Oyoo v Allianz Australia Insurance Limited
[2025] NSWPICMP 182
•19 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Oyoo v Allianz Australia Insurance Limited [2025] NSWPICMP 182 |
CLAIMANT: | Paul Oyoo |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 19 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of permanent impairment; claimant suffered injury in a motor accident on 17 January 2020 when the insured truck struck his vehicle from behind; whether the injury to the thoracic spine leading to decompression surgery was caused by the accident; previously asymptomatic degenerative thoracic spondylosis at T10/T11; original assessment of whole person impairment of 5% for injury to cervical spine and 5% for injury to lumbar spine was not in dispute; Held – Medical Assessment Certificate revoked and new certificate issued with a finding of a degree of permanent impairment of 33%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under ss 7.23(1) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Determination 1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 6 May 2024. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which is GREATER THAN 10% (that is, 33%): · Cervical spine – soft tissue injury with underlying degenerative change; · Lumbar spine – soft tissue injury with underlying degenerative change, and · Thoracic spine – aggravation, acceleration and deterioration of previously asymptomatic degenerative thoracic spondylosis at T10/T11 requiring decompression surgery. |
STATEMENT OF REASONS
BACKGROUND
On 17 January 2020, the claimant, Paul Oyoo, was involved in a motor accident when his vehicle was struck from behind by a truck, insured by Allianz Australia Insurance Limited (insurer).
The claimant claimed that as a result of the accident, he sustained injuries to his cervical spine, lumbar spine, thoracic spine, chest, shoulders and right thigh. He also claimed that he developed bladder dysfunction and sexual dysfunction.
The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act).
As part of his claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant’s physical injuries crossed that threshold.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
The Commission assigned the claimant’s referred injuries to the cervical spine, lumbar spine, thoracic spine, chest, shoulders and right thigh to Medical Assessor Alan Home for assessment. A referred injury to the skin (scarring) resulting from surgery to the thoracic spine, was also assigned to Medical Assessor Home for assessment.
The Commission assigned the claimant’s referred injuries to the bladder and male reproductive organs to Medical Assessor Edward Korbel for assessment.
On 2 May 2024, Medical Assessor Korbel issued a certificate finding that the injuries that were assigned to him for assessment, gave rise to a permanent impairment of 0%.
On 6 May 2024, the Medical Assessor Home issued a certificate finding that the injuries that were assigned to him for assessment, gave rise to a permanent impairment of 10%.
THE REVIEW APPLICATION
On 28 May 2024, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of Medical Assessor Home to a review panel for review. The review application was made within the time prescribed by
s 7.26(10) of the MAI Act.The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Dixon, Medical Assessor Kenna and Member Castagnet (the Panel).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
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. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
In response to directions issued by the Panel, the claimant submitted that the only referred injury to be re-assessed by the Panel, is the thoracic spine injury. The claimant confirmed that he accepted the whole person impairment (WPI) assessments of Medical Assessor Home for the cervical spine injury (5%) and the lumbar spine injury (5%).
The insurer submitted that it accepted that the accident caused soft tissue injuries to the cervical spine and the lumbar spine and that there is no reviewable error in the Medical Assessor’s assessment of these injuries.
Accordingly, the only matter with which the Panel is concerned in this review is whether the accident caused an injury to the thoracic spine, and if so, does the injury give rise to any degree of permanent impairment.
RELEVANT LEGISLATION AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.2.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines,
the Guidelines are definitive.[6][6] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three medical assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
MEDICAL ASSESSMENT UNDER REVIEW
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Medical Assessor found that the following injuries were caused by the accident:
· cervical spine – soft tissue injury, with underlying degenerative change;
· lumbar spine – soft tissue injury, with underlying degenerative change, and
· right shoulder – soft tissue injury, resolved.
In making these findings, the Medical Assessor noted that there was early documentation of right shoulder pain in January 2020 and the claimant reported persisting symptoms of neck and back pain. There was a subsequent spontaneous increase in neck symptoms in
March 2020 and imaging demonstrated cervical disc pathology of C4/C5 and C5/C6, with presentation of left cervical upper limb weakness.
The Medical Assessor found that the following injuries were not caused by the motor accident:
· thoracic spine – T10/11 spondylosis and decompression surgery;
· skin scarring – due to the decompression surgery;
· chest – soft tissue injury;
· left shoulder – soft tissue injury, and
· right thigh – soft tissue injury
In making his finding in relation to the thoracic spine, the Medical Assessor noted that there was a late development of symptoms of T10/11 spinal stenosis, which was associated with thoracic myelopathy causing symptoms of bladder urgency as well as bilateral lower limb weakness, sensory loss, and imbalance.
The Medical Assessor believed that there was insufficient evidence to conclude that the development of the spinal stenosis was caused by the accident because of the delay between the accident and the development of these spinal symptoms. He believed that the delayed symptoms were due to the progression of underlying degenerative changes, which was investigated in September 2021 and led to spinal decompression surgery in November 2021.
The Medical Assessor also believed the mechanism of the accident being a rear-end collision, in the absence of early symptoms of thoracic spine pain or evidence of discrete structural injury to the thoracic spine in the days after the accident, meant that there was no likely cause or relationship between the development of spinal stenosis and the accident.
SUBMISSIONS
Claimant’s submissions
The claimant submitted that in coming to his conclusions, the Medical Assessor did not consider the possibility of the accident accelerating or exacerbating a pre-existing condition in the thoracic spine such that it became symptomatic. Contrary to the findings of the Medical Assessor, there was no complaint made about the thoracic spine prior to the accident.
The claimant submitted that at Mt Druitt hospital there were early complaints of neck, back and right shoulder pain. The fact that the Medical Assessor recorded a complaint of ‘back pain’, later to describe ‘low back pain’ indicates that there is a distinction between the terms and that ‘back pain’ also refers to mid-back pain.
The claimant submitted that there was early investigation of the thoracic spine injury in that a CT scan of the thoracic spine was undertaken 8 weeks after the accident.
Insurer’s submissions
The insurer submitted that the Medical Assessor did not exclude the accident as a cause of the claimant’s symptoms in the thoracic spine by reason of an absence of contemporaneous complaint. Rather, the Medical Assessor concluded that he could not find that the accident had more than a negligible contribution to the claimant’s thoracic condition.
MATERIAL BEFORE THE PANEL
The claimant filed a paginated and indexed bundle of documents comprising 678 pages
(the claimant’s bundle), and the insurer filed a paginated and indexed bundle of documents comprising 44 pages (the insurer’s bundle).
The claimant filed an additional bundle of documents comprising 62 pages in response to directions issued by the Panel (the claimant’s additional bundle).
The Panel considered all the material filed by the parties.
THE EVIDENCE BEFORE THE PANEL
Pre-accident medical records
The general practitioner clinical records (GP records) of Blacktown Family Medical Centre (BFMC) showed that the claimant had received medical treatment from the medical practice since March 2009.
There was a visit by the claimant on 7 October 2016 for a “flare up of neck pain.”[9]
On examination, muscle spasm was noted in the left trapezius muscle and there was restricted rotation and flexion of the neck to the left. The impression was muscular pain. A muscle relaxant was prescribed, and a trial of TENs machine was advised.[10] On follow-up visits on 8, 9 and 11 October 2016, TENs treatment was applied to the neck region by the practice nurse.[11][9] Page 161 of the claimant’s bundle.
[10] Page 161 of the claimant’s bundle.
[11] Page 162 of the claimant’s bundle.
On 6 December 2017, the claimant reported a “pulled neck” on the left side with torticollis. It was recorded that ultrasound heat treatment was applied to the upper back region by the practice nurse on that day, followed by the application of deep heat cream.[12]
[12] Page 168 of the claimant’s bundle.
There was no evidence before the Panel of any further neck problems or evidence of any complaints or injuries to the thoracic or lumbar spine prior to the accident.
The motor accident
In his application for personal injury benefits (claim form) dated 8 March 2020, the claimant said he was driving a Holden Captiva along Luxford Road, Shalvey and was slowing down to make a U turn when the insured truck, a Mitsubishi Canter, struck the rear of his vehicle at speed. As a result of the collision, the claimant’s vehicle made a “U turn in the opposite direction [he] was meant to go.” He said the impact of the collision shattered the rear windscreen and “other car body parts.” [13]
[13] Page 5 of the claimant’s additional bundle.
In the claim form, the claimant described his injuries in the following terms:
“I had experienced severe pain on the back of my neck, right thigh, both shoulder blade (sic) and pain on my upper and lower back.”[14]
[14] Page 5 of the claimant’s additional bundle.
The records of Ambulance NSW reported the claimant’s car was impacted from behind at an estimated speed of 50 to 60kph, and there was “moderate damage to the rear of the vehicle.” The claimant complained of chest pain, nausea, right knee pain, right shoulder pain and neck pain. He was transported to Mt Druitt Hospital.[15]
[15] Page 21 of the claimant’s additional bundle.
Post- accident treatment records from the hospital, BFMC and Dr Sean Suttor
In his claim form, the claimant stated that he was admitted to Mt Druitt Hospital for treatment on the day of the accident and that he was discharged the same day. However, the clinical records for this admission is not before the Panel.
On 20 January 2020, the claimant consulted GP, Dr Lisa Buckley of BFMC. He reported that he was in a car accident on 17 January 2020 as a driver of a car that was hit from behind by a truck. He was able to self-extricate. He reported that he had attended the emergency department of Mt Druitt Hospital and was discharged home after 2 hours, with pain relief. On examination, it was recorded that the right shoulder was non tender to touch; there was tenderness in the right pectoral muscle; there was no neck abnormality with full range of movement. There is a reference to “soft tissue pain” but the body region for the pain was not specified.[16]
[16] 66-67 of the claimant’s bundle.
On 5 March 2020, the claimant consulted GP, Dr Maria Kamal of BFMC, reporting worsening pain in his lower back, shoulders, thighs and legs and a burning sensation to the front and back of his thighs as well as the soles of his feet. He was unable to work. He had one week off work and then started light duties. He returned to working normal hours but started to wake up with cramping pain at night. He had trouble standing at work with severe pain in his neck and lower back and altered sensation in the soles of his feet. [17]
[17] Page 65 of the claimant’s bundle.
On Tuesday 10 March 2020, the claimant attended the emergency department of Mt Druitt Hospital. It was recorded that he presented with “worsening back, neck, chest, and left arm pain since Wednesday”.[18] The claimant described “cramping pain with severity 10/10 last night”.[19] It was recorded that he was unable to move his neck and back since the night before.[20] It was recorded that there was a background of a motor accident on 17 January 2020 and that the GP had ordered an MRI of cervical and lumbar spines but was “having issues with insurance.” [21]
[18] Page 39 of the claimant’s bundle. The Panel notes that the Wednesday before was 4 March 2020.
[19] Page 39 of the claimant’s bundle.
[20] Page 39 of the claimant’s bundle.
[21] Page 40 of the claimant’s bundle.
Physical examination at the hospital revealed restriction of movement of the neck by pain; shoulders showed no deformity but there was stiffness on passive movement; there was tenderness on the left lateral edge of the sternum.[22] Neurological examination revealed shooting pain down both legs.[23]A review by Dr Farida revealed “some lumbar and thoracic tenderness and no neurological deficits.”[24]
[22] Page 40 of the claimant’s bundle.
[23] Page 41 of the claimant’s bundle.
[24] Page 41 of the claimant’s bundle.
A CT scan of the lumbar and thoracic spine was arranged by the hospital on the same day on a clinical history of “MVA 2020 January Thoracic and lumbar spine tenderness Radiculopathy lower limbs.”[25]
[25] Page 42 of the claimant’s bundle.
The CT scan performed on 10 March 2020 recorded following findings:
“At the level of D10-D11[26]: There is mild diffuse disc bulging with facet joints arthrosis and osteophyte formation causes mild canal narrowing and effacement of the surrounding CSF. Mild Diffuse disc bulging was seen at the level of L3-4, L4-5 and L5-S1 levels. Degenerative bony change was seen with osteophyte formation and facet joints arthrosis. Dependent basal atelectasis was seen. Conclusion: No recent bony injury or joint dislocation was seen. Degenerative change with osteophyte formation and facet joint arthrosis was seen more pronounced at the level of the D10-11 causing narrowing of the canal with effacement of the surrounding CSF. If clinically indicated further evaluation with MRI is recommended.”[27]
[26] D10-D11 is also referred to as T10-T11.
[27] Pages 42-43 of the claimant’s bundle.
On 12 March 2020, the claimant consulted GP, Dr Eric Le at BFMC reporting “severe posterior neck and lower back pain with associated radiculopathy.”[28] He reported that he had attended hospital two days ago and was referred for an MRI of the whole spine. He reported that a 6 hourly dose of Endone was not helping much at all.[29] It was observed that he was “holding left wrist with R hand to avoid movement of his shoulders, antalgic gait, tender and tense along all the posterior neck and upper back muscles.”[30]
[28] Page 64 of the claimant’s bundle.
[29] Page 64 of the claimant’s bundle.
[30] Page 64 of claimant’s bundle.
An MRI performed at Blacktown Hospital on 14 March 2020 confirmed that there was mild cervical and lumbar degenerative disc disease, left C4/5 foraminal stenosis as well as nerve root impingement at C3/4, C4/5 and L5/S1, an annular tear at L5/S1 and moderate canal stenosis T10/T11. [31]
[31] Page 627 of the claimant’s bundle.
On 16 March 2020, the claimant presented again at the emergency department of Mt Druitt Hospital complaining of neck pain and back pain for the past two months with weakness and paraesthesia in the left upper limb for the last 6 days. It was recorded that this was on a background of a motor accident two months before.[32] On examination, it was recorded that the neck stiffness was evident with tenderness in the left trapezius muscle on palpation.[33] The claimant was referred for a spinal consultation to consider a CT guided nerve root injection.
[32] Page 561 of the claimant’s bundle.
[33] Page 568 of the claimant’s bundle.
On 17 March 2020, the claimant presented again at emergency department of Mt Druitt Hospital with left shoulder and back pain.[34]
[34] Page 552 of the claimant’s bundle.
On 18 March 2020, the claimant consulted GP, Dr Kamal at BFMC reporting that he had been admitted to hospital on multiple occasions with pain that various imaging studies had been performed.
On 31 March 2020 and 29 April 2020, the claimant was treated by orthopaedic surgeon,
Dr Sean Suttor.
In his report of 31 March 2020, Dr Suttor noted that the motor accident in January 2020 with the claimant sustaining a whiplash injury to his neck and subsequently, in March 2020 developing axial neck pain, headaches and left arm radiculopathy with pain in both shoulders, predominantly on the left, and numbness and paraesthesia. He noted that the claimant had been unable to work as a nurse, due to his pain.[35]
[35] Page 46 of the claimant’s bundle.
On review of imaging studies on 29 April 2020, Dr Suttor noted there was a left posterolateral disc herniation at C4/5 impinging on the C5 nerve root and that there was no nerve impingement in the lumbar spine, although there was an annular tear at L5/S1. He recommended conservative management to continue at that stage.[36]
[36] Page 51 of the claimant’s bundle.
On 30 June 2020, the claimant consulted Dr Kamal, reporting that he has been doing physiotherapy and there was no radiculopathy pain in his legs now. The pain was mainly in his lower back. [37]
[37] Page 192 of the claimant’s bundle.
On 3 July 2020, the claimant consulted Dr Kamal, reporting mild improvement in left hand movement and that he was still getting lower back and neck pains as well as lower limb pains. He was doing physiotherapy twice a week.[38]
[38] Pages 192-193 of the claimant’s bundle.
The claimant had a number of consultations with Dr Kamal for the remainder of 2020. On
30 July 2020, he reported neck pain radiating to the left arm.[39] On 4 August 2020, he reported “pain is spasming again”.[40] On 3 September 2020, he reported that his thighs were painful and stiff and that he was experiencing muscle spasms. [41] On 10 September 2020, he reported that he was experiencing pain in the left lateral side of his chest and that the pain was worse on deep breathing. On 15 October 2020, he reported that his calves were tight and that this was causing lower back pain and hip pain.[42] On 22 December 2020,
he reported neck and pins and needles in the left arm.[43]
[39] Page 193 of the claimant’s bundle.
[40] Page 194 of the claimant’s bundle.
[41] Page 196 of the claimant’s bundle.
[42] Pages 198-199 of the claimant’s bundle.
[43] Page 200 of the claimant’s bundle.
The claimant had a number of consultations with Dr Kamal in 2021. On 29 April 2021, he reported that he had started working again and that he was trying to keep up at work. He was working in personal care at the Villawood detention centre.[44] On 5 July 2021, he reported that for the last two weeks, he has had worsening lower back pain and neck pain. He was taking Mersyndol Forte for some pain relief. He was advised to take Lyrica instead.[45] On
2 September 2021, he complained that his lower back pain was “playing up” and that he was getting more stiffness. He felt that he needed to go back to see his specialist (Dr Suttor).[46]
On 28 September 2021, he reported that the day before when he was getting ready for work, he had an acute flare up of sharp pain in the lower back with paraesthesia in the right leg. He also reported that he had seen Dr Suttor.[47]
[44] Page 200 of the claimant’s bundle.
[45] Page 207 of the claimant’s bundle.
[46] Page 522 of the claimant’s bundle.
[47] Page 520 of the claimant’s bundle.
The claimant was reviewed by Dr Suttor on 23 September 2021. In his report of the same date, Dr Suttor noted that the claimant had come to see him again because of worsening lower back pain as well as bilateral thigh numbness. The claimant also reported stiffness in the neck with some left-sided axial neck pain with intermittent paraesthesia in left hand. [48]
[48] Page 478 of the claimant’s bundle.
Dr Suttor noted that his March 2020 MRI Scan did demonstrate some canal stenosis at T10/T11 but without definitive cord compression, and that there were some degenerative disc changes there. He indicated, that given the numbness in the thighs and worsening symptoms, it was prudent to repeat the MRI of the thoracic spine to assess the stenosis at T10/T11 and to see whether there were any changes in the lumbar area.[49]
[49] Page 478 of the claimant’s bundle.
An MRI scan of the thoracic spine was performed on 30 September 2021[50] and the claimant was seen again by Dr Suttor on 13 October 2021 to review the results. He observed that the repeat scan had shown progression of the canal stenosis at T10/11 to a moderate severe canal stenosis, with early cord compression. He believed that would explain the claimant's left lower leg symptoms and his bladder dysfunction.[51]
[50] Pages 632-633 of the claimant’s bundle.
[51] Page 479 of the claimant’s bundle.
It was noted that he had incomplete sense of bladder emptying and increased frequency and hesitancy. It was noted he was walking with an antalgic gait and had restricted motion of his lumbar spine.
On 17 November 2021, Dr Suttor performed a T10/T11 decompression laminectomy.[52] Upon review on 15 December 2021, the claimant was noted to be progressing well with a steady gait and when he could perform a tandem gait although with difficulty.[53] Upon further review on 19 May 2022, a well-healed surgical wound was observed with a residual myelopathic gait. The claimant was referred for further physiotherapy. [54]
[52] Page 501 of the claimant’s bundle.
[53] Page 480 of the claimant’s bundle.
[54] Page 4 of the insurer’s bundle.
Report of Dr Sean Suttor – 3 June 2024
Dr Suttor was asked by the insurer to provide an opinion on the causation of the claimant’s conditions on a background of being informed that there were pre-existing neck and back complaints in 2025 and 2016.
Firstly, the Panel notes apart from the brief episode of neck pain in 2016 and 2017 referred to in these reasons, there is no evidence before the Panel of any pre-existing back pain or condition.
Secondly, the Panel notes that Dr Suttor stated that it was beyond his area of expertise to comment on the claimant’s disability or other conditions.
Dr Suttor added that there is no evidence of any acute injury in the claimant’s spinal imaging which is related to degenerative change. In regard to the development of thoracic stenosis, he believed that this is clearly documented to occur as part of a degenerative process from his initial assessment to the time that the claimant required surgery in 2021. Given the claimant’s complaints related to degenerative changes on his spinal imaging, he would consider more likely than not that the complaints related to a degenerative process rather than any traumatic event. [55]
[55] Page 4 of the insurer’s bundle.
Medicolegal evidence
On 14 June 2022, the claimant was assessed by consultant physician in rehabilitation medicine, Professor Ian Cameron. In his report dated 22 June 2022, Professor Cameron expressed the opinion that on a background of spinal degenerative disease, the claimant sustained soft tissue injuries to the cervical spine and the lumbar spine in the accident. He believed that the pattern of initial recovery followed by greater symptoms and disabilities suggests that factors other than the original injuries were contributing to the claimant’s presentation.[56]
[56] Page 14 of the insurer’s bundle.
Professor Cameron was of the opinion that the thoracic spinal stenosis is not related to or caused by the motor accident because it was present prior to the accident and there were no symptoms from it for a long time after the accident.[57]
[57] Pages 14-15 of the insurer’s bundle.
Professor Cameron assessed the cervical spine injury as DRE cervicothoracic Category I injury giving rise to a WPI of 0% and the lumbar spine injury as DRE lumbosacral Category I, giving rise to a WPI of 0%.[58]
[58] Page 15-16 of the insurer’s bundle.
On 14 November 2022, the claimant was re-assessed by occupational physician, Dr Uthum K. Dias. An original assessment was conducted on 26 August 2021.
In his report also dated 14 November 2022, Dr Dias noted the claimant continued to suffer symptoms of pain, stiffness and discomfort affecting the neck, thoracic spine and lumbar spine. While the claimant’s symptoms of bladder dysfunction had clinically improved, he had reduced walking tolerance of 30 minutes due to worsening pain in the lumbar and thoracic spine regions and he had difficulty with prolonged driving more than 45-50 minutes due to worsening pain in his neck, mid back and lower back. [59]
[59] Pages
On re-assessment, Dr Dias noted there was reduced sensation to light touch and sharp touch over the right lower abdominal wall in a pattern consistent with right T11 dermatome. The claimant was noted to have non-specific patchy loss of sensation affecting his right lower limb. Dr Dias believed those symptoms were consistent with a right T11 radiculopathy.
Dr Dias also noted the claimant had patchy loss of sensation affecting the right thigh, right calf and right foot in a non-specific, non-dermal distribution but this pattern of symptomatology did not correlate with an objective peripheral nerve distribution and that there were no objective clinical signs of lumbar radiculopathy. [60]
[60] Page 611 of the claimant’s bundle.
Dr Dias was of the opinion that the motor accident caused:
a) a persistent aggravation of previously asymptomatic degenerative cervical spondylosis, with an associated persisting left C5 radiculopathy, secondary to an acute C4/C5 disc protrusion;
b) a persistent aggravation of previously asymptomatic degenerative thoracic spondylosis at T10/11 level, with associated cord compression/myelopathy, bladder dysfunction, sexual dysfunction and persisting right T11 radiculopathy, secondary to an acute musculoligamentous strain;
c) a persistent aggravation of pre-existing degenerative lumbar spondylosis secondary to an acute L5/S1 disc annular tear with associated non-specific right lower limb sensory symptomatology, and
d) soft tissue injuries to his chest wall, right and left shoulders and right thigh now resolved.[61]
[61] Page 612 – 613 of the claimant’s bundle.
In making his findings, Dr Dias noted that there was no available evidence of any pre-existing injuries or complaints of pain affecting the cervical spine, thoracic spine or lumbar spine regions prior to the accident. He noted that there was radiological evidence of pre-existing degenerative change in the cervical spine, thoracic spine and lumbar spine regions, which would have been present prior to the accident. Based on the available evidence, he concluded that pre-existing degenerative conditions were asymptomatic prior to the accident.[62]
[62] Page 614 of the claimant’s bundle.
Dr Dias assessed the injury to the thoracic spine as DRE Thoracic Category III injury giving rise to a WPI of 15%.[63]
[63] Page 624 of the claimant’s bundle.
RE-EXAMINATION
The Panel was of the view that a re-examination of the claimant was not required in circumstances where the claimant has already had decompression surgery to his thoracic spine and the only injury being assessed by the Panel is the thoracic spine injury. If it is accepted that the thoracic spine injury was caused by the motor accident, any re-examination by the Panel would not alter an assessment of DRE Cervicothoracic Category IV as the appropriate evaluation of permanent impairment.
CAUSATION AND REASONS
The Panel has reviewed the photographs depicting the damage to both vehicles. The Panel has considered the circumstances surrounding the accident, including the fact that the claimant’s vehicle was hit from behind at speed by a truck, that his chest hit the steering wheel, and that the claimant’s vehicle was towed away and later written off. The Panel is of the view that the collision was likely to have been significant.
The available evidence shows that within about 7 to 8 weeks after the accident, the claimant complained to his GP on 5 March 2020 of burning sensation to the back and front of the thighs as well as the soles of his feet and reported in his claim form on 8 March 2020 that he experienced pain in his upper back since the accident. Physical examination at Mt Druitt Hospital on 10 March 2020 revealed tenderness in the thoracic spine. A CT scan on 10 March 2020 demonstrated some canal stenosis at T10/T11 but without definitive cord compression.
The available evidence shows that by the time the claimant was reviewed again by orthopaedic surgeon, Dr Suttor, there had been progression of canal stenosis at T10/11 with moderate to severe canal stenosis with early cord compression, which would explain the lower leg symptoms and the bladder dysfunction.
Based on the available evidence, the Panel accepts that as a result of the accident, the claimant sustained a whiplash injury to his neck with a C4/5 disc protrusion, a lower back injury with L5 radicular complaint and the acceleration and aggravation of a previously asymptomatic degenerative thoracic spondylosis at T10/11 with associated cord compression/myopathy, bladder dysfunction and persisting right T11 radiculopathy. As a result, he underwent a decompression laminectomy in the thoracic spine at T10/11 on 17 November 2021.
Despite the decompression at T10/11 of the thoracic spine on 17 November 2021, the claimant still had an antalgic gait, tandem walking with some difficulty and anterior thigh numbness. Although the decompression was satisfactory on post-operative MRI scan, on 19 May 2022 the claimant was observed to have a mild myelopathic gait with reduced range of motion in the lumbar spine. While there was a history of spinal degenerative change, it appears that, since the accident, there has been aggravation and progressive deterioration of the T10/11 spinal stenosis, resulting in increasing myelopathic symptoms. The MRI of the thoracic spine on 11 January 2022 post-operatively noted that the T10/11 posterior decompression showed no complication and no residual canal stenosis but there was signal change in the posterior cord with possibly a small focus of residual myelomalacia.
Medical Assessor Home noted significant neurological abnormalities in the lower extremities. The Medical Assessors of the Panel consider that these did not arise from the lumbar spine injury but rather are residual sequelae of the thoracic spine myelopathy.
In his reasons of 22 June 2022, Professor Cameron noted that there were soft tissue injuries to the cervical and lumbar spine against a background of spinal degenerative disease and that, following initial recovery, there was a progression of symptoms related to the thoracic spine degenerative pathology. He opined that the thoracic spine stenosis was not related to the motor accident and was present prior to the accident and that there were no symptoms for a long time after the accident. However, the Panel notes Professor Cameron’s opinion is not consistent with the available evidence referred to above. Dr Kamal found there were symptoms as early as 7 weeks after the accident in March 2020, which is consistent with the development of acceleration and aggravation of T10/11 spinal stenosis, with thoracic myelopathy, causing the bilateral lower limb weakness, sensory losses, ataxia with imbalance and bladder symptoms experienced by the claimant.
The Panel accepts that on the balance of probabilities, but for the motor accident, the acceleration and aggravation and deterioration of the T10/11 thoracic spondylosis would not have occurred. It was gradual in a glacial fashion but ultimately resulted in myelopathy requiring T10/11 decompression.
The cause of this acceleration, aggravation and deterioration by the accident was more than negligible and was materially contributed to by the motor accident.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel notes the parties accept Medical Assessor Home’s assessment of the cervical spine injury as DRE cervicothoracic Category II, giving rise to a WPI of 5% and the lumbar spine injury as DRE lumbosacral Category II, giving rise to a WPI of 5%. The Panel adopts those findings.
The Panel finds that the thoracic stenosis with structural compromise, causing sensory change on the thoracic wall in a T11 distribution and neural motor compromise with gait derangement but no cauda equina syndrome with improving bladder dysfunction, is DRE Category IV, giving rise to a WPI 25%.
Using the Combined value chart, the injuries are assessed as giving rise to a permanent impairment of 33%.
CONCLUSION
The Panel revokes the certificate of the single Medical Assessor and issues a replacement certificate. The new certificate of the Panel is attached at the commencement of these reasons.
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