Ousback v QBE Insurance (Australia) Limited
[2024] NSWPICMP 72
•13 February 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Ousback v QBE Insurance (Australia) Limited [2024] NSWPICMP 72 |
| CLAIMANT: | Elin Ousback |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 13 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Certificate of Determination; whole person impairment (WPI); certificate issued under section 7.23(1); cervical spine injury; C4/5 disc prolapse with left C5 radiculopathy; claimant review of determination applying 50% deduction to the injury; failure to determine WPI arising from claimant’s pre-existing injury as a percentage; no objective evidence in the period leading up to subject accident that there are any ongoing symptoms sufficient for the neck injury; 2011 accident to be rateable more than DRE category 1; criteria for radiculopathy; Held – Panel revoked certificate of Medical Assessor Rapaport; new certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Review Panel revokes the certificate of Medical Assessor Adam Rapaport dated · cervical spine – 15%, the claimant suffered a whole person impairment of 15%. |
STATEMENT OF REASONS
INTRODUCTION
Elin Ousback (the claimant) is a 50-year-old woman who was injured in a motor accident on 23 February 2019.
The driver of the insured’s vehicle lost control and collided with the front driver’s side of the claimant’s vehicle. Following the accident the claimant sought a concession from the insurer that her injuries were non-minor injuries. The insurer did not make this concession and the claimant was examined by Medical Assessor Jonathan Herald who, in a certificate dated
24 June 2022, determined that the claimant had sustained a C4/5 disc prolapse with left C5 radiculopathy and that this injury is not a minor injury.
Thereafter, the claimant sought a concession from the insurer that her injuries exceeded the 10% of the whole person impairment threshold established by the Motor Accident Compensation Act. The insurer declined to make this concession and thereafter the claimant applied to have as assessment of the degree of permanent impairment undertaken by the Personal Injury Commission (Commission).
The claimant was examined by Medical Assessor Adam Rapaport on 5 September 2023 who issued a certificate on 7 September 2023 finding that the soft tissue musculo-ligamentous cervical spine injury with C4/5 disc prolapse and C5 radiculopathy did not give rise to a permanent impairment of greater than 10%. He found a permanent impairment of 8% by finding a 15% whole person impairment and applying a 50% deduction to the injury that was attributable to the subject motor vehicle accident.
The claimant sought a review of this decision. The President’s delegate, Rachel Brittliff, in a Decision dated 5 October 2023 determined that the Medical Assessor did not follow the prescribed process for determining the value (in whole person impairment terms) of the pre-existing impairment. Accordingly, it was determined that the matter ought to be sent off to a Medical 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 provides 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.
The Panel determined that an examination of the claimant was required.
The claimant was examined by Medical Assessor Margaret Gibson on Friday
19 January 2024 at 10.00am. All documents which were provided by the parties in the application and reply, including pre-accident cervical spine scans, clinical notes were available to the Panel.
The claimant brought no further imaging with her for the assessment. She is currently 50 years of age, married with three children, 15, 17 and 25, all living with them at home. She works with her husband in an IT business. However she said she currently only manages a few hours a day due to her accident-related symptoms but because it is a family business, she can work anywhere from 5-7 days per week.
PAST MEDICAL HISTORY
Ms Ousback was diagnosed with splenomegaly and thrombocytopenia approximately 30 years ago. She has not required any steroid therapy for many years and is under the care of a haematologist at Royal Prince Alfred and her platelet counts have been very stable over this period.
She takes levothyroxine for Hashimoto's disease diagnosed in 2016.
She had COVID-19 two years ago and was very unwell with the infection.
When asked specifically about any prior history of migraine, she said that she only had a migraine "once before" and this was at age 10. When asked, she said the reason she thought it was migraine was that the headache was accompanied by nausea and vomiting, although she couldn’t recall anything more specific about the headaches such as their distribution.
Nevertheless, there had never been any formal diagnosis made of migraine or any specific type of headache. There had been no specialist neurological reviews no specific treatment for migraine or other specific headache conditions. She said she had had occasional headaches over the years in association with sinus pain.
When asked about the motor vehicle accident in 2011, she confirmed she had sustained a whiplash injury and had experienced some low-grade headaches, which on clarification, appeared to be cervicogenic. She said she had had some neck pain after the accident involving muscle spasms which had been occasional. The neck pain and headaches had settled eventually, such that there were no significant ongoing symptoms relating to this accident.
When the claimant was asked about the records from Spinal Solution Family Chiropractors, especially in reference to 4 February 2019, she could not recall these left arm symptoms although she did remember she had some cramping in the left trapezius region.
I also noted that Dr Little, neurosurgeon, on 23 March 2015, so prior to the subject accident had commented,
"She has no substantial radiating symptoms apart from some variable paresthesia in the left hand into the middle finger. The hand paresthesias are worse with movement. They are worse during the day than night time. They are not the main feature of the problem, which is a suboccipital pain.
She had an MRI in December that show degenerative changes commensurate with age and maximal at C4/5 where she has a discogenic bar on the left causing some narrowing of the foramen although no overt nerve compression. On examination she had discomfort in extension and right-sided rotation. Her range of movement was not too bad. She was neurologically normal. My impression is that this lady has cervicogenic headaches. The exact cause is unclear. I did not believe she has a brachialgic component."
The features described by Dr Little could represent non-verifiable radicular complaint, however there was no evidence that the non-verifiable radicular complaints had continued up to the time of the subject accident as this consultation was in 2015. I had also considered the chiropractic records, noting complaints of left arm pain and MS to hand only slightly better and I have considered the fact that she had had chiropractic treatment even leading up to the subject accident but nevertheless there was insufficient evidence to rate cervical spine impairment greater than 0% whole person impairment prior to the subject accident.
HISTORY OF THE SUBJECT MOTOR ACCIDENT
Ms Ousback had been driving an Audi sedan with the seat belt fastened. There were no passengers in the vehicle at the time, as she was on the way to collect her daughter. She said the weather was wet and the road slippery. She was about 200m from home and travelling along Eastern Valley Way in Middle Cove/Willoughby when a Toyota SUV, being driven by a red P-plate driver, lost control and fishtailed, colliding into the front right panel of her vehicle. Her car was pushed to the other lane where she was blocking traffic. She was able to get out of the vehicle by herself. The driver side door was still operable. She then attempted to comfort the young female driver of the other car, who was upset and shocked.
Ms Ousback contacted her husband to collect her daughter. There were no immediate symptoms at the scene. She had exchanged details with the other driver and the driver’s mother who had since arrived. Photos were taken of the damage.
She then drove her vehicle home as she was a very short distance away and then went to bed.
Ms Ousback awoke the following morning in the early hours when she said the headache had "hit like a ton of bricks" and there was "a throbbing migraine." The headache was felt at the back of the head, spreading to the forehead "like a crown" and exacerbated by upper limb movements.
She was unsure when her left arm had started to feel completely numb, but in recent times she has noticed a loss of dexterity, so she has a tendency to drop things.
She added that she had later been involved in a headache study run by Trudy Rebbeck at SIRA and a brain scan had been performed as part of the study which, she was told, had showed no changes suggestive of any prior migraine headaches.
Ms Ousback visited a general practitioner at the Neutral Bay Big Bear Medical Centre on the day after the accident, 24 February 2019, and she was prescribed Endone for pain and referred for an MRI scan, which was performed 26 February 2019 at Harbour Radiology. The study report had concluded “there is C4/C5 uncovertebral degenerative change with neural foramina stenosis (left greater than right) and impingement of the exiting left L5 nerve roots. There is no spinal canal stenosis.”
Her general practitioner had referred her to Dr Vahid Mohabbati at the Sydney Pain Management Clinic. She visited the doctor on 29 October 2019 and in his report he had opined that "Ellen had suffered from whiplash associated disorder following an MVA on 23 February 2019. It was thought over time, she developed what appears to be cervicogenic headache. C1/C2 joints down to C4/C5 appear to be involved. The greater occipital nerve also seems to be very irritable and neuralgic.”
She continued under Dr Mohabbati’s care and had undergone a greater occipital nerve block with significant improvement in her symptoms, although this was only temporarily.
In February 2021, 6 August 2021, 8 August 2021 and 23 March 2022, she underwent radiofrequency ablation treatments directed to the greater occipital nerve. On
17 February 2023, a spinal cord stimulator was fitted. Ms Ousback stated that this device had taken quite an extended period to get the correct adjustment for maximal effect. In the interim, she had been taking Endone tablets and she had been having physiotherapy treatment including traction.
CURRENT SYMPTOMS
Ms Ousback stated the headache has now reduced in severity from 10/10 to 5/10, 0 being no pain, 10 being severe pain, but is still constant and is still in the same distribution.
There is muscular tightness/aching in the neck. Her left arm feels completely numb, especially over the left anterior forearm.
She wakes repetitively at night due to pain and discomfort.
CURRENT TREATMENT
The spinal cord stimulator remains in situ and is providing reasonable relief of her symptoms to Ms Ousback headache. Over the last month, she has trialled medicinal marijuana at night to assist with sleep. She now takes Endone very rarely. She takes paracetamol and ibuprofen as required, but avoids taking this daily, so generally she would take one on alternate days or less frequently.
She has not had any physiotherapy or chiropractic treatment recently as Dr Mohabbati had advised against this. However, she performs self-managed exercises at home.
CLINICAL EXAMINATION
Ms Ousback was pleasant and well presented. She was 165cm tall, weighing 69kg. She had a normal gait and could walk on heels and toes. She was right hand dominant.
On examination of the upper back and low back buttock region, there was a 7cm pale coloured scar slightly to the right of the upper thoracic spine with some suture marks visible. There was a pale scar over the right upper buttock measuring 6.5cm with the stimulator palpable underneath. When asked, she volunteered that she would avoid evening dresses which are low cut at the back due to the scar. The scar would have been noticeable even at a reasonable distance.
On examination of the neck, there was mild tenderness over the upper cervical vertebrae. There was normal flexion and extension with some pain on extension. Lateral flexion was normal to the right and half-normal to the left. Rotation was normal to the right and half-normal to the left. There was no muscle spasm or guarding.
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, right arm measuring 29.5cm, left arm 29cm, right forearm 26cm, left arm 25cm. There was diffuse dysesthesia over the entire left arm but more pronounced over the C5 forearm and middle finger. Reflexes were present bilaterally but there was some depression of the left supinator reflex C5/C6.
Shoulder movements were entirely normal as measured with the goniometer as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180 ° | 180 ° |
| Extension | 50 ° | 50 ° |
| Internal Rotation | 80 ° | 80 ° |
| External Rotation | 80 ° | 80 ° |
| Abduction | 180 ° | 180 ° |
| Adduction | 50 ° | 50 ° |
SUMMARY AND OPINION
Ms Ousback is a 50-year-old woman who was involved in the subject accident on
23 February 2019. She had subsequently reported neck pain, cervicogenic headaches and later dysesthesia and loss of dexterity in her left upper limb. There was contemporaneous evidence of neck pain and left upper limb symptoms, as recorded by the general practitioner, Dr Marcos Jackson.
There were prior complaints of neck pain together with some intermittent symptoms in the left hand. However, there was no objective evidence in the period leading up to the subject accident that there are any ongoing symptoms sufficient for the neck injury from the 2011 accident to be ratable at more than DRE Category I, so 0% whole person impairment.
On examination by the Panel, there were two criteria for radiculopathy in the left arm, being asymmetry of reflexes and sensory changes in the C5 dermatome. Therefore, the cervical spine injury satisfied the criteria for DRE Category III as per ss 6.11 to 6.153 of the Motor Accident Guidelines and, as such, is rateable at 15% whole person impairment. As described, there was no objective evidence to provide an impairment rating more than 0% prior to the subject accident, so no deduction can be made.
The Panel finds the claimant to have sustained a 15% whole person impairment consequent on the cervical spine injury arising from the subject motor vehicle accident.
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