that the claimant did not have any pre-existing low back injuries. The Review Panel notes the clinical notes and reports of Dr Guirgis in respect to identifiable signs of radiculopathy. Radiculopathy symptoms may fluctuate over time because of, amongst other reasons, the extent of the compression of the spinal root may vary due to the inflammation of the nerve root. Symptoms may subside and return depending on whether the injured disc is exacerbated by innocuous day to day activities.
The Review Panel notes there is no requirement in clause 4 of the Regulations that radiculopathy be present at the time of the assessment by a Medical Assessor.
The Review Panel is satisfied that there has been consistent history and documentation of low back pain with right lower-level radiation since the time of the accident.
The overall picture is consistent with a lumbar disc injury, leading to persistent low back pain and right lower limb radicular symptoms.
The Review Panel concludes that the injury to the lumbar spine is a non-threshold injury.
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