Petrie v QBE Insurance (Australia) Limited
[2025] NSWPICMP 188
•20 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Petrie v QBE Insurance (Australia) Limited [2025] NSWPICMP 188 |
CLAIMANT: | Troy Petrie |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Michael Couch |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 20 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; treatment and care dispute; claimant was driving his Hilux utility vehicle to work when the oncoming insured vehicle crossed into his lane; claimant was unable to swerve to the right due to oncoming traffic; claimant’s airbags deployed which may have saved him from death; Ambulance, Fire Brigade and Police Officers attended the scene; claimant was transported by ambulance to John Hunter Hospital where he was admitted for the next two days; insurer wholly admitted liability for the claim; claimant had a history of surgery at L5/S1 twice before the accident; recurrence of back pain and associated right leg pain after gardening event eight months prior to accident; proposed L5/S1 anterior lumbar interbody fusion; Medical Assessor (MA) found that the accident caused the claimant’s increased back pain; MA considered that the proposed surgery was not causally related to the accident, was reasonable but not necessary; Held –Review Panel finds proposed surgery is related to the accident; Review Panel notes that previous two surgeries at L5/S1 usually lead to discal instability at that level; stabilisation surgery is reasonable and necessary; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - CAUSATION Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the Certificate of Medical Assessor David McGrath dated 21 April 2024 and issues a new Certificate determining that: (a) The following treatment and care: · L5/S1 anterior lumbar interbody fusion DOES RELATE TO THE INJURY caused by the motor accident. CERTIFICATE REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE – REASONABLE AND NECESSARY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 2. The Review Panel revokes the Certificate of Medical Assessor David McGrath dated 21 April 2024 and issues a new Certificate determining that: (b) The following treatment and care: · L5/S1 anterior lumbar interbody fusion IS REASONABLE AND NECESSARY in the circumstances. |
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STATEMENT OF REASONS
INTRODUCTION
Troy Petrie (the claimant) was driving his Hilux utility vehicle to work on 18 August 2022 early in the morning. He was heading to Morrissett along Ywee Road when the oncoming insured vehicle crossed into his lane. The claimant tried to alert the driver of the other vehicle with his headlights. The claimant was unable to swerve to the right due to oncoming traffic. The two vehicles collided head-on at high speed. Both cars were destroyed in the accident. The other driver reportedly was on drugs and fell asleep at the wheel. All of the claimant’s airbags deployed which may have saved him from death. Ambulance, Fire Brigade and Police Officers attended the scene. The claimant was able to get out of his vehicle and was attended by paramedics. He was transported by ambulance to John Hunter Hospital where he was admitted for the next two days.
QBE (the insurer) indemnifies the owner and/or the driver of the vehicle at-fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the Act). The insurer wholly admitted liability for the claim beyond the first 26 weeks.
ASSESSMENT UNDER REVIEW
There is a dispute between the claimant and the insurer under Schedule 2, cl 2(b) of the Act as to:
· whether any treatment and care provided is reasonable and necessary in the circumstances, and
· whether any treatment and care relates to an injury caused by the accident.
Medical Assessor David McGrath certified on 21 April 2024 as follows:
The following treatment and care:
· L5/S1 anterior lumbar interbody fusion
DOES NOT RELATE TO THE INJURY caused by the motor accident.
The following treatment and care:
· L5/S1 anterior lumbar interbody fusion
IS NOT REASONABLE AND NECESSARY in the circumstances.
Medical Assessor McGrath noted that the claimant had a history of surgery at the L5/S1 level on two occasions prior to the accident, both of which were functionally successful, for right leg symptoms and back pain. Thereafter, the claimant returned to his normal occupation as a concreter
Medical Assessor McGrath also noted a significant recurrence of back pain and associated right leg pain after a gardening event eight months prior to the accident. Medical Assessor McGrath says that physical examination after that incident was similar to his current examination.
Medical Assessor McGrath agreed that the accident was the cause of the claimant’s increased pain. However, he did not consider that the proposed spinal fusion was causally related to the accident. Medical Assessor McGrath stated as follows:
“There is no pathology, which can be ascribed to the accident, which would justify a spinal fusion. The perceived need for fusion is more likely a consequence of the unrelenting time dependant degradation at the L5/S1 level of his spine.”
Medical Assessor McGrath observed that the claimant may benefit from a well-performed surgical procedure. He may also do poorly. Medical Assessor McGrath thought that the claimant could at least consider having the surgery with all risks and rewards explained. He opined that the proposed surgery was reasonable but not necessary.
THE REVIEW
The claimant sought a review of Medical Assessor McGrath’s certificate on the basis that the medical assessment was incorrect in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant submitted that Medical Assessor McGrath applied the test of causation erroneously. In that, as he found that the accident was the cause of increased pain, he should have found that the accident made a material contribution to the claimant’s injury.
It also was submitted by the claimant that, as Medical Assessor McGrath found that the claimant “could at least consider having the surgery with all risks and rewards explained”, that demonstrated the disputed treatment is both reasonable and necessary.
The claimant also submitted that Medical Assessor McGrath failed to have regard to the particular circumstances of the claimant in making his determination.
The claimant’s review application was opposed by the insurer. As the insurer’s submissions were not accepted by the President’s delegate, it is not necessary to refer to them in detail. Briefly, they can be summarised as follows:
(a) Medical Assessor McGrath was not asked to consider whether the lumbar spine injury was caused, or materially contributed to, by the accident. The referred dispute was whether the proposed L5/S1 anterior lumbar interbody fusion relates to the injury caused by the accident;
(b) Medical Assessor McGrath’s findings and determination are not incompatible as alleged by the claimant, and
(c) Medical Assessor McGrath was of the opinion that the proposed surgery was not causally related to the accident for the reasons which he stated in detail.
Accordingly, the insurer submitted that the application for review should be dismissed on the basis that there are no errors in Medical Assessor McGrath’s certificate.
President’s delegate Ashley Payne issued a Determination of an Application for Review of a Medical Assessment on 13 June 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 the satisfaction of the President’s delegate was stated as follows:
“The claimant submits that the Medical Assessor “applied the test of causation erroneously” and “wrongly applied the test” of reasonable and necessary treatment. I have considered each of the particulars set out in the application, separately and collectively, and am satisfied there is reasonable cause to suspect that the medical assessment is incorrect in a material respect.”
Therefore, pursuant to s.72.6 of the Act, the application was accepted.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, 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 MAI 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 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.”
DOES THE PROPOSED TREATMENT RELATE TO THE INJURY RESULTING FROM THE MOTOR ACCIDENT?
The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of permanent impairment resulting from injury under the worker’s compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[6] These principles are well-settled and equally apply to the causal relationship of treatment under the Act by reasons of the same statutory language.
[6] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment:
AAI Limited v Philips.[7] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear that s 58(1) of theMotor Accidents Compensation Act1999. Those words are almost identical to the wording in Schedule 2 of the Act.[7] [2018] NSWSC 1710 at (29).
REASONABLE AND NECESSARY IN THE CIRCUMSTANCES
The claimant is required to establish that the care is both “reasonable and necessary”. This test differs from the worker’s compensation legislation which requires a worker to establish that the care is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the care is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act1987 in Clampett v WorkCover Authority of NSW,[8] Grove J stated:[9]
“22. I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ as relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ – (shorter Oxford English Dictionary, 3rd Edition) and ‘that cannot be dispensed with’ – Macquarie.
23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what may be ‘reasonably necessary’, there is these statutory obligations specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[8] [2003] NSWCA 52.
[9] Clampett at (22) – (23), Meagher and Santow JJA agreeing.
Similar observations have been made subsequently by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[10]
[10] See ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).
Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker’s compensation legislation are well-settled.[11] They include:
(a) the appropriateness of particular treatments;
(b) the availability of alternative treatments;
(c) the costs of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[11] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88).
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the worker’s compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Review Panel has considered:
(a) claimant’s submissions for Review dated 19 May 2024 (previously summarised), and
(b) claimant’s submissions to Medical Assessor McGrath dated 19 December 2023 relating to the treatment dispute.
THE DISPUTE
1. The medical dispute arises from the decision of the insurer to decline to fund an L5/S1 anterior lumbar interbody fusion (“ALFI”) surgery requested by the claimant’s treating neurosurgeon, Dr Mark Coughlan, on 16 February 2023.
2. An application for personal injury benefits was made by the claimant on 24 August 2022. Liability was accepted beyond 26 weeks on 14 November 2022 as the claimant was assessed by the insurer as having a non-minor injury.
3. Dr Coughlan requested funding for an ALFI on 16 February 2023. The insurer informed the claimant on 23 March 2023 that the ALFI requested by Dr Coughlan would not be funded.
4. An Application for Internal Review was made by the claimant on 29 May 2023 seeking a review of the decision.
5. A Certificate of Determination was provided by the insurer on 8 June 2023 confirming the original decision in the following terms:
“……. there is no medical evidence to support that the motor accident caused anything other than a soft tissue injury and I am satisfied that the requested surgery is not reasonable and necessary in the circumstances or relates to the injury caused by the motor vehicle accident.”
6. A further Application for Internal Review was made by the claimant on 4 September 2023 seeking a review of that decision on the basis that new evidence had been produced, including an IME report by Dr Anil Nair, orthopaedic surgeon, dated 22 August 2023. The insurer declined on the basis that an internal review of the decision previously had been conducted.
7. The claimant asserts that the treatment proposed by Dr Coughlan is reasonable and necessary treatment arising from the accident.
PRE-EXISTING CONDITION
1. Prior to the accident, the claimant had a history relating to various complaints at the L5/S1 level. In December 1999, the claimant was admitted to Wyong Hospital suffering nerve root compression at the S1 level. He was later transferred to Royal North Shore Hospital.
2. In 2002, the claimant underwent a discectomy at L5/S1 at Gosford Hospital.
3. In 2011, the claimant attended Royal North Shore Hospital due to pain in the back radiating into the right leg. The claimant underwent an X-ray of the lumbar sacral spine on 1 April 2011 which noted:
“There is loss of intervertebral disc space at L5/S1. The paraspinal line are otherwise intact. There is no evidence of fracture.”
4. In 2012, the claimant underwent at L5/S1 revision laminotomy and decompression at Royal North Shore Hospital.
5. On 29 November 2021, the claimant consulted his GP in relation to the onset of lower back pain following the lifting of some papers. The claimant again consulted with his GP in relation to the lower back pain on 14 December 2021. No further consultations in relation to back pain are noted and the claimant asserts that his symptoms settled shorty after his consultation.
6. At the time of the accident, the claimant was not experiencing any ongoing back pain and was able to undertake all activities of daily living without restriction.
HISTORY OF THE ACCIDENT AND SUBSEQUENT TREATMENT
1. The claimant then summarises the circumstances of the accident which involved a significant head on collision and significant deceleration being experienced by the claimant due to restraint of the seatbelt and the deploying of the air bag. The claimant gives details of his subsequent treatment by his GP for ongoing back pain. The claimant underwent a MRI of the lumbar spine on 4 October 2022 which noted the following:
“If the patient was symptom-free following previous surgery, then would seem likely if his symptoms have recurred acutely that this is due to acute disc protrusion in the right para-central region at L5/S1 which may be causing impingement of the descending right S1 never.”
2. The claimant was referred to Dr Mark Coughlan (neurosurgeon) on 28 October 2022. Dr Coughlan endorsed the claimant’s need for a L5/S1 ALIF procedure arising from the accident. That recommendation was supported by Dr Anil Nair (orthopaedic surgeon) on 11 August 2023. Dr Nail assessed the claimant at the request of his solicitors.
SUMMATION
21. The claimant submits, on the basis of the medical material, that he suffered an injury beyond a soft tissue injury, being an acute disc protrusion in the right paracentral region at L5/S1, the reasonable and necessary treatment for which is the operative procedure requested by Dr Coughlan.
3. Certificate of Medical Assessor David McGrath dated 21 April 2024 (see previously).
A1 Application for Personal Injury Benefits dated 24 August 2022.
A2 NSW Police report dated 27 September 2023.
A3 Report dated 22 August 2022 by Dr Anil Nair to the claimant’s lawyers.
Dr Nair refers to a MRI of the lumbar spine (30 September 2022) which shows a L5/S1 disc prolapse….. Dr Nair observes that the claimant sustained a permanent aggravation to previously asymptomatic L5/S1 and degenerative disc disease of his lumbar spine. Whether the proposed treatment is reasonable and necessary arising from the accident, Dr Nair says as follows:
“The need for surgery has arisen due to the motor vehicle accident. Mr Petrie was functioning well prior to the motor vehicle accident. He was working in the construction industry and was able to perform most tasks. He had not enduring symptoms prior to the subject injury. The proposed surgery would be accepted treatment by a quorum of spinal surgeons.”
Dr Nair says that the medical imaging does not reveal a previous fusion at L5/S1 notwithstanding there is an entry to that effect in the clinical records. Dr Nair says that entry was a typographical error on the part of the medical resident author. Dr Nail opines that the accident was the material contributing factor for the proposed surgery L5/S1.
A4 Report of Dr Mark Coughlan dated 4 September 2023 with attachments.
1. 15 February 2023 – initial consultation
20 March 2023 – review
2. Tony reported he had a head on collision on 18 August 2021. This was at high speed and both vehicles were very severely damaged. Tony was able to extricate himself but the driver of the other vehicle had to be extricated such was the severity of the accident. Subsequent to the accident, he has had ongoing back pain, leg pain and a pressure feeling in his back. He does have a history of a micro discectomy ten years ago at L5/S1 but he was doing very well and was essentially pain-free and very active and mobile.
3. Tony’s imaging showed quite marked collapsed at L5/S1 and preservation of the discs above. The mechanism of injury and subsequent symptoms and imaging are all closely corelated.
4. I have recommended Tony undergo a L5/S1 ALIF procedure.
5. Medication is prescribed by the patient’s GP.
6. After the initial consultation, I referred Tony for a SPECT bone scan which confirmed the L5/S1 discopathy as outlined in 3 above.
7. I do believe the car accident has acted as a significant factor in the genesis of his symptoms given the amount of trauma involved and the severity of the accident, and the fact that he was asymptomatic prior to that. The proposed surgery is considered reasonably necessary for Tony’s pathology and associated symptoms.
8. He does have a history of a micro discectomy ten years ago at L5/S1 but he was doing very well and was essentially pain-free and very active and mobile. Considering this history, one could describe the injury sustained in the accident as an aggravation, the effects of which are continuing.
9. Tony has been unable to work since the accident.
10.Tony requires surgery as outlined above.
11.Prognosis is guarded.
A5 Records of Dr Mark Coughlan.
A6 Clinical records of Eldon Street Medical.
A7 Clinical records of Royal North Shore Hospital.
A8 Records of NSW Ambulance Service.
A16 X-ray of lumbosacral spine dated 15 December 1999.
A17 Report by Dr B James Hasn, orthopaedic surgeon, dates 11 January 2000 being an Operation Report of a discectomy at L1.
John Hunter Hospital discharge summary date 20 August 2022.
Seatbelt injury is noted. Old fracture of L1 superior endplate with 30% loss of height, it is unchanged compared to previous X-ray on 07/05/2003. No acute lumbar spine fracture identified. No pelvic fracture identified.
The insurer relied upon the following material which the Review Panel has considered:
1. insurer’s submissions dated 2 June 2024 responding to the application for review (previously summarised), and
2. insurer’s submissions (treatment) dated 15 January 2024.
The insurer details the claimant’s pre-accident medical history (see previously) and the post-accident medical history. Briefly, the insurer submits as follows:
(a)there is no mention of a lumbar spine injury in the ambulance report;
(b)the John Hunter discharge summary did not record complaint of any lower back pain;
(c)CT scan of the chest, abdomen and pelvis date 18 August 2023 revealed “old healed fractures of T3 spinous process and L3 vertebral body”, plus an “old fracture of the L1 superior endplate with 30% loss of height, it is unchanged compared to previous X-ray on 07/05/2003.” No acute lumbar fracture identified;
(d)in an initial Certificate of Capacity completed at John Hunter Hospital on 20 August 2022, the claimant was recorded to have a “seatbelt injury, otherwise nil acute pathology”. He was fit for pre-injury work from 8 September 2022;
(e)the claimant consulted Dr Shamila Beattie, general practitioner, on 22 August 2022. The claimant did not complain of any lower back pain during this consultation;
(f)in a Certificate of Capacity dated 22 August 2022, Dr Beattie diagnosed a “soft tissue injury from seatbelt and acute kidney injury. Recurrence of pain relating to previous L1 fracture”;
(g)in his application for Personal Injury Benefits dated 24 August 2022, the claimant did not disclose any prior injuries affecting the same/similar parts of his body at the time of the accident;
(h)the claimant revisited Dr Beattie on 2 September 2022. He complained of pain in his lower back. His range of motion was restricted in all directions, with the worse pain on forward flexion. Dr Beattie referred the claimant to physiotherapy, noting the claimant had “significant bruising from seatbelt and flared up previous lower back pain, right knee pain and likely new whiplash related neck pain”;
(i)an Allied Health Recovery request dated 7 September 2022 listed “Whiplash Associated Disorder, Acute on Chronic low back pain”, but listed no pre-existing spinal injuries;
(j)on 16 September 2022, the claimant complained to Dr Beattie of lower back pain with radiation down the right leg. He had good rotational movement of the back, but restricted forward flexion and right-sided lateral flexion;
(k)the claimant underwent a steroid injection into the right L5/S1 epidural space on 17 October 2022, and
(l)on 28 October 2022, the claimant was referred to Dr Mark Coughlan, neurosurgeon. The referral noted that the claimant “has been suffering from persistent lower back pain since the accident and he has a previous history of L1 fracture and L5/S1 discectomy in 2010.
The insurer then advances reasons impugning the claimant’s credit.
The insurer submits that the need for the proposed L5/S1 anterior lumbar interbody fusion surgery relates to the claimant’s pre-existing age-related pathology and is not due to an acute injury sustained in the accident. It then gives detailed particulars in support of that proposition.
The insurer submits that no weight should be given to Dr Nair’s opinion and assessment in circumstances where he was not provided with details of the claimant’s prior medical history.
The insurer submits that reliance on the claimant’s subjective reporting of his symptoms and complaints should be treated with a high level of caution.
The insurer submits that the request for surgery is inconsistent with the “effectiveness” requirement in the Clinical Framework in circumstances where the claimant has previously undergone two surgeries on the L5/S1 vertebrae.
In conclusion, the insurer maintains that the proposed surgery is:
a. not causally related to the accident; and
b. not reasonable and necessary in the circumstances.
3. MRI lumbar spine dated 9 September 2010.
History: Right L5 radiculopathy
Finding: Alignment is normal. Desiccation at L4/L5 and L5/S1, and discogenic endplate change at L5/S1. Conus is of normal signal, and terminates normally. L1 superior endplate compression fracture is not acute appearing.
L3/L5: no neural compromise
L4/L5: facet hypertrophy. Minor posterior disc bulge. No neural compromise.
L5/S1: there is a current right paracentral disc protrusion which appears to contact, but does not compress, the right S1 nerve root in the lateral recess.
Conclusion: recurrent right paracentral disc protrusion at L5/S1, possibly contacting, but not compressing the right S1 nerve root.
4. CT lumbar spine date 18 February 2010.
Summary: comparison with previous imaging recommended
Minor L4/L5 disc bulging
L5/S1 disc degeneration with posterior protrusion encroaching on S1 nerve roots.
5. Report dated 10 May 2023 by Dr Tony Antoun, General Practitioner, to the insurer.
The reason for the referral was to determine whether the subject accident was a direct cause of the pathology reported on the MRI scan of the lumbar spine performed on 4 October 2022.
Dr Antoun refers to notes in the clinical records of an episode of acute low back pain in November 2021 while lifting pavers and a further episode in December 2021 of right sciatica (new) while lifting something in the garden.
Dr Antoun repeats the findings of the CT and MRI scans of the lumbar spine performed in 2010, MRI lumbar spine performed on 4 October 2022, the clinical note relating to guided steroid injection on 17 October 2022 in to the right L5/S1 epidural space and regional bone scan with spect/CT clinical assessment performed on 7 March 2023 (all described previously).
Under the heading Impression, Dr Antoun notes what is stated in Dr Coughlan’s reports on 15 February 2023 and by the reporting radiologist, Dr Brett Lyons, concerning the MRI scan of the lumbar spine performed on 4 October 2022. Dr Antoun notes that Dr Lyons was advised of the mechanism of injury, relevant past history and the subject accident.
Dr Antoun does not say whether or not he agrees with the opinions of
Dr Coughlan and Dr Lyons, nor does he state his own opinion, in response to the question posed in the cited referral.
EXAMINATION REPORT
The report of Medical Assessor Michael Couch is as follows:
EXAMINATION REPORT for REVIEW PANEL
Claimant: Troy PETRIE
Date of Birth: (aged 45 years)
Examination: At PIC rooms by Medical Assessor Michael Couch on 20 August 2024 over a period of 60 minutes.
Mr Petrie attended promptly accompanied by his wife, Melinda. They had driven approximately one and a half hours to the PIC rooms. The Assessor commenced by clarifying that Mr Petrie understood the purpose of the Panel re-examination.
Relevant Personal Details and Occupational History
Mr Petrie said that he grew on the NSW Central Coast and had been involved with local surf life saving clubs since the age of 18, as a volunteer lifeguard. He also used to compete in Iron Man competitions and had represented the club. He said that he had won some medals at State level. Earlier he had also played Rugby League. Mr Petrie also said that he used to play Oztag, both in the men’s and mixed competition, on the Central Coast (his wife apparently also plays, including in the women’s State Cup). He said that up until the date of the accident on 18 August 2022, he was playing Oztag in a competition. Typically he would play two games on the Thursday night – both in a men’s and also in a mixed competition.
He had left school after completing Year 10 and described normal literacy and numeracy. He mentioned that his partner at the time was pregnant. Since leaving school, he had always worked in the construction industry – his father and brother both worked as concreters. Mr Petrie first started work with his father doing concreting. He explained that there were no required formal trade qualifications in concreting at the time and he had simple learnt on the job. He had mostly worked as an independent subcontractor, although he had been an employee on wages for the past six or seven years. Mr Petrie and his wife Melinda have been married for 20 years and have two children of their own.
Mr Petrie stated that his recent employment for about ten years had been with Newoak Contracting, based in Morisset. All the work had been in civil construction, including making bases and access roads for communication towers. (He said they did not work on public roads.)
Mr Petrie was working as a foreman/leading hand prior to the subject motor vehicle accident. He had been off work for four months after the crash and returned to work in early 2023. He said that he was now doing supervisory duties only because of his injuries – I understood that he is essentially working with the same crew of about 12, running similar jobs, but he is no longer able to work on the tools. (He mentioned the fact that this might restrict his future work employment options.)
Past History
Mr Petrie gave a similar history of past back problems to that documented in Assessor McGrath’s Certificate under review: In 2002 he developed right lower limb pain after playing rugby league, was diagnosed with a lumbar disc protrusion and underwent partial discectomy with Dr Hassan, with a good recovery and return to his normal work and leisure activities.
In 2007 he slipped on a low retaining wall and landed heavily on concrete, sustaining a compression fracture of the L1 vertebral body. He was initially hospitalised for a short while. He described a relatively fast recovery and returned to all his pre-injury activities.
In 2012 he fell down some stairs and again developed right lower limb radicular pain. He underwent a further L5/S1 discectomy by Dr Randolph Gray, again with good recovery and relief of his right lower limb symptoms. He again made a return to normal work and leisure activities.
Most recently in 2021 he developed further lower back pain and right lower limb symptoms. The Panel has received extensive documentation from Elden Street Medical in Toukley:
“On 29 November 2021, Dr Timothy Rice recorded “lifting pavers on Thurs. Episode of acute LBP, sudden onset, down RL to top of knee. Prev L5/S1 discectomy, similar pain to previous, nil weakness/numbness, bladder/bowels unchanged.
Examination: Power equal both legs, ROM low back on flexion and extension, reflexes all present, nil change in sensation, nil red flags for cauda.
Discussed MRI – he will wait a few weeks before going on as pain usually resolves on the majority of people with acute LBP, analgesic short term – green on safe script for Endone, advised SOS signs for cauda – ED if develops, see 2/52 if still not settling.”
Two weeks later on 14 December 2021 he was resolved by Dr Reuben Karalasingam at the same practice. He obtained the same history of the incident while lifting in the garden and added:
“He says right sciatica is new, O/E back, ROM restricted flexion, lat flexion and extension, SLR 30% R, 90% L, uncertain if right SLR was 30%, since last discectomy. PT has MRI form from Dr Rice. I offered Lyrica 25 mg bd, couldn’t offer Voltaren or Celebrex in view of high BP reading at surgery…”
Subsequent attendances prior to the subject motor vehicle accident are:
· 23/12/2021 – Dr Timothy Rice - Review for prostatic symptoms.
· 11/2/2022 – Dr Timothy Rice - Review for hypertension and prescription of medications.
· 18/5/2002 – Dr Shamila Beattie - Review for hypertension.
· 24/6/2002 – Dr Shamila Beattie - Review of blood pressure and weight loss counselling – she recorded “height 182 cm, weight 146 kg…has lost 40 kg in the past but awaiting knee surgery and struggling. Keen to lose weight. Discussed dietary measures. Wants to start Saxenda – advice given. Sample pen given. Counselled on possible GI side effects…”
· 18/7/2022 – Dr Shamila Beattie – “attended for weight loss counselling and was tolerating Saxenda well and for check of hypertension.”
(Thus there was no further mention of back or right lower limb symptoms after the two attendances on 29/11/2021 and 14/12/2021.)
Mr Petrie was asked about his own recollection of the November 2021 episode. He thought that he might have had a few days off work only and again recalled a full recovery. He said that he managed to return to all his normal leisure activities, including at the surf club and playing Oztag (as detailed above).
History of the Motor Accident
Mr Petrie said that on 18 August 2022 he was alone, driving a dual-cab Toyota Hilux utility on Wyee Road (a main road). It was in an 80 kilometre/hour zone. He recalled that it was in the early morning around dawn and he had his lights on. A Ford utility approached him from the opposite direction and was on the wrong side of the road for a long period. Mr Petrie recalled flashing his lights to warn the driver – apparently the other vehicle suddenly swerved directly into Mr Petrie’s path at the last minute, causing an offside frontal crash. (Mr Petrie understood that the other driver was affected by drugs/alcohol and wondered if he had been startled into suddenly swerving by his flashing the headlights.)
Mr Petrie also said that there was no opportunity for him to swerve to either side to avoid the crash. Both utilities received very severe damage. He understood the driver of the other vehicle was trapped in his vehicle and that his injuries included a damaged spleen and fractured femur. Mr Petrie recalled that he himself was able to alight from his vehicle and described himself as “very lucky”. Emergency services attended and he was taken to John Hunter Hospital in Newcastle, where he remained an inpatient for two days.
The ambulance officer’s report confirmed the mechanism of the crash and stated that there was severe damage to Mr Petrie’s vehicle, that he had been seatbelted and airbags had deployed and he had self-extricated. He was complaining of neck stiffness, left-sided chest pain and they noted slight bruising in the suprapubic area from seatbelts. He was transported with a precautionary hard collar and analgesia included methoxyflurane and morphine. The John Hunter e-Discharge summary stated:
“Car in oncoming lane drifted into patient’s lane and struck head-on at 90 km/hr, self-extricated, nil LOC, nil amnesia, mild confusion at scene, nil intrinsic precipitates prior to accident appreciated. Med hx: Hypertension.
Issues:
1. Seatbelt injury – Pan scan – features of seatbelt injury were in the left chest wall and lower abdomen subcutaneous tissue. No acute intracranial haemorrhage. No cervical spine fracture. Atelectasis in lung bases. Non-specific small patchy ground glass change in the right upper lobe. ? due to aspiration. Old healed fractures of T3 spinous process and L3 vertebral body. Manage conservatively with analgesia – paracetamol, Endone – tertiary survey done, mobilising well.
2. ?pancreatic cyst. Pan scan: Cystic abnormality in the pancreatic head/uncinate process posteriorly. ?lesion. ?pseudocyst of previous pancreatitis or sequelae of previous trauma given the L1 fracture. Correlation with previous studies is recommended if available. If not available then a further assessment with MRI scan is recommended – for GP follow up of incidental finding of cyst.
3. AKI (My Comment: Acute kidney injury) – eGFR 39 on 18/9 – IV fluids given, eGFR improved after.”
He was discharged home to the care of his GP with analgesia, including Paracetamol, Ibuprofen and Endone.
When asked about his recollection of symptoms immediately after the accident, Mr Petrie recalled extensive bruising on the abdomen and chest, and pain “pretty much in the legs and back, chest and abdomen – I thought I had broken some ribs.” He was also asked about the report of an acute kidney injury. He said that he had not been allowed to leave hospital until his renal function had improved.
On returning home he recalled mostly resting for several weeks. He continued to attend his usual GP. The Panel has seen GP records from July 2017 until 5 July 2023. The first attendance after the subject accident was with Dr Shamila Beattie four days afterwards, on 22 August 2022. She obtained a similar history of the head-on crash. On examination she described significant bruising over the left breast and lower abdomen from the seatbelt and discussed analgesic medication. Ten days later, on 2 September 2022, Dr Beattie recorded:
“Examination: Pt still tender and has large haematomas due to seatbelt bruising. Continues to feel pain in right knee, lower back and neck. Right knee – flexed to 90 deg (extend to 150 deg), back – restricted in all directions, worse pain on forward flexion, neck – restricted and stiff in all directions.”
She went on to discuss appropriate activities and pain management and said that she would refer him for physiotherapy.
Four weeks after the accident, on 16 October 2022, Dr Beattie recorded:
“Pt reporting ongoing pain in knee and lower back with radiation down right leg. Prior to accident back pain had been stable for many years. Knee was manageable with good ROM pre-accident.”
On examination she found restricted forward flexion and right-sided lateral flexion of the back and stated she would refer for MRI of the lumbar spine and knee to clarify if any new injuries had been sustained.
Subsequently MRI of the lumbar spine on 4 October 2022 performed at Dr Beattie’s request was reported to show focal right paracentral disc protrusion at L5/S1, with potential for impingement on the descending right S nerve root and also right foraminal stenosis > left, but with potential for bilateral exiting L5 nerve root irritation.
The Panel notes that Dr Beattie’s records continue to report ongoing low back and right lower limb symptoms in December 2022, and January, February, March and April 2023. On 28 October 2022, Dr Beattie noted that he had received a corticosteroid injection to the lumbar spine ten days later, apparently without benefit. During this period and subsequently he was requiring strong opiate analgesics including Targin and Norspan patches. In February 2023 Dr Beattie noted that the neurosurgeon had recommended surgery and approval was awaited.
A summary letter from Dr Marc Coughlan, Neurosurgeon, to Carroll & O’Dea Lawyers, dated 4 September 2023 described the head-on crash in similar terms to those detailed above and a history of persistent back and leg pain since then. He noted the previous history of microdiscectomy. He wrote:
“3/4 Troy’s imaging showed quite marked collapse at L5/S1 and preservation of the discs above. Mechanism of injury and subsequent symptoms and imaging are all closely correlated. I have recommended Troy undergo an L5/S1 ALIF procedure…
7. I do believe the car accident has acted as a significant factor in the genesis of his symptoms, given the amount of trauma involved and the severity of the accident and the fact that he was asymptomatic prior to that. The proposed surgery is considered reasonably necessary for Troy’s pathology and associated symptoms….”
Mr Petrie was asked when he had last seen Dr Coughlan and he thought this was early in 2023.
History of Relevant Accidents or Incidents Occurring Since the Subject Accident
Mr Petrie denied any such accidents or incidents.
Current Status
Mr Petrie was asked to assess how he thought his back and leg symptoms were, compared with when he first returned to suitable duties at work in early 2023. He said that symptoms were in fact getting worse, rather than better. (The Assessor considered it appropriate to ask his wife, who had not volunteered any information until this point about this; she also said that she thought her husband’s symptoms were gradually getting worse.) He said he still wanted to proceed with the surgery recommended by Dr Coughlan. He said that he realised there was no guarantee about the results of surgery, but that “I can’t continue on like this.”
When asked to localise pain, he pointed to the right lumbosacral area, radiating to the right buttock, posterolateral thigh and the upper half of the calf. He said that pain was not currently radiating to the foot or toes.
He described pain as “pressure and bruising”. He is never pain-free. He was asked if he had ever happened to wake up in the morning and feel temporarily pain-free – both Mr Petrie and his wife spontaneously smiled at this – he replied that he would be delighted to ever wake up feeling better and that “that would be a dream”.
Mr Petrie was asked to rate pain severity on the commonly-used VAS scale of 0-10. He rated pain severity during the interview as 5-6/10 and said this recently had been the average. He said that it never gets less than this and can get worse to 6-7/10 if he does anything to aggravate it.
On further questioning, he described increased pain with bending. He avoids any heavy lifting. Jolting (for example taking an awkward step while walking or going over a bump in a vehicle) is painful. On stairs he uses a handrail if available. He now walks slower than others. When asked how far he thought he could walk, he said that he could probably walk 1 kilometre, but certainly not as much as 5 or 10 kilometres. He would not try to do a bushwalk because of the irregular surfaces and would not want to run at all.
When asked about any relieving postures, he said that there was not really any particular posture which gave him good relief. Unlike many patients with mechanical low back pain, he denied effective relief from lying down. He does feel slighter better sitting with good lumbar support. Again, unlike some patients, he did not describe significant relief from walking around.
Present Activities
At work he avoids working hands-on “on the tools”. He avoids all manual handling. He does sometimes need to drive to rural worksites – perhaps up to five to six hours on occasions. On a long trip he needs to take a break out of the vehicle every hour. He also added that recently the company had provided him with a very large, heavy and comfortable Dodge RAM utility (a very large American utility/truck). At home he helps a little bit but he has not been able to do anything at the Surf Life Saving Club or play any Oztag. He said that he was pretty upset about not being able to participate, especially as he had been involved with the games involving his own children.
Current Medication
Mr Petrie said that his main analgesia is Targin (Oxycodone with Naloxone) 20/10 mg, two tablets per day. He also takes medication for hypertension and recently has been taking a hypnotic at night.
Lifestyle Factors
Mr Petrie is a non-smoker. He said he does not drink much alcohol and had never self-medicated with alcohol since the accident.
Physical Examination
Mr Petrie attended promptly, accompanied by his wife. (She was quiet and appeared to be supportive and did not interfere in any way with the assessment. I understood that she does office work for the same company for which her husband works.) Mr Petrie presented as a very big man, at height 182 cm and weight 111 kg, giving a BMI of 33. (He said he had got up to a maximum of 148 kg, but had managed to lose a lot. He thought that he had weighed about 100 kg at age 25-when younger had played prop in Rugby League). Chest girth was 129 cm, waist 120 cm and hips 111 cm.
He had very short hair. He had a very large frame with a heavy muscular build but also some excessive central fat. There was a visible abdominal “apron” from significant weight loss. He had many tattoos on his limbs and trunk.
He was cooperative and appeared to be of average intelligence. He gave a clear history in a straightforward manner, and gave a convincing history of a major sudden change in his symptoms since the subject accident. Affect appeared to be generally within normal limits – it was clear that he was worried about his ongoing condition, but he could also smile and share a joke appropriately.
Posture and gait were within normal limits. He had no obvious difficulty sitting during our interview, undressing to his underwear for examination, or climbing on and off the examination couch. He could lie prone and then roll over to lie supine.
Upper Limbs
Hands were clean and soft with only one or two small callouses over metacarpal heads. When the Assessor commented that they did not have the typical appearance of a concreter’s hands, he laughed at the change.
Back/Spine
Posture was within normal limits. There was a 90 mm long, pale, narrow midline scar over the lumbosacral area from previous surgery. There was no significant tenderness to palpation over the lumbosacral spine.
AROM of the lumbosacral spine was measured with Mr Petrie standing with knees straight. He could flex forward with fingertips to the lower shins, with a somewhat reduced 4 cm expansion over a 15 cm measured lumbar segment (the normal lower limit for this MacRae-Wright movement is 5 cm). Flexion was considered to be about three-quarters of normal. Lumbar extension was two-thirds of normal and quite painful – consistent with this, Mr Petrie said that he is unable to sleep in bed on his stomach. Later flexion was full bilaterally.
Lower Limbs
Measured 10 cm proximal to the patella, the right thigh measured 57 cm and the left 56. The right calf measured 39 cm and the left 38.5 (Mr Petrie is right side dominant).
Knee jerks and ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve roots) and ankle eversion (S1 nerve roots) was normal bilaterally. Light touch sensation was preserved in both lower limbs.
Straight-leg-raising was at the lower limit of normal on the left at 50 degrees and pain-free. On the right, straight-leg-raising was somewhat more restricted at 40 degrees with pulling described in the hamstrings, but sciatic stretching showed no convincing neural tension.
Functionally, Mr Petrie could take a few steps walking with weight on his forefeet and heels off the floor, and then walking on his heels with forefeet off the floor. He could squat three-quarters of the way down to the floor and recover without needing hand support. When the Assessor demonstrated hopping on each foot to him, Mr Petrie did not want to try this because of anticipated increased back pain.
Assessor’s Impressions after Examination
1. Mr Petrie was involved in a potentially very serious head-on crash between two utilities (possible closing speed of around 160 km/hr. He appears to have been saved from very serious injury by his seatbelt and airbags – all of which apparently activated.
2. He required two days hospitalisation at John Hunter Hospital – discharge information from there is relatively sketchy, consisting of the summary only. The Panel has asked for full inpatient notes but these have not been received to date. The extensive chest and abdominal bruising documented confirms that considerable energy was involved in the crash. The Panel considers that this would have been enough to cause lumbar spine injury in this case.
3. Mr Petrie’s own history and early contemporaneous GP notes, followed by those of Dr Coughlan and early MRI scan, all clearly point to an acute lumbar spine injury, including further L5/S1 disc protrusion, occurring in this crash. This injury has led to persistent mechanical lumbar pain and right lower limb radicular signs, even though there were no objective signs of radiculopathy at the examination.
4. Despite previous episodes of low back pain with a lumbar disc protrusion, partial discectomy in 2002, temporary flare-up of low back pain after a fall in 2007 and a requirement for further L5/S1 discectomy in 2012, after all these episodes he had been able to return to his work as a concreter and physical activities including with the Surf Life Saving Club and Oztag.
5. There had been a further brief flare-up of back and right lower limb symptoms in 2021, but this again settled spontaneously within a few weeks and he returned to all normal activities. There were no GP records of further back or right lower limb symptoms up until the time of the subject accident in August 2022.
6. Overall there is good evidence that the subject accident caused further injury to his lumbar spine, which has now resulted in disabling symptoms, which have persisted for at least two years. Although there appears not to be an absolute indication for further spinal surgery (such as severe and persistent radicular signs and symptoms or cauda equina syndrome), the surgery proposed by Dr Coughlan appears to be causally related to the injuries sustained in the subject accident. Surgery also appears to be reasonable and necessary, given the severity of current symptoms and effect on activities.
FINDINGS
The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[12] The Review Panel adopts the examination findings and reasons of Medical Assessor Michael Couch with which Senior Medical Assessor Drew Dixon concurs. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[13]
[12] Section 7.26(6) of the Act
[13] Allianz Australia Group Limited v Keen [2021] NSWCA 287
The Review Panel agrees with Medical Assessor McGrath that the accident is the cause of the claimant’s increased back pain. The Medical Assessors respectfully disagree with Medical Assessor McGrath that there is no accident-related pathology which justifies a spinal fusion. The Review Panel accepts the opinions expressed by Dr Coughlan, Dr Nair and
Dr Lyons concerning the relationship between injury sustained in the subject accident and the need for the proposed surgery. The Review Panel notes that the insurer’s Dr Antoun expresses no opinion.The Review Panel is satisfied, as a matter of medical determination and as a matter of factual non-medical determination, that the subject accident caused an acute lumbar spine injury, including further L5/S1 disc protrusion. This injury has led to consistent mechanical lumbar pain and right lower limb radicular signs, even though there were no objective signs of radiculopathy at the examination.
The Review Panel accepts that the claimant has had increased and unremitting low back pain since the subject accident. It rejects the insurer’s submission in relation to the claimant’s credit.
The Review Panel is satisfied, as a matter of medical determination and as a matter of factual non-medical determination, that the subject accident is a material contributing cause to the need for the proposed surgery.
The Review Panel agrees with Medical Assessor McGrath that the proposed treatment is reasonable. As conservative treatment has failed to alleviate the claimant’s low back pain, the Review Panel is satisfied that the proposed treatment is necessary. The Review Panel notes the claimant had two previous surgeries at L5/S1 vertebra. This usually leads to discal instability at this level and therefore stabilisation, namely L5/S1 anterior lumbar interbody fusion, is reasonable and necessary.
In reaching their medical determinations, the Medical Assessors have had regard to standard medical practice and exercised the entire gamut of their clinical experience and judgment.
CONCLUSION
For the above reasons, the Review Panel concludes that the Certificate issued by Medical Assessor David McGrath on 21 April 2024 should be revoked. The new Certificate appears at the commencement of these reasons.
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