Pirillo v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 24
•15 January 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Pirillo v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 24 |
| CLAIMANT: | Korey Pirillo |
| INSURER: | Insurance Australia Limited trading as NRMA Insurance |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 15 January 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor vehicle accident on 13 January 2021; Medical Assessor Cameron (MA) certified injury to cervical, thoracic and lumbar spine are threshold injuries; soft tissue injury to right hand is a threshold injury; injury to brain (seizure) not caused by accident; MA Cameron held the MRI scan of the lumbar spine and four sessions of physiotherapy related to the injury caused by the accident but was not reasonable and necessary in the circumstances; Held – Panel not satisfied claimant able to establish two or more signs of radiculopathy or the presence of annular fissure on MRI scans notwithstanding opinion of treating specialist; injury to lumbar spine is a threshold injury; claimant sustained soft tissue injury to cervical and thoracic spine and to right hand which has resolved; claimant not satisfied seizure occurred or that if it did occur it was related to the accident; Panel finds threshold injury; Panel finds MRI scan of lumbar spine and four sessions of physiotherapy related to accident but not reasonable and necessary; Panel affirms certificate of MA Cameron. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION The Review Panel affirms the certificate of Medical Assessor Ian Cameron dated 5 April 2023. ASSESSMENT OF TREATMENT AND CARE The Review Panel affirms the certificate of Medical Assessor Ian Cameron dated 5 April 2023. |
STATEMENT OF REASONS
INTRODUCTION
On 13 January 2021 Mr Korey Pirillo (the claimant) was a front seat passenger in a motor vehicle that was reversing out of a driveway when it was T boned on the driver’s side by another vehicle (the accident).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Pirillo under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
Mr Pirillo submitted an Application for personal injury benefits dated 29 January 2021.
Threshold injury dispute
The insurer determined that Mr Pirillo had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
On 30 April 2021 Mr Pirillo sought an Internal Review of the minor (threshold) injury decision. The insurer affirmed the determination that the claimant’s injuries met the definition of a minor (threshold) injury.
On 17 June 2021 Mr Pirillo filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute. A treatment dispute was also filed.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury for the purposes of the Act and whether proposed treatment relates to the injury caused by the accident and is reasonable and necessary in the circumstances.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
Treatment disputes
[2] Section 7.20 of the MAI Act.
MRI lumbar spine
In an email dated 31 August 2021 the insurer referred to the request for an MRI of the lumbar spine.[3] The insurer declined the request on the basis it was not reasonable and necessary.
[3] AALD dated 13 October 2023 p 3.
The claimant sought a review of this decision and on 15 September 2021 the insurer affirmed the decision of 31 August 2021.[4] The insurer stated:
“The SIRA Guidelines to the management of Whiplash Associated Disorders direct that specialised imaging techniques such as magnetic resonance imaging should not be used unless there is suspicion of nerve root compression or spinal cord injury.
Given the unremarkable clinical examination findings performed by Dr Khong on 07.06.21, the clear evidence of no neural compression in the MRI scan of 11.03.21, as well as no evidence that the quality of the scan or findings show inconclusive findings which may warrant a repeat scan, I do not consider a further scan at this point in time is reasonable and necessary in the circumstances and should not be supported.”
[4] AALD dated 13 October 2023 p 12.
Physiotherapy sessions
In an Allied health recovery request dated 14 September 2021 Greg Aungle, physiotherapist sought approval for eight further physiotherapy sessions once weekly into fortnightly for thoracic spine stiffness and lumbar spine pain with right leg sciatica.[5]
[5] AADL dated 13 October 2023 p 8.
In an email dated 23 September 2021 the insurer indicated approval for four out of eight sessions of physiotherapy requested to assist the claimant to transition to an independent home based exercise program.[6]
[6] AADL dated 13 October 2023 p 15.
The claimant sought a review of this decision and on 7 October 2021 the insurer affirmed the decision.[7] The insurer stated:
“Noting you have returned to full functional capacity; and you have returned to pre-injury employment and reported no difficulties in activities of daily living I consider physiotherapy has reached the limits of its effectiveness and further treatment is unlikely to promote any greater measurable functional improvement than what has occurred to date.”
[7] AADL dated 13 October 2023 p 17.
THRESHOLD INJURY- STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[8] his Honour Justice Wright stated at [35]:
[8] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“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 principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic 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 contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There 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.”
TREATMENT DISPUTES – STATUTORY PROVISIONS
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1)An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a) The reasonable cost of treatment and care,
(b) Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c) If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.”
ASSESSMENT UNDER REVIEW
The injuries referred for assessment to Medical Assessor Cameron in respect of the dispute as to threshold injury were the following: [9]
· cervical spine -neck injury resulting in headaches;
· lumbar spine – lower back with pain radiating down both legs;
· hand – right hand injury;
· thoracic spine – middle area of back, back spasms, and
· brain – seizure.
[9] Claimant’s bundle p 24.
The following treatment disputes were also referred for assessment:
· whether a further MRI lumbar spine scan made by Dr Peter Khong on
19 August 2021 relates to the injury caused by the motor accident;· whether a further MRI lumbar spine scan made by Dr Peter Khong on
19 August 2021 is reasonable and necessary in the circumstances;· whether 4 out of the 8 physiotherapy sessions requested as outlined in the Allied health recovery dated 14 September 2021 by Greg Aungle relate to the injury caused by the motor accident, and
· whether 4 out of the 8 physiotherapy sessions requested as outlined in the Allied health recovery dated 14 September 2021 by Greg Aungle are reasonable and necessary in the circumstances.
Medical Assessor Cameron reported Mr Pirillo was a front seat passenger in a vehicle as it was reversing out of a driveway. Initially they were hit from the rear by another vehicle but there was then a T bone collision. Mr Pirillo reported developing back pain and right leg pain. He consulted his general practitioner (GP) Dr Rizzuto. Mr Pirillo reported a week after the accident he bumped his nose and then he had a seizure. An ambulance attended and he was taken to St George Hospital.
Mr Pirillo reported ongoing symptoms in multiple body parts and psychological symptoms. He had undergone injections to his back, neck, right shoulder, right ankle and right hip. He has seen a physiotherapist and chiropractor. He saw Dr Khong who recommended surgery.
Mr Pirillo said he was sleeping poorly, was stressed and could not continue with his previous job. He now works as a sales agent with a real estate company.
Medical Assessor Cameron found symmetrical reduction of movement of the cervical spine to 80% of normal with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints. Nerve tension signs were negative.
He found a full range of motion at the left shoulder and inconsistent movement of the right shoulder said to be due to variable pain. He found no neurological abnormalities in the upper extremities.
He found symmetrical reduction of motion to 70% of normal in the thoracic spine, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints.
Similarly in the lumbar spine he found symmetrical reduction of motion to 70% of normal with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints. Nerve tension signs were negative.
Medical Assessor Cameron found a full range of motion at both knees with no crepitus or instability. He found a full range of motion at the other lower extremity joints and no neurological abnormalities in the lower extremities.
After reviewing the available documents Medical Assessor Cameron diagnosed soft tissue injuries to the cervical spine, lumbar spine, right hand and possibly the thoracic spine. He concluded there was no confirmation Mr Pirillo had a seizure and no evidence, any seizure was related to the accident.
Medical Assessor Ian Cameron issued a certificate dated 5 April 2023 in which he certified the following injuries caused by the accident were threshold injuries for the purposes of the Act:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· right hand – soft tissue injury, and
· thoracic spine – soft tissue injury.
Medical Assessor Cameron certified the injury to the brain – seizure was not caused by the accident.
Medical Assessor Cameron also certified the following treatment and care related to the injury caused by the accident but was not reasonable and necessary in the circumstances:
· a further MRI lumbar spine scan made by Dr Peter Khong on 19 August 2021, and
· 4 out of the 8 physiotherapy sessions requested as outlined in the Allied health recovery request dated 14 September 2021 by Greg Aungle.
REVIEW PROCEDURE
The claimant lodged an application for review of the assessment of Medical Assessor Cameron on 3 May 2023 within 28 days of the date on which the certificate of Medical Assessor Cameron was made available to the parties.
On 26 June 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[10]
[10] AD2 p 9.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[11]
[11] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
EVIDENCE BEFORE THE REVIEW PANEL
The Panel issued a Direction to the parties on 28 June 2023 (the first Direction) requiring each party to file an indexed, paginated bundle of documents. In response to this Direction on 13 July 2023 the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 202 (claimant’s bundle).
The insurer has not uploaded a bundle. However, on 4 July 2023 the insurer uploaded an Application to Admit Late Documents dated 4 July 2023 attaching the following reports and a letter from Turner Freeman indicating consent to the admissibility those reports:
· CT lumbosacral spine dated 12 October 2018, and
· CT lumbosacral spine dated 23 September 2019.
On 22 August 2023 the insurer uploaded an Application to Admit Late Documents dated
22 August 2023 attaching a report of Dr Korber dated 28 July 2023 and an email to Turner Freeman dated 22 August 2023. On 22 August 2023 the Panel directed the claimant to provide submissions addressing the admissibility of the report of Dr Korber on or before
30 August 2023.On 25 August 2023 the Panel sent a message to the parties directing the insurer to confirm that it did not seek to rely upon any other documents other than those contained in the claimant’s bundle and the documents attached to the Applications to Admit Late Documents dated 4 July 2023 and 22 August 2023 respectively.
On 28 August 2023 the insurer uploaded the following message to the portal:
"The insurer does not seek to rely upon any other documents other than those contained in the claimant’s bundle and the following documents:
· CT Lumbosacral Spine dated 12 October 2018;
· CT Lumbosacral Spine dated 23 September 2019; and
· report of Dr Korber dated 28 July 2023."
On 8 September 2023 the Panel concluded a medical re-examination was required. The Panel also issued the following directions to the parties:
“1. The Panel has noted the submissions filed by the parties. On or before 22 September 2023 the parties are to confirm if the only dispute to be considered by the Review Panel is whether the injury to the lumbar spine is a threshold injury. If there is no agreement the Review Panel will review all injuries referred to Medical Assessor Cameron for assessment as to threshold injury.
2. On or before 22 September 2023 the parties are to confirm that the Review Panel is not required to determine the treatment disputes referred to Medical Assessor Cameron. If there is no agreement and the Panel is required to determine the treatment disputes the claimant is directed to upload to the portal on or before 18 October 2023 the following documents:
(a)the referral of Dr Peter Khong dated 19 August 2021 for an MRI of the lumbar spine and the insurer’s response to that referral; and
(b)the Allied health recovery request of Greg Aungle dated 14 September 2021 recommending 8 physiotherapy sessions and the insurers response to that request.
3. Further, on or before 18 October 2023 the claimant is directed to upload to the portal the following:
(c)the clinical records of Dr Rizzuto for the period two years pre-accident to date;
(d)the clinical records of Miranda Medical centre for the period two years pre-accident to date;
(e)the clinical records of Blue Cross Medical Centre for the period two years pre-accident to date;
(f)the clinical records of any general practitioner consulted by the claimant following the accident up until 17 May 2022 when the claimant commenced treatment with Dr Marcus; and
(g)the clinical records of Dr Peter Khong.”
On 19 September 2023 the claimant uploaded to the portal an Application to Admit Late Documents (AALD dated 19 September 2023) seeking to rely upon the report of Associate Professor Papantoniou dated 6 July 2023. In an email dated 20 September 2023 the insurer indicated consent to the inclusion of this report in the threshold injury dispute. The Panel is of the view this report is also relevant to the treatment dispute.
On or about 20 September 2023 the claimant uploaded a message to the portal in response to the Direction dated 8 September 2023 stating the claimant and the insurer agreed that:
· the Panel ought to review all injuries referred to Medical Assessor Cameron for assessment as to threshold injury, and
· the Panel ought to determine the treatment disputes referred to Medical Assessor Cameron.
The claimant uploaded to the portal an Application to admit late documents dated
13 October 2023 (AALD dated 13 October 2023) seeking to rely upon the following additional documents:· referral for MRI lumbar spine of Dr Peter Khong dated 19 August 2021;
· email from the insurer dated 31 August 2021
· allied health recovery request of Greg Aungle dated 14 September 2021;
· internal review decision of the insurer dated 15 September 2021;
· email from the insurer dated 23 September 2021,
· internal review decision of the insurer dated 7 October 2021;
· supplementary report of Dr Bishoy Marcus dated 13 July 2023;
· supplementary report of Dr Andrew Porteous dated 17 July 2023,
· clinical records of Shire Doctors and Dentists;
· clinical records of Dr Peter Khong;
· clinical records of Blue Cross Health Precinct, and
· clinical records of Miranda Medical Centre.
On 18 October 2023 the Panel issued the following further Direction to the parties:
“The Panel notes the claimant is to be medically examined on 25 October 2023.
The Panel makes the following further directions:1.In his report dated 26 July 2023 Dr Manickam (page 199 of the AALD dated 13 October 2023) refers to an MRI of the lumbar spine done at High Street Medical Imaging in January 2023. The claimant is directed to upload to the portal a copy of the report of this MRI by close of business 23 October 2023.
2.The claimant is directed to upload to the portal a copy of the report of the MRI of the cervical spine of 30 August 2022 by close of business 23 October 2023.
3.The insurer is directed to upload to the portal a copy of the threshold injury determination which denied liability for statutory benefits beyond 26 weeks after the accident by close of business 23 October 2023.
4.The insurer is directed to upload to the portal a copy of the internal review determination in respect of the threshold injury decision by close of business 23 October 2023.”
On 19 October 2023 the claimant uploaded to the portal reports of the following:
· MRI of the cervical spine dated 30 August 2022, and
· MRI of the lumbosacral spine dated 17 January 2023.
Admissibility of the report of Dr Korber dated 28 July 2023
In response to a Direction from the Panel the claimant provided submissions dated
29 August 2023 addressing the admissibility of the report of Dr Korber dated 28 July 2023.The claimant submitted the report of Dr Korber had limited, if any, probative value and should be treated with caution.
The claimant submitted the comment made by Dr Korber in respect of the CT scans of the lumbar spine of 12 October 2018 and 23 September 2019 offered limited probative value to the issues in dispute where those scans predate the accident. The claimant does not dispute Dr Korber’s findings in relation to those two scans.
Whilst Dr Korber reported the MRI scan of the lumbosacral spine dated 11 March 2021 is “grossly over reported” the claimant notes Dr Korber did not consider the most recent MRI dated 25 May 2022. The claimant submits that A/Prof Papantoniou diagnosed the claimant with a broad based L4/5 posterior disc bulge and an L5/S1 disc bulge and annular tear based on the latest MRI scan.
The insurer provided two reasons for the admission of the report, being the unavailability of the report prior to the due date of the Reply and that consent had been sought from the claimant.
That consent was not forthcoming, and the claimant submitted the Application to Admit Late Documents dated 22 August 2023 attaching the report of Dr Korber should be rejected.
The claimant submitted whilst the report was not available at the time the insurer’s reply was due the report was available at the time the insurer was required to provide a bundle of the evidence on which it sought to rely.
The claimant asserted if the report was admitted into evidence the claimant wished to seek an opportunity to obtain an opinion from A/Prof Papantoniou addressing the opinion of
Dr Korber.The Panel addressed the admissibility of the report of Dr Korber in a Report and Directions dated 8 September 2023. In that report the Panel stated:
“The Panel notes the only documents relied upon by the insurer were the documents uploaded on 4 July 2023 which predated the report of Dr Korber and the AALD dated 22 August 2023 attaching the report of Dr Korber. Whilst the Panel notes the report of Dr Korber is dated 28 July 2023 the Panel does not know when the report was made available to the insurer and, in any event does not consider the delay sufficient to exclude the report.
The Panel proposes to admit into evidence the report of Dr Korber on the basis it is of assistance to the Panel and where the exclusion of the report may lead the insurer to seek a further medical assessment under s 7.24 of the Motor Accident Injuries Act, 2017. Such an outcome would not be consistent with the guiding principle of the Personal Injury Commission to facilitate the just, quick and cost-effective resolution of the real issues in the Review.
Noting the medical examination is not scheduled to take place until 25 October 2023 the claimant will have an opportunity to obtain an opinion from Dr Papantoniou in response to the report of Dr Korber.”
Application for personal injury benefits
In the Application for personal injury benefits dated 29 January 2021 Mr Pirillo listed his injuries as “Back, neck and head, right hand my knuckles [sic] got jammed. Just had a seizure a week after accident”.[12]
Treating medical records
[12] Claimant’s bundle p 73.
Shire Doctors and Dentist, clinical notes
Clinical notes of Dr Rizzuto, GP commence on 18 December 2009.
On 3 December 2020 Mr Pirillo was involved in an incident resulting in injuries to the right hip, both wrists and the right elbow.
On 14 January 2021, the day after the accident Mr Pirillo attended on Dr Rizzuto in respect of a right hand injury described as resulting from a crush injury between the seat and transmission tunnel in a motor vehicle accident.[13] On 15 January 2021 Dr Rizzuto reported Mr Pirillo attended in respect of a cervicogenic headache. On 18 January 2021 Dr Rizzuto reported the swelling and pain related to the hand injury was much better and he had “full use now”.
[13] AALD 13 October 2023 p 48.
On 27 January 2021 Dr Rizzuto reported following a head-but to the nose Mr Pirillo had suffered a generalised seizure. The CT of the brain was said to be okay although he had a fractured nose. On 17 February 2021 Dr Rizuto reported there was still some discomfort related to the injury to the right hand. Mr Pirillo had cervicogenic headache. He was reported to still be in pain. He had returned to work on 10 February 2021.
On 5 March 2021 Dr Rizzuto reported:
“Still struggling with right lumbosacral back pain radiating thru right burtock to laterl thigh and leg to foot to 2nd and 3rd toe
Ø Worse sitting and lying
Ø Sleep is very difficult/cant get comfortable > no posture helps > very little sleep
Ø Tried nurofen/Panadol/sleep aid > nil
Ø Walking > helps imitioally > schock of leg and foot pain / with back > stop > suffer on way back home
Ø Bike riding of a little help > til pain hits
Ø Now physio once / week
Ø Also some interscapular pain – standing at work esp
MRI 2 years ago > bulging lumbar disc - ? which one
Back pain then - ? lifting
Ø Physio > better in 6 month > 100% at one year
Ø Second scan 1 year later > ok
Ø All GP management > MRI free.
Examination:
Pain with all movements
ROM full > pain thru the movements
Worse with left lat flexion and left rotation
Tender to deep pressure in lumbiosacral angle
Reflexes / power / sensation – all ok
Thigh / legs / feet L=R=N.
IMP
L/s disc prolapse
? L/s strain.
Needs MRI [sic].”
Mr Pirillo continued to attend Dr Rizzuto complaining of low back pain and right leg pain. On 30 March 2021 Dr Rizzuto reported Mr Pirillo had stopped riding his pushbike and was swimming twice a week. Dr Rizzuto prescribed Endone.
On 22 April 2021 Dr Rizzuto reported numbness and pain in the right lower limb and under the foot, although there was no power deficit. On 29 April 2021 Mr Pirillo slipped into a Telstra pit which set him back. On 4 May 2021 Dr Rizzuto stated, “for the first time there was maybe a little weakness in the right leg”. On 26 May 2021 Dr Rizzuto reported Mr Pirillo was to return to work the following day as a lollipop guy. On 9 July 2021 Dr Rizzuto reported
Mr Pirillo was working two jobs with his father as an electrical assistant and as a lollipop guy.[14][14] AALD 13 October 2023 p 59.
On 26 July 2021 Dr Rizzuto reported “still ongoing – but intermittent – feelings of weakness in right leg and foot without or without paraesthesia”. On 30 July 2021 Dr Rizzuto reported
Mr Pirillo was progressing with his back and radiculopathy issues, but he still had occasional episodes of pain. Mr Pirillo continued to consult Dr Rizzuto in relation to pain, particularly night pain. He was again prescribed Endone. On 23 August 2021 Mr Rizzuto reported
Mr Pirillo was working undertaking some lifting and forklift driving. On 13 September 2021
Dr Rizzuto reported Mr Pirillo was still struggling with periodic back pain. He was using Endone and Tapentadol together sometimes. On 24 September 2021 Dr Rizztuo reported
Mr Pirillo had ended up in hospital with severe back and leg pain.On 23 November 2021 Dr Rizzuto reported Mr Pirillo was upset re pain and burning in the right leg and low back pain, although he suggested Mr Pirollo was overdoing the physical stuff, working and attending the gym four times a week.
On 28 January 2022 Dr Rizzuto reported bilateral sciatica.
On 8 March 2022 Dr Rizzuto recorded, “we need to bring narcotics to an end” although
Dr Rizzuto continued to prescribe Endone 5 mg and Tapentadol 50 mg immediate release tablets.On 7 April 2022 Dr Rizzuto reported:
“… Has failed to achieve recovery. No red flags. Can heel and toe walk. Assisted SLR (straight leg raising) normal. Reflexes and power normal. Has had to resort to too many narcotics but is backing off. Workplace and his own rehab program is not helping. Needs good physiotherapist and regular review.”[15]
[15] AALD 13 October 2023 p 78.
On 17 August 2022 Dr Rizzuto noted Endone scripts on 3 August 2022, 9 August 2022 and 17 August 2022. He also noted another GP had prescribed Temazepam on 11 August 2022 and on 18 August 2022 Dr Rizzuto noted “only me to prescribe S8 drugs”.
On 30 August 2022 Dr Rizzuto noted Mr Pirillo was seeing other doctors, specialists and rehab providers and arranging investigations and noted the end of his professional relationship with the claimant.
Thereafter, Mr Pirillo continued to consult Dr Dien Nguyen, GP in relation to his back pain and sciatica. Dr Nguyen held a telehealth consultation with Mr Pirillo on 6 February 2023 for a bad flare of back pain. He prescribed Endone.[16] Mr Pirillo consulted Dr Nguyen on
23 February 2023, 13 March 2023, 28 March 2023, 13 April 2023, 18 April 2023,
27 April 2023, 4 May 2023, 11 May 2023, 18 May 2023, 6 June 2023, 22 June 2023,26 June 2023, 11 July 2023 and on 17 July 2023 when he reported the claimant was suffering from back and hip pain every day and needed Endone every day.[16] AALD 13 October 2023 p 95.
On 24 July 2023 Dr Nguyen reported Mr Pirillo was suffering from severe pain and Oxycontin, even at two a day, was not helping. Mr Pirillo consulted Dr Nguyen again on
27 July 2023, 7 August 2023, 15 August 2023, 17 August 2023, and 21 August 2023. On
28 August 2023 Dr Nguyen reported following a phone consultation that Mr Pirillo had loss of strength in his right leg causing him to fall. Further telehealth consultations occurred on
31 August 2023, 4 September 2023, 11 September 2023, 14 September 2023,
18 September 2023 and 19 September 2023. Mr Pirillo continued to be prescribed Endone.
Blue Cross Health Precinct
On 23 September 2019 Dr Jalal, GP reported a long history of lower back pain radiating to the right leg.[17] He was reportedly mildly tender in the lower back although movement and neurology were both reportedly normal. The claimant was referred for a CT scan.
[17] AALD 13 October 2023 p 300.
On 30 September 2019 Mr Pirillo saw Dr Zhang, GP for back pain. He reported range of movement of the back was normal.
On 4 February 2020 Dr Jalal reported chronic lower back pain. Mr Pirillo was under the care of a physiotherapist. On 11 February 2020 the claimant saw Ms Maryam Farjood for review of a care plan. She noted the chronic pain from the lower back goes to the right leg. On the same date Dr Jalal recommended more physiotherapy.
Miranda Medical Centre
On 26 September 2018 Dr Rahman GP referred inter alia to a history of chronic lower back pain. On 15 October 2018 Dr Beshara GP reported the CT of the lumbar spine was normal and recommended physiotherapy and back strengthening exercises.
On 1 April 2022 Dr Zobair GP reported low back pain, no radiation of pain to the lower limbs, no lower limb weakness and no bladder or bowel symptoms.[18]
Greg Aungle, Shire Sports Physiotherapy
[18] AALD 13 October 2023 p 317.
In a report dated 6 May 2021 he stated following the accident the claimant presented for treatment on 4 March 2021.[19] Following treatment he noted improvement in the cervical and thoracic spine but reoccurring lumbar spine pain, intermittent right leg pain and tightness and occasional tingling into the foot.
[19] AALD 13 October 2023 p 130.
On 14 September 2021 Mr Aungle, sought approval for eight further physiotherapy sessions. The insurer approved four sessions. That declinature of four sessions is in dispute in this review.
Dr Peter Khong, neurosurgeon
Dr Khong saw the claimant who presented on 7 June 2021 with lower back pain and right leg pain.[20] On examination he reported:
“Normal gait. Able to walk on heels and toes normally. Negative Romberg’s. No pain on internal rotation of the hips bilaterally. Dorsalis pedis pulses present bilaterally. Neurological examination of the lower limbs was as follows: Tone was normal bilaterally. Power was 5/5 in all muscle groups bilaterally. Reflexes were ++ in knees bilaterally and ++ in ankles bilaterally. Sensation was normally bilaterally.”
[20] AALD 13 October 2023 p 138.
Dr Khong reported the MRI demonstrated some mild degenerative disc disease at L5/S1 in the absence of neural compression. He diagnosed a likely musculoligamentous strain and possible an exacerbation of some early degenerative changes.
Dr Khong had a telephone consultation with the claimant on 19 August 2021.[21] He reported Mr Pirillo had difficulty walking and sleeping due to the pain. Dr Khong noted the MRI of
11 March 2021 did not demonstrate any neural compression and recommended a repeat MRI to ensure that was still the case. It is this referral which has been declined by the insurer and is in dispute in this review.[21] AALD 13 October 2023 p 1.
Myhealth Liverpool, clinical notes
Mr Pirillo saw Dr Bishoy Marcus for the first time on 17 May 2022 when he sought a second opinion in relation to his back injury.[22] Dr Marcus recorded Mr Pirillo was involved in a car accident on 13 January 2021. He recorded:
“Since then still has very severe pain down his right leg, seems to stop above his knee cap, though on occasion goes down further
Pain described as burning, temperature change etc
On exam
SLR positive on right
Range of motion around 80%
Testing for meralgia paresthetica seems to be positive and consistent with his history.”
[22] Claimant’s bundle p 105.
On 31 May 2022 Dr Marcus reviewed the MRI and reported a shallow L4/5 disc bulge with no nerve root impingement. He thought the pain seemed consistent with possible nerve root impingement on dynamic movement. He prescribed Celebrex.
On 26 July 2022 Dr Marcus reported the nerve conduction studies were suggestive of L5/S1 radiculopathy.[23] He reported “states neuropathic pain is down his left now more so than right”. Dr Marcus referred Mr Pirillo to A/Prof Papantoniou.
[23] Claimant’s bundle p 110.
On 9 August 2022 Dr Marcus reported Mr Pirillo had developed “really nasty neck pain” that he could not manage.[24] He reported shooting pain in his arm bilaterally right greater than left. Range of motion was okay although painful.
[24] Claimant’s bundle p 111.
On 13 September 2022 Dr Marcus reported the MRI of the cervical spine showed possible C5/6 nerve root impingement consistent with his bilateral arm pain and numbness.[25]
[25] Claimant’s bundle p 113.
On 11 October 2022 Dr Marcus reported the neck injection had helped the claimant and he was largely pain free. However, he complained of very sharp pain in the back and was really struggling to cope.[26]
[26] Claimant’s bundle p 115.
On 20 October 2022 Dr Marcus (via telehealth) reported Mr Pirillo was involved in another accident on 8 October 2022 when another car drove out of a driveway at speed into his car (the second accident).[27] He was complaining of right shoulder pain, right hip pain and left ankle pain. He was very shaken, felt edgy and had flashbacks. He was hypervigilant. He had symptoms of anxiety. Dr Marcus referred Mr Pirillo to a psychologist and a psychiatrist.
[27] Claimant’s bundle p 116.
In a Certificate of capacity/certificate of fitness dated 20 October 2022 in relation to the second accident Dr Marcus listed the injuries as:
“1.?right shoulder subacromial bursitis
2.?right hip trochanteric bursitis
3.?left ankle synovitis
4.Adjustment disorder with PTSD traits.”[28]
[28] Claimant’s bundle p 129.
Dr Marcus provided a report dated 10 November 2022.[29] Dr Marcus stated a nerve conduction study performed by Dr Hassan confirmed an L5/S1 radiculopathy. He concluded his examination of the lumbar spine was consistent with an L4/5 or L5/S1 right sided radiculopathy which was the result of the accident.
[29] Claimant’s bundle p 44.
Dr Marcus provided a report dated 13 July 2023 where he stated his opinion remains unchanged.[30] He said assuming the claimant’s injuries were pre-existing, which he did not feel they were, they were exacerbated by the accident. He stated he considered the claimant will require surgical intervention, having exhausted all non-surgical management options. He stated he considered Mr Pirillo had suffered a non -minor injury.
[30] AALD 13 October 2023 p 23.
Associate Professor Peter Papantoniou, orthopaedic and spinal surgeon
In his report dated 29 September 2022 A/Prof Papantoniou reported an L5/S1 epidural steroid injection on 16 August 2022 and an L4/L5 right foraminal epidural steroid injection on 30 August 2022 had helped in partially relieving the claimant’s pain.[31]
[31] Claimant’s bundle p 36.
A/Prof Papantoniou provided a report dated 4 August 2022.[32] On examination he reported tenderness in the right L4/5 paraspinal muscle region. Mr Pirillo was able to forward flex with his fingertips to the midleg level with associated L4/5 right sided lower back pain. He reported lateral tilt to the right reproduced the right L4/5 lower back pain whilst lateral tilts to the left were pain free and normal.
[32] Claimant’s bundle p 84.
He noted neurological examination of the lower limbs revealed decreased sensation in the right S1 distribution. Power was normal, reflexes were normal, and Mr Pirillo could straight leg raise to 90 degrees on both sides. He reported a negative sciatic nerve stretch test.
A/Prof Papantoniou reported the MRI of 25 May 2022 demonstrated a broad based L4/5 posterior disc bulge with a disc bulge and an annular tear at L5/S1. He was of the view the pathology identified on the MRI scan was a direct result of the accident, noting Mr Pirillo worked without issue in the construction industry prior to the accident.
He thought the right S1 radiculopathy was coming from the L5/S1 disc bulge and annular tear.
A/Prof Papantoniou provided a report dated 25 March 2023.[33] He confirmed he saw Mr Pirillo on 4 August 2022 and on 29 September 2022. He reported following the accident Mr Pirillo suffered right-sided lower back pain with proximal radiation. He described a right S1 radiculopathy down to the lateral foot involving the posterior thigh and lateral calf. He stated Mr Pirillo described it as a burning sensation with numbness.
[33] Claimant’s bundle p 39.
In relation to causation A/Prof Papantoniou reported the accident was a high energy accident involving rotational forces. He stated these are exactly the forces required to sustain injuries to lumbar discs. He noted no history of pre-existing pathology at these levels and stated if
Mr Pirillo had such pathology prior to the accident, he would have had substantial pain, disability and been unable to undertake his work duties. He concluded the injury sustained by Mr Pirillo met the definition of a non-threshold injury.A/Prof Papantoniou provided a report dated 6 July 2023.[34] On review he reported Mr Pirillo continued to complain of central and bilateral lower back pain around the L4-S1 levels with pain radiating to the right buttock as well as the right and left posterior thigh. He had difficulty putting weight through his right lower limb because of pain and also got spasms of pain in his lower back.
[34] AALD dated 19 September 2023.
He reported Mr Pirillo had undergone four steroid injections. A/Prof Papantoniou noted
Mr Pirillo had undergone extensive non-operative management which had failed and recommended an L4/5 nucleoplasty followed one month later by an L5/S1 discectomy.
Dr Appukutty Manickam, Sydney Spine and Pain
On 26 July 2023 Dr Manickam reported Mr Pirillo presented with chronic multisite, whole body pain worse over his right shoulder, right hip, bilateral ankles and back.[35] He referred to the claimant’s involvement in motor vehicle accidents on 13 January 2021 and on
8 October 2022.[35] AALD 13 October 2023 p 199.
On examination of the lumbar spine he reported:
“… back range of motion was satisfactory. He had paraspinal tenderness, which was worse at the lumbosacral junction. His straight leg raise test resulted in 80 degrees of flexion with hamstring tightness and there were no signs of root tension bilaterally. Korey had full strength in both lower limbs.”
Dr Manickam reported the MRI of the lumbar spine performed in January 2023 revealed L4/5, L5/S1 disc bulge and foraminal stenosis, impinging on the L4 and L5 exiting nerve roots. He considered the back and leg pain was of multifactorial aetiology, both discogenic and musculo-ligamentous. He also noted the claimant experienced severe pain catastrophising.
In a report dated 8 August 2023 Dr Manickam reported the back pain radiates to the S1 dermatome on both sides.[36] He noted Mr Pirillo also had radicular symptoms down his right lower limb to the S1 dermatome and down his left lower limb to the L5 dermatome. He reported the back pain was accompanied by back spasms. He noted A/Prof Papantoniou had scheduled the claimant for a discectomy at the L4/5 and L5/S1 levels, but the insurer had declined to fund the surgery.
[36] AALD 13 October 2023 p 197.
Dr George Hanna, chiropractor
Dr Hanna of St George Rehab Pty Ltd assessed the claimant on 5 November 2022. He diagnosed a lumbar spine disc injury with bilateral nerve entrapment/irritation injury, a cervical spine disc injury with nerve root irritation, a thoracic spine hyper kyphosis postural alteration injury, a right hip severe anterior tilt postural injury, a right knee joint medial synovitis injury and a right ankle joint synovitis injury.
Mr Hanna concluded that both the cervical and lumbar spine disc injury caused nerve root irritation which would be considered non-minor (threshold) injuries.
Imaging/investigations
CT Lumbosacral spine, 12 October 2018 – the comment to the report reads:
“There is some minor spondylotic changes to the lower lumbar spine with no neural compressive lesion identified.”[37]
[37] AALD dated 4.7.23 p 3.
CT Lumbosacral spine, 23 September 2019 – the comment to the report reads:
“Very small right paracentral disc protrusion. Some minor contact of the traversing right S1 nerve root. Nil else of note.”[38]
[38] AALD p 4.
MRI lumbar spine, 11 March 2021 -the report of Dr Suresh De Silva reads:
“Findings:
L1/2 and L2/3 do not demonstrate significant disc disease.
L3/4 demonstrates some mild disc herniation into the lateral recesses without definite nerve root compression.
L4/5 demonstrates mild broadbased disc prolapse posteriorly and into both paracentral spaces and lateral recesses. This is close to the L5 nerve roots in the paracentral spaces without definitely compressing on them. There is, however, foraminal narrowing at the point of exit of both L4 nerve roots.
At L5/S1, there is also some mild disc prolapse posteriorly and into the paracentral recesses and towards the lateral recesses. This is not associated, however, with definite nerve root compression.
The conus terminates at around the level of the mid aspect of L1. There is no abnormal signal demonstrated in the roots of the cauda equina.
Conclusion:
At L4/5 there is some foraminal narrowing at the point of exit of the L4 nerve roots bilaterally and, to a lesser extent, at L5/S1 at the point of exit of the L5 nerve roots. I am, however, not appreciating any evidence of canal stenosis or central compression of the nerve roots on this examination.”[39]
[39] Claimant’s bundle p 176.
MRI lumbar spine, 25 May 2022 – the report of Dr Ryan Xia reads:
“Findings
Normal alignment of lumbar lordosis. The marrow signal is normal. There is no significant disc degeneration or annular fissure seen. No disc protrusion or central canal narrowing. The facet joints are normal. Mild bilateral foraminal narrowing at L4/5 due to shallow broadbased disc bulge. The rest neural exit foramina are capacious.
The conus terminates at L1. No abnormality at the cauda equina nerve roots. There is no filum terminale lesion. The posterior paravertebral muscles are normal. No oedema of the sacroiliac joints.
Conclusion
Mild foraminal narrowing at L4/5 due to shallow broadbased disc bulge. No convincing nerve root impingement. There is no annular fissure. The marrow signal is normal.”[40]
[40] Claimant’s bundle p 175.
Neurophysiology Report, Dr Basel Hassan, 20 July 2022 – nerve conductions studies reported:
“The right sural and superficial peroneal sensory amplitudes are reduced, with asymmetry compared with the left side. The right lateral femoral cutaneous nerve conduction, motor studies, needle EMG examination and QEMG analysis are all normal. …
The reduced sensory amplitudes in the right leg may indicated mild right sciatic nerve sensory axonal dysfunction. Clinical correlation +/- correlation with MRI of the right sciatic nerve at the pelvis and gluteal regions may be useful.” [41]
[41] Claimant’s bundle p 35.
MRI cervical spine, 30 August 2022 – the findings are reported as follows:
“Marrow signal normal. No cord myelopathy. Space available for the cord at the level of foramen magnum remains capacious.
Atlantoaxial joint, C2/C3: No finding of interest.
C3/C4: Minimal uncovertebral joint OA. No central or foraminal stenosis.
C4/C5: Capacious foraminal recesses. No central or foraminal stenosis No disc bulge.
C5/C6: Very mild mass effect on exiting C6 nerves bilaterally, from minimal marginal lipping from uncovertebral joints and hypertrophic posterior lateral longitudinal ligament.
C6/C7: No finding.”
MRI lumbar spine, 17 January 2023 – the findings are reported as follows:
“Marrow signal throughout. Mild disc desiccation L5/S1.
Conus placed at L1,
Nerve roots freely interspersed in thecal sac. Paravertebral soft tissues are normal.
L5/S1: Subtle annular bulge, non-weightbearing, minimal attrition on exiting L5 nerves bilaterally, stable since the previous study. No foraminal stenosis, posterior elements are normal.
L5/L5: Low grade concentric disc bulge again persists, degree of which is stable, mass effect is on both exiting L5 nerves. Foraminal stenosis bilaterally is stable, mass effect is on both exiting L5 nerves. Foraminal stenosis bilaterally is stable in magnitude. Both facet joints are opened up minimally, articular surfaces here smooth. No ligamentum flavum hypertrophy.
L3/L4 and higher levels: No new change, with excellent hydration status of the discs, posterior elements being normal as well.”
The claimant has undergone the following:
· CT epidural lumbar spine, 2 June 2022;[42]
· CT selective epidural around the L5 nerve, 28 July 2022;[43]
· CT epidural block lumbar spine, 16 August 2022;[44]
· CT foraminal block lumbar spine, 30 August 2022,[45] and
· CT epidural cervical spine, 27 September 2022.[46]
Medico-legal reports
[42] Claimant’s bundle p 32.
[43] Claimant’s bundle p 119.
[44] Claimant’s bundle p 164.
[45] Claimant’s bundle p 159.
[46] Claimant’s bundle p 120.
Dr Andrew Porteous, 20 December 2022
The claimant saw Dr Porteous on 22 November 2022.[47] He provided a report dated
20 December 2022.[47] Claimant’s bundle p 187.
Dr Porteous reported Mr Pirillo had cervical, upper thoracic and right shoulder pain, headaches and intermittent numbness in the arms and into the hands. He reported chronic lumbar back and posterior lateral back/right hip pain with a shooting pain down into the right leg occurring once a week. The right leg can become weak, and he loses his balance. He also reported bilateral knee pain, and intermittent ankle pain.
Dr Porteous reported the second accident increased the claimant’s right neck/upper spine, shoulder pain, right lumbar back/hip area pain and the ankle pain. He also noted he had undergone investigations for these areas before the 8 October 2022 accident suggesting in those areas pain pre-existed the second accident and was substantially related to the subject accident.
On examination of the lumbar spine Dr Porteous reported Mr Pirillo had 80% of expected extension, flexion to the shins and 25º, 23º, 25º left lateral movement with 35º, 30º, 33º right lateral movement measured with a goniometer with subtle dysmetria and guarding but no spasm. He noted subtly reduced sensation in the left lateral foot to light touch in an S1 distribution. He had normal S1 power bilaterally and normal left and right knee reflexes. He had right ankle and left ankle reflexes.
Dr Porteous concluded Mr Pirillo most likely had a cervical spinal soft tissue injury, a thoracic soft tissue injury and a lumbar soft tissue muscular spinal injury. In relation to threshold injury as defined in s 1.6 of the MAI Act and Part 5 of the Guidelines he concluded:
“It is difficult to clarify whether this is a non-minor injury. There is an L4/5 disc protrusion reported on the scan in March 2021. He had onset of back pain, and in my opinion, that was most likely due to a L4/5 injury and disruption of the disc.
In my opinion a disc is a ligament-type structure, and that being a “partial rupture of a ligament” would meet the criteria for this being a non-minor injury according to the definitions in the Motor Accident Injuries Act, 2017.”
In relation to treatment Dr Porteous recommended a supervised exercise physiology program aimed at improving core strength and capacity over 10 weeks. He did not consider Mr Pirillo needed any further investigations.
Dr Porteous provided a supplementary report dated 17 July 2023.[48] He noted the CT scan of the lumbar spine dated 12 October 2018 reported a small L4/5 disc protrusion without any impingement. The CT scan of the lumbar spine of 23 September 2019 reported small L4/5 and L5/S1 disc protrusions without any impingement.
[48] AALD 13 October 2023 p 25.
Dr Porteous concluded the protrusions pre-existed the accident but were asymptomatic, noting Mr Pirillo did not report lumbar pain immediately prior to the accident, he was attending a gym intermittently, riding his bike and working. Dr Porteous said the scans did not cause him to alter the opinion expressed in his report of 22 November 2022.
Dr John Korber, radiologist
Dr Korber provided a report dated 28 July 2023 at the request of the insurer.
He reviewed the CT scans of the lumbar spine of 11 October 2019 and 23 September 2019 and concluded:
“In neither of these studies would I have reported any significant disc herniation or disc protrusion. Words such as “minor spondylitic change” and “borderline very shallow right paracentral disc protrusion” are mentioned. There is no mention of compression or focal disc herniation. I would have reported both studies as within normal limit.”
Dr Korber reviewed the MRI scan of the lumbar spine of 11 March 2021 and stated:
“In relation to the lumbar MRI, all discs are normally hydrated. There is no evidence of focal disc herniation at any level. There is no compression of exiting nerve root. There may be early degeneration of the L5/S1 disc. All the apophyseal joints are normal.”
Further Dr Korber stated he could not see any post traumatic lesion on any of the studies. At worst he reported there was early degeneration posteriorly in L5/S1.
SUBMISSIONS
Claimant’s submissions
The claimant provided submissions dated 3 May 2023. The claimant submits that Medical Assessor Cameron fell into error in relation to his finding that the claimant’s lumbar spine injury was a threshold injury.
The claimant submits Medical Assessor Cameron failed to consider whether the evidence before him presented evidence of an annular tear as found by A/Prof Papantoniou. The claimant submits Medical Assessor Cameron failed to consider the MRI scan in detail or even review the scan even though it was available for viewing.
The claimant submits by definition an annular tear is a complete or partial rupture of, inter alia, cartilage and is not a soft tissue injury within the meaning of s 1.6(2) of the MAI Act.
Secondly the claimant submits Medical Assessor Cameron failed to have regard to the evidence that the claimant displayed radiculopathy in terms of impairment caused by dysfunction of a spinal nerve root. The claimant submits there was evidence of sciatic nerve sensory axonal dysfunction found in the nerve conduction studies of Dr Hassan. The claimant also submits Medical Assessor Cameron failed to refer to descriptors of non-verifiable radiculopathy in accordance with Table 6.8 of the Guidelines such as shooting pains, burning sensation and tingling along with the failure to refer to weakness and loss of sensation. The claimant notes A/Prof Papantoniou reported:
· “a burning sensation with numbness in the right leg”;
· “right S1 radiculopathy to the lateral calf and lateral border of the foot”, and
· “neurological examination of the lower limbs revealing a decrease sensation in the right S1 distribution”.
The claimant submits there is clear evidence to support the presence of radiculopathy within the L5/S1 nerve distribution, as evidenced by the report of Dr Hassan dated 20 July 2022 where he came to the view that “the reduced sensory amplitudes in the right leg may indicate mild right sciatic nerve sensory axonal dysfunction”. Further, A/Prof Papantoniou noted that “neurological examination of his lower limbs revealed decreased sensation in the right S1 distribution”.
The claimant also submits Medical Assessor Cameron failed to disclose his path of reasoning in concluding that the lumbar spine was a threshold injury within the meaning of the MAI Act.
Insurer’s submissions
The insurer provided submissions dated 23 May 2023 addressing the question to be determined by the delegate, that is, whether Medical Assessor Cameron’s certificate was incorrect in a material respect.
The insurer submitted that A/Prof Papantoniou opined that the MRI dated 25 May 2022 demonstrated an annular tear despite the report clearly stating that there were no annular fissures present.
In relation to the alleged failure of Medical Assessor Cameron to provide reasons for the failure to find radiculopathy, the insurer notes at page 5 of the Certificate he stated:
“At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative…
There were no neurological abnormalities in the lower extremities…”
Further the insurer submits at page 7 of the Certificate Medical Assessor Cameron addressed causation of the alleged lumbar spine injury as follows:
“There had been imaging of the lumbar spine after the motor accident that did not show major pathology. Also, there is no evidence that established radiculopathy was present…”
The insurer submits that Medical Assessor Cameron did not find two or more of the signs of radiculopathy in accordance with the Guidelines and further, he concluded there was no major pathology revealed in the radiological investigations provided.
THE MEDICAL EXAMINATION
Mr Pirillo attended the medical suites at the Commission on 25 October 2023 where he was examined by Medical Assessor Moloney. He was unaccompanied.
Mr Pirillo provided scans of an MRI of the lumbar spine dated 17 January 2023, 11 March 2021 and 25 May 2022. These MRIs were on a disc and viewed by Medical Assessor Moloney on a laptop at the time of the examination. Medical Assessor Moloney was unable to visualise any annular tears on any of the three MRI scans.
However, for the sake of completeness, and given the opinion of Professor Papantoniou the Panel directed the claimant to make the scans available so they could be viewed by Medical Assessor Oates on a large screen.
Medical Assessor Oates subsequently viewed the MRI scans of the lumbar spine dated 11 March 2021, 25 May 2022, and 17 January 2023 at the medical suites at the Commission on a large screen.
Medical Assessor Oates was unable to see an annular fissure in a lumbar disc in any of the three MRI scans.
Pre-accident history
Mr Pirillo stated that he was very fit prior to the accident, attended the gym on a daily basis and regularly jogging, bike riding and kickboxing. Prior to the accident he stated he was doing a course at TAFE in the building trade and had been working as a supervisor on a building site. At the time of the accident, he was living with his partner, but they have since separated and he now lives with his mother.
History of the accident
Mr Pirillo stated that he was a front seat passenger in a car, a Mazda 3 driven by his partner at that time. They were reversing out of a driveway and were hit on the back driver’s side by another car. The impact caused their car to bounce into the gutter and come to rest near a tree. The car was subsequently a write-off. He was wearing a seatbelt at the time, but the airbags did not deploy. Mr Pirillo said he had to kick the door to get out of the car.
Ambulance officers attended the scene of the accident and together with the driver he was transported to St George Hospital. He was assessed and then discharged.
Subsequent history and treatment
Mr Pirillo consulted Dr Rizzuto and stated he had pain in the neck, back, right ankle and right hand. His GP organised scans and referred him for physiotherapy. About one week after the accident, Mr Pirillo stated that his partner bumped him on the nose at home and he then had a seizure. He was again assessed at St George Hospital.
He was initially referred to a neurosurgeon Dr Khong who did not recommend any surgery but told him to continue with conservative treatment.
There was a change of GP and he now consults Dr Marcus. Dr Marcus organised cortisone injections to the lumbar spine, neck and right hip region which gave some benefit.
Mr Pirillo was then referred to another neurosurgeon, Professor Papantoniou who organised L5/S1 and right L4/5 foraminal epidural injections in August 2022. These injections were initially beneficial, and Professor Papantoniou then recommended an L4/5 nucleoplasty to be followed later by an L5/S1 discectomy. He was also referred to a pain specialist,
Dr Manickam who organised further physiotherapy.The last consultation with Professor Papantoniou was on 19 September 2023 when he continued to recommend surgery, although Mr Pirillo states he cannot afford this procedure.
Mr Pirillo also consults another GP, Dr Nguyen who prescribed oral medications and counselling.
Second motor vehicle accident
On 8 October 2022, Mr Pirillo was driving when another car failed to give way and hit his car on the passenger side. He stated he remained in the car for about an hour due to pain and shock and at that time had pain in the right shoulder, right hip and left ankle. These injuries were covered by another insurer. Two weeks ago, he had an arthroscopic procedure for an apparently frozen right shoulder in relation to the second accident.
Current symptoms
Mr Pirillo has fluctuating neck pain which radiates into his head daily. He frequently wakes at night due to neck pain. There is a fluctuating loss of feeling in the entire left arm including the hands and fingers which is relieved by stretching and he states that his left hand often shakes. There is an occasional shake in the right arm but since the shoulder surgery, the right shoulder has been in a sling, and he hasn’t noticed any abnormality in the right arm.
He states that the right hand is now asymptomatic.
There is more severe pain in the lower back associated with severe spasm and this can happen after a short walk and causes him to lie on the floor for relief. There is pain in the right hip region and pain radiating down the right leg including foot and toes in a global distribution. Whilst sitting he tilts to the left for pain relief. Occasionally there is pain in the left leg to the level of the knee. After walking for less than 10 minutes Mr Pirillo develops low back pain radiating to the right leg. He is able to drive short distances.
Current treatment
Present medication is Endone three per day, Temazepam one at night, Gabapentin one twice a day, Cymbalta one a day and Celebrex 100 mg up to three per day.
He was attending physiotherapy for both accidents until funding ceased 2 months ago. He sees his chiropractor on an occasional basis and regularly does home stretches.
Clinical examination
Mr Pirillo walked into the medical suite with a normal gait but had his right arm in a sling due to the surgical procedure to the right shoulder two weeks ago. He states that he is right-handed. Height was measured at 172 cm and weight 75 kg.
Cervical spine
On testing range of movement of the cervical spine, flexion/extension, side bending and rotation were all 80% of the expected range with no asymmetry. On palpation there was tenderness over the left paravertebral cervical muscles and right trapezius muscle (which was related to the recent surgery). No guarding or spasm was noted in the cervical musculature.
On neurological examination of the left arm, there was normal power and reflexes with no sensory changes. No muscle wasting was apparent and due to the recent surgery and sling, the right arm was not able to be assessed.
Lumbar spine
Mr Pirillo walked with a normal gait and was able to walk on his heels and toes. On testing range of movement, flexion/extension was within normal limits, side bending was 80% of expected range with no asymmetry noted. Straight leg raise was 80° bilaterally with negative sciatic nerve root tension signs. On palpation there was tenderness over the L5/ S1 spines and right gluteal muscles with no trochanteric tenderness. No guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no muscle wasting was apparent. The circumference of the lower thighs was 45 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves it was 36 cm bilaterally. On testing for sensation there was a global decrease in sensation in the entire right leg which was not dermatomal. There was a full pain free range of movement of both knees with no crepitus or instability. There was also a full range of movement of both hips.
Thoracic spine
On palpation of the thoracic spine region, no guarding or spasm was noted and on testing range of movement, flexion/extension and side bending were within normal limits. Rotation was 80% of expected range bilaterally with no asymmetry.
Hands and wrists
There was a full pain free range of movement of both wrists.
PANEL FINDINGS
DIAGNOSIS AND CAUSATION
Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in part 6 of the Guidelines.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[49] His Honour stated at [70] – [72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[49] Briggs [2022] NSWSC 372.
The Panel notes the injuries the subject of this review were all referred to in the Application for personal injury benefits dated 29 January 2021, shortly over two weeks post-accident.
The claimant attended Dr Rizzuto on 14 January 2021, 15 January 2021, and
18 January 2021 when he complained of a crush injury to his right hand, although he also reported a cervicogenic headache on 15 January 2021.On 27 January 2021 Dr Rizzuto refers to seizure following the head-but to the nose.
The first notation in the clinical notes pertaining to the lumbosacral spine is on 5 March 2021 with consistent complaints thereafter relating to low back pain and right leg pain.
On 6 May 2021 Greg Aungle, physiotherapist reported an improvement in the cervical and thoracic spine but reoccurring lumbar spine pain and intermitted right leg pain. There is no further mention of pain in the cervical spine until 9 August 2022 when Dr Marcus refers to “really nasty neck pain that he could not manage”. Mr Pirillo subsequently underwent an MRI of the cervical spine on 13 September 2022.
Cervical spine injury
Noting the legal test of causation does not require scientific certainty and where the claimant referenced these injuries in the Application for personal injury benefits and complained of cervicogenic headaches on 15 January 2021 the Panel finds the claimant sustained injury to the cervical spine.
The Panel notes the lack of complaint between 6 May 2021 and the “really nasty neck” pain reported on 9 August 2022. Having regard to that lack of complaint and where no significant abnormality was demonstrated on the MRI of 30 August 2022 the Panel is not satisfied the neck pain of 9 August 2022 causally related to the accident. The Panel finds the claimant sustained a soft tissue injury to the cervical spine caused by the accident which has resolved.
Thoracic spine injury
Noting the legal test of causation does not require scientific certainty and where the claimant referenced these injuries in the Application for personal injury benefits the Panel finds
Mr Pirillo sustained soft tissue injury to the thoracic spine.However, where Mr Aungle references improvement to the thoracic spine on 6 May 2021 and having regard to the lack of complaint thereafter the Panel finds the soft tissue injury to the thoracic spine has fully resolved.
Lumbar spine injury
The claimant had a long standing history of complaint pertaining to the lumbar spine. On
26 September 2019 Dr Rahman referred to chronic lower back pain, on 15 October 2018
Dr Beshara recommended physiotherapy, on 23 September 2019 Dr Jalal reported a long history of lower back pain radiating to the right leg and on 4 February 2020 he referred to chronic lower back pain.Mr Pirillo underwent CT scans of the lumbosacral spine on 12 October 2018 and on
23 September 2019, although Dr Korber described both studies as within normal limits with at worst early degeneration posteriorly at the L5/S1 level.Following the accident, the claimant referenced injury to the lumbar spine in the Application for personal injury benefits and on and after 5 March 2021 there has been a consistency of complaint pertaining to the lumbar spine and the right leg. The Panel notes the definition of causation set out in cls 6.5 to 6.7 of the Guidelines and is satisfied the accident, whilst not a sole cause, was a contributing cause to the claimant’s lumbar spine injury which was more than negligible.
The Panel finds the claimant sustained a soft tissue injury to the lumbar spine with an aggravation of pre-existing degenerative changes caused by the accident.
Right hand injury
The Panel finds the claimant sustained a soft tissue injury to the right hand as documented by Dr Rizzuto, although the Panel finds it has fully resolved.
Brain injury
The Panel notes there was no evidence of an injury to the head at the time of the accident. Whilst Dr Rizutto diagnosed a cervicogenic headache on 15 January 2021 there was no recorded complaint about injury to the head until 27 January 2021 when Dr Rizzuto reported Mr Pirillo had suffered a generalised seizure following a head-but to the nose.
There is no confirmation Mr Pirillo suffered a seizure other than the clinical notes of
Dr Rizzuto of 27 January 2021. There is no medical evidence to verify that a seizure occurred and no evidence to suggest it was causally related to the accident. Indeed, the evidence suggests it was caused by the head-but.The Panel is not satisfied any injury to the brain, if such injury occurred, was causally related to the accident.
Threshold injury
Cervical spine injury
The Panel finds the claimant sustained a soft tissue injury to the cervical spine.
The Panel notes at no time has there been evidence of two or more of the clinical signs of radiculopathy as required by cls 5.7, 5.8 or 5.9 of the Guidelines. The Panel determines the soft tissue injury to the cervical spine to be a threshold injury.
Thoracic spine injury
The Panel finds the claimant sustained a soft tissue injury to the thoracic spine which has resolved.
The Panel notes at no time has there been evidence of two or more of the clinical signs of radiculopathy as required by cls 5.7, 5.8 or 5.9 of the Guidelines. The Panel determines the soft tissue injury to the thoracic spine to be a threshold injury.
Lumbar spine injury
The Panel notes the opinion of A/Prof Papantoniou, who is an orthopaedic and spinal surgeon, that there is an annular fissure at L5/S1 disc demonstrated in the MRI scan dated 25 May 2022.
We also note the report of Dr Xia, radiologist, dated 26 May 2022, which states “There is no significant disc degeneration or annular fissure seen.”
The Panel prefers the opinion of the consultant radiologist over that of the orthopaedic spine surgeon, after having had the opportunity to also peruse the imaging.
The lumbar spine is a threshold injury because the claimant has not been able to establish the presence of two or more of the requisite clinical signs necessary to establish radiculopathy in accordance with cl 6.138 of the Guidelines and there is no annular fissure (representing partial or complete rupture of cartilage) present on the three lumbar MRI scans which were viewed by each Medical Assessor.
Right hand injury
The Panel notes the injury to the right hand was a soft tissue injury in accordance with the definition provided by s 1.6(2) of the MAI Act. The Panel notes the injury to the right hand has now resolved. The Panel determines the soft tissue injury to the right hand to be a threshold injury.
TREATMENT DISPUTE
MRI of the lumbar spine as per referral of 19 August 2021
Mr Pirillo had undergone an MRI scan of the lumbar spine on 11 March 2021. Dr Khong reported that MRI did not demonstrate any neural compression and apparently ordered the repeat MRI to establish that was still the case. The Panel notes Dr Korber agreed the MRI scan of 11 March 2021 was within normal limits.
Further, the Panel notes Dr Khong did not report any abnormality when he examined the claimant on 7 June 2021 and other than Mr Pirillo’s continued complaints of difficulty walking and sleeping no other reason was given to support the need for a further MRI scan.
The Panel notes the SIRA Guidelines to the management of Whiplash Associated Disorders direct that specialised imaging techniques such as magnetic resonance imaging should not be used unless there is suspicion of nerve root compression or spinal cord injury.
Whilst the Panel is satisfied the referral for an MRI of the lumbar spine of 19 August 2021 related to the injury caused by the accident, the Panel is not satisfied a further MRI scan was reasonable and necessary in the circumstances where Mr Pirillo had undergone a scan less than six months earlier and where there was no suspicion of nerve root compression or spinal cord injury.
Physiotherapy sessions
On 14 September 2018 Greg Aungle physiotherapy sought approval for a further eight physiotherapy sessions.
The insurer declined four out of the eight sessions on the basis four sessions was sufficient to transition the claimant to an independent home based exercise programme.
In the AHRR dated 14 September 2021 Mr Aungle described the goal as “regain pain free range of movement in the thoracic and lumbar spine”. The client action plan was as follows:
· self-pacing with pain;
· perform home exercise program, and
· pain management as requested.
Whilst the physiotherapist’s action plan was as follows:
· hands on physiotherapy treatment;
· graded stretching and strengthening program, and
· postural, lifting advice and education.
The Panel is satisfied the four sessions of physiotherapy in dispute are related to the injury caused by the accident.
The Panel does not consider passive treatment modalities, such as hands on physiotherapy, some eight months post-accident to be effective treatment. The Panel considers physiotherapy to develop a graded stretching and strengthening program and to provide education on posture and lifting to be appropriate. The Panel agrees with the insurer that four physiotherapy sessions would be reasonable to achieve those aims.
The Panel finds four out of the eight physiotherapy sessions requested as outlined in the Allied health recovery dated 14 September 2021 by Greg Aungle are not reasonable and necessary in the circumstances.
CONCLUSION
The Review Panel affirms the certificate of Medical Assessor Ian Cameron dated
5 April 2023.
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