Nelson v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 380
•29 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Nelson v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 380 |
CLAIMANT: | Ethan Nelson |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Alan Home |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 29 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; aggravation of pre-existing Crohn’s disease following motor accident; MAC determined motor accident caused a contemporaneous flare of Crohn’s disease which returned to its normal status and therefore the injury resolved; Review Panel accepted musculoskeletal injury from the accident but no abdominal injury; Review Panel found claimant had commenced biological agent infusions (Infliximab and Vedolizumab) before the accident which led to his Crohn’s disease coming under control; Review Panel found Crohn’s disease relapsed due to claimant’s non-compliance with the infusions in the months leading up to the motor accident; Held – causation was not established because the motor accident had a nil or negligible contribution to the flare ups of the pre-existing Crohn’s disease; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Philip Truskett dated 16 August 2024 and issues a new certificate as follows. The Review Panel certifies that: 2. The following injuries caused by the motor accident are threshold injuries: · cervical spine – soft tissue injury and · lumbar spine – soft tissue injury. 3. The following injuries referred for assessment have been assessed and determined to be not caused by the motor accident: · abdomen – soft tissue, musculoligamentous, musculoskeletal; · intestines – aggravation of pre-existing Crohn’s disease – regular flare ups, and · thoracic spine. |
STATEMENT OF REASONS
INTRODUCTION
Mr Nelson (the claimant) was involved in a motor accident on 11 June 2023. He says he was proceeding through a green light at an intersection when another vehicle in the opposite direction attempted to turn right causing a head-on collision. Airbags deployed and an ambulance conveyed him to hospital. His vehicle was towed away and was later “written off”.
The claimant says he sustained injuries to his cervical spine, lumbar spine, abdomen and an aggravation of his pre-existing Crohn’s disease. He also had post-traumatic stress symptoms.
He made a claim for statutory benefits with NRMA, the third-party insurer of the vehicle that he says caused the motor accident. NRMA accepted the claim for statutory benefits (weekly payments and treatment and care) for up to 52 weeks from the date of the motor accident.
The claim for benefits beyond 52 weeks was declined because NRMA considered the claimant’s injuries to be threshold injuries only. This became a medical dispute and was referred to the Personal Injury Commission (Commission) for medical assessment.
On 16 August 2024, Medical Assessor Philip Truskett issued a certificate of assessment which found the claimant’s injuries to be threshold injuries.
The claimant lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s delegate (Ms Rachel Brittliff) and this Review Panel (Panel) was convened to conduct the review.[1]
[1] Section 7.26(5) of the MAI Act.
THE REVIEW
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[2]
[2] Section 7.26(6) of the MAI Act.
The parties may, however, agree on whether a particular injury is caused by the motor accident and the associated degree of permanent impairment. Where there is agreement, the particular injuries need not be subject of assessment in the review.[3]
[3] Section 7.25 of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[4]
[4] Section 7.26(7) of the MAI Act.
A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the Personal Injury Commission Rules 2021.
On 29 October 2024, a Direction was issued requiring the parties to confirm the issues in dispute in the review. The parties duly responded and agreed that the only matters in dispute are whether the following injuries:
(a) abdomen – soft tissue, musculoligamentous, musculoskeletal, and
(b) intestines – aggravation of pre-existing Crohn’s disease – regular flare ups
are causally related to the motor accident and are threshold or non-threshold injuries.
The Panel commends the parties for narrowing the issues in dispute.
RELEVANT STATUTORY PROVISIONS
Threshold injury
Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.
For physical injuries, a threshold injury is defined as a “soft tissue injury”.[6]
[6] Section 1.6(1) of the MAI Act.
A “soft tissue injury” is defined as:
“An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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.”[7]
[7] Section 1.6(2) of the MAI Act.
A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[8]
[8] Section 4(1) of the Motor Accident Injuries Regulation 2017.
The Motor Accident Guidelines (the Guidelines)[9] defines radiculopathy as:
“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 when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent Impairment’.
(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
(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.”[10]
[9] The applicable version of the Guidelines is version 9.3.
[10] Clause 5.8 of the Guidelines.
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 threshold injury.[11]
[11] Clause 5.9 of the Guidelines.
Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.
Causation
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes.[12]
[12] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
Clauses 6.6 and 6.7 state:
“6.6 Causation means that a physical, chemical or biological 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 the 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
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
ASSESSMENT UNDER REVIEW
Medical Assessor Truskett was referred the following injuries for assessment:
· cervical spine injury – soft tissue, restricted range of movement, musculoligamentous, musculoskeletal, causing radiculopathy into upper limbs;
· thoracic spine injury – soft tissue, restricted range of movement, musculoligamentous, musculoskeletal;
· lumbar spine – disc bulge, L3/4. L4/5, and disc protrusion L5/S1 with annular tear causing radiculopathy in lower limbs and asymmetrical range of movement;
· abdomen – soft tissue, musculoligamentous, musculoskeletal, and
· intestines – aggravation of pre-existing Crohn’s disease – regular flare ups.
Medical Assessor Truskett was given a pre-accident history of the claimant having autism spectrum and suffers from panic attacks, which have improved at the time of the motor accident.
In relation to his Crohn’s disease, the claimant’s current symptoms were recorded as follows:
“He was diagnosed with Crohn’s disease in mid 2020. This was on the basis of abdominal pain and diarrhoea. He attended Professor Tom Borody (sic), gastroenterologist, and underwent an endoscopy and colonoscopy. He was advised he had problems in his stomach, small bowel, and large bowel. His sister also had Crohn’s disease. He initially was placed on steroids and was given a faecal transplant. Since the motor vehicle accident, he feels that the pain from his Crohn’s disease became worse for a few months. This is characterised by episodes of stabbing abdominal pain loose motions After a few months this settled down.
He will open his bowels once every two to three days. His motion is usually formed. He can distinguish flatus from faeces. He would experience abdominal pain every few weeks. It is episodic and colicky in nature. This is mainly in the upper abdomen. He may experience this for a period of a few hours. He is on no special diet. His weight is stable.”
For treatment, Mr Nelson underwent an Infliximab infusion once every two months and has done so for two years. He took Panadeine Forte and Panadol for the pain. There was no other treatment.
Examination revealed a soft abdomen with no palpable masses. There was no organomegaly or tenderness. There was no abdominal wall or inguinal hernias. There was no ascites. He did not appear anaemic or jaundiced.
In terms of causation, Medical Assessor Truskett determined that the claimant’s Crohn’s disease was pre-existing and although there may have been a contemporaneous flare, it has returned to its normal status. The Medical Assessor also accepted that the claimant had some minor abdominal wall discomfort.
The Medical Assessor concluded that the claimant had threshold injuries being a soft tissue injury to his abdominal wall and a short-term flare of his pre-existing Crohn’s disease which was termed an “aggravation” and had resolved to pre-injury status.
SUBMISSIONS
Claimant
The claimant says he has non-threshold injuries because the Medical Assessor found:
(a) the pre-existing Crohn’s disease was aggravated by the motor accident, and
(b) an injury to the claimant’s abdominal wall/intestine.[13]
[13] At paragraph 12 of the Certificate of Reasons.
Specifically, the claimant refers to the Medical Assessor’s acceptance of a contemporaneous flare-up of the claimant’s Crohn’s disease, which is characterised by episodes of stabbing abdominal pain and loose motions for several months post-accident,[14] yet does not provide further insight regarding causation.
[14] At paragraph 18 of the Certificate of Reasons.
The claimant further relies on the Review Panel decision in David v Allianz Australia Insurance Ltd[15] where it was determined that symptoms (in that case being radiculopathy) need not be present at the time of assessment in order for a finding of a non-threshold injury. It is contended that the claimant’s abdominal injuries/flare-up of Crohn’s disease should be considered a non-threshold injury.
[15] [2021] NSWPICMP 227.
Insurer
The insurer says as per Lynch v AAI Limited t/as AAMI,[16] the claimant has failed to discharge its onus of proving that the alleged abdominal injuries/flare-up of Crohn’s disease should be considered a non-threshold injury. It is submitted the claimant provides no explanation as to how a flare up of Crohn’s disease would constitute a non-threshold injury.
[16] [2022] NSWPICMP 6 at [62].
In this regard, the insurer also relies on Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023[17] where Chen J states “it is not, in my view, the function of the medical assessor to somehow divine a case, particularly of the kind that is covered by this court, and it is certainly not for this Court […] to ‘ferret around and construct a claim’[18] where none has been made.”
[17] The Panel notes that the judgement of Chen J was affirmed by the Court of Appeal in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.
[18] Using the words of Bromwich J in COE17 v Minister for immigration, Citizenship and Multicultural Affairs [2023] FCA 669 at [9]
The insurer submits that Crohn’s disease is a threshold injury no different than an “aggravation” of rheumatoid arthritis, fibromyalgia, diabetes worsening, hypertension, constipation, etc.
The insurer provides additional submissions to the Panel with various sub-headings. These are reproduced and summarised below.
Disease
The insurer submits that Crohn’s disease is a chronic (lifelong) autoimmune condition that inflames and irritates the digestive tract, most commonly the small and large intestines.[19] It is asserted that the immune system is not an organ but a system, any disruption of the various cells that form the immune system does not fall within the definition of personal or bodily injury under s 1.4 of the Act.
[19] >
The insurer highlights conditions such as eczema, asthma, rheumatoid arthritis are caused by the immune system. If any alteration to the functioning of the immune system falls within the definition of personal or bodily injury, it would result in a very broad scope of possible alleged injuries or diseases that would exceed the threshold injury definition beyond the intended scope of the MAI Act.
Causation
The insurer refers to literature which suggests that flare-ups of Crohn’s disease is “almost inevitable” and “ineluctable”. Thus, it is contended that the incidence of a flare up of Crohn’s disease after the subject accident is an incidental event, rather than caused or contributed by the subject accident and the injuries sustained.
The insurer highlights the claimant was diagnosed with Crohn’s disease in 2020, about three years before the subject accident. The faecal calprotectin tests suggest it took two or more years to return to normal levels and the condition managed adequately.
The insurer notes that the claimant was not medicated for Crohn’s disease at the time of the subject accident per the ambulance report.
The insurer submits, not only is relapse “almost inevitable” the medical literature supports there is an increased risk of relapse without medication management of the condition within a relatively short time frame.
The insurer also highlights that on admission at St George Hospital, the claimant had an elevated body temperature of 38.5ºC, elevated blood pressure of 137 over 80 and had “mild epigastric tenderness on palpation”.
Furthermore, the insurer highlights that the claimant was prescribed ciprofloxacin (an antibiotic) due to right ear infection a few weeks before the accident.
The insurer cautions against relying on the facts that because the worsening happened soon after the subject accident then it must be causally related.
The insurer highlights the claimant already had epigastric tenderness on hospital admissions, the faecal calprotectin of about 1170 one-month post-accident is consistent with a progressive subclinical deterioration predating the accident similar to the 14 April 2021 and history that became symptomatic a month after the subject accident, in the absence of medical therapy and weeks history of untreated ear infection.
The insurer therefore submits that on the balance of probabilities, the most likely cause(s) for the relapse of the pre-existing Crohn’s disease are the untreated ear infection noting elevated body temperature on admission, the commencement of antibiotics for the ear infection, and the lack of ongoing preventative medical treatment management of the condition rather than stress over a less than four-week period.
Threshold injury
The insurer submits, even if causation of aggravation of Crohn’s disease is accepted, and the aggravation is considered to be included within the scope of the MAI Act, the effects of the condition would still fall within the definition of soft tissue injury under s1.6 of the Act.
Firstly, and per above, Crohn’s disease is an autoimmune disorder that causes inflammation of the intestines. The insurer says changes to the immune system do not fall within the definition of injury under the Act but rather reflect the nature of the system and how it varies over time.
The insurer highlights that the large intestine is formed by the mucosa, submucosa, muscular layer and serosa layers.
The insurer submits that alterations to these layers, whether through inflammation or tears, fall within the soft tissue definition of the MAI Act as these consist of “tissue that connects, supports or surrounds other structures or organs of the body (such as muscles […] fascia, fibrous tissue, fat, blood vessels and synovial membranes).”
The insurer submits that abnormalities to these layers do not cause “complete or partial rupture of tendons, ligaments, menisci or cartilage.” Hence, the pathology to these layers fall strictly within the definition of soft tissue injuries under s 1.6 of the MAI Act.
DOCUMENTATION
General matters
The Panel has read all the material provided by the parties in the claimant’s review bundle (indexed and paginated with page numbers 1-327) and the insurer’s review reply bundle (indexed and paginated with page numbers 1-553).
At the Panel preliminary conference on 4 February 2025, it was determined that additional information was required with respect to the claimant’s Crohn’s disease condition. Accordingly, a Direction was issued requiring:
· all information relating to the claimant’s Crohn’s disease condition including:
-any pre-accident general practitioner (GP) notes since initial diagnosis in 2020, and
-any imaging, blood tests, specialist reports and gastroenterology reports (noting the claimant saw Dr Sudarshan Paramsothy of Concord Hospital gastroenterology – referral dated 25 July 2023).
On 19 February 2025, the claimant provided the MyHealth Newington records for the pre-accident period from approximately September 2020 (the Panel already had the post-accident records). These include GP consultation notes from September 2020, Concord Repatriation General Hospital notes, gastroenterologist reports, blood tests and gastroscopy/colonoscopy reports.
On 20 February 2025, the insurer lodged brief submissions addressing the My Health Newington records. The insurer submits that the records indicate that the flare up of the claimant’s Crohn’s disease was due to medication non-adherence and not as a result of the motor accident.
A summary of the relevant material is provided below.
Claim documents and early treating records
The Application for Personal Injury Benefits was completed by the claimant on 18 July 2023 and states that he suffered accident-related injuries to his abdomen and an aggravation of Crohn’s disease.
The ambulance report dated 11 June 2023 stated that the claimant’s “abdo[men] was soft and non tender” with “nil lap/seat belt abrasions/contusions to torso” and “nil pelvic discomfort”. It also noted that the claimant was “currently not medicated for his Crohn’s disease”.
St George Hospital Records Discharge Referral dated 11 June 2023 states that the claimant had “mild epigastric tenderness on palpation”. There was a note of the claimant having “pain in his right ear after falling into some water. The ear now appears infected externally. The auditory canal has puss and black tissue inside”.
A Certificate of Capacity was completed by his GP Dr Howard Ma on 18 July 2023 which included a diagnosis of “flare up of Crohn’s disease due to stress; adjustment disorder”. Dr Ma also stated pre-existing factors of Crohn’s disease and anxiety/depression. Dr Ma indicated that he had initially seen the clamant on 23 June 2023, two weeks after the motor accident where the claimant reported neck stiffness and a “flare up of abdominal pains and his Crohn’s disease…”
Treating reports
Dr Baraty, gastroenterologist, provided reports from November 2020 to April 2021. The claimant had very significant Crohn’s disease diagnosed in September 2020. Ongoing symptoms presented to Concord Hospital where flexible sigmoidoscopy performed by Dr Paramsothy. Ulcerative colitis described in remission. However, biopsies confirmed ongoing mild inflammation and faecal calprotectin still elevated in hospital.
In November 2020, the claimant had significant faecal loading in large bowel. Recommended use of Movicol while still weaning off steroids.
In December 2020, the claimant requires escalation to biological therapy (injections every two months) given poor compliance with medications
In November 2021, Dr Rupert Leong reported that the claimant’s Crohn’s was flaring. Told to wean to 30mg prednisolone and commence vedolizumab infusions as soon as possible.
In April 2021, Dr Baraty stated that the claimant was bingeing on steak, not taking Movicol and had sharp abdominal pains that keep coming back often. He opined that the claimant was not drinking enough water and had not opened bowels in four days.
Pre-accident Myhealth Newington records
The pre-accident records indicate that the claimant was diagnosed with Crohn’s disease in September 2020. He had intermittent symptoms of diarrhoea ranging from mild to severe with intermittent abdominal pain. He was initially prescribed prednisone but was weaning this off and was on pantoprazole towards December 2020. He was also advised to take Movicol and Buscopan.
In the latter third of 2021, the claimant was seeing Dr Baraty, was unhappy with the Inflixmab infusions and would like a second opinion. He experienced flare ups of Crohn’s. He self ceased Prednisone because of weight gain. He was awaiting Concord Hospital to organise Vedolizumab infusion.
In April 2022, the claimant had been taking Infliximab for the last two months. There was nil diarrhoea but had dyspepsia and generalised abdominal pains which were intermittent. Blood in stools was intermittent also, sometimes with faecal urgency. Claimant did not want to take anymore medication until he sees a gastroenterologist. In June 2022, he had a colonoscopy booked and was on Vedolizumab infusions.
In January/February 2023, the claimant’s Crohn’s was generally well controlled and was on Vedolizumab infusions every two months.
Post-accident Myhealth Newington records
In June 2023, it was noted that the claimant had no follow up with the Inflammatory Bowel Disease (IBD) clinic, had stopped infusions and did not want to restart prednisone. The car crash on 11 June 2023 was noted and the claimant had a stiff neck. For a few nights he was getting stomach and lower abdominal pain and felt that his Crohn’s had flared up since the crash. Bowel opening was regular with more diarrhoea and some blood on wiping.
In July 2023, the claimant “feels Crohn’s has worsened with recent stressors from MVA”. Mental health had worsened. He was referred to see Dr Paramsothy of Concord Hospital Gastroenterology.
In July 2023, the claimant had ongoing abdominal pain with minimal PR bleeding. His Crohn’s was still flaring up in August 2023.
In September 2023, he attended the gastro clinic and was advised to start vedolizumab infusions and to start tioguanine 20mg daily. The claimant did not want to take medications due to previous weight gain. He saw a naturopath for Crohn’s instead. He took glutagenics, vegie digestaid, s. bifido biotic and liposomal vitamin D3. The claimant was told “naturopath would not be considered evidence based medicine, recommended claimant to follow gastroenterologist advice”.
In October 2023, the claimant had infusion for Crohn’s. He had some bad days but mostly settled. On 7 November 2023, his Crohn’s was fluctuating with increased stool frequency and abdominal pains. On 21 November 2023, he was reported to recover and had not booked with hospital. By early December 2023, the claimant had no major flare ups.
On 30 April 2024, he attended the Emergency Department post colonoscopy. Colonoscopy stated as normal and the claimant would see gastroenterologist in six months time.
By the end of October 2024, the claimant’s Crohn’s was overall ok, with some good and bad days and rarely any blood in stools. He remained on a two-monthly infusion but was no longer on thioguanine.
In February 2025, the claimant reported that his bowels open every two-three days, with blood, some constipation and blood on wiping. He was on two-monthly infusion.
PANEL EXAMINATION REPORT
The Panel determined that the claimant be re-examined by Medical Assessor Home on 10 April 2025. Unfortunately, the claimant did not attend this appointment. A new appointment was made for 2 May 2025. The re-examination report is as follows:
“Panel Re-examination conducted by Panel Medical Assessor Alan Home
Mr Ethan Nelson attended my Pitt Street, Sydney rooms for a medical assessment as part of the Medical Panel in relation to injuries sustained on 11 June 2023. He attended the assessment unaccompanied.
PRE-ACCIDENT MEDICAL HISTORY
Mr Nelson states he completed Year 9 schooling at Concord High School. Thereafter, he worked at K-Mart in a storeroom for approximately one year and then as a bartender before commencing work as a plant mechanic at Tutt Bryant.
At the time of the subject accident, he continued full-time work as a plant mechanic.
SOCIAL HISTORY
Mr Nelson is single and lives with his mother and three sisters in rented accommodation in Oatland.
His parents separated many years ago. His father lives in Perth. His mother works as an accountant.
In relation to his gastrointestinal condition, he developed Crohn’s Disease in 2020, at first, a diagnosis of ulcerative colitis was made. However, this was altered to Crohn’s Disease by 2021.
He confirms that he came under the care of gastroenterologists at Concord Hospital including Dr Baraty. He was initially treated with Prednisone and Azathioprine.
He recalls side effects related to the use of oral Prednisone, including weight gain. He also recalls side effects in relation to the use of Azathioprine, including nausea.
He underwent gastrointestinal investigations including Colonoscopy in September 2020 to confirm the diagnosis of inflammatory bowel disease, specifically Crohn’s disease.
He confirms that he required multiple hospital admissions through Concord Hospital and Westmead Hospital in the latter months of 2020 during periods of spontaneous exacerbation of his bowel condition.
He confirms admissions to manage hematemesis on two occasions in late 2020.
He also confirms that by early 2021, there was a recommendation that he commence treatment with the biological agent Infliximab, in the form of second-monthly injections.
He confirms initial hesitancy to commence the medication due to concerns that he and his mother held regarding the use of these agents.
He confirms that by mid-2021 he did commence the biologicals, receiving second-monthly injections at his home, administered by a community nurse.
There was a subsequent improvement in symptoms in the period leading up to mid-2022, when he underwent a further investigation including a sigmoidoscope under the care of Dr Pudipeddi, gastroenterologist at the Concord Hospital, Gastroenterology Clinic.
At that stage, his bowel showed an improved appearance, whilst he was taking the biologicals.
He confirms that in late 2022, he ceased the use of biologicals due to ongoing concerns about side effects.
He confirms that he thereafter experienced gradual recurrence of symptoms culminating in July 2023, when he was referred back to his gastroenterologist at the Concord Hospital.
He confirms that after review at the Gastroenterology Clinic on 23 August 2023. He was recommenced on biologicals. He confirms he was told that he had suffered a flare-up of his disease due to the cessation of Vedolizumab and Thioguanine in late 2022 under his own volition.
I note the diagnosis was of a mild chronic flare-biochemical and clinical due to medication non-adherence.
Thereafter, he was recommenced on second-monthly injections of Vedolizumab. His Crohn’s disease has come under better control.
He experienced symptom improvement after recommencing medication on the advice of his treating gastroenterologist.
He confirms that he was reviewed by the Inflammatory Bowel Disease Clinic in February 2024.
A further colonoscopy performed in April 2024 demonstrated gut healing. An upper GI endoscopy also performed 26 April 2024 demonstrating normal appearance of the oesophagus and stomach.
He confirms further period of non-compliance with medication in late 2024, but he has since recommenced his injections.
Mr Nelson states that he recently suffered an episode of altered consciousness for which he is undergoing investigation to determine if he has suffered from seizures or if there is any underlying cause for those symptoms.
DETAILS OF THE SUBJECT MOTOR VEHICLE ACCIDENT
Mr Nelson states that he was involved in a motor vehicle accident as the seat-belted driver of a BMW 320i sedan. He had a front-seat male passenger. He was travelling along Bay Street, Rookwood when the driver of a car travelling the opposite direction made a right-hand turn impacting his vehicle on the front driver’s side corner. Airbags deployed.
He recalls that he was struck in the face by the airbag. He managed to alight from the vehicle with the assistance of a passer-by. He was subsequently taken by ambulance to St George Hospital in Kogarah where he underwent spinal imaging including CT scans of the brain and cervical spine.
He does not recall early symptoms of abdominal pain. There was no subsequent abdominal pain or bruising.
He recalls on the following day he developed low back pain. He attended Dr Maher at My Health Clinic in Newington, who referred him for physical therapy of the cervical spine and back.
He recalls that he attended physical therapy for a period of six months. He recalls that he improved an improvement in his symptoms of low back pain.
Thereafter he attended an exercise physiologist around June 2024. He recalls a period of supervised gymnasium-based exercise for six months.
He is cautious with the use of analgesic medication due to his inflammatory bowel disease. However, he does take Paracetamol on occasion.
CURRENT MEDICATIONS
· Orphenadrine (Norflex)
· Vedolizumab (second monthly injection)
· Paracetamol (occasional)
He avoids the use of Codeine on medical advice
CURRENT SYMPTOMS
He describes current symptoms of intermittent neck pain occurring approximately once to twice weekly.
He describes intermittent lower back pain occurring with heavier physical activity. As such he avoids heavy lifting. He says he experiences back pain about once weekly. The severity of back pain when present is 5 out of 10.
Neck and back pain are both felt in the midline. He denies radiation of neck pain into the upper extremities. He denies radiation of back pain to the lower extremities.
There are no symptoms of upper or lower limb paraesthesia or numbness.
He says that he currently experiences occasional colicky abdominal pain. He reports variable bowel habit. He opens his bowel every 2-3 days and on occasion, 2-3 times in a day.
His stool is usually solid. However there are occasional bouts of diarrhoea with mucus.
FUNCTIONAL CAPACITY AND REPORTED TOLERANCES
Mr Nelson is right hand dominant. He reports a sitting tolerance of up to one hour, with a similar tolerance for driving. He reports a normal tolerance for walking. He is careful with deep crouching. There is sometimes back pain when rising from a crouching position.
There is no disability for stair climbing. His sleep pattern is sometimes broken due to back pain.
He is able to lift and carry moderate weight. In his previous work he would lift up to 40 kilograms.
SOCIAL HISTORY
He is single and was living with his mother and three sisters. However, he has recently moved in with a family friend over the past fortnight.
He does help out with light domestic chores and gardening. He enjoys fishing.
VOCATIONAL HISTORY
He last worked as a mechanic in early 2024. At that stage, he was retrenched from his employment.
He has not commenced work since that time. He is receiving Job Seeker presently.
PHYSICAL EXAMINATION
Mr Nelson presented as a 22-year-old standing 173 centimetres and weighing 85 kilograms.
Cervical spine (cervicothoracic)
Examination reveals normal spinal curvature without muscle spasm. Cervical spine flexion is performed to full range, extension full range. Right and left rotation are symmetrically performed to full range. Lateral flexion is performed to two thirds normal range to each side. There is no focal tenderness elicited to palpation of the cervical spine. There is no muscle guarding. Spurling’s test is negative.
Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is no muscle wasting. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
Right and Left shoulder
There is a full range of pain-free motion of both shoulders.
Thoracic spine (thoracolumbar)
Examination revealed normal spinal curvature without spasm. There is no abnormality to inspection or palpation. There is a full range of active thoracolumbar spinal motion in flexion, extension and rotation to each side. There is no dysmetria with thoracic rotation. There is no muscle guarding. There are no signs of thoracic radiculopathy.
Lumbar spine (lumbosacral)
There is normal spinal curvature. There is no muscle spasm. Active lumbar flexion and extension are performed to two thirds normal range with mild muscle guarding evident. Lateral flexion is performed to three quarters normal range on each side. There is no muscle guarding. Straight leg raise is performed to 60 degrees bilaterally. Lasegue’s sign is negative.
Neurological examination of the lower extremities reveals normal myotomal power in all muscle groups. There is no muscle wasting. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
There is normal capacity to walk on toes and heels.
Abdomen
Examination revealed no scarring. There is no organomegaly. The abdomen is soft. There are normal bowel sounds. There are no hernias.
DIAGNOSIS and CAUSATION
The claimant, Ethan Nelson was involved in a motor vehicle accident in which his vehicle was struck on the front driver’s side corner. Airbags deployed.
Spinal Injuries
I find that in the subject motor vehicle accident, the claimant suffered a soft tissue injury to the cervical spine and a soft tissue injury to the lumbar spine.
CT scan imaging of the lumbar spine has demonstrated broad-based disc bulges at L3/4, L4/5 and L5/S11 without high-grade canal stenosis or foraminal narrowing. There have been no clinical symptoms or signs of a cervical or lumbar radiculopathy.
There is no history of upper back pain and there is no abnormality on examination of the thoracic spine at this assessment.
Abdominal Wall Injury
He cannot recall early abdominal pain after the accident. There is no record of the same injury. There is no abnormality at this assessment.
Crohn’s Disease
Approximately one-month post-accident, in July 2023, he developed a flare-up of Crohn’s Disease as recorded by his treating doctor.
He was referred back to his gastroenterology service.
He confirmed that he had ceased his previous treatment with second-monthly infusions of Vedolizumab and Thioguanine from late 2022, which led to a destabilization of his Crohn’s Disease.
I do not find that the flare-up of the Crohn’s Disease that occurred in July/August 2023 occurred due to his motor vehicle accident.
There is no history of significant abdominal trauma in the post-accident period.
The claimant confirms that he had ceased his normal medications in either December 2022 or January 2023, as documented by his treating gastroenterologist. This led to a subsequent recurrence of his symptoms of Crohn’s Disease in mid-2023.
Similar episodes of disease relapse were associated with non-compliance in 2021 and later in 2024.
From my review of the entire medical file on the claimant’s history, there has been no significant change in the course of the claimant’s Crohn’s disease caused by the subject motor vehicle accident.
His Crohn’s Disease has been relapsing and remitting since his initial diagnosis in 2020 and when taken, has responded well to his biological agent InflixImab infusions. The disease has relapsed on several occasions when he ceases medications due to non-compliance.
As noted by the papers that are enclosed with the Submissions regarding Crohn’s Disease, it is accepted that Crohn’s Disease is a chronic inflammatory intestinal disease characterized by periods of flares and remissions. It is known that inflammation plays a key role. Typical symptoms include abdominal pain, chronic diarrhea, weight loss and fatigue as in this case.
It is known that this discontinuation of medication is a potent cause of relapse of the disease. The goal of treatment is to induce remission of medication followed by the administration of maintenance medications to prevent a relapse of the disease.
The pathophysiology of Crohn’s Disease is complex, however, several factors have been implicated in the cause, including a dysregulated immune system altered microbiota, genetic susceptibility and environmental factors.
On the available information, there is insufficient evidence to determine a causal relationship between the motor vehicle accident and the flare-up of Crohn’s Disease that he suffered in July 2023, and no such relationship is reported by his treating gastroenterologist.
Further, there is no history of significant abdominal trauma at the time of the accident.
The following injuries WERE caused by the subject accident:
Cervical spine: Soft tissue injury
Lumbar spine: Soft tissue injury
The following injuries WERE NOT caused by the subject accident:
Abdominal wall: Soft tissue injury; There is no evidence of an abdominal wall injury.
Intestine: Crohn’s Disease
Thoracic spine
Threshold injury
Section 1.6(2) of the Act:
A soft tissue injury is (subject to this section) an 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.
Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017:
1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.
The assessment of whether an injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that an injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.
Cervical spine
The injuries listed above are threshold injuries. I am satisfied the injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The clinical presentation does not meet the criteria for cervical radiculopathy set out in Clauses 5.8 to 5.10 of the Motor Accident Guidelines.
Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:
· loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
· positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
· muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
· reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
None of the criteria are met.
Lumbar spine
The injuries listed above are threshold injuries. I am satisfied the injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
The clinical presentation does not meet the criteria for lumbar radiculopathy set out in Clause 5.8 to 5.10 of the Motor Accident Guidelines (see above).
None of the criteria are met.”
CONSIDERATION OF THE ISSUES
The Panel reconvened on 26 May 2025 and was in agreement with the re-examination report findings of Medical Assessor Home. While it was not in dispute that the musculoskeletal injuries were threshold injuries, the soft tissue nature of the injuries to the cervical spine and lumbar spine were confirmed in the re-examination report.
With respect to the abdominal wall, the claimant reported that he could not recall early abdominal pain after the motor accident and the Panel could find no evidence of an abdominal wall injury in the clinical notes.
Turning to the alleged aggravation of the claimant’s pre-existing Crohn’s disease, the Panel felt that this was thoroughly considered in the re-examination report. The Panel will add some brief additional reasons below.
The Panel accepts that the claimant had regular flare ups from the time of initial diagnosis in September 2020 to the present day. The Panel however, could not attribute the post-accident flare ups to the subject motor accident of 11 June 2023.
As indicated in the Panel re-examination report, Panel Medical Assessor Home took a careful history from the claimant regarding the onset of his Crohn’s, the flare ups and perhaps most importantly, the claimant’s non-adherence with the medication prescribed. The history given by the claimant to the Panel Medical Assessor was largely consistent with the entries in the clinical records and the reports of his treating gastroenterologist, Dr Baraty.
As noted in the clinical notes and the claimant’s treating doctors, the claimant had self-ceased the prescribed Vedolizumab at the time of the motor accident. It was reported that the claimant had responded to this medication previously with mucosal healing but following cessation of the medication, showed the clinical / biochemical flare of the disease.
The Panel also understood the chronic relapsing and remitting nature of Crohn’s disease in the literature provided by the insurer which applied to the claimant as evidenced by his documented history.
As such, the Panel could not accept the claimant’s view that the aggravation of his Crohn’s was as a result of the motor accident. The flare up was more likely than not caused by the claimant’s non-adherence to prescribed medication and the history of the disease, as indicated in the claimant’s pre-accident and post-accident clinical notes and treating reports.
Moreover, the motor accident had a nil or negligible contribution to the flare ups of the pre-existing Crohn’s disease which, as noted by his treating gastroenterologist Dr Baraty, to be severe at first diagnosis in September 2020.
The Panel felt that it was not necessary to deal with the question of whether Crohn’s falls within the definition of a threshold injury, given its finding that the disease was not causally related to the motor accident.
Summary
The following injuries were caused by the motor accident:
· cervical spine – soft tissue injury and
· lumbar spine – soft tissue injury.
The following injuries were not caused by the motor accident:
· abdomen – soft tissue, musculoligamentous, musculoskeletal;
· intestines – aggravation of pre-existing Crohn’s disease – regular flare ups, and
· thoracic spine.
CONCLUSION
The Panel concludes that the claimant’s injury caused by the motor accident is a threshold injury.
As the injuries found to be caused by the motor accident are different to that found by Medical Assessor Truskett, the certificate issued by Medical Assessor Truskett dated 14 August 2024 is revoked.
A new certificate is issued at the front of this statement of reasons.
0
6
0