Palmer v AAI Limited t/as GIO
[2022] NSWPICMP 313
•1 August 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Palmer v AAI Limited t/as GIO [2022] NSWPICMP 313 |
| CLAIMANT: | Kirstie Palmer |
| INSURER: | AAI Limited trading as GIO |
| REVIEW PANEL: | Member Susan McTegg Medical Assessor Mohammed Assem |
| DATE OF DECISION: | 1 August 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; minor injury; cervical spine; lumbar spine; pre-existing condition; disc extrusion; surgery; aggravation; material contribution; the claimant suffered injury in a motor accident on 12 November 2020; the claimant suffered injury to the cervical and lumbar spine; pre-existing L4/5 disc extrusion with stenosis and radiculopathy; following accident claimant underwent urgent surgery; Held — soft tissue injury to the cervical spine is a minor injury; accident exacerbated symptoms in lumbar spine, pathology shown on magnetic resonance imaging (MRI) scan more pronounced resulting in need for urgent surgery; accident not sole cause of claimant’s condition but materially contributed to condition and need for surgery; aggravation of injury to lumbar spine, namely L4/5 disc extrusion with severe central canal stenosis and left sided radiculopathy; not a minor injury. |
| DETERMINATIONS MADE: | Motor Accident Injuries Act 2017 Review Panel Assessment of Minor Injury Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel affirms the certificate of Medical Assessor Shahzad dated 27 December 2021. |
REASONS
BACKGROUND
On 12 November 2020 Ms Kirstie Palmer (the claimant) was driving her vehicle on Richmond Road, Cambridge Gardens. She was at a complete stop at traffic lights when the insured vehicle collided with the rear of her vehicle (the accident).
Ms Palmer asserts she sustained the following injuries in the accident:
(a) injury to the cervical spine, and
(b) injury to the lumbar spine.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to make statutory payments to, for or on behalf of Ms Palmer under the Motor Accident injuries Act 2017 (the MAI Act).
On 4 December 2020 Ms Palmer lodged an Application for Personal Injury Benefits.
On 9 March 2021 the insurer issued a “Liability Notice- benefits after 26 weeks” in which the insurer determined the injuries sustained by Ms Palmer were minor and that her entitlement to medical and care related expenses would cease 26 weeks after the date of accident.
On or about 10 March 2021 Ms Palmer sought an Internal Review of that decision and on 26 March 2021 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons[1]. This decision affirmed the insurer’s earlier decision that all the injuries suffered by Ms Palmer in the accident fell within the definition of minor injury.
[1] AD2 p 210.
On 10 February 2022 the claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[2].
[2] Section 7.20 of the MAI Act.
The minor injury dispute was referred to Medical Assessor Farhan Shahzad. He issued a certificate dated 27 December 2021 in which he certified that the injury to the lumbar spine sustained by Ms Palmer was not a minor injury for the purposes of the MAI Act.
The insurer has sought a review of the certificate of Medical Assessor Shahzad.
REVIEW PROCEDURE
An application for review of the medical assessment of Assessor Shahzad was lodged within 28 days of the date on which the certificate of Assessor Shahzad was made available to the parties.
On 13 May 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 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 provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission[3]. Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] Section 7.26(5A) of the MAI Act.
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[4].
[4] 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 and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The documents relied upon by the insurer were uploaded to the portal and marked AD1 and AD2. The documents relied upon by the claimant were uploaded to the portal and marked AD3 and AD4.
On 17 June 2022 the Panel issued a report informing the parties the Panel considered a re-examination of the claimant was not required because after the accident on
12 November 2020 the claimant underwent surgery, namely left L4/5 microdiscectomy on 15 December 2020. The Panel noted any radicular symptoms now present may be related to that surgery and the Panel considered it was able to form an opinion as to causation and minor injury having regard to the available medical reports including reports of imaging undergone by the claimant both before and after the accident.The claimant and the insurer agreed it was appropriate for the Panel to determine the issues in dispute without re-examination.
MINOR INJURY- STATUTORY PROVISIONS
A minor injury is defined in section 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to section 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8.2 of the Guidelines commenced on 8 April 2022 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4Diagnostic imaging is not considered necessary to assess minor injury.
5.5A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clause 5.7 of the Guidelines states that in assessing whether an injury to the neck or spine is a soft tissue injury an assessment of whether or not radiculopathy is present is essential. Clauses 5.8 and 5.9 are in the following terms:
“5.8Radiculopathy 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 definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)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.
5.9Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
EVIDENCE BEFORE THE REVIEW PANEL
Ms Palmer is now 34 years of age. She was 32 years of age at the time of the accident.
Certificate of Medical Assessor Shahzad
The dispute was referred to Medical Assessor Shahzad who assessed the claimant on 29 November 2021 and issued a certificate dated 15 December 2021.[6]
[6] AD p 7.
The injuries referred to Assessor Shahzad were as follows:
(a) whether the cervical spine - neck pain, shooting pain, decreased neck movement, numbness injury - caused by the motor accident is a minor injury for the purposes of the MAI Act, and
(b) whether the lumbar spine - L4-5 disc extrusion with severe central canal stenosis. Left side radiculopathy. Neuropathy down the leg, numbness injury - caused by the motor accident is a minor injury for the purposes of the MAI Act.
Assessor Shahzad found the claimant had sustained a soft tissue injury of the cervical spine caused by the accident. He found this was a minor injury.
Assessor Shahzad also found a lumbar spine injury with an L4/5 disc extrusion, severe central canal stenosis and left sided radiculopathy was not caused by the accident. However, he found Ms Palmer had sustained an aggravation of the injury to the lumbar spine, resulting in persistent, left sided radiculopathy which he concluded was not a minor injury.
Assessor Shahzad expressed the following opinion as to causation:
“There has been an exacerbation of a pre-existing condition following the subject motor vehicle accident with acute, chronic lower back pain on a background of lumbar disc herniation and moderate spinal canal stenosis. There is a history of intermittent, lower back pain and intermittent left radiculopathy which became persistent following the accident.
I note that a CT scan was undertaken two months prior to the accident which noted an L4/5 disc bulge with moderate spinal canal stenosis. An MRI scan was also undertaken which noted a large L4/5 disc extrusion impinging on the descending L5 nerve roots bilaterally.”
Relevant radiological and medical imaging evidence
X-ray report of the lumbar spine by Dr Mirecki dated 25 October 2016
The report states:
“No fracture or dislocation detected. There is normal vertebral alignment. There appears to be slight lumbar scoliosis concave to the left which could be due to positioning. No other abnormality of lumbar spine detected.”
X-ray report of the thoracic spine by Dr Mirecki dated 25 October 2016
The report states:
“No fracture or dislocation detected. There is normal vertebral alignment. No other abnormality of thoracic spine detected.”
X-ray report of the cervical spine by Dr Mirecki dated 25 October 2016
The report states:
“Lateral view includes C7 vertebra. No fracture or dislocation detected. There is normal vertebral alignment. No soft tissue abnormality detected. No other abnormality of cervical spine detected.”
CT Scan report of the cervical spine by Dr Mirecki dated 25 October 2016
The report states:
“No acute fracture/dislocation is identified. Soft tissue/ligamentous injury cannot be completely excluded. MRI should be considered if there are ongoing clinical concerns.”
CT Scan report of the thoracic and lumbar sacral spine by Dr Chadban dated
10 April 2019
The report states:
“Disc bulges within the lumbar spine as described without canal or foraminal stenosis. The facet joints outline normally. No evidence of a recent fracture. There is a small calculus within the lower pole of the right kidney.”
CT Scan report of the lumbar spine by Dr Kundum dated 15 September 2020
The report states:
“1. A moderate sized posterior disc bulge at L4/5 disc level with a 15mm posterocentral disc protrusion which is causing compression to ventral thecal sac and causing moderate spinal canal stenosis.
A specialist neurosurgical consultation is suggested. MRI lumbar spine could be considered for further assessment.
2. Mild to moderate posterior disc bulges at L3/4 and L4/5 disc level as described above. The posterior disc bulge at L4/L5 level is causing abutting / partially impinging on descending L5 nerve roots within the lateral recess.
3. The facet joints are unremarkable. The sacroiliac joint spaces outline normally.”
X-ray report of the whole spine by Dr Hunjan dated 21 November 2020
The report states:
“No gross fracture. Please however palpate over the atlantoaxial joint, x-ray findings not convincing enough for odontoid peg fracture. If any pain is present higher up, a CT correlation would be reassuring. Rotational scoliosis, exaggerated lumbar lordosis are incidental findings.”
MRI Report of the lumbosacral spine by Dr Ward dated 3 December 2020
The report states:
“Moderately large L4/5 disc extrusion deflecting and impinging on the descending L5 nerve roots bilaterally. At this level there is also likely deflection of the descending S1 nerve roots with no additional contact seen at the lumbosacral junction. Small annular fissures are present at L3/4 and L5/S1. Minimal facet degeneration. No vertebral fracture but there is modic 1 oedematous sub-endplate change associated with disc height reduction at L4/5.”
CT scan report of the cervical spine by Dr Ng dated 14 January 2021
The report states:
“Essentially normal cervical spine CT.
No disc protrusion or consequent central canal, lateral recess or foraminal stenosis.
No impingement seen of the exiting cervical nerve roots.
No wedge fractures. No avulsion injury. No bony malalignment involving the cervical spine on CT.”
MRI report of the lumbosacral spine by Dr Hunjan dated 25 June 2021
The report states:
“Lower most, three-level chronic spondylotic disease, manifest mainly as disc bulge perhaps acutely, annular tear, that exerts minor mass effect on the thecal sac at all three levels. Foraminal narrowing is mild on the left at L4/5 (likely to correlate with left 14 radiculosis), mass effect on the transiting and exiting nerves at other levels minimal.
Depending on further intervention, if short to medium term pain relief is being planned prior to any surgery, the patient may elect for either perineural or epidural injections. I shall be available for further discussion.”
MRI report of the lumbar spine by Dr Lu dated 3 July 2021
The report states:
“There is mild degenerative disc disease at L4/5 on background of previous left hemilaminectomy and microdiscectomy. There is residual mild circumferential disc bulge with mild bilateral subarticular recess narrowing, slightly more marked on the left than right resulting in slight contact of the left descending L5 nerve root. There is moderate bilateral L4/5 foraminal stenosis without L4 Impingement. No evidence of any epidural collection or significant epidural scarring detected. There are no features of arachnoiditis.”
Application for Personal Injury Benefits
In the Application for Personal Injury Benefits dated 4 December 2020 the claimant described her injuries as follows:
“Sore neck, and pain flare up of disc bulging. Pain is severe now. Neck pain only occur since accident.”
Clinical notes
Clinical notes of Dr Zaglog Habib
These records do not contain any relevant records.
Clinical notes of Penrith Mall Medical Centre
On 10 April 2019 Dr Farid reported severe lower back pain.[7] On 11 April 2019 Dr Farid reported a disc bulge at L3/4/5 with no neurological symptoms and normal bladder and bowel function. He recommended physiotherapy and noted Ms Palmer had booked a chiropractor the following week.
[7] AD2 p 83.
On 15 September 2020 Dr Habib reported a history of disc bulging and noted lower back pain was getting worse with bilateral radiculopathy.[8] He reported Ms Palmer was very tender over the lumbar/sacral spine. Ms Palmer was referred for a CT scan of the lumbar/sacral spine.
[8] AD2 p 79.
On 16 September 2020 Dr Habib reported the CT scan showed disc bulging with compression of the theca. He referred Ms Palmer to Dr Al-Khawaja, neurosurgeon.[9]
[9] AD2 p 79.
On 19 November 2020 Dr Habib referred Ms Palmer to a physiotherapist for hydrotherapy.
Following the accident Ms Palmer consulted Dr Habib on 21 November 2020.[10] He reported as follows:
[10] AD2 p 78.
“Had MVA on 12/11/2020.
Hit from back by another car(Seen the pctuire of the car)
Flare up of lower back pain.
Also mild pain in neck.
O/E-Mild tender over C-spines.
Tender over L/S spines.
Neurology-NAD
Plan-Xray of spines.
F/U after Xray” [sic].
On 3 December 2020 Dr Habib reported Ms Palmer had been in hospital with back pain. An appointment was made for a CT guided injection.
On 19 December 2020 Dr Habib reported Ms Palmer had undergone a discectomy and her pain was much better.
Dr Vanessa Perotti
Dr Perotti, neurosurgeon saw Ms Palmer on 13 November 2020, the day after the accident.[11] She reported a six month history of moderate back pain but very severe bilateral leg pain and fluctuating associated paraesthesia in the legs. She reported the CT scan showed a moderate size posterior disc bulge at L4-5 causing compression on the thecal sac and moderate canal stenosis. Dr Perotti stated, “I have cautioned her that these large discs will usually require surgery”.
[11] AD3 p 12.
Dr Perotti, neurosurgeon wrote to Associate Professor Eftekhar on 9 December 2020 to see if it was possible for Ms Palmer to undergo a microdiscectomy as a public patient at Nepean Hospital.[12] She stated she reviewed Ms Palmer four weeks earlier with severe back pain and bilateral leg pain, but no history of trauma and a normal neurological examination. She reported whilst waiting for another appointment
Ms Palmer was involved in the accident and developed excruciating pain. Dr Perotti reviewed the MRI of the lumbar spine which she said demonstrated a very large central disc with high grade stenosis at L4/L5. She did not identify any neurological defect.
Nepean Hospital Discharge Summary dated 1 December 2020
[12] AD2 p 208.
Ms Palmer presented to the Emergency Department on 1 December 2020 with acute on chronic severe lower back pain on a background of lumbar disc herniation and moderate spinal canal stenosis. The clinical summary contains the following history:
”Patient is suffering from lower back pain for around 2 years which was intermittent but recently it has become more severe.
Yesterday she had lower back pain which was very severe 10/10, started gradually but becomes worse in night
pain was radiating to her left thigh and groin and also back of her thigh and back of leg
she is also having tingling sensations in her left leg and foot
she had tried only panadeine forte only half tablet twice a day
pain is aggravated
by walking and coughing
called neurosurgeon Dr Brodie, who advised to come to hospital emergency.”
Nepean Hospital admission 10 December 2022
Ms Palmer was a patient at Nepean Hospital between 10 December 2020 and
16 December 2020.[13][13] AD4 P 179.
The history recorded in the ED assessment is as follows:[14]
[14] AD4 p 235.
“ - Represented to ED
- 2 year hx of lower back pain
- Diagnosis of disk bulge
- Pain on ADL minimal until recent car accident 12/11/2020
- Pain reported as severe 10/10
- Pain currently bank like across lower back
- Tingling sensation radiating down L leg
- Worse on movement
- Denies bowel/bladder changes
- Denies recent fevers
- Denies recent loss of weight
- Recent admission to Nepean Hospital…”
On 15 December 2020 Ms Palmer underwent a left 4/5 microdiscectomy under the care of neurosurgeon A/Prof Behzad Eftekhar at Nepean Hospital.[15]
[15] AD4 p 250.
Associate Professor Bezhad Eftekhar
On 21 January 2021 A/Prof Eftekhar reviewed Ms Palmer following semi urgent lumbar decompression. He said she was doing well, and her radicular symptoms had improved.
Ms Palmer was reviewed by A/Prof Eftekhar on 10 May 2021 in respect of her concern about sensory changes in the left lower limb.[16] On examination he noted straight left raising was negative and he could not reveal objective deficit or upper motor neuron signs. He noted the left trochanteric bursa and sacroiliac joint were tender to touch.
[16] AD2 p 226.
Penrith Physiotherapy & Allied Health Centre
Ms Palmer commenced physiotherapy on 26 February 2021.[17] She reported ongoing neck and lower back pain from the accident. Ms Palmer presented with a poked neck and restriction of movement of the neck and shoulders. In the lumbar spine Ms Palmer was observed to mobilise with an increased pelvic tilt, slight limping and a restricted range of motion together with pain and stiffness.
SUBMISSIONS
[17] AD4 p 790.
Insurer’s submissions
The insurer provided submissions dated 31 August 2021 in respect of the minor injury dispute.
The insurer submits as follows:
(a) the claimant’s physiotherapist provided a diagnosis of whiplash of the cervical spine and lower back with pre-existing disc protrusions;
(b) the claimant disclosed to Nepean Hospital that she was suffering from lower back pain for around two years which was intermittent but recently became more severe;
(c) the insurer pertinently notes that the clinical records revealed a longstanding issue with the lower back. Entries from the general practitioner (GP) confirmed experiencing severe lower back pain as early as April 2019, and was referred to Dr Al-Khawaja, neurosurgeon in September 2020 with symptoms of radiculopathy and a very tender lumbar spine;
(d) the CT scan of the lumbar spine completed prior to the accident on the
15 September 2020 revealed that a moderate sized disc bulge at L4/5 with a 15mm posterocentral disc protrusion causing compression to ventral thecal sac and causing moderate canal stenosis, and(e) the MRI of the lumbar spine completed after the accident on 3 December 2020 was consistent with the CT scan of the lumbar spine. It reported a moderately large L4/5 disc extrusion deflecting and impinging on the descending L5 nerve roots. The MRI Scan also found small annular fissures a at L3/4 and L5/S1 with minimal facet degeneration and disc height reduction at L4/5.
The insurer submits the annular fissures are an incidental finding. The insurer submits that post-accident imaging has not identified any acute or traumatic accident-related pathology. The insurer submits that surgery namely a discectomy undergone on
20 December 2020 was not causally related to the accident but as a result of the pre-existing condition. The insurer submits that any lumbar spine pain experienced by the claimant following the accident was merely a temporary exacerbation of the pre-existing condition.The insurer submits there is no evidence of verifiable radiculopathy signs arising from injury to or impingement of specific spinal nerves, there is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage. As such the claimant’s injuries fall within the definition of minor injury.
The insurer provided submissions dated 10 February 2022 aimed at the question to be determined by the delegate of the President, that is, whether there was reasonable cause to suspect error in a material respect in the certificate of Assessor Shahzad.
Claimant’s submissions[18]
[18] A1 p 1.
The claimant provided submissions dated 26 April 2022 aimed at the question to be determined by the delegate of the President, that is, whether there was reasonable cause to suspect error in a material respect in the certificate of Assessor Shahzad.
DETERMINATION
The Panel notes there is no dispute in relation to the findings of Assessor Shahzad that:
(a) the injury, namely cervical spine - neck pain, shooting pain, decreased neck movement, numbness injury was caused by the accident, and
(b) the injury, namely cervical spine - neck pain, shooting pain, decreased neck movement, numbness injury is a minor injury for the purposes of the MAI Act.
The Panel notes the dispute is in relation to the findings of Assessor Shahzad that:
(a) the injury, namely, lumbar spine - L4/5 disc extrusion with severe central canal stenosis, left sided radiculopathy, neuropathy down the leg and numbness injury was caused by the accident, and
(b) the injury, namely, lumbar spine - L4/5 disc extrusion with severe central canal stenosis, left sided radiculopathy, neuropathy down the leg, and numbness injury is not a minor injury for the purposes of the MAI Act.
Ms Palmer had a pre-accident history of lower back pain. Dr Farid reported severe lower back pain on 10 April 2019 and a CT scan the same date reported disc bulges. On 15 September 2020 Dr Habib noted Ms Palmer’s lower back pain was getting worse with radiculopathy. She underwent a CT scan which disclosed a moderate sized posterior disc bulge at L4/5 causing compression to the ventral thecal sac and causing spinal canal stenosis. On 16 September 2020 Dr Habib referred Ms Palmer to
Dr Al Khawaja, neurosurgeon, although it seems she, in fact, saw Dr Perotti on
13 November 2020, the day after the accident.Following the accident on 12 November 2020 Ms Palmer drove her vehicle home. She attended an appointment with Dr Perotti on 13 November 2020 although she apparently did not report her involvement in the accident.
Furthermore, Ms Palmer did not report her involvement in the accident to her GP until 21 November 2020, nine days after the accident, although this is less surprising where she was already under the care of a neurosurgeon.
Whilst the Panel finds the claimant suffered from a pre-existing L4/5 disc protrusion the Panel considers it necessary to determine whether the the accident was a contributing cause which was more than negligible to the exacerbation of the claimant’s condition resulting in the need for surgery.
The Panel notes the photographs of the car showed moderate damage to the rear of the vehicle. In the Application for Personal Injury Benefits Ms Palmer indicated the pain had become more severe as a result of the accident.
The MRI undergone by Ms Palmer on 3 December 2020, demonstrated the protrusion/pathology was more pronounced than was apparent on the CT scan undergone on 15 September 2020.
On 1 December 2020 the Nepean Hospital Discharge summary reported Ms Palmer had suffered from lower back pain for around two years which had recently become more severe. It was also reported Ms Palmer had pain radiating to her left thigh and groin, to the back of her leg with associated tingling sensations in her left leg and foot.
In her report to A/Prof Eftekhar on 9 December 2020 Dr Perotti identified the need for urgent surgery after reviewing the MRI scan of 3 December 2020. She also reported Ms Palmer’s involvement in the accident and the development of excruciating pain.
Ms Palmer underwent surgery on 15 December 2020 within five weeks of the accident.
The Panel finds following the accident Ms Palmer experienced an exacerbation of symptoms, that the pathology shown on the MRI scan of 3 December 2020 had become more pronounced and as a result Ms Palmer required urgent surgery. Whilst the accident was not the sole cause of the claimant’s condition the Panel finds it materially contributed to her condition and the need for surgery.
The Panel finds as a result of the accident the claimant has sustained:
(a) a soft tissue injury to the cervical spine which is a minor injury, and
(b) aggravation of injury to the lumbar spine, namely L4/5 disc extrusion with severe central canal stenosis and left sided radiculopathy, which is not a minor injury.
The Panel affirms the certificate of Medical Assessor Shahzad dated
27 December 2021.
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