Peng v Allianz Australia Insurance Limited
[2023] NSWPICMP 558
•22 November 2023
| DETERMINATION OF REVIEW PANEL | |||
| CITATION: | Peng v Allianz Australia Insurance Limited [2023] NSWPICMP 558 | ||
| CLAIMANT: | Jun Peng | ||
| INSURER: | Allianz | ||
| REVIEW PANEL | |||
| MEMBER: | Gary Victor Patterson | ||
| MEDICAL ASSESSOR: | Drew Dixon | ||
| MEDICAL ASSESSOR: | Shane Maloney | ||
| DATE OF DECISION: | 22 November 2023 | ||
| CATCHWORDS: | MOTOR ACCIDENTS – THE CLAIMANT SUFFERED MULTIPLE INJURY ON 16 DECEMBER 2020 IN A REAR-END COLLISION; CLAIMANT SEAT-BELTED DRIVER; VEHICLE SHUNTED INTO VEHICLE IN FRONT; INSURER WHOLLY ADMITTED LIABILITY; DISPUTE AS TO CAUSATION OF INJURY FOR WHICH CLAIMANT UNDERWENT L4/L5 POSTERIOR LUMBAR FUSION; DISPUTE AS TO NECESSARY AND REASONABLE TREATMENT; ASSESSOR KENNA’S CERTIFICATE REVOKED; PANEL FINDS THAT MOTOR ACCIDENT WORSENED CLAIMANT’S UNDERLAYING LUMBAR CONDITION; HELD – PANEL CERTIFIES CAUSATION NECESSARY AND REASONABLE TREATMENT. | ||
| DETERMINATIONS MADE: | CERTIFICATE The Review Panel revokes the certificate dated 6 May 2023 and issues a new certificate determining that:
CERTIFICATE The Review Panel revokes the certificate dated 6 May 2023 and issues a new certificate determining that:
| ||
STATEMENT OF REASONS
INTRODUCTION
Jun Peng (the claimant) was injured in a motor accident on 16 December 2020 on Victoria Road at Drummoyne (the accident). The claimant was the driver and sole occupant of his vehicle which was slowing in a line of traffic. He was wearing a seatbelt. The claimant’s vehicle was rear-ended by the insured vehicle and forced into the vehicle in front of it. The claimant self-extricated. The rear of his vehicle sustained significant damage. His airbag deployed. Ambulance, Fire Brigade and Police Officers attended. The claimant was transported to Royal Prince Alfred Hospital where he was assessed, observed and discharged into the care of his local doctor. The insurer wholly admitted liability for the claim.
The claimant worked for many years as a butcher prior to the motor accident. He acknowledges that he suffered from a pre-existing condition in the lumbar spine, namely a degenerative L4/L5 spondylolisthesis, which caused mild intermittent lower back symptoms. The claimant says that his lower back condition was accelerated and aggravated by the motor accident, making his symptoms more frequent and chronic. Following the accident, the claimant underwent posterior fusion at L4/L5 due to severe canal stenosis and compression of the L4 nerve root.
Allianz (the insurer) insured the owner and/or driver of the offending vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accident injuries Act 2017 (the MAI Act).
The present dispute is “whether any treatment or care provided, or to be provided, to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24 of the Act. The treatment dispute concerned requested L4/L5 posterior lumbar interbody fusion surgery, requested patient transfer to Sydney Private Hospital and 14-day inpatient rehabilitation stay post L4/L5 posterior lumbar interbody fusion surgery. These are medical disputes within the meaning of the MAI Act[1].
[1] see Division 7.5 and Schedule 2 cl 2 of the MAI Act.
These is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Clive Kenna on 12 April 2023. Medical Assessor Kenna certified on 6 May 2023 that the proposed surgery, request for patient transfer and 14-day inpatient rehabilitation post-surgery is not reasonable and necessary in the circumstances. Medical Assessor Kenna also certified that the request for patient transfer to Sydney Private Hospital and 14-day inpatient rehabilitation stay post-L4/L5 posterior lumbar interbody fusion surgery does not relate to the injury caused by the motor accident.
The details of that assessment are set out later in these reasons.
THE REVIEW
The application for referral of the medical assessment to a Review Panel (the Panel) was made by the claimant in 28 days after the parties were issued with the original certificates for the medical assessments for which the review is sought.[2]
[2] s 7.26(10) of the MAI Act.
The President’s delegate referred the medical assessments to the Panel as the President’s delegate was satisfied that there was reasonable cause to suspect that the medical assessments were incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] s 7.26(5) of the MAI Act.
Pursuant to s 7.26(5)A of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Ac 2020 (the PIC Act), the Panel consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
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] s 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 based solely on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[6]
[6] s 7.26(6) of the MAI Act.
The parties provided bundles of documents in accordance with the Panel’s direction.
ASSESSMENT UNDER REVIEW
Medical Assessor Kenna noted that it was the considered view of Dr Zhang, the treating GP, that “whilst he had a pre-existing degenerative lower lumbar spine, L4/L5 spondylolisthesis with severe L5 radiculopathy, this was now causing foot drop. That post-accident he had been unable to walk properly and that he had requested supply of a back brace as well as walking stick or walking aids”.
Medical Assessor Kenna noted that ‘previously before the motor vehicle accident he was active. Following the motor vehicle accident, but prior to surgery, his symptoms were substantially numbness in the legs, but particularly involving the left leg, numbness to the toes and pain in the left glutes”.
In reviewing the documentation, Medical Assessor Kenna noted that “the insurer declined to accept causation in relation to operative costs on the basis that there was insufficient medical information to support the request for an L4/L5 posterior lumbar fusion being as a direct result of injuries sustained in the motor vehicle accident….. due to the evidence of significant pre-existent non-acute and degenerative pathology of the spine “which pre-dated the motor vehicle ancient – my comment”.
In summarising the insurer’s position, Medical Assessor Kenna stated as follows:
“…… the request for the surgical decompression at L4/L5 posterior interbody fusion was neither reasonable nor necessary…… he had sustained a soft tissue lower back injury as a result of the rear-end collision. This was superimposed upon significant pre-existent degenerative changes at the L4/L5 level. There had been a prior low back injury in 2019 with the fall at work. In the run-up to the motor vehicle accident, he had attended his GP on 3 occasions for persisting lower back pain. …… it was accepted that he may have sustained an aggravation to the lumbar spine as a result of the motor vehicle accident, but with regards to causation, it should have been limited to conservative physical therapy with an acknowledgement that he already had a pre-existent anterior listhesis with advanced degenerative facet joint arthropathy”.
Medical Assessor Kenna noted “there was also another fall on 4 April 2021 recorded by his GP, noting fell yesterday complaining of lower back pain. On examination, tender L5/S1 with restricted flexion and lateral rotation extension. Hence, his lower back was becoming increasingly problematic.” The Panel notes that L5/S1 is not the site of the present medical dispute.
Medical Assessor Kenna summarised his findings in the following terms:
“Essentially, it fundamentally came down to the view of the insurer that the pathologies identified radiologically were secondary to constitutional age-related degenerative practice, as well as lifestyle incidence occurred, and therefore was not causally related to the accident per se as these all pre-dated and was inexistence prior to the motor vehicle accident. Essentially, therefore, the surgical costs related to rectifying underlaying significant pre-existent degenerative changes and interior listhesis”.
Without stating whether or not he found that the surgical procedure was causally related to the accident, Medical Assessor Kenna stated that:
“On that basis also, the proposed patient transfer, whilst not unreasonably in the context of post-surgery rehab, nevertheless it was considered not causally related to the accident and therefore was not reasonable and necessary treatment for injuries sustained in the motor accident.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
·Claimant’s submissions re Application for Review of Medical Assessment
·Claimant's submissions in support of treatment dispute – surgery and rehabilitation dated 25 November 2021
·Claimant's further submissions dated 22 November 2022
·Claimant's bundle of documents dated 25 November 2021
·Report of Dr Yu dated 30 September 2022
·Reports of Johnny Wong dated 30 April 2021, 27 January 2022, 8 February 2022 and 31 July 2023
The Panel does not think that it is necessary to summarise the claimant’s medical material as it does not add o what has been stated previously.
The insurer relied upon the following material:
·Insurer’s reply submissions to review application dated 27 June 2023
·Insurer’s reply submissions dated 22 December 2021
·Application for Personal Injury Benefits dated 14 March 2021
·Various certificates of fitness
·RPA discharge dated 17 December 2020
·Various reports of Dr Wong
·Clinical records of Sydney Inner West Medical Centre
·Imaging reports of lumbar spine
·Sydney Private Hospital 14-day inpatient rehabilitation stay
·Request for L4/L5 interbody lumbar fusion
Again, the Panel does not think it necessary to summarise the insurer’s medical material, as it does not expand upon the claimant’s medical condition, which is not in dispute.
The Panel subsequently was provided with a copy of a report dated 7 December 2022 by a consultant oral surgeon, Dr Khaled Zoud, to Dr Aiman Alsayed, which was of considerable assistance to the Panel. The Panel called for a copy of the radiologist’s report of a MRI scan, dated 31 October 2022, to which Dr Zoud refers. That report was not provided to the Panel.
The essential question for determination by the Panel is whether the lumbar fusion relates to an injury caused by the accident. Whether or not the requested treatments were reasonable and necessary in the circumstances largely depends upon the Panel’s determination of the causation issue. The Panel has been provided with a plethora of clinical material relating to the pre and post-accident condition of the claimant’s lumbar spine. It is necessary in issue that he had a pre-existing degenerative lower lumbar spine, being L4/L5 spondylolisthesis, and now has severe L5 radiculopathy, which is causing foot drop. It is not in dispute that the claimant was active before the motor accident. Following the motor accident, but prior to surgery, his symptoms where substantially numbness in the legs, particularly the left leg, numbness to the toes and pain in the left glutes. It is not in dispute that the claimant sustained an aggravation to the lumbar spine as a result of the accident. In those circumstances, the Panel does not think it is necessary to conduct a physical re-examination of the claimant, as it would be unlikely to yield any fresh relevant information.
Having considered all of the evidence, the Panel is satisfied that the claimant was involved in a severe motor accident, when his car was rear-ended and then shunted into the vehicle in front of it. The airbags deployed. The claimant required ambulance transfer to Royal Prince Alfred Hospital. The treating spinal surgeon (Dr Wong) indicated to the insurer that there was severe bilateral sciatica secondary to L4/L5 spondylolisthesis and disc protrusion. The Panel notes that the claimant had an anterolisthesis (spondylolisthesis) of which the claimant was unaware. After the accident, the claimant developed sciatica then radiculopathy, causing a foot drop. The Panel accepts that Dr Wong was proposing decompression of the L4/L5 foramina bilaterally, as well as an L4/L5 posterior interbody fusion, to relieve the foot drop.
The post-operative CT scan confirmed an L4/L5 lumbar interbody fusion and laminectomy was in satisfactory position with intact surgical hardware.
The Panel accepts that there was no evidence of radiculopathy prior to the motor accident. The Panel also accepts that the claimant had sciatica after the motor accident. The Panel notes that clinical reasons for a lumbar fusion include instability or radiculopathy.
CONCLUSIONS
The Panel concludes that the motor accident caused an aggravation/acceleration/ deterioration/ exacerbation of the claimant’s underlaying chronic lumbar condition, being more than negligible, as a matter of medical determination.
The Panel further concludes that the motor accident did cause an aggravation/acceleration/ deterioration/exacerbation of the claimant’s underlying chronic lumbar condition, being more than negligible, as a matter of factual non-medical determination.
Having reached those conclusions on causation and having regard to the outcome of the surgical procedure, the Panel concludes that the surgical procedure, and the associated rehabilitation and transportation were necessary and reasonable, in the circumstances.
FINDINGS
In reaching these conclusions and findings, the Panel has attempted to apply the principles of causation, as explained in Briggs v IAG Limited t/as NRMA Insurance[7]
[7] [2022] NSWSC 372.
For these reasons, the Panel revokes the certificate of Medical Assessor Clive Kenna dated 6 May 2023 and issues a new certificate which appears at the beginning of these reasons.
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