Pannowitz v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 197
•25 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Pannowitz v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 197 |
CLAIMANT: | Holly Jane Pannowitz |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Tai-Tak Wan |
DATE OF DECISION: | 25 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whole person impairment (WPI) dispute; claimant was the driver of a vehicle that was stationary at red traffic lights; struck in the rear; force of impact disputed; claimant struck her head on the steering wheel; claimant was assisted from her vehicle by the other driver and noted immediate pain in her neck, shoulders and back; claimant was wearing a seatbelt; claimant suffered occasional pain in her lower back prior to the accident as a result of her having been a ballet dancer; claimant maintained she suffered injuries to her cervical, thoracic, and lumbar spine; no complaint of neck pain for some years post-accident; no mention in clinical records of neck pain; claimant’s cervical spine deteriorated rapidly in late 2019 without explanation; aggravated by near-miss incident on highway early in 2020; claimant underwent cervical fusion surgery within a few months thereafter; claimant paid for the surgery and was off work for some time; insurer admitted liability for the claim; Held – Review Panel satisfied that subject motor accident aggravated claimant’s pre-existing chronic lumbar condition; Review Panel not satisfied that subject accident caused soft-tissue injury to cervical spine; alternatively if it did the claimant had recovered; Review Panel assessed 5% WPI for lumbar spine and 0% WPI for cervical spine; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate dated 26 February 2024 and issues a new certificate as follows: (a) the following injury caused by the motor accident give rise to a permanent impairment of 5% which is not greater than 10%; · lumbar spine – soft tissue injury; (b) the following injury referred for assessment has been assessed and determined not caused by the motor accident: · cervical spine – soft tissue injury, and (c) in the alternative, should a soft tissue injury to the claimant’s cervical spine have been caused by the motor accident, such injury has resolved and does not result in permanent impairment. An assessment of the degree of permanent impairment arising from this injury is therefore not required. |
STATEMENT OF REASONS
INTRODUCTION
Holly Jane Pannowitz (the claimant) was the driver of a Hyundai Hatch vehicle that was stationary at red traffic lights on Charlestown Road at Charlestown. It was struck in the rear allegedly at speed by a Nissan X-Trail SUV. The claimant struck her head on the steering wheel and was stunned. There was no loss of consciousness. The claimant was assisted from her vehicle by the other driver and noted immediate pain in her neck, shoulders and back. The claimant was wearing a seatbelt. The accident occurred outside a medical centre which the claimant then attended and was diagnosed as suffering with whiplash. The claimant was referred for X-rays of her back and later, MRI of the entire spine, which demonstrated a large disc protrusion at T12/L1 and cervical bulges at C5/C6 and C6/C7.
The claimant says that she was in good health prior to the accident and was active as a dancer. The claimant says that she suffered occasional pain in her lower back, prior to the accident, as a result of her having been a ballet dancer.
The claimant says that she suffered injuries to her cervical, thoracic and lumbar spine, as a result of the accident. Cervical spine symptoms are not recorded in the available clinical records for approximately two years after the accident. The claimant underwent anterior cervical decompression and fusion about three years after the accident. The claimant paid for the surgery and was off work for some time thereafter.
Insurance Australia Limited t/as NRMA (the insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay to the claimant damages under the Motor Accidents Compensation Act1999 (the 1999 Act). The insurer admitted liability for the claim.
ASSESSMENT UNDER REVIEW
As there is a dispute between the claimant and the insurer about the degree of permanent impairment under s 58(1)(d) of the Act, the following injuries were referred to Medical Assessor Ian Cameron for assessment:
· cervical spine – soft tissue injury, and
· lumbar spine – soft tissue injury.
Medical Assessor Cameron certified on 26 February 2024 that those injuries give rise to a whole permanent impairment (WPI) of 0% and IS NOT GREATER THAN 10%. Medical Assessor Cameron found 0% WPI for lumbar spine and that causation was not established for an injury requiring a cervical fusion. As the claimant had undergone surgery, Medical Assessor Cameron found 25% WPI for the cervical spine, which he ascribed to pre-existing or subsequent causes.
THE REVIEW
The claimant made an application under s 63 of the 1999 Act for referral of the medical assessment to a Review Panel on the grounds that the medical assessment was incorrect in a material respect. The claimant relied on the particulars set out in the application and supporting documentation.
The claimant submitted that Medical Assessor Cameron’s assessment was incorrect in a material respect for the following reasons:
(a) failure to adhere to the Motor Accident Permanent Impairment Guidelines; (the Guidelines);
(b) failure to engage with the evidence, and
(c) failure to provide adequate reasons.
The claimant briefly addressed each of those alleged failures.
The claimant submitted that the test for causation requires consideration as to whether the subject accident caused or contributed to the injury requiring fusion surgery. It was noted that Medical Assessor Cameron did not identify any pre-accident cervical spine symptoms and that there is no reference in his certificate to a subsequent event which could have caused the need for surgery.
It was noted that Medical Assessor Cameron found that a soft tissue injury to the cervical spine was caused by the accident. Notwithstanding that finding, he stated as follows:
“The surgery to her cervical spine cannot be seen as causally related to the motor vehicle crash because if a significant injury had occurred to the cervical spine, it would have become symptomatic in a relatively short time after the motor vehicle crash.”
It was submitted that contemporaneous evidence of injury is not determinative of causation. It was also submitted that there was a record of a cervical spine symptom, shortly after the accident, contrary to Medical Assessor Cameron’s finding.
The claimant’s application for review was opposed by the insurer. It was submitted that Medical Assessor Cameron’s reasons are entirely consistent with the absence of a significant injury. It also was submitted that the claimant misconstrued Medical Assessor Cameron’s obligations with regards to assessing causation. It is said that he was not under a duty to identify another cause for the claimant’s symptoms in order to reject causation between the accident and the need for surgery.
The insurer finally submitted that the certificate must be read within the context of the evidence that was available to Medical Assessor Cameron and the circumstances of the accident including:
(a) evidence suggesting a minor collision (photographic evidence);
(b) no evidence in the general practitioner’s (GP) records of the claimant’s reporting any symptoms in the cervical spine between the accident and 6 January 2020, notwithstanding that the claimant consulted her GP over 20 times, during that period, and
(c) the claimant appears to have suffered from symptoms to the cervical spine commencing around Christmas 2019 which were aggravated by a near miss accident on 13 February 2020. The insurer’s qualified occupational physician,
Dr Robin Mitchell, records that the claimant was required to brake to avoid a collision. She presented to the ED at Gosford Hospital on 16 February 2020 complaining of neck pain as well as right arm neuropathy. (The Review Panel notes that the claimant underwent anterior cervical fusion three months later).President’s delegate Ashley Payne issued a Determination of an Application for Review of a Medical Assessment on 22 May 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor Cameron had not: “adequately addressed causation in providing his reasons for determining that the accident did not cause the injury which required fusion surgery.”
Accordingly, the claimant’s review application was accepted and referred to the Review Panel (the Panel), which is to reassess the injuries that were referred to Medical Assessor Cameron.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the Personal Injury Commission Act 2020 (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.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
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.”
In Briggs v IAG Limited t/as NRMA Limited,[4] see also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Review Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1)a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2)a review of all relevant records available at the assessment;
(3)a comprehensive description of the injured person’s current symptoms;
(4)a careful and thorough physical examination, and
(5)diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) review submissions dated 18 March 2024 (previously summarised);
(b) Commission’s submissions dated 22 September 2023 in support of application for assessment of whole person impairment;
The claimant sought referral of the following injuries for assessment:
·cervical spine – disc protrusion at C6/C7, disc herniation at C6/C7 with compression of the hemi-cord in the right C7 nerve root, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes;
·thoracic spine – disc extrusion at T12/L1, soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes;
·lumbar spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes, and
·right shoulder – orthopaedic injury, aggravation and acceleration of degenerative changes, pain and restricted movement derived from cervical spine injury.
The Review Panel notes that, in the result, only soft tissue injury to the cervical spine and lumbar spine were referred for assessment.
(c) Personal Injury Claim Form dated 14 June 2020;
·injuries listed were damage to the cervical spine (C5/C6 and C6/C7), right arm, thoracic and lumbar spine (T11/L4). The claimant disclosed previous mild spinal injuries.
(d) CTP Medical Certificate dated 10 June 2021 by Dr Charles Markell, GP;
Injury details are stated as follows:
·disc bulges spinal: C5/C6, C6/C7;
·disc extrusion spinal: T12/L1 plus mild stenosis, and
·degeneration of discs spinal: T11/T12, T12/L1, L1/L2, L3/L4.
(e) Clinical records of Dr Marc Coughlan from 13 November 2014 to 28 June 2022;
The following material is of particular relevance:
·letter dated 6 November 2019 from Dr Coughlan to Jo Benter stating that the claimant is to have possible T12/L1 XLIF and screws soon…… wants to build strength before surgery;
·letter dated 26 February 2020 from Dr Coughlan to Dr Markell which reads as follows:
“This note is regarding Holly, she was involved in an incident on the highway when she had to break (sic) suddenly and she noticed severe worsening of neck pain thereafter. This got progressively worse, involving her right C7 dermatome with numbness and also significant weakness on the right. She was assessed as an emergency and had a CT of the cervical spine and this is also on 17 February. Prior to that in late January, she had an MRI of the neck which showed very significant right-sided C6/C7 disc herniation compressing the hemi cord and the right C7 nerve root, she also has very significant kyphosis at that level. I have recommended she give consideration to C6/C7 anterior cervical discectomy with spacer inserted as I am concerned regarding her weakness particularly in the right C7 myotome.”;
·letter dated 16 April 2020 to Dr Markell from Dr Coughlan who says as follows:
“Holly has had very significant ongoing axial thoracic pain as well as the right lumbar pain. In particular, she has significant pain over the thoracolumbar junction from T12/L1. Clinically, she is not myelopathic.
Holly has significant ongoing thoracic pain and right-side lumbar pain. I have reviewed her today after her lateral thoracolumbar X-ray. This confirms significant wedging from T10 through to L1. This is more pronounced at T12/L1 junction and certainly does appear exaggerated for a young person. This is causing significant muscle spasm superiorly with an altered sagittal balance. In the long term….. one could give consideration to a lateral spacer at T12/L1 to try and improve her lordosis and augment with posterior pedicle screws.”;
·referral letter dated 20 June 2019 from Dr Markell to Dr Coughlan:
“Presenting Problems:
Seeking review of a bulged disc with chronic lower back pain. Holly is a dance teach and is struggling at this point to walk comfortably, she is unable to teach (which is her life passion) and needs assistance in the morning to get out of bed. She has been engaged in physio for years and has been taking analgesia including Palexia to little benefit. Please find attached a CT report from 2014 and thank you for your review.”;
·report dated 13 November 2014 by Dr Geier relating to CT of lumbar spine;
·report dated 27 September 2019 by Dr Khandelwal to Dr Coughlan concerning X-ray of lumbar spine;
·report dated 29 January 2020 by Dr Slater to Dr Coughlan concerning MRI cervical spine:
“Cranio-cervical junction is normal. Cord has no focal lesion. Atlanto-axial joints are preserved.
C2/C3, C3/C4, C4/C5 disc levels are normal.
C5/C6 disc, canal and intervertebral foramina appear normal.
C6/C7 disc has broad based protrusion on the right side. Canal is normal in size. Lateral recess is normal. There are postero lateral osteophytes associated with the disc protrusion. No end plate change. The apophyseal joints are preserved.
C7/T1 disc level is normal. Remaining upper thoracic disc levels are preserved. No fracture or mass lesion.
Paravertebral soft tissues demonstrate mild prominence of the thyroid gland particularly on the left side. No mass lesion.
Comment:
Postero lateral osteophytes and broad base protrusion on the right side at C6/C7 is not causing lateral recess or foraminal narrowing.”
·Letter dated 6 February 2020 from Dr Coughlan to Dr Markell who says as follows:
“I’ve met with Holly today in my rooms and unfortunately, her condition is declining rapidly. The disc bulge to her C7 level is now causing paralysis of her right upper limb, particularly to the C5 to T1 levels. She is unable to turn her head and driving is now obviously out of the question. Holly is struggling with daily activities and significant pain. I understand that she is awaiting surgery for her lumbar spine 15 June. Based on my review of Holly today, I feel she needs hospital care.”
(f) Report dated 28 June 2022 by Dr Charles Markell to the claimant’s lawyers;
Dr Markell notes that the first mention of the subject accident to him was on
1 August 2019, it not previously having been noted by other doctors in the practice. Dr Markell reviewed a MRI of disc bulges at C5/C7 and T12/L1 on 15.08.2019. Nil fractures were present. Dr Markell records that the claimant:
“was surprised by this result as her pain seemed out of keeping with disc bulges, in her mind.” Dr Markell states as follows:“As the accident occurred two years prior to my involvement, I was unable to assess her initial injuries….. due to having not seen her at the time of the initial motor vehicle accident, and some two years having passed, I cannot conclusively indicate that her injuries occurred as a result. However, the injuries are, in my opinion in keeping with such an accident.”
The Review Panel notes that Dr Markell’s report contains no reference to a neck injury. The Review Panel also notes that there is no material from any of the other doctors in the same practice who previously treated the claimant.
(g) Report dated 16 February 2023 by Dr John Davis, occupational medicine, to the claimant’s lawyers, and
(i)Dr Davis notes that the claimant was diagnosed as suffering with whiplash immediately after the accident. He records that MRI of the entire spine demonstrated not only a large disc protrusion at T12/L1, but also cervical bulges at C5/C6 and C6/C7;
(ii)Dr Davis notes that the claimant was off work for approximately one week and was referred to a neurosurgeon, Dr Ferch, who opined that there was no significant injury and advised the claimant to perform home stretches;
(iii)Dr Davis records that the claimant developed increasing symptoms in her neck with associated numbness and tingling through the right upper extremity and aching pain generally around the shoulder and neck. The claimant informed him that she began to drop things and her arm felt weak;
(iv)Dr Davis records that the claimant developed intermittent episodes of severe right-sided lower back pain with shooting symptoms through her right lower extremity;
(v)she was reviewed by her GP and was referred to Dr Marc Coughlan, neurosurgeon, who arranged CT scans which demonstrated a significant right-sided C6/C7 disc herniation with compression of the hemi-cord in the right C7 nerve root. It was also noted there was a significant kyphosis at that level;
(vi)she subsequently underwent an anterior cervical discectomy and fusion at C6/C7 with a spacer as there was concern with regard to weakness, particularly in the right C7 myotome;
(vii)Dr Davis notes that the claimant was seen for a second opinion by another neurosurgeon, Dr Michael Hansen, who agreed with Dr Coughlan’s procedure of a C6/C7 fusion;
(viii)Dr Davis then lists the claimant’s present complaints which include central cervical pain with radiation over the occiput and central lower back pain which radiates cranially between her shoulder blades and radially bilaterally anteriorly;
(ix)Dr Davis then tabulates his findings upon examination as to active range of movement of the cervical spine, right shoulder and lumbar spine. He does not say whether or not he used a goniometer. He recorded ranges of movement that were significantly reduced from the normal, and
(x)Dr Davis opines that the claimant’s injuries are entirely consistent with her history of injury. He does not actually make a finding as to what those injuries were. He believes “the prognosis to be poor with expected increasing degenerative changes due to alteration in biomechanics.”
In a separate impairment assessment of the same date, Dr Davis finds 31% whole person impairment (WPI) as follows:
Description
Percentage WPI
Cervical spine
25%
Lumbar spine
10%
Right shoulder
6%
Dr Davis says there is no indication for apportionment.
(h)Letter dated 6 October 2023 from Dr Marc Coughlan to the claimant’s lawyers.
Dr Coughlan says as follows:“Holly was asymptomatic prior to the subject MVA. She had sudden onset of severe neck pain immediately following the incident. This got progressively worse, involving her right C7 dermatome with numbness and also significant weakness on the right. The mechanism of injury and subsequent symptoms and imaging are all closely correlated. It is certainly reasonable to conclude the need for surgery was a direct result of the MVA.”
The Review Panel notes that the history stated by Dr Coughlan is not confirmed by the clinical records.
The Review Panel also notes that no report from Dr Ferch or Dr Hanson is served in the claimant’s case. The Review Panel infers that their evidence would not have assisted the claimant.
CLAIMANT’S DIAGNOSTIC SCANS
The following reports are appended to Dr Davis’ report:
· X-ray lumbosacral spine performed on 2 August 2011: normal study;
· CT lumbar spine reported on 13 November 2014 by Dr Geier (see previously);
· MRI whole spine reported on 14 March 2017 by Dr Aluwhare:
“No compression fracture is identified.
At C5/C6 and C6/C7 there is mild circumferential disc bulge more marked at C6/C7. No significant central canal stenosis is identified.
Degenerative disc changes are noted at T11/T12, T12/L1 and L1/L2 and L3/L4.
There is a large central disc extrusion at T12/L1 on the background of degenerative disc change at this level. The disc extrusion is of indeterminate age.
No evidence of neural impingement is identified”;· MRI whole spine reported on 8 August 2019 by Dr Ken Thong:
“The neck is tilted to the left. Mild thoracolumbar scoliosis seen. Small to moderate posteroventral disc protrusion seen at C6/C7 in cervical spine. No cord impingement. Other cervical disc level is normal. No foraminal stenosis.
No thoracic compression fracture. There is a posterior extruded disc seen at T12/L1. It is not causing significant impingement onto the anterior conus. No abnormality at the cauda equina.
Lumbar discs unremarkable. No lumbar compression fracture, pars defect or spondylolisthesis. Cervical, thoracic and lumbar neuroforamina are normal.
Conclusion: Chronic disc protrusion at C6/C7 and T12/L1. No significant cord impingement. No abnormality at the cauda equina”;· MRI cervical spine reported on 28 January 2020 by Dr Slater (see previously), and
· CT cervical spine reported on 17 February 2020 by Dr Verteringa:
“Conclusion: no acute cervical spine fracture is seen. On sagittal image 40 there is a paracentral and foraminal disc osteophyte which may contact the existing nerve root here. Extruded disc material here cannot be excluded.”
The insurer relied upon the following material which the Review Panel has considered:
(a) insurer’s Commission’s Reply submissions dated 3 April 2024 (see previously);
(b) insurer’s submissions dated September 2023 relating to permanent impairment dispute;
(i)the insurer noted that it was a low velocity accident and that the claimant’s alleged injuries, continuing disabilities and impairment is squarely in issue;
(ii)colour photographs were provided which, it is submitted, show negligible damage to either vehicle. The insurer noted that airbags did not deploy in either vehicle and that emergency services did not attend the scene of the accident. Neither vehicle was towed. The claimant did not report the accident to police;
(iii)the insurer submitted that the forces involved in the accident were not capable of causing the claimant to sustain more than (at most) minor and short-lived soft tissue injuries, from which she made a complete recovery;
(iv)the insurer then reviewed the medical evidence (see separately). The insurer refers to a chronic unrelated back injury the effects of which were continuing at the time of the accident;
(v)the insurer submits that the claimant’s cervical spine issues are not related to the accident. It says there is no evidence of neck pain prior to a consultation with Dr Markell on 6 January 2020. It further submits there is no objective evidence of any complaint of neck pain immediately following the accident, contrary to the history provided by the claimant to Dr Davis and Dr Spira;
(vi)the insurer says the medical evidence indicates that the claimant’s cervical spine symptoms deteriorated rapidly in 2020, particularly following a near miss motor vehicle accident on 13 February 2020, which caused the claimant to attend Gosford Hospital ED on 15 February 2020. The insurer refers to the discharge referral of Gosford Hospital dated 16 February 2020, and
(vii)the insurer says there is no mention of the subject accident in the records of Dr Coughlan and in particular in his report dated 26 February 2020 following the first consultation in which Dr Coughlan recommended that the claimant undergo surgery. The insurer submits the only explanation for the claimant’s cervical symptoms is the “near miss” incident on
13 February 2020.(c) Report dated 2 March 2023 by Dr Robin Mitchell, occupational physician, to the insurer:
Dr Mitchell describes in detail the history of injury and the claimant’s subsequent treatment by Dr Anthony Rawlinson, Dr Richard Ferch, Dr Charles Markell,
Dr Marc Coughlan and Dr Mitchel Hanson. Dr Mitchel notes the past medical history including a dance injury to the claimant’s lower thoracic and upper lumbar spine at the age of 15 years and a severe episode of back pain after a fall at age 18 and continued reporting weakness in her legs.The claimant described pain in her lower neck, thoracic spine, right lumbar spine with radiation down the right leg to the level of the mid cuff, and right arm pain.
Dr Mitchell describes his findings upon physical examination of the cervical spine, thoracic spine, lumbar spine, shoulders and arms. He describes in detail the diagnosis investigations that were made available to him. Dr Mitchell says that “the prognosis is guarded due to the long-standing and permanent nature of the degenerative changes identified radiologically, particularly in the thoracolumbar back”. Dr Mitchell opines that the radiological studies confirmed the presence of chronic changes in both the neck and thoracic back regions.As to the relationship of the claimant’s reported injuries and disabilities to the motor accident, Dr Mitchell states as follows:
“The neck and thoracic back pain conditions started a number of years before the subject accident, from the age of 15 and 18, both of which would only be considered to have sustained a short-term aggravation in the subject accident, with the aggravation expected to resolve over a period of two months or so.”
Dr Mitchell says there is a level of permanent disability due to the nature of the degenerative changes identified and the consequences of the surgical treatment undertaken. Dr Mitchell says the clinical findings of relevance with respect to permanent impairment were:
·the claimant reports ongoing pain in the neck and thoracic back following a fusion procedure undertaken at C6/C7 to manage long-standing degenerative changes in each region that were apparently aggravated following the subject accident. The initial compliant following the subject accident was thoracic back pain, related to previous injuries sustained at the age of 15 and 18, and the neck symptoms appear to develop in late 2019 and 2020, a long time after the subject accident, and
·therefore, in my opinion, there is no permanent impairment arising from the subject accident.
(d)Report dated 10 March 2023 by Dr Paul Spira, consultant neurologist, to the insurer;
Dr Spira gives a detailed description of the history of the accident and the claimant’s subsequent treatment. Dr Spira describes some of the radiology.
Dr Spira says that his physical examination revealed a collection of non-organic features that can only be explained on a functional basis. He believes that the subject accident may have produced some minor soft tissue injuries which should have resolved within a week or two of the accident at most. There was pre-existing pathology in the cervical and lumbar regions but the cervical changes were apparently asymptomatic prior to the accident. Dr Spira note inconsistency between the history provided to him by the claimant regarding her post-accident level of symptomology and the situation described in contemporaneous medical records. He believes that the claimant’s ongoing complaints of cervical and back pain did not arise from the physical effects of the accident. Dr Spira does not believe that the claimant has any permanent disabilities arising from the accident.
(e) accident report form;
(f) photograph of property damage to insured vehicle;
(g) photograph of property damage to claimant’s vehicle;
(h) clinical records of Charlestown Medical and Dental Centre as at 31 August 2021;
(i) clinical records of Waratah Medical Centre as at 28 July 2021;
(j) clinical records of Waratah Medical Centre as at 21 June 2023;
(k) clinical records of Gosford Hospital as at 8 October 2021;
(l) clinical records of Dr Mitchell Hanson as at 9 April 2020, and
“Report dated 9 April 2020 to Dr Markell from Dr Hanson (neurosurgeon and spine surgeon). Dr Hanson records that the claimant recently has been dropping things with her right hand. She describes pain in her neck which runs down her arm into her hand. She states this has been significantly problematic since January 2020.
Investigations: MRI scan does show a disc on the right at C6/C7 which is slightly larger than it was on MRI in August last year. She does have T12/L1 disc protrusion as well but this is not causing any significant contact with the cord.
Treatment/Recommendations: I have arranged for her to have transforaminal injection on the right at C6/C7. I have also asked for some nerve conduction studies as she said the pain started in her little finger which is unusual for a C6/C7 disc. As she has weakness and significant pain if these come back with no obvious peripheral nerve compression, then I think an arthroplasty at C6/C7 is a reasonable indication for surgery.
CONSULTATION RECORD DATED 11 MAY 2017
History: VAS: Neck – 2
Arm – 2
Back – 8
Leg – 8
Roland-Morris back pain and disability score – 16/24
Oswestry disability index – 46%”
(m) clinical records of Dr Richard Ferch as at 22 July 2020;
“Letter dated 11 May 2017 by Dr Ferch (neurosurgeon/spinal surgeon) to
Dr Rawlinson:Dr Ferch says there was a long history of back pain. He noted the subject accident. He said there was a somewhat stiff back. He reviewed the imaging.
Dr Ferch said that the most recent MRI scan does demonstrate degenerative change which affects the C6/C7 level and the T11/L1 level in particular. Dr Ferch opines that surgical treatment was not required. He does not otherwise comment on any symptoms from the cervical spine.”The report of Medical Assessor Cameron and Medical Assessor Barnsley is as follows:
PIC REVIEW PANEL EXAMINATION REPORT
Claimant:Holly PANNOWITZ
Date of Birth: 23/3/1995
Date of Injury: 19 March 2017
Examination: Assessor Michael Couch, PIC Rooms over a period of 85 minutes, Tuesday 20th August 2024
Ms Pannowitz was examined by Assessor Michael Couch at the PIC Rooms over a period of 85 minutes. She attended alone and said that car transport had been arranged for her from the Lake Macquarie area.
Pre-accident Medical History and Relevant Personal Details
Ms Pannowitz said that she grew up in the Newcastle area. She completed high school and obtained her HSC. She subsequently completed a business management apprenticeship/traineeship with a mining company in Newcastle and did associated TAFE study. She went onto explain that dancing had always been very important to her and that she had “danced my whole life”. At one stage she had hoped to dance professionally. She described doing a lot of ballet in her teens and also other dance disciplines.
Noting the documentation of past low back pain, the Assessor asked her about any previous injuries. She described “bits and pieces of pain everywhere – including my back ... I had scans to check nothing bad was happening”. She went on to say that serious dancers, particularly those dancing on their points, were routinely required to have physiotherapy assessment and scans for safety. She went on to describe minor back symptoms between the ages of about 16 and 18, when she was dancing very intensively, and recalled that “nothing showed up on the scans”. She added that when she stopped dancing so much “everything went away”.
She went on to say that since her late teens she had worked for Block, an international dance shoe company, originally founded in Sydney. The company supplies shoes for all types of dancing including ballet, ballroom, tap, jazz, hip-hop etc. Prior to the subject motor vehicle accident Ms Pannowitz was working full-time in the company’s shop in Charlestown. Prior to the subject accident, in addition to working full-time, she was dancing and teaching dance up to a total of 20-30 hours per week. She said that she was dancing every day. She denied back or neck symptoms during this time, stating “I was fine”.
History of the Motor Accident
Ms Pannowitz described a rear end crash at about 8:30 am in the morning on 19 March 2017. She was alone driving her 2012 Hyundai Veloster on the way to work. Her car was stationary at traffic lights near the Charlestown Shopping Centre when a Nissan X-Trail hit the rear of her car. She stated, “It was a 60 zone and he didn’t stop – coming over the hill and didn’t brake – I don’t know if he was actually doing 60”. Her car was pushed forward an estimated 2 to 3 m but there were no vehicles ahead. She was wearing a seatbelt and no airbags activated. (Ms Pannowitz did not think that airbags had activated in the other car either).
The Assessor viewed photographs of the rear of her car (CNR90T) and the front of a Nissan (BW112GM) and pointed out that there seemed to be little visible damage. She said that she had driven to a nearby carpark in the shopping centre to get off the road and her car was then towed away to a smash repairer. The history of the subsequent repairs was a little unclear – Ms Pannowitz apologised for not knowing the full details, and said that her parents had dealt with this rather than her. She said that the car was fully insured and was repaired but added that the smash repairer had told her that “the whole frame underneath was bent” and that it would be better for her to trade it in – apparently this was subsequently done.
History of Symptoms and Treatment Following the Motor Accident
Ms Pannowitz recalled that the driver of the other car helped her out of her vehicle. She said that she noticed neck pain immediately and attended Dr Anthony Rawlinson at the nearby Charlestown Medical and Dental Centre (located in the shopping centre). (Ms Pannowitz said that she usually attended Waratah Medical Services in Cooranbong near her home, but this was a long way from work, and that also appointments usually needed to be booked a long time ahead).
Records from Charlestown Medical and Dental Centre document attendance at 10:18 am on Monday 13 March 2017 with Dr Rawlinson: “MVA this morning. Rear-ended by 4WD travelling at 60 km/hr. Holly travelling 20-30 km/hr forward; accelerating. Airbag did not deploy. Patient hit forehead on steering wheel. C/O lower thoracic pain in the same distribution area that has known disc disease – old dancing injury. No neck or head pain. Nil LOC. Nil saddle paraesthesia. Picture of car – minor cosmetic damage to back bumper. Patient thinks thoracic symptoms due to previous injury rather than MVA. Lower thoracic spine has been gradually getting worse over the past few months – injured at age 15”.
On examination the only apparent abnormal finding was tenderness over the lower thoracic spine on palpation, with the comment “no head injury, no upper limbs injury, no seatbelt sign ... no lower limb injury, nil cervical spine tenderness”.
X-ray of the cervical spine on the same date was reported as normal. X-ray of the thoracic spine on the same date was reported to show old minor Schmorl’s nodes in the lower thoracic region with slight anterior loss of height of T12, with the appearances likely to be due to previous osteochondritis rather than a recent compression fracture. CT of the lower thoracic spine was suggested to exclude a minor compression fracture.
MRI of the whole spine on 14 March 2017 was reported: “... at C5/6 and C6/7 there is mild circumferential disc bulge more marked at C6/7. No significant central canal stenosis is identified ... At T12/L1 there is a large central disc extrusion measuring 18 mm trans x 3 mm AP x 15 mm CC. There is mild central canal narrowing ... Comment: no compression fracture is identified. There is a large central disc extrusion at T12/L1 on the background of the degenerative disc change at this level. The disc extrusion is of indeterminate age. Correlation with prior imaging would be useful if available. No evidence of neural impingement is identified”.
Following this on 17 March 2017 Dr Rawlinson referred Ms Pannowitz to Dr Richard Ferch, Neurosurgeon: “Thank you for seeing Ms Holly Dearie Pannowitz for review of T12/L1 disc extrusion as seen on MRI. She is a dancer and dancing coach who saw me on 13 March 2017 after a motor vehicle accident in which she was rear-ended at a cumulative speed of about 40 km/hr. She was symptomatic with lower thoracic spinal tenderness. Please see attached x-ray and MRI report. This occurred on a background of previous injury to her lower thoracic and upper lumbar spine whilst dancing several years ago. Previous CT scan in 2014 demonstrated posterior disc bulging with possible anterior thecal indentation and possible minimal cord impingement which at that time had not been investigated further. Neurological examination was normal. I would appreciate your thoughts on future management for this young lady”.
On 11 May 2017 Dr Ferch wrote:
“As you know, Holly has a long history of back symptoms. She initially developed low back pain which radiated across her back, into her right buttock and posterior thigh as a 15-year-old when she was dancing. The pain gradually settled however Holly has been vulnerable to episodic low back pain ever since. As an 18-year-ol.d she developed a severe episode of low back pain after a fall and this was associated with a feeling of weakness in her legs. She underwent treatment through physical therapy and her symptoms improved. On 13/03/2017 she was struck from behind by another vehicle precipitating the pain across her low back. In addition to pain radiating across her back Holly does experience some pain radiating into her thighs. She rates her typical back pain as 8/10 and her typical leg pain at 8/10. Her Reland-Morris back pain & disability score is 16/24 and her Oswestry disability index 46%.
Holly is otherwise well and takes no regular medications. She is a non-smoker.
On examination, Holly is somewhat stiff about her back despite working as a dance teacher consistent with muscular splinting. Neurological examination reveals normal tone and power with brisk symmetrical reflexes and downgoing plantar responses. There were no signs of myelopathy. Her peripheral circulation was normal and passive movement of her hips and knees did not cause tenderness.
I had the opportunity to review Holly’s recent thoracolumbar MRI scan and a report from a CT scan performed on 13/11/2014. The most recent MRI scan does demonstrate degenerative change which affects the C6-7 level and the T11-L1 level in particular. The T12-L1 level is associated with loss of signal on the T2 weighted sequences and some generalised bulging. This does compromise the spinal canal but there is still CSF surrounding the cord and the cord has normal signal within it. Holly’ SCT scan from 13/11/2014 is reported as showing disc bulging at the thoracolumbar junction and it is possible that these changes are longstanding.
I have reassured Holly that there is no threat to her spinal cord and that she is unlikely to benefit from surgical treatment. Holly’s episodic pain is likely to be, in large part, contributed to by muscular splinting and I have encouraged her to maintain an aggressive stretching exercise programme. We have discussed yoga, Pilates, the Alexander technique as well as hydrotherapy based exercises. I have given her an information sheet detailing an exercise programme. Holly could benefit from review through a pain physician and I have given her a referral to the Hunter Pain Clinic who visit the Central Coast. At this point I have not formally arranged to see Holly again but would, of course, be happy to do so if there was any new concerns”.
Ms Pannowitz was questioned about her visits/consultations with Dr Rawlinson and Dr Ferch. She was asked why Dr Rawlinson had mentioned the low thoracic pain but not the neck; she replied: “that’s ridiculous – I went there because of my neck – I didn’t work for a week because I couldn’t move or drive”. She agreed that she did have some back pain but mostly went to the medical centre straight after the accident because of her neck. (She also added that she had wanted to lodge a CTP claim at that time, but the doctor would not sign it).
With regard to Dr Ferch, she stated, “he told me I was fine, and he couldn’t see anything wrong with my scans – I could drive and do everything”. (She said she was surprised at this advice when later she obtained a report copy of her MRI and previous CT. (The Panel notes that Dr Ferch did clearly refer to imaging abnormalities in his letter to Dr Rawlinson dated 11 May 2017). Ms Pannowitz was asked about any subsequent treatment for her injuries. She said that she had not had any further treatment, explaining: “because once Dr Ferch said there was nothing wrong I didn’t think there was an injury to treat”.
She said that eventually, because of persistent symptoms, she took information from the Charlestown Medical Centre to her usual GP, Dr Charles Markell, at Waratah Medical Services in Cooranbong. (She also told the Assessor that Dr Markell had retired a few weeks before this Panel examination, and that she would need to find another regular GP. She said that she had been seeing Dr Markell as her GP for about 10 years).
Ms Pannowitz said that when she consulted Dr Markell, he said that something needed to be done. I asked her about the entry from Dr Philip Lock at the same practice dated 31 March 2018 “2. Acute on chronic lower back pain – since age 17 years. 1.5 weeks of flare since being on speedboat in Thailand ...”. Ms Pannowitz responded, “I don’t know why he said that – we only went on one boat to transfer to the hotel”. (On questioning, she described a relatively sedate ferry rather than a speedboat). She did say that her back and neck had been very painful during this two week trip to Thailand which she had made with her partner. She attributed this to the long plane flight which she described as “awful”.
Ms Pannowitz said that pain in her neck and back had persisted since the accident in 2017. She said that eventually her GP had referred her to Dr Marc Coughlan, Neurosurgeon, for a second opinion. (She recalled in particular that at that time her neck had been very stiff and painful and she found she was unable to drive – her partner had to drive her to and from work). The referral letter from Dr Markell to Dr Coughlan dated 20 June 2019 stated:
“presenting problems: seeking review of a bulged disc with chronic lower back pain. Holly is a dance teacher and is struggling at this point to walk comfortably, she is unable to teach (which is her life’s passion) and needs assistance in the morning to get out of bed. She has been engaged in physio for years and has been taking analgesia including Palexia to little benefit. Please find attached a CT report from 2014 and thank you for your review”.
On 22 November 2019 Dr Markell wrote that Dr Coughlan was planning surgery (it would appear that Dr Coughlan’s initial letter about this was not available for the Panel).
On 6 January 2020 Dr Markell, in addition to again mentioning the planned lower spine surgery, now mentioned the cervical spine: “Disc bulge C6/7. Right sided paraesthesia to C7 and C8 distribution…..noted MRI showing C6/7 disc bulge. Examination: Tender to central spine at C7-tender paraspinal muscles C7/8/T1…”
On 20 January 2020 stated that recent MRI showed “Notable C7/T1 stenosis of spinal cord-is having severe pain to right upper limb, limitation of movement and pain-cannot sleep…”
One month later, on 15 February 2020, Ms Pannowitz attended Gosford Hospital Emergency Dept with a flare-up right arm neuropathic symptoms after emergency braking at high speed on the highway. Examination showed sensory changes and weakness in the right upper limb.
The first letter seen from Dr Coughlan addressed to Dr Markell was dated 26 February 2020:
“this note is regarding Holly, she was involved in an incident on the highway when she had to brake suddenly and she noticed severe worsening of neck pain thereafter. This got progressively worse, involving her right C7 dermatome with numbness and also significant weakness on the right. She was assessed as an emergency and had a CT of the cervical spine and this is also on 17 February. Prior to that in late January she had an MRI of the neck which showed very significant right-sided C6/7 disc herniation compressing the hemi cord and the right C7 nerve root, she also has very significant kyphosis at that level.
I have recommended she give consideration to a C6/7 anterior cervical discectomy with space inserted as I am concerned regarding her weakness particularly in the right C7 myotome. I will keep you updated regarding progress and outcome and we will try and expedite this given that she does have mild residual weakness in the right C7 myotome”.
Dr Coughlan performed C6/7 ACDF at Gosford Private Hospital on 19 May 2020. She described postoperative complications – possibly following the use of the strong corticosteroid Dexamethasone-she was apparently an inpatient for about four weeks. A brief letter from Dr Coughlan dated 23 June 2020 described readmission, when she was complaining of facial swelling possibly due to the Dexamethasone.
Subsequently she developed episodes of tachycardia treated with a betablocker – she told me that she had subsequently been diagnosed with POTS (postural orthostatic tachycardia syndrome). Ms Pannowitz had this surgery funded by her private health insurance. The Assessor asked her again about the main reason for this surgery, and she said that it was because of numbness and weakness in the right upper limb, stating “my whole arm – you could stick a pin in it – I started dropping things as well”. She also had neck pain.
Following surgery, she described relief of the right upper limb numbness and was pleased by this. However, she said that neck is still stiff. She thought that neck pain had diminished from 9-10/10 on the VAS scale to 6/10 – she added that she had hoped for more benefit than this. (She also mentioned that Dr Coughlan had talked about thoracic spine surgery. In his letter of 11 September 2020 Dr Coughlan described very good progress with regard to her neck and right arm, but added that she seemed to be developing symptoms in her right hand of carpal tunnel syndrome.
In relation to the thoracic spine, he wrote “in terms of wedging of the vertebrae she has mild Scheuermann's disease or the remnants thereof. She does have changes at T12/L1 but this is more related to the chronic discopathy with the disc having fish-mouthed back to the canal and causing some osteophytic changes at the back of the vertebral body. She does not have any evidence of osteopenic wedge compression fractures per se ...”
Ms Pannowitz said that surgery to the thoracic spine had been mentioned but she could not face this. (From Dr Coughlan’s report it is not clear that this would be indicated).
Current Symptoms Attributed to 2017 Motor Vehicle Accident
Ms Pannowitz described these as follows – the neck and right upper limb being the worst.
1. Cervical spine
Ms Pannowitz stated that her neck and right arm were troubling her the most. (She also commented that she realised that her low back pain was not solely related to the subject accident). She described pain from the cervicothoracic junction all the way down to the thoracolumbar junction. She described this as “burning – constant – never pain free”.
She rated pain severity as an average of 6-7/10. Neck pain is aggravated by movement with some relief from lying supine – this only lasts for a short time. Pain radiates to the right shoulder, down the extensor aspect of the right arm and forearm and into the hand – mainly into the fourth and fifth fingers.
Ms Pannowitz added that she thought there had been some nerve injury in the ACDF procedure. She said that her right arm still feels weak, and she still has some numbness in the upper arm and fourth and fifth fingers with pins and needles. (These paraesthesia have improved since surgery).
In addition, she described severe migraines occurring once or twice a week associated with her neck pain. These are accompanied by visual disturbance and photophobia, and she prefers to lie down in the dark for relief. They can last from 24-48 hours.2. Back pain
She described pain, pointing to the thoracolumbar junction, with radiation to the posterior right thigh and leg to the foot and lateral toes. She described this as constant. She added, “I never get a break but I can’t afford to get a second operation done”.
In further discussion at this stage of the interview, Ms Pannowitz confirmed that she had not had any neck trouble prior to the accident, but did have back pain which she related to her long history of dancing.Present Activities
Ms Pannowitz said that she continues to work part-time on a casual basis “when I can”. She said that she was working at the ballet shoe store an average of 20 to 30 hours per week. At this job she can vary her posture regularly for pain relief.
She is living with her mother and sister. She said that she does not help much around the home and that “I’m not allowed to vacuum or mop or move anything heavy”.
I asked her about exercise. She said that she had basically not exercised since the injury. She said that she could not even teach any dancing-which she perceives as a great loss. She said that she cannot go to the gym or socialise but does still have a few friends. She said that she does walk up to a kilometre maximum and avoids hills. She described her sleep as “effing awful”.
Current Medications
Ms Pannowitz described taking intermittent stronger analgesics for pain – she said that a 20 tablet packet of Panadeine Forte would last her two to three months. She also takes 5 mg of Endone, perhaps every one to two weeks. She occasionally takes Valium 5 mg (presumably as a muscle relaxant) if pain is particularly bad. She also takes the tricyclic Amitriptyline 25 mg at night. In addition, for the POTS she takes Metoprolol (beta blocker) 50 mg twice daily and also Ivabradine (a unique HCN channel blocker which can reduce heart rate).
Lifestyle Factors
She said that she does not drink alcohol or smoke.
Physical Examination
Ms Pannowitz presented as a pleasant, cooperative young woman who gave a clear specific history in a quite convincing and straightforward manner. She showed good effort during the examination, with no abnormal pain behaviours, limitation or inconsistency. Her affect appeared to be within normal limits, and she could smile and share a joke appropriately.
She was moderately overweight at 78 kg with a height of 158 cm (BMI 31). She said that prior to the accident she had weighed 60-65 kg (within the healthy weight range). After the accident she had put on weight at one stage to a maximum of 90 kg, which she related to reduced physical activity.
She was wearing slip-on sneakers, socks, tights, a tight singlet/sports bra and windcheater. Shoes, socks and windcheater were removed for examination.
Posture and gait were within normal limits. She was not in obvious discomfort or distress sitting during her prolonged interview. She was able to climb on and off the examination couch, lie prone, roll over to lie supine, and then sit up again.
Head/neck
There was a well-healed right-sided transverse ACDF scar about 50 mm long at the anterior neck – this was just visible. There was a slight tendency to forward protrusion of the head and neck (“poke neck”). On palpation she reported moderate tenderness from C6 distally all the way down to T12/L1. The right trapezius muscle was moderately tender to palpation and marginally tighter than the left.
All AROM (active range of movement) of the cervical spine was restricted to a third/half of normal with dysmetria – rotation and lateral flexion were much more restricted to the right than to the left.
Upper extremities
The palms of her hands were quite dry but were clean and there were no callouses (consistent with her self-reported level of physical activity). Ms Pannowitz added that although she writes with her right hand, she uses her left hand for most other things. The right upper arm measured 33 cm in circumference and the left 31.5 cm, the right forearm 25.5 cm and the left 25 cm.
Biceps, triceps and brachioradialis reflexes were normal and symmetrical. There was no convincing weakness of any muscle group in the right upper limb, but effort when testing grip strength was reduced, apparently because of pain – on discussion, Ms Pannowitz said that she was scared of aggravating her symptoms. Grip strength on the right was apparently weaker than the left, but I considered that it was probably within normal limits.
She did describe reduced sensation to light touch over the ulnar aspect of the right hand and ulnar fingers and also the ulnar side of her arm and forearm. She described pinprick as blunt over the ulnar aspect of the right hand and the ulnar side fingers.
Back/spine
With Ms Pannowitz standing, posture of the thoracic and lumbosacral spine was within normal limits. On palpation there was moderate generalised tenderness over the whole length of the thoracic spine, with very marked localised tenderness at the T12/L1 level. There was only slight tenderness to palpation over the lumbosacral spine.
Spinal rotation (which mainly occurs in the thoracic spine) was tested with Ms Pannowitz seated to stabilise the pelvis. Rotation was about one-half of normal to the left and one-third of normal to the right, and she complained of pain at the T12/L1 level on both movements. Other movements were tested with Ms Pannowitz standing with knees straight: Flexion was quite restricted – she could only reach her fingertips to her knees, with a reduced 3.5 cm expansion over a normal lumbar segment (the normal lower limit for this MacRae-Wright movement is 5 cm). Flexion was thus about half of normal and she complained of some low back pain during this. (Ms Pannowitz added that she could push herself to bend and touch her toes, but with increased pain-she was not asked to do so.) Lumbar extension was only one-third of normal, accompanied by pain. Lateral flexion was minimal to the right and about one-third of normal to the left.
Lower limbs
Measured 10 cm proximal to the patella, both thighs measured equally in girth at 54.5 cm. The right calf measured 42 cm and the left 41.5 (Ms Pannowitz stated that she was right-footed).
Knee jerks and ankle jerks were normal and symmetrical and both plantar responses flexor (normal). Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal and symmetrical. Power of hip and knee flexion and extension was full on the left. Effort was reduced when testing these movements on the right, but appeared to be restricted by low back pain.
Ms Pannowitz described some subjective diminution to light touch sensation over the lateral aspect of the right foot, but pinprick sensation was preserved bilaterally.
Functionally, Ms Pannowitz’s gait was normal. She could walk on her tiptoes (rising up with her heels quite high off the floor – consistent with her dancing history). She could also take a few steps with weight on her heels and forefeet off the floor. She was able to do a full squat to the floor and recover without hand support.
Conclusions after Panel Re-examination
1. The main issue is causation of a cervical spine injury. On the one hand, Ms Pannowitz seemed to be convinced herself that her neck and right upper limb radicular symptoms had dated from and resulted from the subject accident in 2017. She relates her eventual requirement for C6/7 ACDF by Dr Marc Coughlan three years after the accident to that. On the other hand, contemporaneous documentation does not support this. This is reviewed in detail on pages 2-4 above. The Panel notes that Assessor Cameron in the Certificate under review performed a similar review.
Ms Pannowitz attended Dr Rawlinson (GP) on the morning of the accident. He noted the absence of head or neck pain, and nil cervical spine tenderness. The only positive finding was of tenderness over the lower thoracic spine. X-ray of the cervical spine on the same day was reported as normal. MRI of the whole spine on the following day showed mild circumferential disc bulging at C5/6 and C6/7 only (a common finding in asymptomatic adults).
On 17 March 2017 Dr Rawlinson referred her to Dr Richard Ferch (a very experienced Neurosurgeon) because of low thoracic pain and the MRI finding of a large central disc extrusion at T12/L1. In his detailed report of 11 May 2017, Dr Ferch noted the history of back pain intermittently since age 15, and recommended conservative management. There was no mention of the cervical spine, either by Dr Rawlinson or Dr Ferch.
The Panel has seen no mention of the neck/cervical spine until Dr Markell’s records in January 2020. It appears clear from his records, those of Gosford Hospital, and the new MRI findings in January 2020, that a cervical disc protrusion (as opposed to simple bulging), causing severe radicular symptoms,, developed around late 2019/early 2020. The high-speed braking incident in February 2020 may have contributed to this. It is not clear if there had also been any other incident in late 2019 or not.
The letter from Dr Marc Coughlan (another Neurosurgeon) dated 26 February 2020 (3 years after the accident), addressed to Dr Markell (GP)-see below. In fact, when Dr Markell referred her to Dr Coughlan in June 2019, he mentioned worsening low back pain, with no mention of the neck.
2. The Panel also notes that in Dr Coughlan’s first letter seen by the Panel, dated 26 February 2020, he referred to a more recent episode of suddenly having to brake her car and developed severe worsening of neck pain afterwards, with development of right upper limb pain, numbness and weakness. He also stated that MRI in late January 2020 showed a “very significant right-sided C6/7 disc herniation compressing the hemi-cord and the right C7 nerve root” . This strongly suggests that there may have been a separate incident, occurring much later than the subject accident, which affected her cervical spine.
3. Assessment of Whole Person Impairment for the cervical spine is simple: because Ms Pannowitz has had a cervical fusion, her condition is automatically assigned as DRE Cervicothoracic IV, giving 25%. However there is no evidence at all that the requirement for this surgery was related to the subject accident. The dysmetria of the cervical spine and ulnar sensory changes in the right upper limb found at Panel re- examination cannot be related in any way to the motor vehicle accident. There is no assessable impairment of the cervical spine attributable to the subject accident.
4. Low back – there is early contemporaneous documentation of back pain following the subject accident. This appears to have been an aggravation of documented longstanding, intermittent back pain, related to her many years of dancing. On examination, there was well-localised pain and tenderness at the T12/L1 level. As documented by Dr Coughlan, Neurosurgeon, she does have radiological changes there which are probably longstanding. There is no evidence that she sustained a vertebral body fracture or acute disc protrusion in the accident.
5. Clinical assessment of the lower back showed marked localised tenderness at the T12/L1 level, restricted and painful rotation which reproduced pain at this level, and also generalised stiffness and muscle guarding in the lumbosacral area. There was dysmetria in rotation, flexion/extension and lateral flexion. This condition would be best assigned to DRE Lumbosacral Category II, giving 5% WPI. There was no sign of radiculopathy which would allow a higher classification. This 5% WPI can reasonably be attributed to the subject accident.
6. The Panel notes the long history of low back pain related to her dancing, thus the question of pre-existing assessable Permanent Impairment of this region should be considered. However, despite the history of previous low back pain and mention by her GP, the Panel has not seen objective evidence of a pre-existing symptomatic Permanent Impairment which would allow a prior deduction. In this area, the physical findings at re-examination were different from those of Assessor Cameron, who had assessed DRE Lumbosacral Category I, giving 0% WPI.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the examination findings and reasons of Medical Assessor Michael Couch with which Medical Assessor Tai-Tak Wan concurs.
[6] Section 63(3A) of the Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7]
[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Medical Assessors have explained the basis of their assessment. Their findings are the same as those of Medical Assessor Cameron in relation to the cervical spine. In relation to the lumbar spine, the Medical Assessors’ findings at re-examination were different to Medical Assessor Cameron’s findings. The Review Panel notes that Dr Davis’ WPI assessment is significantly different to that of all other medical examiners.
The Review Panel notes the three-year gap between the subject accident and the sudden decline in the claimant’s condition in late 2019/ early 2020 with a flare-up following her near-miss incident in February 2020 on the highway. The Review Panel notes that, in response to direct questioning, the claimant identifies no other incident occurring around that time, where any injury or exacerbation of any injury occurred. The claimant says that she was required to brake suddenly in traffic to avoid a collision in about early February 2020 but no collision occurred in this incident. The claimant notes that all records of Dr Markwell and Dr Coughlan have been provided. That response does not cause the Review Panel to alter its findings, based upon the medical documentation, and other medical evidence.
The Medical Assessors are of the opinion that the clinical records and diagnostic investigations do not confirm that the claimant suffered a soft tissue injury to her cervical spine in the subject accident. However, if the claimant did suffer such a soft tissue injury to her cervical spine, the Medical Assessors are of the opinion that such injury has resolved and does not result in permanent impairment.
Based upon all of the evidence, the Medical Panel is of the opinion that, if the subject accident was a contributing cause to the claimant’s undergoing anterior cervical decompression and fusion surgery, it was not more than a negligible contributing cause.
The Review Panel finds, as a matter of medical determination and as a matter of factual non-medical determination, that the claimant’s need for surgery most probably was due to a supervening incident in the claimant’s condition in late 2019/early 2020 with a flare-up following her near-miss incident on the highway in February 2000.
In reaching their medical determination, the Medical Assessors have exercised the entire gamut of their clinical experience and judgment.
CONCLUSION
The Review Panel finds, as a matter of medical determination and as a matter of factual non-medical determination, that the claimant’s need for surgery was most probably due to a supervening incident in the claimant’s condition in late 2019/early 2020 with a flare-up in February 2020 following her near-miss incident on the highway.
For the above reasons, the Review Panel concludes that the Certificate issued by Medical Assessor Ian Cameron on 26 February 2024 should be revoked. The new Certificate appears at the commencement of these reasons.
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