Phillips v QBE Insurance (Australia) Limited
[2023] NSWPICMP 547
•31 October 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Phillips v QBE Insurance (Australia) Limited [2023] NSWPICMP 547 |
| CLAIMANT: | Danika Phillips |
| INSURER: | QBE Insurance Australia Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 31 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; car ran off road collided with tree in April 2017; claimant back seat passenger; issue of delayed onset of back pain of a few days explained by immobility, absence of prior symptoms and other plausible explanation; herniated disc at L5/S1 caused by motor accident and resulted in need for surgery; subsequent fall in 2018 caused herniated disc and further surgery at L4/5; discussion of effect of subsequent injury, clause 1.34 of the Guidelines and Slade v Insurance Australia Ltd; claimant re-examined; radiculopathy at L5/S1 level; subsequent onset of radiculopathy explicable by weakened disc due to operation and scar enhancement; lumbar spine assessed at DRE III due to radiculopathy; L5/S1 scar assessed at 1%; Held – medical assessment revoked; claimant assessed at 11% impairment. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the review panel under s 63(4) is as follows: The Review Panel revokes the certificate of Medical Assessor Cameron dated 26 March 2023 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is GREATER THAN 10%: · lumbar spine disc injury at L5/S1, and · scarring. |
REASONS
BACKGROUND
Ms Danika Phillips (the claimant) suffered injury as a passenger in a motor accident on
19 April 2017. The claimant was travelling in the rear seat of the motor vehicle which left the road and struck a tree at speed resulted in the death of one of the passengers.[1][1] Insurer’s bundle, p 22.
QBE Insurance Australia Ltd (the insurer) is liable to pay Ms Phillips any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Cameron dated 26 March 2023 (the medical assessment). Medical Assessor Cameron assessed the permanent impairment caused by the motor accident at 9%.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
CONDUCT OF THE REVIEW
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 Merit Reviewer or a Medical Assessor.[6]
[6] 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
MEDICAL ASSESSMENT UNDER REVIEW
This review is from the medical assessment when it was determined that Ms Phillips suffered a 9% permanent impairment for the physical injuries caused by the motor accident. Medical Assessor Cameron assessed the impairment of the lumbar spine at 5% and each shoulder, by way of analogy, at 2%.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accidents Injury Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Insurer’s submissions dated 4 February 2020[11]
[11] Insurer’s bundle, p 13.
The insurer noted that the claimant was treated by Dr Sully since 2013 and there were no pre-accident records.
The insurer noted that the claimant was able to self-extricate from the vehicle and that her pain resolved with analgesia before arrival at hospital. Complaints at hospital were limited to the back of the head and the cervical spine, mid-sternum bruising to the left abdomen and mid-thoracic spine. On log roll there was a record of nil lumbosacral tenderness with midthoracic tenderness.[12]
[12] Claimant’s bundle, p 71.
Radiological investigations at hospital to the chest, pelvis, cervical spine, brain and thoracolumbar spine did not show acute injuries or fractures.
A nursing note at hospital referred to a corked right thigh injury one month previously.
The claimant attended Dr Scully on 24 April 2017 who diagnosed soft tissue injuries to the cervical, thoracic and lumbar spines and a scalp haematoma. Subsequent scans showed no acute intracranial abnormality, oedema at T3 with a normal cervical spine and central disc protrusions at L4/5 and L5/S1.
The claimant was treated by Dr Sean Suttor, orthopaedic surgeon who performed a right L5/S1 discectomy and decompression of the S1 nerve root in December 2017. Post surgery physiotherapy was recommended but not undertaken.
The claimant fell downstairs in November 2018 and attended Dr Suttor on 22 November 2018 complaining of increased symptoms. An MRI scan of the lumbar spine dated 21 November 2018 showed large posterior disc protrusion at L4/5 with potential impingement on the L5 nerve roots. An L4/5 decompression was undertaken on 23 November 2018. Physiotherapy was again recommended but not undertaken.
Further MRI scan of the lumbar spine dated 30 August 2019 showed shallow disc herniations at L4/5 and worse at L5/S1. In September 2019 Dr Suttor did not recommend further surgery and referred the claimant to Dr Alan Nazha, pain specialist.
With respect to the assessment of the cervical spine the insurer submitted:
- any condition resolved before hospital with analgesia;
- radiological investigation at hospital revealed no malalignment or fracture;
- MRI scan dated 28 April 2017 was basically normal;
- in June 2017 Dr Sutton recommended conservative management and physiotherapy. The claimant told Dr Endrey-Walder that she attended a physiotherapist on one occasion, and
- the claimant should be assessed at 0%.
With respect to the lumbar spine assessment, the insurer submitted:
- there was no complaint of lumbar pain to the ambulance staff or at hospital;
- the scan at hospital showed no acute malalignment or fracture;
- Dr Suttor opined on 15 June 2017 that 80-90% of disc herniations settle down with conservative management. The claimant attended physiotherapy on one occasion (as recorded by Dr Endrey-Walder) and he did not recommend surgery at that time;
- the claimant fell downstairs in November 2018 and underwent an emergency L4/5 decompression;
- in September 2019 Dr Suttor noted an improvement in the claimant’s condition, and
- the claimant did not sustain any significant lumbar spine injury and any impairment related to the fall in November 2018. The injury had substantially resolved and should be assessed at 0%.
In relation to the thoracic spine the insurer submitted:
- scan evidence on the day of the accident showed no acute malalignment or fracture;
- the ongoing treating records do not refer to pain in the thoracic spine;
- Dr Endrey-Walder did not consider the claimant had suffered “an injury to the thoracic back which gave rise to any assessable impairment”, and
- the claimant did not sustain any significant thoracic spine injury and otherwise should be assessed at 0%.
In relation to the legs the insurer submitted:
- the claimant did not report any leg injury;
- Dr Endrey-Walder and Dr Porteous did not assess any impairment of the legs and did not assess any radiculopathy, and
- there was no injury to the lower limbs.
In relation to the shoulders the insurer submitted:
- there were no complaints of pain or tenderness in either shoulder to the ambulance personnel or at hospital;
- on 20 April 2019 the claimant was recorded in the Orange Health service notes as having good range of motion and normal power in the upper limbs;
- there is no further evidence from the claimant’s treating doctors of shoulder injury and no radiological investigations;
- Dr Endrey-Walder did not identify and shoulder injury or impairment;
- Dr Porteous assessed the shoulders after the fall in November 2018, and
- there was no injury to the shoulders.
In relation to the groin the insurer submitted:
- there is no treating evidence of groin injury;
- Dr Endrey-Walder and Dr Porteous did not assess any injury or impairment, and
- there is no basis for this claim.
In relation to the bladder and bowel the insurer submitted:
- these symptoms were recorded by Dr Suttor as occurring after the November 2018 fall;
- Dr Porteous recorded that the symptoms resolved after the November 2018 surgery;
- Dr Endrey-Walder and Dr Porteous did not assess any injury or impairment, and
- any condition has resolved.
Claimant’s submissions dated 17 April 2023[13]
[13] Claimant’s bundle, p 3.
These submissions were filed seeking to review the medical assessment.
The claimant took issue with the reasons of the Medical Assessor which showed inconsistent shoulder movement.
The claimant submitted that both surgical procedures and the spinal stimulator were due to the motor accident. It was submitted that the findings of radiculopathy “were dismissed … out of hand”. It was otherwise submitted that the findings for the cervical spine lacked transparency.
EVIDENCE
Pre-existing conditions
Dr Scally, general practitioner (GP) had treated the claimant since March 2013 and noted “no history of significant musculoskeletal injuries or conditions”.[14]
[14] Insurer’s bundle, p 22.
Contemporaneous medical evidence
The ambulance report noted the claimant had “self extricated” for the vehicle with no memory of incident with complaints of sharp midline cervical spine pain.[15]
[15] Claimant’s bundle, p 9.
The claimant was admitted to hospital following the motor accident complaining of neck and chest pain.
Scans taken at hospital showed no acute fracture or malignment of the cervical and thoracolumbar spines, normal chest and pelvis save to some lucency associated with the inferior pubic rami due to ossification.[16]
[16] Insurer’s bundle, pp 28-29.
The claimant attended Dr Scally on 24 April 2017. The doctor noted complaints of neck, upper thoracic and low back pain and a soft lump on the occiput of the scalp. Dr Scally diagnosed whiplash type cervical spine injury, upper thoracic soft tissue injury and disc protrusions in the lower lumbar spine.
The MRI scan of the cervical spine dated 28 April 2017 showed oedema of T3 and T4 vertebral bodies adjacent to the superior endplates in keeping with microtrabecular fractures.[17]
[17] Insurer’s bundle, p 31.
On 12 May 2017 the claimant presented with symptoms of pins and needles over the right lower limb/foot and the GP noted reduced sensation over the L5/S1 region.[18]
[18] Claimant’s bundle, p 359.
Subsequent evidence
The CT scan of the brain dated 24 May 2017 showed no acute intracranial abnormality.[19]
[19] Insurer’s bundle, p 32.
The MRI scan of the lumbar spine dated 26 May 2017 noted a clinical history of “neuropathic issues over L5/S1 region” and showed large central disc protrusion with indentation at L4/5 and large central disc protrusion with significant indentation at L5/S1.[20]
[20] Insurer’s bundle, p 33.
Dr Sean Suttor, orthopaedic surgeon, initially reviewed the claimant on 15 June 2017.[21] The doctor noted that the main complaints were axial neck pain and lower back pain with right leg pain. Neurological examination of the upper and lower limbs demonstrated intact power and reflexes. Straight leg raising test was positive on the right at 15 degrees.
[21] Insurer’s bundle, p 116.
The doctor described the MRI scans as demonstrating increased signal at T3 and T4 “which is consistent with a bony bruising pattern or micro fracture although there is no evidence of any structural instability or nerve impingement”.[22]
[22] Insurer’s bundle, p 116.
In a separate letter dated 15 June 2017 the doctor provided a referral for physiotherapy.[23]
[23] Claimant’s bundle, p 251.
Dr Suttor described the changes at L4/5 as chronic and the changes at L5/S1 “acute” and related to the trauma. The doctor recommended physiotherapy noting that:
“In terms of the lumbar spine she may also benefit from physiotherapy noting that 80 to 90% of disc herniations can resolve with conservative management.”
On 25 July 2017 the GP noted numbness in the lower leg and “right LL radicular features”.[24]
[24] Claimant’s bundle, p 362.
A medical certificate dated 19 September 2017 referred to severe neck and back pain.[25] This was repeated in certificates dated 28 December 2017[26], 5 March 2018[27], 25 July 2018,[28] 4 October 2018[29] and 14 January 2019.[30]
[25] Insurer’s bundle, p 45.
[26] Insurer’s bundle, p 50.
[27] Insurer’s bundle, p 51.
[28] Insurer’s bundle, p 52.
[29] Insurer’s bundle, p 74.
[30] Insurer’s bundle, p 78.
On 26 July 2017 the doctor noted that the claimant was “failing conservative measures” and recommended that he proceed with a right L5/S1 discectomy.[31]
[31] Claimant’s bundle, p 252.
On 4 August 2017 Dr Suttor noted that the radicular pain was “quite severe” and was not settling. The doctor noted that whilst physiotherapy was worthwhile, surgery was a reasonable option given the time period since the motor accident and the impact the sciatica was having on the claimant’s psychological recovery.[32]
[32] Claimant’s bundle, p 253.
On 5 October 2017 Dr Suttor noted the claimant’s complaints of significant lower back and leg pain and organised surgery by way of discectomy.[33] The doctor opined that the right sided disc herniation at L5/S1 causing right S1 radiculopathy was related to the motor accident due to the high-speed collision, absence of prior back complaints and the presence of an acute disc herniation shortly after the accident. [34]
[33] Insurer’s bundle, p 105.
[34] Claimant’s bundle, p 258.
On 15 October 2017 Dr Suttor organised for the claimant’s admission as a public patient.[35]
[35] Claimant’s bundle, p 257.
In a referral to a psychiatrist dated 25 October 2017 the GP noted the claimant had neck and low back pain and “microtrabecular fractures on MRI”.[36]
[36] Insurer’s bundle, p 46.
In an expert certificate dated 25 October 2017, Dr Suttor relevantly stated:[37]
“About 0900 on the 15th June 2017 my rooms at Westmead, I examined Ms Danika Phillips. She presented to me two months post high speed motor vehicle accident. She was a rear seat passenger in a vehicle that left the road and hit a tree. Her main complaints were axial neck and lower back pain as well as right leg neuropathic pain. The pain symptoms were quite severe and requiring Voltaren and Endone for analgesia. She was unable to sit or stand for more than 30 minutes and requires some assistance with self-care. On examination she had significant stiffness in the lumbar spine and positive nerve root tension signs in the right leg. Motor exam was intact. MRI demonstrated a bone bruising pattern in the T3 and T4 vertebra. There was an acute L5/S1 disc herniation on the right impinging the S1 nerve root.
Based wholly or substantially on the above knowledge, I am of the opinion that Danika Phillips has sustained an acute L5/S1 disc herniation as a result of the car accident. At present it is causing significant pain and functional limitation and I have placed her on the waitlist at Royal North Shore Hospital for discectomy surgery as this has failed to resolve with conservative measures. Her long-term outcome will depend on the success the surgery but there will likely be some long-term pain or impairment.”
[37] Claimant’s bundle, p 262.
In a clinical note dated 28 December 2017 the GP recorded that the claimant’s right leg spasms and her feet get “blue and cold”.[38]
[38] Insurer’s bundle, p 56.
The claimant was reviewed by Dr Suttor on 16 January 2018. At that time the right S1 radiculopathy had improved although there were ongoing complaints of pain down the posterior thigh.[39]
[39] Claimant’s bundle, p 115.
In a further evidentiary statement dated 18 January 2018 the doctor noted that the surgery had provided partial resolution of the radiculopathy but there was still lower back and leg pain.[40]
[40] Claimant’s bundle, p 265.
On 9 April 2018 the GP recorded that the “thoracic pain still there”, noted the history of T3 and T4 fractures and requested a further MRI scan.
On 28 August 2018 the GP referred the claimant to a physiotherapist for “chronic neck, thoracic and lower back pain” with referred features to the inguinal areas.[41]
[41] Insurer’s bundle, p 67.
On 5 October 2018 the GP requested a further MRI scan due to “back pain again after sneezing – radiating to left leg – previously had lumbar discectomy”.[42]
[42] Insurer’s bundle, p 123.
The discharge history at hospital on 21 November 2018 recorded:[43]
“Yesterday, Danika fell down some stair. Mechanical fall, simple trip
Since then worse pain …
Biggest issue is pain with mid lower back down into buttocks and left leg
Has noted prior to the fall some difficulty with urinating and passing stool over the weekend”.
[43] Claimant’s bundle, p 226.
The MRI scan of the lumbar spine dated 21 November 2018 showed a large posterior disc protrusion at L4/5 with significant thecal sac distortion and impingement on L5 nerve roots and previous right sided laminectomy at L5/S1 with possible small posterior disc herniation.[44]
[44] Insurer’s bundle, p 43.
On 22 November 2018 Dr Suttor noted a one-week history of low back pain and bilateral lower limb radiculopathy with bowel and bladder issues following a recent fall (the 2018 injury). The doctor noted the large disc herniation at L4/5 with mild bladder and bowel symptoms which required decompressions and discectomy.[45]
[45] Insurer’s bundle, p 90.
An L4/5 decompression was undertaken on 23 November 2018.[46]
[46] Insurer’s bundle, p 93.
On 4 September 2019 Dr Suttor noted ongoing issues with back and bilateral leg pain. Referral was made to a pain specialist.[47]
[47] Claimant’s bundle, p 290.
On 22 January 2019 Dr Suttor noted some low back and right leg pain which had improved following the recent L4/5 discectomy.[48]
[48] Insurer’s bundle, p 86.
The claimant was initially reviewed by Dr Alan Naha, pain specialist on 30 January 2020.[49] Psychometric testing was extremely severe for depression and anxiety. The doctor recommended a multimodal multidisciplinary pain management programme.
[49] Claimant’s bundle, p 385.
A spinal cord stimulator was inserted in May 2022.[50]
[50] Claimant’s bundle, p 721.
An MRI scan dated 13 April 2022 showed marked canal stenosis at C4/5 due to disc bulge contacting the cord and prior laminectomies at L4/5 and L5/S1.[51] Mild peridural scar enhancement is seen on the right side at L5/S1.
[51] Claimant’s bundle, p 289.
The MRI scan of the lumbar spine dated 2 November 2022 reported broad protrusion at L4/5 and stable L5/S1 post-operative changes with mild peridural scar enhancement on the right lateral recess.[52]
[52] Claimant’s bundle, p 286.
On 8 November 2022 Dr Suttor noted the insertion and removal of a spinal stimulator. The doctor noted ongoing back and right leg symptoms and suggested CT-guided injections into the right L5 nerve root. He otherwise opined that the radiologist had overstated the size of the L4/5 protrusion from the recent scan.
On 12 December 2022 Dr Nazha noted significant reduction in right sided symptoms following right L5 nerve root injection.[53]
[53] Claimant’s bundle, p 270.
Qualified opinions
Dr Endrey-Walder, surgeon, was qualified by the claimant and provided a report dated 31 October 2018.[54] The doctor found full range of movement in the shoulders, assessed DRE Category II for the cervical spine and DRE Category III for the lumbar spine. The lumbar spine surgical scar was assessed at 1%. There was no assessable impairment of the thoracic spine.
[54] Claimant’s bundle, p 741.
Given the insurer’s submissions, the history recorded by Dr Endrey-Walder on physiotherapy is set out in full. The Doctor recorded the claimant saying:[55]
“’I went to the Physio once but I had too much pain’ and she never continued.”
[55] Claimant’s bundle, p 743.
Dr Andrew Porteous, occupational physician, was qualified by the claimant and provided a report dated 3 October 2019.[56] We note that the doctor’s history includes an incorrect reference to the second surgery at the L5/S1 as opposed to the L4/5 level. The doctor assessed each spinal section at DRE II. He also assessed each shoulder at 1% based on restriction of movement.
[56] Claimant’s bundle, p 756.
Dr Keller was qualified by the insurer and provided a report dated 3 February 2020.[57] On examination neck movement full and symmetrical with pain at extreme movements. There was full symmetrical movement of the upper limbs including the shoulders. Reflexes and sensation in the lower limbs were normal with restricted straight leg raising. There was no report of examination of the thoracic spine.
[57] Insurer’s bundle. p 124.
The doctor assessed the lumbar spine at 5% and opined that the minor bone bruising in the thoracic spine should have resolved.
RE-EXAMINATION
Ms Phillips was examined by the Medical Assessor Dixon on 13 October 2023. The examination report is as follows:
“This 25-year-old claimant attended at the PIC Suites for examination, in the company of her mother, Tanya, on 13 October 2023.
The claimant is a former chef and was employed at the Pink Orchid Café. She was a rear seat passenger in a Mazda 3 written off in a MVA when the vehicle hit a tree at more than 150km/h on 19 April 2017. Another rear seat passenger beside her died in the subject accident.
She sustained a head injury with a right scalp haematoma and pain in her neck and low back pain. She had some loss of consciousness but recalls most of the accident details. She was air lifted to Orange Hospital and scans were taken. She developed bilateral radiculopathy with paraesthesia in her right groin and was subsequently referred to Dr Dean Suttor who, after reviewing MRI scans which showed lumbosacral disc protrusion, performed L5/S1 decompression laminectomy and fusion on 8 December 2017 at Royal North shore Hospital.
She later developed further back pain and radiculopathy and progress scans showed an L4/5 disc protrusion and she subsequently had L4/5 decompression laminectomy and discectomy again at RNSH on 23 November 2018. She was then referred to Westmead Hospital where she had dorsal column stimulator inserted but due to a CSF leak, it was removed and after two weeks in hospital, she was discharged home.
She subsequently had psychological evaluation for PTSD.
She currently lives with her mother in a single level house with two steps. She has ongoing back pain and ongoing neck pain with stiffness localising pain to the vertebra prominens (C7) as well as upper interscapular midline thoracic pan and persisting low back pain with lumbar stiffness. She is conscious of the scarring at the laminectomy sites. She reports no saddle anaesthesia nor bowel or bladder dysfunction nor symptoms of cauda equina lesion now.
She does however report right sciatica radiating from the thigh to the calf with numbness from the posterior leg to the sole of the foot with a painful limp. The injuries impact on her ADLs including foot care, heavy household cleaning chores and prolonged standing to do meal preparation, cooking and bed making and lifting heavy groceries and laundry. She does not play sport and has difficulty walking her dog.
On examination she had symmetrical range of motion of her cervical spine with tenderness of the vertebra prominens spinous process. She had no neurological deficit of either upper extremity and no wasting. Her cervical foraminal compression test was negative and her brachial plexus stretch test was negative. Her trapezius muscles were non tender and her supraclavicular brachial plexuses were non tender.
She reported that her shoulders had improved. Her shoulders showed symmetrical elevation not associated with any shoulder or neck pain but was associated with low back pain. She had no weakness of either shoulder girdle. Thenar power, intrinsic power and grip strength of both hands was grade 5 out of 5 and there was no neurovascular deficit of either hand.
The thoracic spine showed tenderness of the upper thoracic spinous processes with symmetrical trunk rotation decreased by one quarter although it was painful for the right.
The lumbar spine showed stiffness with dysmetria with flexion decreased by one third with jerky recovery with extension decreased by one half and associated with pain and lateral flexion decreased by one third to the left and one quarter to the right. Her scar from the L5/S1 surgery showed a tender 8cm laminectomy wound with hypertrophic and pigmentary change and the scar is readily localised by the claimant and visible in a pair of shorts or two-piece swimming costume. The scar is tender today.
Her straight leg raise on the right was 50 degrees and associated with right sciatica and low back pain with a positive sciatica nerve root stretch test. Her knee jerks were present, her medial hamstring jerk was depressed on the right and present on the left and her ankle jerks were present. Her power of plantar flexion and eversion of the right foot was grade 4 out of 5, otherwise power in the right lower extremity was grade 5 out of 5 and there was full power in the left lower limb. There was sensory alteration in the power leg extending into the sole of the foot in an L5/S1 distribution.
She had a limp on the right and toe walking was markedly restricted due to weakness and heel walking was moderately restricted and her squat test was associated with low back pain.
In summary the claimant was involved in a severe MVA and had a disc protrusion at L5/S1 requiring surgery and has residual radicular complaint with right sciatica, positive sciatic nerve root stretch test and features consistent with L5/S1 radiculopathy. There was wasting of her right thigh, measuring 60cm on the right and 62cm on the left and below the knee, the calves were 39cm on the right and 40cm on the left.
She sustained severe injuries to her neck, shoulders and thoracolumbar spine. Her cervical spine shows mild symmetrical stiffness and residual tenderness of the spinous process without radicular complaint.
Her shoulders have settled.
Her thoracic spine showed post traumatic stiffness on trunk rotation with tenderness of the upper cervical spinous processes.
Her lumbar spine was associated with ongoing radicular complaint with an L5/S1 radiculopathy on the right and she has significant surgical scarring that she is able to readily localise and is hypertrophic, shows pigmentary change and is rateable under the TEMSKI Sale at 1% WPI.
Her WPI is as follows.
That for the cervical spine is DRE I, 0% WPI.
That for the thoracic spine is DRE I, 0% WPI.
That for the lumbar spine is DRE III, 10% WPI.
That for her surgical scarring is 1% WPI.
There is no assessable impairment for her shoulders which have settled, and she does not have trapezial muscle or deltoid pain on shoulder elevation.
This gives a total from the Combined Values Chart of 11% WPI.
There were no symptomatic pre-existing conditions.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[58] and Insurance Australia Ltd v Marsh.[59]
[58] [2021] NSWCA 287 at [40], [41] and [45].
[59] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive reasons provided by the Medical Assessor and adds the following reasons.
The insurer referred to the absence of recorded complaint of lumbar pain at hospital. At that time a bed roll did not indicate back symptoms.
On 12 May 2017 the GP noted “reduced sensation over the L5-S1 region”.[60]
[60] Claimant’s bundle, p 360.
The MRI scan dated 26 May 2017 showed a large central disc protrusion at L5/S1 with significant thecal sac indentation on the right. That scan explains the right sided symptoms reported at that time. The significant pathology is otherwise unexplained by an absence of prior symptoms and no other relevant event following the motor accident.
Dr Suttor otherwise described the protrusion at L5/S1 as “acute” as opposed to the description of the L4/5 pathology as “chronic”.[61] Again, this is another factor suggesting the motor accident caused the L5/S1 disc pathology.
[61] Claimant’s bundle, p 249.
Dr Endrey-Walder acknowledged the delay in onset of back pain when he stated:[62]
“Her lower back pain had come to the fore a few days after the accident, this probably on account of the fact that she would have then started ambulating, weight bearing, which would not have been the case for some days after the accident.”
[62] Claimant’s bundle, p 747.
The Panel agrees with this opinion for the explanation of the slight delay in onset of low back symptoms.
It is clearly medically plausible that the nature of the motor accident, an impact at high speed into a tree, can cause discal injury in the low back.
The insurer referred to the absence of pre-accident clinical records. However, the treating GP in a report to the insurer dated 8 August 2017 noted that he had treated the claimant since March 2013 and there was “no history of any significant musculoskeletal injuries or conditions”.[63] Accordingly, we accept the claimant’s consistent history that she was asymptomatic prior to the accident.
[63] Insurer’s bundle, p 22.
For these reasons we are satisfied that the motor accident caused the acute L5/S1 disc injury. The motor accident, giving the severity, probably also aggravated the degenerative changes at L4/5.
There is otherwise no other plausible explanation for the presence of the herniated disc at L5/S1.
The clinical records show a continuation of low back symptoms until the claimant underwent operative surgery in December 2017 by way of L5/S1 discectomy and decompression, rhizolysis of the S1 nerve root.
The clinical records after the surgery show an improvement although not a complete recovery of low back and right leg symptoms. The histories set out earlier[64] show continuing symptoms.
[64] See [55]-[59] herein.
We also observe that the surgery removes part of the herniated disc. The disc is weakened and capable of further herniation from minor instances such as bending over or sneezing. Further herniation of the L5/S1 disc is a natural consequence of previous discectomy and explains why the claimant now presents with objective signs of radiculopathy due to deterioration of the weakened disc resulting from the surgery at that level. Scar enhancement is also seen on the right side at L5/S1 in the most recent MRI scan, again a pathological sign caused by the surgery and explaining ongoing radiculopathy.
The insurer relied on the opinion expressed by Dr Suttor and the claimant’s failure to attend physiotherapy on more than one occasion.
The Panel, comprised of an orthopaedic surgeon and a general surgeon, do not agree with Dr Suttor’s opinion that 80-90% of disc protrusions absorb with physiotherapy. The medical expertise within the Panel from decades of clinical experience state that this figure would be, at the highest, in the order of 20% - 30%. Even this rate of success is highly dependent upon the skill of the physiotherapist.
The reason for the cessation of physiotherapy provided to Dr Endrey-Walder was selectively quoted by the insurer. Dr Endrey-Walder reported and quoting from the claimant:[65]
“’I went to the physio once but I had too much pain’ and she never continued.”
[65] Claimant’s bundle, p 743.
The reference by the claimant to Dr Endrey-Walder that the claimant was in “too much pain” from physiotherapy is contrary to a good outcome and otherwise a plausible explanation for not continuing that treatment.
Accordingly, we reject the insurer’s submission on two independent grounds. First, we do not accept on the balance of probabilities that the physiotherapy would have reduced the disc protrusion. Secondly, we accept the claimant’s reasons for ceasing physiotherapy.
Medical Assessor Dixon’s finding is that the claimant had three separate signs of radiculopathy in the L5/S1 dermatome. Those signs were asymmetry of reflexes, positive sciatica nerve root tension sign and reproducible sensory loss anatomically localised to the L5/S1 dermatome.[66] For the reasons expressed earlier, we accept that the radiculopathy is caused by the motor accident causing a herniated disc and the resulting surgery at L5/S1. Accordingly, the lumbar spine is assessed at DRE Category III[67] and rates at 10%.[68]
[66] Paragraph 1.138 of the Guidelines.
[67] Table 7 of the Guidelines.
[68] Table 72 of AMA4.
We otherwise note that the fall in late 2018 resulted in surgery to the L4/5 disc. The 2018 fall has nothing to do with the pre-existing disc surgery at L5/S1 and the radiculopathy now seen at that level. The subsequent fall resulting in surgery at L4/5 otherwise did not increase the claimant’s overall impairment of the lumbar spine as it did not increase the assessable impairment at L5/S1 or in the lumbar spine generally.[69]
[69] Paragraph 1.133 of the Guidelines.
Clause 1.34 of the Guidelines was discussed by Wright J in Slade v Insurance Australia Ltd.[70] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[71] apply.
[70] [2020] NSWSC 1031 (Slade).
[71] (1990) Aust Torts Rep 81-003.
It is likely that the motor accident aggravated the degeneration in the L4/5 disc. It is otherwise likely that the 2018 injury herniated the L4/5 disc and resulted in the second bout of surgery at that level. What is difficult to determine is whether the effects of the motor accident played a necessary causal role in the subsequent surgery. We assume, against the claimant’s interest, that the motor accident did not relevantly cause the surgery at L4/5 and that the effects of the 2018 injury is considered under the third Oakley category.
There is no additional impairment caused by the 2018 injury. The rating for the injury to the L4/5 disc in 2018 (if assessable) would be DRE Category II and does not, due to the Guidelines, increase, the overall impairment. In our view there is no basis to make a deduction due to the effects of the 2018 injury.[72]
[72] Paragraph 1.34 of the Guidelines.
In relation to the scar, we note that we have only assessed that part of the scar arising from the L5/S1 surgery. Medical Assessor Dixon noted several features in the scar from the L5/S1 surgery including a tender 8cm laminectomy wound with hypertrophic and pigmentary change. The scar is readily localised by the claimant, she is conscious of it and the scar is visible in a pair of shorts or two-piece swimming costume. Any treatment would be limited to sun protection when the scar is exposed to direct sunlight. There are no suture marks and no effect on ADLs.
The Guidelines provide that the assessment of minor skin impairment is undertaken on a best fit based on the various criteria in Table 18. Some of the characteristics of the scar satisfy 0%, 1% and/or 2% under Table 18. Applying a best fit we are satisfied that the scar resulting from the L5/S1 surgery is 1%.
The impairment is permanent because the impairment is unlikely to change substantially in the next year or so regardless of treatment.[73]
[73] Paragraph 1.19 of the Guidelines.
CONCLUSION
The certificate issued by Medical Assessor Cameron is revoked. A replacement certificate is attached at the commencement of these Reasons.
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