QBE Insurance (Australia) Limited v Beatty
[2023] NSWPICMP 629
•29 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Beatty [2023] NSWPICMP 629 |
| CLAIMANT: | Fenton Beatty |
| INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Alexander Bolton |
| MEDICAL ASSESSOR: | Thomas Rosenthal |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 29 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Moloney dated 30 November 2022 about whether a consultation with the claimants neurosurgeon was reasonable and necessary; claimant involved in motor vehicle accident on 16 June 2018 injuring his cervical and lumbar spines; claimant had a pre-accident history of symptomatic neck pain but not to a considerable degree and he was asymptomatic at the time of the accident working as an arborist; the accident was sudden and unexpected forcing the claimants car into another direction and colliding with a pole which it knocked down; Panel satisfied that the claimant’s complaints prior to the accident with regard to his neck and shoulders were minor but following the accident there was a major change to those symptoms; Panel was satisfied that the claimant’s injuries necessitated an anterior cervical discectomy and fusion surgery at C5/6 and C6/7 levels which was reasonable and necessary and that a consultation with the claimants treating neurosurgeon was reasonable and necessary; Held – certificate and reasons of MA Moloney was affirmed. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Determination 1. The Panel affirms the certificate of Medical Assessor Moloney dated 30 November 2022. 2. The Panel determines that a consultation with Dr Mobbs, neurosurgeon, on 21 July 2021 was both related to the injury caused by the accident and was reasonable and necessary. |
STATEMENT OF REASONS
INTRODUCTION
There is a dispute between Fenton Beatty (the claimant) and the insurer as to a medical assessment matter in Schedule 2(2)(b) of the Motor Accident Injuries Act 2017 (NSW) (MAI Act), namely, whether the claimant’s consultation with Dr Ralph Mobbs, neurosurgeon, on 21 July 2021 (the consultation) relates to the injury caused by the accident, and, whether the consultation is reasonable and necessary.
Medical Assessor Moloney examined the claimant on 23 November 2022 and issued a certificate dated 30 November 2022 in which he determined that a consultation with Dr Mobbs, neurosurgeon, on 21 July 2021 was both related to the injury caused by the accident and was reasonable and necessary.
Treatment Dispute to be assessed
The following treatment disputes were referred by the Personal Injury Commission (Commission) for assessment:
(a) whether the requested consultation with Dr Ralph Mobbs neurosurgeon, on 21 July 2021 is related to the injury sustained in the subject motor vehicle accident.
(b) Whether request a consultation with Dr Ralph Mobbs neurosurgeon, on 21 July 2021is reasonable and necessary.
The parties have each presented their respective bundles of documents upon which they rely. The Medical Review Panel (Panel) have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The accident
The accident occurred on 16 June 2018.
The claimant was driving a work car at the time of the accident with his sister in the passenger seat. The insured car failed to give way and collided with the passenger side of his car at speed causing him to then hit a pole with the front of his car towards the right side. The claimant hit his head on the driver side and then again, his head had a second impact with his sister. At that time his sister was more seriously injured and the ambulance and police attended the scene of the accident. The claimant was wearing a seatbelt and airbags were deployed. The car was apparently later written off, for insurance purposes.
Documentation
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
Insurers submissions on application for review
On 30 November 2022 Medical Assessor Shane Moloney (the Medical Assessor) issued a certificate and statement of reasons made in accordance with s 7.23(1) of the MAI Act (the decision). The decision certified that the consultation relates to the injury caused by the motor accident and is reasonable and necessary.
The insurer has sought a review of the certificate of the Medical Assessor.
The insurer contends that the assessment was incorrect in a material respect as the Medical Assessor:
(a) failed to engage in a clearly articulated argument made by the insurer;
(b) improperly, incorrectly and erroneously considered the evidentiary position;
(c) overlooked the evidence, and
(d) failed to give proper consideration to the objective evidence.
GROUND 1 – failure to engage in a clearly articulated argument made by the insurer
The insurer says that central to its submissions dated 21 December 2021 (the insurer’s submissions) was the claimant’s pre-accident history of symptomatic neck pain.
The insurer refers to paragraphs 4-8 of its submissions which set out the claimant’s various complaints of neck pain prior to the accident.
At paragraph 9 of the insurer’s submissions, the insurer notes that on 14 June 2018, two days prior to the accident, a chiropractic clinical note reported the claimant had neck pain radiating across the shoulders and restricted range of movement.
The insurer says that at the assessment before the Medical Assessor, the claimant denied suffering any prior injury to his neck.1 The insurer says that this was incorrect. The insurer reiterates that as outlined in paragraph 5 of the insurer’s submissions, the claimant was involved in a motor vehicle accident in April 2010 and in a post-accident clinical note of Ramsay Street Medical Centre the claimant reported neck pain and rigidity following the accident.
The claimant submits that under the subheading “Review of Documentation”, the Medical Assessor made no reference to the claimant’s pre-accident medical history. The claimant says that the Medical Assessor only referred to the claimant’s post-accident medical records.
The insurer further submits that under the subheading “Determinations – Treatment and Care – Causation”, the Medical Assessor again made no reference to the claimant’s pre-accident medical history. The insurer says that the Medical Assessor noted complaints of neck pain by the treating chiropractor two days after the accident, there is no mention, nor analysis of the fact the claimant was complaining of neck pain radiating across the shoulders and restricted range of movement only two days before the accident.
The insurer submits that the only reference to pre-existing neck pain referred to in the decision was in the context of the Medical Assessor referring to the opinion of Dr Stanford, orthopaedic surgeon. The Medical Assessor noted at page 7 of his certificate:
“Dr Stanford considered that there was long-standing neck pain prior to the accident. However, Mr Beaty has stated that this is not true.”
The insurer says that the Medical Assessor failed to engage with the insurer’s clearly articulated argument that the claimant had long-standing neck pain (as correctly identified by Dr Stanford), but also, the Medical Assessor appears to have accepted at face value the claimant’s denial of long-standing neck pain, which was directly contradicted by the available evidence.
The insurer says that the Medical Assessor went on at page 8 of his certificate, to reason:
“It may well be that there were chronic degenerative changes in the cervical spine prior to the accident but Mr Beaty was working full-time as an arborist and attending the gym 3 times a week without any restrictions and he appears to be asymptomatic immediately prior to the accident. It is my opinion that the subject motor vehicle accident has contributed to changes in the cervical spine in the sense that there has been persistent radiation of pain down the arms from the cervical spine associated with severe neck pain which has only developed after the accident.”
The insurer submits that again, the Medical Assessor failed to engage in the insurer’s argument that the claimant was symptomatic immediately prior to the accident, and, that the claimant’s neck pain was present immediately prior to the accident.
GROUND 2 – improperly, incorrectly and erroneously considered the evidentiary position
The insurer says that the Medical Assessor improperly, incorrectly and erroneously considered the evidentiary position in determining that:
(a) the claimant’s neck was asymptomatic immediately prior to the accident, and
(b) the claimant’s neck pain only developed after the accident.
The insurer refers to and relies upon the medical evidence set out in paragraphs 4-9 of the insurer’s submissions.
GROUND 3 – overlooked the evidence
The insurer submits that the fact the claimant was complaining of neck pain radiating across the shoulders and had restricted range of movement only two days prior to the accident, was important evidence which was overlooked by the Medical Assessor.
The insurer says that this was evidence that directly contradicted the Medical Assessor’s findings that the claimant’s neck was asymptomatic immediately prior to the accident and the claimant’s neck pain only developed after the accident.
GROUND 4 – failed to give proper consideration to the objective evidence
The insurer submits that the Medical Assessor failed to give any consideration to the objective evidence that the claimant had long-standing neck pain and experienced neck pain only two days prior to the accident.
Insurers further submissions dated 21 December 2021
The insurer says that the dispute before the Medical Assessor is whether or not the requested consultation with Dr Mobbs is related to the injuries sustained in the subject motor vehicle accident.
The insurer says that the claimant had a phone consultation with Dr Mobbs, neurosurgeon, on 21 July 2021. The insurer says that Dr Mobbs was consulted in relation to the claimant’s alleged injuries of the cervical spine.
The insurer submits that on 13 September 2021, the insurer wrote to the claimant informing him that the treatment consultation by Dr Mobbs on 21 July 2021 would not be funded.
Pre-accident medical history
The insurer says that the claimant has a documented, pre-accident history of symptomatic neck pain.
The insurer says that the claimant was involved in a prior motor vehicle accident in April 2010. The insurer refers to a pre-accident clinical note of Ramsay Street Medical Centre dated 16 April 2010, where he reported neck pain and rigidity following that earlier accident.
The insurer refers to a clinical note from Maroubra Medical Centre dated 4 January 2017, where it is recorded that the claimant reported suffering from neck pain.
The insurer says that the claimant reported to Associate Professor Shatwell that he had attended his chiropractor for intermittent neck and back problems since 2017.
The insurer refers to Kingsford Chiropractic clinical notes which it submits demonstrate treatment for low back pain and neck pain and stiffness from July 2017.
In a chiropractic clinical note dated 14 June 2017, the insurer says that it was reported the claimant had neck pain radiating across the shoulders and restricted range of movement. The insurer says that this was two days prior to the subject accident.
Post-accident medical evidence
The insurer says that after the subject accident, the claimant underwent an MRI of his cervical spine on 19 November 2018. This revealed cervical spondylosis with some foraminal narrowing at C5/6 and C6/7 bilaterally with disc bulging. The insurer submits this is degenerative related pathology only.
The insurer says that Dr Stanford, orthopaedic surgeon, reported on 1 February 2019 that there was no nerve compromise, no loss of neurological function on examination and that the findings in the MRI scan of the cervical spine were degenerative in nature. He stated there were “no injury related findings” made.
The insurer says that the examination by Dr Stanford was approximately seven months post-accident.
The insurer submits that the claimant sustained, at most, a soft tissue injury to the cervical spine in the subject motor vehicle accident. This soft tissue injury is submitted to have resolved in or around 2019.
The insurer submits that any neurological symptoms currently suffered by the claimant are unrelated to any injury caused the accident.
The insurer refers to a certificate of Medical Assessor Dixon dated 5 March 2020, when the claimant’s cervical spine was examined. The insurer says that Medical Assessor Dixon reported there was mild stiffness in the neck and tenderness. The insurer submits, however, that there was no gross neurological deficit of either upper limb.
The insurer noted that the claimant underwent a further MRI of the cervical spine performed on 9 December 2020. This insurer says that this revealed multilevel degenerative disc and facet joint disease, foraminal stenosis at C3/C4 bilaterally, C4/C5 on the right, C5/C6 bilaterally and C6/C7 bilaterally, with potential C4, C5, C6 or C7 nerve root impingement.
In a report dated 28 January 2021, Dr Dao, orthopaedic surgeon, reviewed the claimant following his left shoulder supraspinatus repair and biceps tenodesis. The claimant was said to be progressing well and only reported the occasional ache in the shoulder. The insurer commented that on examination, it was noted the claimant had full shoulder range of motion (ROM) except for internal rotation. Neurovascular examination was intact and Jobe’s test was negative. The insurer says that there was no mention of any cervical spine pain or injury.
The insurer noted that the claimant underwent cervical spine flexion/extension X-rays, bone scan and SPECT CT on 20 May 2021. This revealed bony stenosis most severe on the left at C3/4, C5/6 and C6/7, stenosis most severe on the right at C3/4, C4/5, C5/6 and C6/7 due to both facet and uncovertebral hypertrophy. There was multilevel endplate, uncovertebral and facet joint degenerative uptake, most active in the left C3/4 facet joint and right C6/7 uncovertebral joint.
The insurer relies on the report of Associate Professor Shatwell, orthopaedic surgeon, dated 27 July 2021.
Associate Professor Shatwell examined the claimant and reviewed the radiological investigations and medical evidence. He said that the claimant’s neck pain was due to the widespread chronic degenerative disc disease in the neck, noting the claimant had longstanding neck pain for many years and previous injuries.
Associate Professor Shatwell reported the claimant likely had soft tissue injuries in the neck caused in the subject accident which he said would have settled in a matter of few weeks, and that the claimant’s ongoing symptoms were caused by the degenerative disc disease that pre-dated the accident.
The insurer says that in particular, Associate Professor Shatwell stated that the chronic degenerative disc and facet joint disease in the neck was constitutional and the reason for the surgery. The insurer says that Associate Professor Shatwell therefore did not consider the operation proposed as reasonable and necessary.
The insurer submits that the need for the consultation with Dr Mobbs is in relation to a progression of the claimant’s degenerative condition, rather than any injury suffered in the subject motor vehicle accident. The insurer submits that consequently, any requirement for neurosurgical consultation is not causally related to the subject accident and thus, not reasonable, and necessary in the circumstances.
Claimant’s submissions
The claimant has provided one set of submissions for this application and the related claim R-M10551742/22.
The claimant notes that the disputes relate to:
(a) whether the surgery to the cervical spine was caused by the motor accident and was reasonable and necessary;
(b) whether the treatment consultation with Dr Ralph Mobbs, Neurosurgeon, on 21 July 2021 related to the injury caused by the accident, and whether the consult was reasonable and necessary.
The claimant says that the insurer appears to be attempting to appeal the findings on causation of injury.
The claimant says that the insurer's submissions contend that "the chiropractic clinical note reported the Claimant had neck pain radiating across the shoulders and restricted range of movement" two days prior to the accident. The claimant notes that the referenced chiropractic note date is 14 June 2017, whereas the date of the accident was 16 June 2018. The claimant says that this is clearly not "2 days only prior to the accident", as the insurer submits. This is one year and tto days prior to the accident. Moreover, the claimant submits that a record of neck pain is not suggestive of an injury and there was no evidence before the Medical Assessor that the claimant had a prior injury to his neck. There was no record of a diagnosed prior neck injury, and the Medical Assessor noted that the need for the MRI scans and the referral to the neurosurgeon, Dr Ralph Mobbs, was only brought about after the motor accident of 16 June 2018.
Further, the claimant refers to the insurer submitting that the Medical Assessor "made no reference whatsoever to the Claimant's pre-accident medical history". The claimant says that this is not correct. The claimant says that the Medical Assessor noted, at paragraph 5 of his certificate, the documents considered in the Application and Reply.
The claimant submits that the Medical Assessor noted having reviewed the clinical records of general practitioner (GP), Dr Kiang, which span back to 2009. The claimant says that the insurer referred to a clinical note record of neck pain in 2010, which the claimant confirmed was eight years prior to the subject motor accident, which the claimant says was not investigated, not diagnosed as an injury, and no treatment ensued. The claimant says that it is not clear why the insurer made reference to this note.
The claimant says that it is unreasonable to expect the Medical Assessor to address and comment on every possible clinical note entry that the insurer wishes to point to in support of its submissions.
Further, the claimant submits that the Medical Assessor does consider the insurer's submission that the claimant may have had degenerative changes in the cervical spine prior to the accident. The claimant refers to page 7 of his certificate, where the Medical Assessor references the report of Dr Stanford, orthopaedic surgeon, commissioned on behalf of the insurer, and sets out the reasons for his findings and comes to the conclusion that the subject accident has caused the claimant to sustain an injury to the cervical spine. The claimant reinforces that the Medical Assessor states that "there is no doubt" that the claimant sustained an injury to his cervical spine in the subject accident. The claimant submits that the Medical Assessor makes reference to both the opinions of Dr Stanford and Associate Professor Shatwell, commissioned on behalf of the insurer.
As to the second ground of review, the claimant says that the "evidence" which the insurer refers to at paragraphs 4-9 of its submissions are of very little significance, and the submissions of the insurer are in fact incorrect.
The claimant says that in the insurer's main submissions in reply to the treatment dispute application, at paragraph 5, it concedes that the MRI of the cervical spine on 19 November 2018, post-accident, revealed cervical spondylosis with some foraminal narrowing at C5/6 and C6/7 bilaterally with disc bulging. It is submitted that this finding constitutes verifiable 3radiculopathy and there is no basis on which the insurer asserts that the claimant's injuries are degenerative in nature.
Regarding the third ground of review the claimant says that the insurer has again referred to the incorrect assertion that the claimant was complaining of neck pain two days prior to the accident. The claimant reiterates that this is incorrect. Secondly, the claimant says that the Medical Assessor considered all of the evidence and also the insurer's submission about the claimant's prior complaint of neck pain. The claimant submits that ultimately, the Medical Assessor was entitled to reach the conclusions which he did.
As to the final ground of review, the claimant says that the Medical Assessor did in fact give consideration to the evidence of allegation of prior complaint of neck pain. The claimant says that the Medical Assessor gave a detailed explanation relating to the injury caused pain to be material.
Medical evidence
The insurer relied on a medico-legal opinion of Dr Journeaux. This assessment was undertaken on the papers. Dr Journeaux did not perform an examination of the claimant and concluded on the balance of probabilities if the left shoulder had been injured in the subject accident it would have occurred in the background of pre-existing age and constitutionally related degeneration. In coming to that decision, Dr Journeaux felt there was lack of contemporaneous complaint of injury that the left shoulder had been injured in the subject accident.
With regard to this report, the claimant has submitted that little weight should be given to it as the mechanism of the accident and the finding of the onset of left shoulder symptoms was not elucidated and that the report made no reference to the severity of the collision. The claimant submits that in the accident, the insured vehicle went through a stop sign, striking the claimant’s vehicle at approximately 50kmph, hitting the car on the driver’s side, rotating it to the side before mounting a curb on the other side of the road and knocking down a nearby street pole. The vehicle was undriveable and was towed from the scene. The police report notes it was a major traffic crash.
Dr Journeaux did note the findings of the MRI of the left shoulder showing a supraspinatus tear and a partial infraspinatus tear, and although noting it was biologically plausible to have injured his left shoulder, felt that the history and mechanism of injury was not consistent with causing a full thickness rotator cuff. He qualified this by saying, “obviously I have not personally taken a history from the claimant, nor examined him and have not been able to ascertain whether there were any non-motor vehicle related factors”.
The claimant has submitted that while there is evidence of degenerative change on MRI, if not for the subject accident, there would not have been tears in the claimant’s left shoulder. The claimant referred to the clinical notes of Ramsay Street Medical Centre, where the claimant last attended in 2012. Up to that time, there had been no reference to prior left shoulder complaints.
In the GP’s notes at the date of the accident, where he had been seeing the claimant for various ailments for three years since 22 August 2015, while there had been evidence of chiropractic treatment to the neck, there was no reference to prior left shoulder complaints which. Dr Journeaux did not acknowledge this in his report. The claimant has submitted that he suffered bilateral shoulder pain since the subject accident.
Two days after the accident, the clinical notes of Dr Bunting show that there was pain in both shoulders as well as left lower cervical pain extending to the left shoulder and there was also some sharp pain below the elbow to the left hand.
Documents from Eastern Beaches Chiropractic Clinic noted the claimant complained of pain in both shoulders when the claimant was reviewed on 18 June 2018, two days after the accident. Examination of left shoulder revealed the potential of a rotator cuff tear and an inability to abduct the arm and that there was subacromial impingement and swelling of the AC joint. It noted that there was marked pain on active range of motion testing of the cervical spine and there was dermatomal referral along C6 on the left with myotomal weakness at C5, C6/7.
It was further noted on review on 22 June 2019 that the left shoulder remained unchanged and was treated with chiropractic, mobilisation and dry needling and while that the active range of motion of the neck improved with chiropractic treatment, the pain levels remained the same.
An MRI of the left shoulder performed on 4 July 2018, showed supraspinatus tear and subacromial bursitis and partial infraspinatus tear and degenerative changes at the AC joint.
A GP questionnaire completed by Dr Kiang on 1 November 2018 diagnosed pain, secondary to whiplash injury, cervical spondylosis, C5/6 and C6/7 bilateral foraminal narrowing with disc bulging and symptoms recorded as well as pain to the left foot and toes, right shoulder, left hip, neck, jaw pain, right foot and toes, 5th digit.
This was repeated five months after the accident and as there was no mention of left shoulder pain, on the available contemporaneous evidence until six months after the accident, the insurer maintained its position, that the left shoulder was not injured in the subject accident.
When the claimant was reviewed by Dr Standford, orthopaedic surgeon on 3 February 2019 there was posterior neck and left shoulder pain following the accident. Dr Standford had not specifically addressed whether it was emanating from the cervical spine or in relation to the left shoulder.
Dr Dao in July 2019 noted an MRI of the left shoulder on 4 July 2018 where there was internal derangement of the left shoulder identified with a full thickness supraspinatus tear with thickening of the subacromial bursa and a partial tear of the distal infraspinatus A request was made to do arthroscopic surgery to the left shoulder with arthroscopic decompression, bursectomy, rotator cuff repair, plus or minus biceps tenodesis.
When the claimant presented to the chiropractor two days after the accident, he complained of pain in both shoulders and that neurological symptoms were present in the left lower cervical spine extending to the left shoulders where there was also numbness and there was pain at the elbow and paraesthesia distally to involve the wrist and hand. The Panel notes that this provides evidence of contemporaneous complaint of left shoulder symptoms two days post-accident, and cervical radicular complaint.
An MRI of the right shoulder on 5 September 2019 showed some tendinosis with a partial tear of the footprint of the subscapularis and supraspinatus with bursal surface fraying, subacromial bursitis and spurring of the under surface of the acromion with AC joint degenerative change and fraying of the long head of the biceps tendon which remains in the biceps groove and regular superior labrum with degenerative tearing and some tearing of the anterior labrum with no chondral lesion or capsulitis.
X-Rays of both shoulders on 28 December 2018 showed there was moderate degenerative change at the left AC joint with subacromial spurring. There was normal alignment of the glenohumeral joint and no significant degenerative change at the glenohumeral joint.
On the right there was moderate degenerative change at the AC joint with minor subacromial spurring with mild degenerative change in the glenohumeral joint and a smaller bony ossicle adjacent to the inferior margin of the glenoid with normal alignment of the glenohumeral joint.
A bone scan and CT of the cervical spine dated 20 May 2021. This reported multilevel endplate, uncovertebral and facet joint degenerative uptake most active in the left C3/4 facet joint and right CG/7 uncovertebral joint.
X-ray cervical spine dated 20 May 2021. This reported 3mm anterolisthesis of the C3 with respect to C6 on flexion and extension. There was bony foraminal stenosis on the left C3/4, CS/6 and CG/7 as well as on the right at the same levels due to facet and uncovertebral hypertrophy.
MRI cervical spine dated 9 December 2020. This reported multilevel degenerative disc and facet joint disease with foraminal stenosis at C3/4 bilaterally, C 4/5 in the right, CS/C6 bilaterally and C6/C7 bilaterally with potential C4, CS, C6 or C7 nerve root impingement.
MRI cervical spine dated 19 November 2018 showed degenerative cervical spondylosis with disc degeneration at C2/3, C3/4, C4/5 and CS/6 with posterior discophytic bulging and foraminal narrowing bilaterally at CS/6 and C6/7.
MRI left hip dated 19 November 2018 showed early hip joint arthrosis and hamstring enthesopathy.
Medical Assessor Dixon assessed the claimant for a treatment dispute on 26 February 2020. He determined that there was a significant injury to the claimant’s cervical spine and shoulders.
The Medical Assessor said that on impact the console rose in the claimant’s car and he and his front seat passenger clashed heads. The claimant then hit his left shoulder on the console and within two days the claimant was having chiropractic treatment to the left shoulder and continued with acupuncture and therapeutic massage. He was referred for physiotherapy treatment and eventually had an MRI of the shoulder which showed complete rupture of the supraspinatus and partial rupture of the infraspinatus tendons.
The Medical Assessor said that the weight of evidence supports the claimant did injure his left shoulder with immediate chiropractic treatment to the area which was ongoing and MRI which showed complete rupture of the supraspinatus tendon and partial rupture of the infraspinatus tendon without muscle atrophy, consistent with recent trauma and that he is not going to further improve with ongoing conservative treatment and operative intervention by way of arthroscopic surgery which was causally related to the accident.
Medical Assessor Dixon determined that the left shoulder repair by Dr Dao and follow up physiotherapy was related to the accident and was reasonable and necessary.
Associate Professor Shatwell, for the insurer, in a report dated 27 July 2021 said:
“I consider that the neck pain is due to widespread chronic degenerative disc disease in the neck which has been shown on all of the examinations discussed. Mr Beatty has had longstanding neck pain for many years. He has had previous injuries to his neck approximately ten years ago and chiropractic treatment for many years.
In my opinion, there were soft tissue injuries to the cervical and lumbar regions which were caused by the accident in question. These would have settled within a matter of a few weeks of the accident and Mr Beatty returned to work after approximately ten days. The ongoing symptoms are not due to the effects of the soft tissue injuries sustained which have settled. The chronic problems Mr Beatty suffers from are related to degenerative disc disease with uncovertebral and facet joint arthritis in the neck. This is present at most levels.
I consider there may have been an exacerbation of symptoms caused by the accident described but these were not sufficient for Mr Beatty to attend hospital for investigation and analgesia after the accident. He sought help from his General Practitioner two days following the accident.”Associate Professor Shatwell provided a WPI assessment of 3%.
Dr Mobbs in his report of 1 September 2021 said:
“I believe there is a link between the injury sustained in the motor vehicle accident on 16 June 2018 and the patient's current presentation with cervical spine issues. Although the said accident would not be the only factor, I believe it is a significant contributing factor… I have run through a range of options with the patient such as to keep on keeping on, pain management, and surgery. Surgery would involve addressing the relevant discs at C3/4, C5/6 and C6/7… I have recommended a C3/4 TDR (disc replacement), C5/6 and C6/7 ACDF (anterior cervical discectomy and fusion)”.
Medical Assessor Moloney provided a certificate dated 23 November 2022. He found that the requested consultation with Dr Mobbs on 21 July 2021 was related to the injury arising from the accident and was reasonable and necessary.
He provided a summary of radiological and medical imaging as follows:
“A bone scan and CT of the cervical spine dated 20 May 2021. This reported multilevel endplate, uncovertebral and facet joint degenerative uptake most active in the left C3/4 facet joint and right C6/7 uncovertebral joint.
X-ray cervical spine dated 20 May 2021. This reported 3 mm anterolisthesis of the C3 with respect to C6 on flexion and extension. There was bony foraminal stenosis on the left C3/4, CS/6 and C6/7 as well as on the right at the same levels due to facet and uncovertebral hypertrophy.
MRI cervical spine dated 9 December 2020. This reported multilevel degenerative disc and facet joint disease with foraminal stenosis at C3/4 bilaterally, C 4/5 in the right, CS/C6 bilaterally and C6/C7 bilaterally with potential C4, CS, C6 or C7 nerve root impingement.
MRI cervical spine dated 19 November 2018. This reported degenerative cervical spondylosis with disc degeneration at C2/3, C3/4, C4/5 and CS/6 with posterior discophytic bulging and foraminal narrowing bilaterally at CS/6 and C6/7.
MRI left hip dated 19 November 2018. This reported early hip joint arthrosis and hamstring enthesopathy”.
Medical Assessor Moloney concluded:
“There is no doubt that Mr Beatty sustained an injury to his cervical spine in the subject accident.
It was recorded by the treating chiropractor 2 days after the accident after a collision with significant impact and later on by the treating GP who recorded whiplash injuries on 18 June 2018 and neck pain on 29 June 2018. He was later referred to Dr Stanford, an orthopaedic surgeon who did not consider that surgery was needed although at that time Mr Beaty had pain radiating down both arms into the fingers associated with numbness. Dr Stanford considered that there was long-standing neck pain prior to the accident. However, Mr Beaty has stated that this is not true. Due to persistent cervical spine pain with radiation in the upper limbs, Mr Beaty was referred to the neurosurgeon Dr Mobbs by his treating GP. Assessor Dixon in his certificate dated 5 March 2020 reported persistent neck pain causing difficulty with driving and sleep disturbance. At the time of his examination, he recorded dysmetria on testing range of movement of the cervical spine with the click on rotation with 1 cm wasting of the left forearm. I have determined that in view of this persistent cervical spine symptoms that it is reasonable for Mr Beaty to have a consultation with the neurosurgeon.
Mr Beaty actually consulted Dr Mobbs, the neurosurgeon on 17 March 2021. At that time, he recorded diminished reflexes in the upper limbs and restriction in extension of the cervical spine on examination with radicular nerve pain down the arms. He then referred Mr Beaty for flexion extension x-rays and bone scans of the cervical spine. The consultation was not to assess any lumbar spine, left hip, 5th right toe or shoulder injuries.”
Panel medical examination
The claimant was examined on behalf of the Panel by Medical Assessor Rosenthal and Medical Assessor Stubbs. Their report follows:
“HISTORY OF THE MOTOR ACCIDENT
Mr Beatty confirmed the circumstances of the accident and the history previously given to Assessor Shane Moloney in his certificate of 9 December 2022. The accident occurred on 16 June 2018. He confirmed that he was the driver of a Hyundai Tucson with his seatbelt on in a narrow street stopping for a car in the opposite direction when a P-plater came from the left, hit his car on the passenger’s side and pushed his car across the road into a pole. The pole struck the car on the driver’s side of the vehicle. His sister in the passenger seat was also injured in the accident. All airbags in the vehicle went off. His sister was taken by ambulance to Prince of Wales Hospital but Mr Beatty was checked over by ambulance officers and did not attend hospital. He subsequently attended his General Practitioner with his injuries which were essentially to his neck and left shoulder.
Most of his initial symptoms were in the left shoulder and left arm and he was referred to Dr Dao, orthopaedic surgeon, who did investigations on his shoulder and neck. He found three bulging discs in his neck and he was subsequently referred to Dr Stanford, neurosurgeon. In the meantime, Dr Dao did a rotator cuff repair on his left shoulder and he recovered well from the shoulder surgery. He did, however, continue to have neck pain following the surgery with pins and needles and pain down his left arm into his forearm and pins and needles in both hands.
He was seen by Dr Stanford in regards to his neck. Dr Stanford initially determined that no surgery was required and he required physiotherapy treatment. He had about 20 physiotherapy treatments but his neck symptoms worsened. He was taking a significant amount of painkillers including Endone.
Eventually, his GP referred him to Dr Mobbs. He had left arm radicular symptoms as well as some lesser symptoms in the right arm. Symptoms also radiated to his left shoulder blade region. He was getting electric shock feelings around his left shoulder and arm.
He ended up having a C3/4 disc replacement and anterior fusion of C5/6 and C6/7 by Dr Mobbs in November 2022, three weeks prior to the assessment with Dr Moloney.
Mr Beatty reports that the surgery gave him some relief but the nerve pain around his left shoulder has persisted. He has been told by the Orthopaedic Registrar that he requires a foraminotomy in his cervical spine to relieve the nerve pain.
He has had two nerve blocks performed around March 2023. The first one gave him slight relief for about two months but the second one only gave him very short term relief from the local anaesthetic.
CURRENT SYMPTOMS
He continues to have nerve pain around his left shoulder. He has ongoing neck pain. He gets burning pain into his forearm and into the mid fingers of his left hand associated with ongoing neck pain.
CURRENT TREATMENT
His current treatment is Lyrica 75mg twice a day. He is getting side-effects from the Lyrica including weight gain.
PRE-EXISTING CONDITION
It was brought to Mr Beatty’s attention that there is a record of pre-existing neck pain and shoulder pain and he had visited a chiropractor two days before the subject accident. Mr Beatty indicated that there were ergonomic issues with his workstation. Most of his work is office-based and administrative. He was getting some neck and shoulder aches and was offered five free treatments under Medicare. He said the symptoms prior to the accident were minor in regards to his neck and shoulders and there was a major change to those symptoms following the subject accident. It was noted that he was seen by a different chiropractor two days after the accident and the records of the consultations are noted within the documents. The new symptoms are recorded by Eastern Beaches Chiropractic Clinic on 18 June 2018 which was two days after the motor vehicle accident and these symptoms were confirmed by Mr Beatty.
PHYSICAL EXAMINATION
On examination, Mr Beatty walked with a normal gait and posture. He appeared to be in no significant distress.
He weighed 85kg and was 171cm tall.
There was a vertical scar over the anterior aspect of the right side of his neck approximately 10cm long which had healed well.
There was reduced movement at the neck without spasm or guarding. Flexion was reduced by one-third, extension of the neck was reduced at the extremes, side-bending or lateral flexion was reduced by one-third to both sides and rotation to left and right was reduced at the extremes. He had a positive Spurling’s test on the left.
Both shoulders exhibited a full range of movement with negative impingement signs. Range of motion measured with a goniometer is recorded in the table below:
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion
180°
180°
Extension 50° 50° Adduction 60° 60° Abduction 180° 180° Internal Rotation 80° 80° External Rotation 80° 80°
Upper arm measurements were 33cm on both sides, 10cm above the olecranon. Forearm measurements were 28cm on the right and 27cm on the left, 10cm below the olecranon. (He is right handed.)
The lumbar spine exhibited normal lumbar curvatures with no spasm or guarding. He had a full range of lumbar movements which were symmetrical including flexion, extension, lateral flexion and rotation which was marginally reduced to left and right at the extremes. His slump test was negative.
There were no neurological deficits in his lower extremities. Muscle power, tone and reflexes were normal and there were no sensory changes.
In the upper extremities, he had no neurological deficits. Muscle power, tone and reflexes were normal and there were no sensory changes.
OPINION
The Panel noted the history, in particular the history of the pre-existing symptoms which, in the Panel’s view, are not relevant to his current injury to the cervical spine which occurred from the motor vehicle accident. The cervical spine injury was initially masked by left shoulder symptoms and once the shoulder condition was addressed the cervical spine symptoms became more prominent eventually resulting in the surgery performed by Dr Mobbs.
The Panel notes that the surgery has not been completely successful in relieving the claimant’s symptoms. In terms of the treatment disputes the surgery requested by Dr Mobbs does relate to the injury and, in the Panel’s view, is reasonable and necessary in the circumstances. The Panel considered that there was likely some degenerative changes within the claimant’s neck prior to the accident but the pre-accident symptoms reported were relatively minor and there was a significant increase in his neck symptoms following the subject accident.
The Panel did not review any radiology at the examination and is reliant on the radiology reports which are not in dispute.
The Panel adopts the findings of Medical Assessor Stubbs and Medical Assessor Rosenthal.
Causation
The claimant was involved in an unexpected, sudden collision. His car was hit with sufficient force to push it off direction and into the path of a pole, which it knocked down. The car had to be towed away and was written off for insurance purposes.
The Panel is satisfied that the dynamics of the accident were such that the claimant would have been thrown around in his cabin, still restrained by his seatbelt, but his upper body would have been moving around with considerable velocity, only stopping when restrained by the seatbelt or by hitting other objects such as car panels and its console, as well as the passenger in the car, his sister.
The Panel is satisfied that with a collision of the force that occurred, the claimant would have injured his shoulders and strained his cervical spine.
The claimants treating chiropractor provided evidence of contemporaneous complaint of left shoulder symptoms two days post-accident. The Panel is satisfied that the claimant injured his left shoulder in the subject motor vehicle accident.
The Panel does not accept the submission of the claimant that he sought chiropractic treatment one year and two days before the accident. The clinical notes are chronologically sequential and show a complaint relating to sore shoulders on 16 June 2018, two days before the accident. However, the Panel questioned the claimant about this.
As the Panel has commented, the claimant said the symptoms prior to the accident were minor in regard to his neck and shoulders. Following the accident though, there was a major change to those symptoms. It was noted that he was seen by a different chiropractor two days after the accident and the records of the consultations are noted within the documents. The new symptoms are recorded by Eastern Beaches Chiropractic Clinic on 18 June 2018 which was two days after the motor vehicle accident and these symptoms were confirmed by Mr Beatty.
The insurer’s submissions dated 2 November 2019 noted that updated clinical notes from the GP and from Thomas Bunting, chiropractor had not been produced at that time, however, based on the available evidence, the insurer submitted the medical assessor would be satisfied there were no complaints in the claimant’s left shoulder in a six month period following the subject accident and that the first time there were any complaints of left shoulder pain was 14 December 2019. For the reasons already provided, the Panel does not accept this. There is clear evidence of contemporaneous complaint by the claimant of injury to his shoulders.
Conclusion
The Panel is satisfied that given the circumstances and nature of the accident, the claimant would have suffered injuries to both shoulders and his cervical spine. Consequently, the Panel has determined that a consultation with Dr Mobbs, neurosurgeon, on 21 July 2021 was both related to the injury caused by the accident and was reasonable and necessary.
Determination
The Panel affirms the certificate of Medical Assessor Moloney dated 30 November 2022.
The Panel determines that a consultation with Dr Mobbs, neurosurgeon, on 21 July 2021 was both related to the injury caused by the accident and was reasonable and necessary.
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