QBE Insurance (Australia) Limited v Bridge

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Bridge [2024] NSWPICMP 509
CLAIMANT:	Arnold Bridge
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Rhys Gray
MEDICAL ASSESSOR:	David McGrath
DATE OF DECISION:	29 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; whole person impairment (WPI); insurer’s application for review; claimant injured in rear-end collision; claimant alleged injury to lower back and neck and had fusion surgery to both; Medical Assessor (MA) found WPI at 20% for lower back injury which he reduced by one tenth for a pre-existing condition; MA found no evidence of a neck injury; insurer challenged decision on causation referring to Medical Assessment Certificate (MAC) in respect of lumbar spine surgery not allowed and said this certificate was binding on the Medical Review Panel, and Medical Review Panel could not allow WPI on the basis that surgery was not related to injuries caused by the accident; claimant’s solicitor advised no issue with assessment of neck injury; Held – cervical injury to be reassessed as claimant was of the strong view it was to be assessed; certificate about surgery not binding on Medical Review Panel; lower back could have been and was injured in accident; nature of injury soft tissue exacerbating degenerative change; exacerbation did not cause or material contribute to need for surgery; no current impairment; neck could have been and was injured in accident; nature of injury short-term soft tissue injury which resolved leaving no impairment; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Hyde Page dated 4 December 2023. 2. Certifies that the degree of Arnold Bridge’s permanent impairment resulting from the injuries caused by the motor accident on 17 June 2014 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Arnold Bruce Bridge was involved in a motor accident on 17 June 2014. Mr Bridge was 52 years of age at the time of his accident and is now 62 years of age. He was driving his utility and had stopped due to a protest march near his workplace. The vehicle travelling behind him failed to stop and collided with the back of Mr Bridge’s vehicle.
Mr Bridge says he injured his neck and back in the accident which led to surgery, and he has scarring from that surgery. Mr Bridge made a claim for damages against QBE, the third-party insurer of the vehicle that rear ended his vehicle.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and Mr Bridge referred that dispute to the Personal Injury Commission (Commission) for assessment.
On 4 December 2023, Medical Assessor Hyde Page determined that Mr Bridge had a WPI of 18% primarily on the basis he considered the claimant’s lumbar spine surgery was related to the injuries sustained in the accident.
The insurer lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 23 January 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review to proceed. On

1 February 2024 the President’s delegate convened this Review Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General

Mr Bridge’s claim and entitlements to compensation are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter is relevant as well as Chapter 13, the skin.

Dispute resolution

If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Hyde Page’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Hyde Page’s certificate was issued on 4 December 2023 after a re-examination on 16 November 2023.
At [2], the Medical Assessor confirms he was asked to assess the following injuries:
(a)    cervical spine – whiplash injury causing three level disc protrusions and cervical spine fusion surgery;
(b)    lumbar spine – whiplash injury causing L4/5 and L5/S1 disc protrusions requiring lumbar spine fusion surgery, and
(c)    scarring as a result of the two surgeries.
Medical Assessor Hyde Page had this history:
(a)    the claimant lived on his own in a caravan and managed without assistance;
(b)    he has not worked since the accident and has been in receipt of Centrelink payments;
(c)    his health was good, and he gave no history of pre-accident complaints or injury;
(d)    before the accident he had some niggling low back pain on occasions, but he received no treatment for this;
(e)    after the accident the claimant got out of his car, exchanged details with the offending driver and continued on to work;
(f)    he worked for an hour but developed lower back pain with tingling down his legs and reported it to his supervisor and an ambulance was called. The claimant was taken to Gunnedah hospital, investigated and discharged;
(g)    the claimant lived with his brother for a few months;
(h)    the claimant had pain management at a clinic;
(i)    the tingling in his legs settled but he had persisting back pain;
(j)    he never returned to work, and
(k)    Dr Abraszko operated on his lower back in June 2020 and in May 2022 on his cervical spine.
The claimant had a second motor accident in January 2022. Mr Bridge was riding a motorbike at about 100kmph when he came off his bike. He was airlifted to John Hunter Hospital and discharged after two days.
Mr Bridge reported ongoing neck pain with some pain radiating to the top of his right shoulder. He also reported some ongoing lower back pain but no sciatica or radiating pain.
On examination of the neck, Medical Assessor Hyde Page records there were reasonably full movements with no muscle guarding or dysmetria and no neurological signs in the upper limbs. In the lumbar spine, there were also reasonably full movements with no dysmetria or muscle guarding and no neurological symptoms in the lower limbs.
After reviewing some of the medical reports, Medical Assessor Hyde Page at [22] said the accident aggravated the claimant’s underlying degenerative disc disease which was advanced but minimally symptomatic and which led to the lumbar fusion.
He found no evidence of a cervical spine injury caused by the accident and noted the significance of the January 2022 accident.
When assessing impairment, he considered the claimant satisfied the criteria of DRE Category IV which resulting in a 20% WPI from which he deducted 10% due to pre-existing degenerative disc disease. He did not allow any impairment for scarring.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer’s submissions in support of the review take issue with the Medical Assessor’s finding of causation in terms of the lumbar spine injury and impairment resulting from it for the following reasons:
(a)    the insurer had made submissions to the Medical Assessor that the lumbar spine condition was pre-existing;
(b)
the insurer had referred to documents that the Medical Assessor did not engage with, including a pre-accident MRI report of the cervical spine dated

8 February 2014;
(c)    Medical Assessor Ashwell determined on 22 February 2018 that the proposed lumbar surgery was not causally related to the accident and was not reasonable and necessary. The insurer submitted that Medical Assessor Ashwell’s decision is “binding regarding the nature of the claimant’s lumbar spine injury and the lumbar spine injury cannot attract a finding of whole person impairment”, and
(d)    the Medical Assessor deducted one tenth for pre-existing impairment without further reasons and it is not in line with the contemporaneous medical evidence.

Claimant’s submissions

The claimant refers to the insurer’s submissions to the original assessor that he was bound by Medical Assessor Ashwell’s certificate in relation to the nature of the claimant’s lumbar spine injury and the surgical dispute. The claimant says Medical Assessor Hyde Page was not so bound and cited Adams J in Allianz Australia Insurance Limited v Girgis (2011) NSW SC 1424. The claimant says the Medical Assessor was required under the legislation to determine the injury caused by the accident and the degree of permanent impairment resulting from that injury and he has done so.
The claimant says the insurer did not take issue with the Medical Assessor’s determination that the claimant’s neck injury and surgery was not related to the accident.
The claimant says Medical Assessor Hyde Page did engage with the issue of causation referring to the medical evidence and the radiology before finding that the accident had aggravated an underlying degenerative disease of the lower back which had previously been only minimally symptomatic.
The claimant also says there was an explanation provided for the one tenth deduction.

Procedural matters

On 2 February 2024 the Panel issued directions to the parties for bundles. The insurer’s bundle of relevant documents was due on 21 February 2024 and the claimant’s bundle was due on 8 March 2024.
The Panel met on 20 March 2024. At the time of this preliminary conference neither party had complied with the directions from the Panel.
The Panel reported to the parties the next day and noted at [4] that the Medical Assessor had been asked to assess three injuries, the lumbar spine, the cervical spine and surgical scarring. The Panel observed at [5] that the submissions from the parties did not challenge the Medical Assessor’s findings that the cervical spine surgery and impairment was not related to the accident and the claimant was asked to confirm this.
The Panel also observed that the insurer does not appear to challenge that a lower back injury occurred in the accident but that it is the nature and extent of the injury that is in dispute and the relationship of the surgery to the injury. Finally, the parties were asked to see if they could agree on the degree of impairment relevant to the skin and surgical scarring.
The Panel noted it had no pre-accident records or a copy of the 8 February 2014 MRI referred to in the insurer’s submissions and the Panel also noted the insurer’s submissions about the binding nature of the decision by Medical Assessor Ashwell in respect of the claimant’s lumbar surgery and its relationship to the accident.
The Panel requested some additional documents and advised the parties of the medical assessment with Medical Assessors McGrath and Gray on 20 June 2024. Directions were made for final submissions with the claimant’s due on 19 April 2024 and the insurer’s submissions due on 3 May 2024.

Final submissions

Insurer’s submissions

The insurer advised the Panel there was no 8 February 2014 MRI and that there had been a typographical error in the submissions and the date of the MRI should have read

22 August 2014.
In terms of scarring the insurer said there should be no impairment allowed on the basis of Dr Bosanquet’s finding.
The insurer provided limited workers compensation documents including the report of

Dr Davies and provided pre-accident medical records from Mudgee Medical Centre.
The insurer maintained its submission that Medical Assessor Ashwell’s certificate was binding as to whether the L5/S1 laminectomy is related to the injuries caused by the accident and whether the procedure was reasonable and necessary treatment. The insurer says that the claimant never challenged that decision and that, as the need for the lumbar spine surgery was not caused by the accident, there can be no WPI resulting from it.

Claimant’s response

The claimant responded on 18 June 2024 advising that the claimant did not seek a review of the findings in respect of the neck injury. He also said scarring should be assessed at 2% or 1% based on the assessments of Dr Abraszko and Dr Millons.
The claimant notes there are no other pre-accident documents but draws the Panel’s attention to two pre-accident medical questionnaires associated with the claimant’s employment.

Final preliminary conference

The Panel met again on 8 July 2024. The re-examination findings were discussed, and the dispute determined.

REVIEW OF THE EVIDENCE

The parties complied with the Panel’s second directions and uploaded bundles to the portal. The claimant’s bundle comprises 349 pages and the insurer’s 272 pages.

Claim form and claim documents

Mr Bridge made a workers compensation claim on the basis he was on his way to work. His handwritten claim form appears to be dated 17 June 2014 the same day as the accident. In terms of the parts of body injured he says, “lower back” and says he has “pain in lower back.” He identified his treating doctor as Dr Gittoes.
The claimant’s employer completed an accident / incident form noting the nature of injury as “facet joint paint” and that the lower back was injured.
Mr Bridge’s motor accident claim form is dated 16 October 2014.[5] He identifies the date and location of the accident and says police did not attend the scene of the accident but that he reported it. Mr Bridge says he was the driver, wearing a seatbelt and that he had not consumed drugs or alcohol in the 12 hours before the accident.
[5] Page 18 of the claimant’s bundle.
Mr Bridge describes the accident saying he heard an engine “roar” and felt a “large impact” from behind.
Mr Bridge identifies at question [25] that he has cervical, thoracic and lumbar back pain and that he cannot sit or stand for long and the only comfort he gets is lying on his bed.
He says he was taken to Gunnedah Hospital and has had treatment from Dr Gittoes his general practitioner (GP) and Dr Spittler, neurosurgeon.
At [34] he identifies a 1996 back injury (pulled or strained) but says he has never made a claim before.
Dr Gittoes has completed the Medical Certificate saying he examined the claimant on

31 July 2014 but first saw him on 24 June 2014. In answer to the request for a medical diagnosis or description of injury, the doctor says that the claimant was under ongoing investigation and has been referred to a neurosurgeon. He says he has been the claimant’s doctor since 31 July 2014 and has signed the medical certificate on that date and that any similar condition is “unknown”. Dr Gittoes had attached to the medical certificate a copy of the referral and clinical findings.
On 30 April 2015 the insurer denied liability while they investigated the claim and on

4 June 2015 QBE admitted liability for the claim.

Claimant’s statements

The claimant gave a statement to the workers compensation insurer’s investigator on

28 July 2014.[6] He says:
(a)    he felt the impact throw him forward “I remember thinking about my back straight away”;
(b)    he did not hit the car in front and there was no real damage to his ute;
(c)    the other driver said his foot slipped onto the accelerator. Mr Bridge saw some slight damage to the other car;
(d)    he details his immediate treatment;
(e)    he discloses a pulled muscle in is back “years ago” and that he had no problems with his back after that, and
(f)    there were apparently issues with the police over his license or number plate and there was some confusion over the name of the driver of the other car. The claimant said he did not have his glasses on and may also have misheard the driver’s name.
[6] Page 25 of the claimant’s bundle.
The claimant provided a statement dated 17 August 2021.[7] In it he documents his domestic situation and his work experience. Since leaving school he worked on a cotton farm, at BHP at the blast furnace, earthmoving, nine years in the army and then more earthmoving works associated with mining in the Hunter Valley and elsewhere.
[7] Page 53 of the claimant’s bundle.
Mr Bridge discloses at paragraph [13] of his statement an incident in about 2000 when he strained his back and had six weeks off work. He does not remember seeing a doctor and said he worked for the next 15 years without a problem. He also discloses a left elbow injury and shoulder complaint at [14].
Mr Bridge describes the accident in some detail at [18]. Mr Bridge says that he got out of the vehicle and obtained the details of the other car and its driver. He says about 500m down the road “I started to feel a tingling sensation in my lower back, down to both my knees.” He continued on to work and started work however at some stage “the pain in my back started and kept throbbing and it got to a stage where I was unable to continue”.
At [19] Mr Bridge says that he had a tow bar and tow ball on his vehicle and the other car had a bull bar. He does not describe at [20] any damage to his vehicle, but a dint near the number plate of the car that hit him.
The claimant says at [24] he was taken to hospital on 17 June 2014 where he complained of lower back and middle back pain and at [24] that he then saw Dr Gittoes on 24 June 2014,

8 July and 31 July 2014. He says at that time he was experiencing pain in his back which was constant and aggravated by sitting, standing and walking.
The claimant says at [26] he was referred to Dr Spittaler and saw him on 7 August 2014 and that he recorded pain between the shoulder blades as well as in the lower back and tingling in his legs. He says he had an MRI of his neck and lower back on 22 August 2014.
Mr Bridge provides a very detailed account at [28] – [40] about the doctors he has seen and the original medical assessment by Dr Ashwell on 16 February 2018.
He says he had a spinal fusion on 4 June 2020 performed by Dr Abraszko [44].
Mr Bridge said at [46] that in April 2018 he lost his driver’s license due to cannabis use and got it back in March 2019.
Mr Bridge says at [66] – [69] that he has back pain which has improved and altered since his surgery, pain between his shoulder blades and neck pain.
In a second statement (undated and unsigned) the claimant says he had neck surgery on

4 May 2022. He says in January 2022 he was involved in a motor bike accident and developed neck and thoracic tenderness after that.
Mr Bridge says that after the neck surgery his neck has improved but that it is not as good as before the accident.

Treating medical records and reports

Before the accident

The claimant has provided a medical examination report from 2010 which certified the claimant fit for work. Another medical examination report from April 2014 also certified the claimant as being fit for work. Neither discloses any musculo-skeletal issues.

The insurer has provided records from Mudgee Medical Centre which document eight visits from October 2009 and February 2013 none of which indicate any issue with the claimant’s lower back, thoracic spine or neck.
On 15 January 2013 the claimant saw Dr Bryant at the practice and reported increasing depression. He was said to live on own, he had been charged with assault, caught up in a relationship scam and was caught using cannabis on a test at work. There was a note of “poor concentration, poor memory, depressed mood. Start Effexor”.
On 12 July 2013 Dr Egan at the practice noted “wants a skin check; Wilpinjong[8] also says he has spur left heel – PH [past history] disc problem in his back”.
[8] Apparently a reference to a mine situated between Mudgee and Cassilis in Central West of NSW.

After the accident

Ambulance records note:
(a)    back pain time of onset 17 June 2014 at 7:00am;
(b)    billing type - motor accident;
(c)    case nature - “musculoskeletal problem” occurrence 17 June 2014 at 6:00am;
(d)    the case description was - “male patient with gradual onset back pain post MVA at 6.00 this am”;
(e)    the claimant was said to be alert and oriented and complained of central lumbar back pain radiating to the hips with abnormal sensation in both legs. There was normal movement and sensation, and no abnormality was found on spinal examination. The claimant was said to be “pain free whilst immobilised and supine”. There is no reference to neck pain, and
(f)    the ambulance arrived at about 9:48am and departed at around 10:03am arriving at Gunnedah Hospital at about 10:39am.
Hospital records include a note on triage at 10:50am. The speed of the car that rear ended the claimant was said to be unknown. The claimant’s vehicle was said to be stationary. The airbags had not inflated. There is a mention of lower lumbar spine pain and altered sensation in both legs. His pain was said to have increased, he stopped work and his employer called the ambulance. It is noted “On arrival to Gunnedah Hospital pain free.” It is also noted “Nil pain. Nil strange sensation in legs when lying still.”
There is no reference to neck pain.
The handwritten note at 11.50am says:
“according to patient this am on his way to work. Police stop his car on the road for check-up. His car was at complete stop. Another car hit his car at rear. During accident he was in the car, no loss of consciousness, no head injury. Air bag not deployed. Speed of other car was 5 – 10 m per hour. After accident walked out of car, no pain or problem. Went to work. While at work noticed increasing back pain.”
The handwritten hospital notes also record pain mainly in the lower back with no radiation and the claimant was able to walk. There was a normal cervical spine and in the lower back tenderness at L2/3 with restricted flexion and extension.
Dr Anwar of Gunnedah Hospital provided a Workcover medical certificate on 17 June 2014. He diagnoses a lower back injury with “?facet joint pain”. He referred also to chest and lower back X-rays, analgesia, and follow up with GP in one week.
A doctor from the Gunnedah Rural Health Centre signed a workers compensation certificate of capacity on 8 July 2014.
The first time the claimant was said to have been seen at the practice was 24 June 2014 and the injury is noted as “low speed MVA, he was stopped (1 ton tray back) and car behind moved forward and hit him. Now complaining of low back pain and bilateral leg weakness, legs collapse, nil falls as yet”. Also in the notes was that the claimant had a problem with his lumbar spine 20 years ago.
Dr Gittoes provided a medical certificate on 24 June 2014 certifying the claimant unfit for work until 8 July 2014. On 8 July Dr Gittoes referred the claimant to Dr Spittaler saying, “he has ongoing lumbar and thoracic back pain”.
Dr Gittoes consultation note of 31 July 2014 says:
“Six days since MVA
-    On way to work, sitting in parked truck when rammed in the back of truck by another car – 30km/h wearing seatbelt;
-    Nil loss of consciousness;
-    Tingling in pain and back within minutes followed by thoracic and lumbar back pain – no other injuries;
-    Constant throbbing pain 5/10 aggravated by sitting, standing and walking. Relieved by lying flat
-    Lumbar pain associated with tingling senstaion along both legs to feet
-    Lost balance sometimes when walking
-    No loss of bladder and bowel”
When examined by Dr Gittoes the claimant had a wide antalgic gait with reduced hip flexion and extension. There were no signs of inflammation, and the cervical spine range of motion was intact. The claimant was tender to palpation over T5-10 and L2-4. Sensation in the legs was intact and active and passive leg raising was reduced. Reflexes were present, brisk and consistent.
Dr Spittaler provided a report dated 7 August 2014. He notes the claimant had a headrest and an airbag which did not deploy. The claimant had not returned to work, and he was taking Tramal twice a day. His pain was interscapular and lower back with tingling in the legs. The claimant reported that his back and leg pain worsened on the day of the accident after operating a bulldozer at work.
Dr Spittaler[9] requested an MRI of the neck and lower back and recommended physiotherapy.
[9] Page 100 of the claimant’s bundle.
On 25 September 2014 Dr Spittaler wrote to Dr Gittoes again reviewing the MRI. In terms of the neck, he noted marked disc degeneration but no evidence of acute injury. While there was an osteophyte at C6/7 producing some left C7 root compression the claimant was not complaining of any symptoms as a result. He does note however the claimant’s “cervical and lumbar pain continues”.
In terms of the lower back, he noted the degenerative changes and spondylolisthesis and did not recommend surgery. He recommended pain management and clinical review.
Dr Spittaler provided a work cover certificate noting injuries to the cervical and lumbar discs.
A report dated 17 October 2014 form Dr Kriek in Mudgee refers to back pain only under his arms and ribs. The claimant was certified unfit for work and several other certificates were issued. The entry in Dr Kriek’s notes state that after the accident, when the claimant went to work, he was deployed to a digger the vibrations from which caused the sudden onset of severe back pain and it was that that resulted in the trip to hospital.
Physiotherapy records from January 2015 note sharp central low back and neck pain. There was also sharp burning pain to the knee with pins and needles. The claimant said he was unsteady on his feet.
Dr Russo, pain specialist provided a report to Dr Spittaler dated 29 January 2015. The claimant reported he was the driver of a utility rear ended with no significant damage. “He reports the immediate onset of low back pain and mid thoracic pain, and that pain has continued.”
The pain was “dull and aching in nature” and there was no burning or paraesthesia or anaesthesia. Mr Bridges described only thoracic and lumbar spine pain. He was taking Lyrica and Tramal with the improvement.
He reviewed the MRI and undertook some psychometric testing which revealed:
(a)    mild anxiety, extremely severe depression but no stress;
(b)    more than two deviations below average on the pain self-efficacy questionnaire;
(c)    there was “severe fear of exercise / re-injury to predict disability”, and
(d)    there was “significant catastrophising present”.
Dr Russo then set “this is a set of significantly impaired psychometric test scores indicating an adverse cognitive and behavioural response to persistent pain in the presence of an underlying depression.”
On examination there were no neurological deficits in the upper or lower limbs. Thoracic range of motion was relatively unrestricted and lumbar range of motion was unrestricted. Musculoskeletal examination was normal.
Dr Russo recommended a self-help workbook, pain management, a trial of Palexia in place of Tramal and Pristiq to treat the underlying depression.
Dr Kriek referred the claimant for psychological treatment on 16 March 2015. The referral refers to back pain only.
On 7 July 2015, Dr Kreik referred the claimant back to Dr Spittaler. He includes in the referral “significant ongoing pain – right lumbar shooting, sciatic pain, less so on left”. He also refers to the claimant still having a stiff neck. The claimant referred to losing his balance and falling including the day before. Dr Kreik indicated he had referred the claimant for a CT scan of his brain.
On 9 September 2015, Dr Spittaler wrote to the insurer. The claimant was complaining of vertigo, neck pain, back pain and left leg sensory disturbance.
On 9 September 2015 Dr Spittaler also wrote to Dr Kriek advising that as there was no significant right leg pain there should be no surgery, but if right sided sciatica developed the surgery would be reconsidered. He referred the claimant back to Dr Russo for further pain management.
The claimant did not go back to Dr Russo but attended Dr Thong of Bathurst. That doctor has a history of the accident, the immediate development of tingling and then pain in the lower back and in the upper spine, cervicothoracic and interscapular region. Dr Thong records the claimant had physiotherapy to his neck and back but when it stopped the neck pain became worse.
The claimant reported dysesthesia in the chest wall and axillary region and said he had radicular symptoms in both legs.
The claimant said he had seen a psychologist in respect of his pain, and a psychiatrist for an unrelated matter.
Mr Bridge was reported to use cannabis “whenever he can get it”.
Dr Thong says the claimant suffered musculoskeletal injury from the accident which may have caused damage to the L5/S1 disc and is likely to have aggravated mild asymptomatic degenerative changes in the spine. The neck pain was attributed to musculoskeletal causes, but his range of motion was said to be normal.
Dr Thong made a number of recommendations apparently stressing the psychological element, referring to a poor relationship with his boss and the need to attend physiotherapy and participate in a pain program.
Dr Kreik referred the claimant to Dr Crossley in Dubbo for investigation of his “antalgic gait”.
Dr Thong provided a report to Dr Moore of Mudgee on 10 December 2015. The report commences noting there was a difficult consultation, and the claimant was a vague historian unable to clearly explain medical treatment referral or medications.
The claimant reported chronic back pain, chronic neck pain and chest shoulder and interscapular dysesthesia.
There is confusion recorded as to the claimant’s scripts. He could not remember what some of them were and where he was getting them from. The claimant was using cannabis and last used the day before. Dr Thong refers to the claimant walking normally into the examination but leaving with a “bizarre long stride”. He suspected either a somatoform disorder or behaviour secondary to gain. He recommended a functional assessment and noted “he does not seem to want to return to work”.
Dr Moore GP wrote to the workers compensation insurer on 12 June 2016. He had taken over from Dr Kreik as the claimant wanted a second opinion and he referred to the claimant seeing Dr Russo, Dr Spittaler and Dr Thong. He says when he first saw the claimant “I was struck by his unusual long striding gait.” The claimant was referred to Dr Hawke in Orange (neurologist). Dr Moore said the claimant had chronic neck and back pain, he was unclear on the claimant’s medications and considered the claimant was unable to return to work in coal mining and suggested rehabilitation.
Dr Blum of Coolangatta signed a Centrelink medical certificate identifying an L5/S1 disc degeneration with prolapse saying it was permanent and due to the motor accident and that the claimant’s symptoms were back pain with radicular pain and sensory symptoms down both legs with an altered gait. There is no mention of thoracic or neck pain.
On 16 August 2016, Dr Blum referred the claimant to Dr McEntee, surgeon for consideration of surgery.
On 10 November 2016 Dr McEntee wrote to Dr Blum referring to low back problems and “a fair bit of weakness in his leg”. He anticipated problems with the insurer.
Dr McEntee has a history of a back injury at work 16 to 18 years previously and “some mild back low back pain over the years, but nothing that has stopped him working”. The claimant reported immediate tingling down his legs after the accident as well as whiplash pain in his neck and a seatbelt injury across his chest. The claimant complained of chronic low back pain with pins and needles and pains down his legs.
Dr McEntee attributed the strange gait to “quite marked weakness in his right leg”.
He recommended L5-S1 fusion surgery with decompression to ensure the L5 nerve root is free.
In another certificate for Centrelink dated 30 November 2016, Dr Blum refers to the L5/S1 degenerative condition and say the condition is an “exacerbation of a pre-existing condition”.
There are three further Centrelink certificates from Dr Blum neither of which refers to neck pain or neck injury.
Dr Blum wrote to the claimant’s solicitor on 31 October 2018 concerning public vs private health funded surgery and recommended the claimant take out private health insurance.
Dr Stanford, spine surgery and orthopaedics wrote to Dr Blum on 14 February 2019. He had a history of the car accident and lower back pain with tingling in his lower limbs. He expressed the view after examining the claimant that:
“Bruce presents with chronic nonspecific low back pain in the context of a contested WorkCover claim. Unfortunatey I do not believe that surgical treatment is appropriate for him. Although there are moderate degenerative changes on scan, surgical treatment is likely to aggravate his symptoms rather than improve it because he now has a chronic pain syndrome. I have tried to reassure him that his back is stable and there is no problem with nerve entrapment or compromise. I advised him that the best way to manage his symptoms would be through graduated exercise such as walking. He stated that he did not belive my opinion regarding his condition and best treatment. I said that all I could do was advise him against having surgery as I did not believe there would be a good outcome from it.”
Dr Chase from South Mudgee referred the claimant to Dr Abraszko on 3 September 2019 requesting she proceed with surgery.
Dr Abraszko noted her previous medico-legal consultation and records that the claimant presented with back pain and radicular pain which was constant. Mr Bridge reported that when he was examined by one of the insurer’s doctors, they raised his leg and pain became unbearable and started to radiate to his right leg and he now walks with two elbow crutches.
The claimant was tender in the lumbar spine and had a “flat back”. Power, tone, reflexes and sensation were normal. He was attending a drug and alcohol program. She requested updated radiology.
Dr Abraszko wrote to Dr Chase on 19 February 2020 updating her on the various tests and enquiries Dr Abraszko was undertaking. She refers to a left-hand tremor and referred the claimant to Dr Griffiths, neurologist.
Dr Abraszko wrote to Dr Chase on 18 March 2020. The claimant was to be seen by

Dr Robinson to assess vascular access and depending upon his decision surgery would be scheduled. The claimant had not seen Dr Griffith in respect of his tremor.
Dr Robinson did not raise any issues, and surgery was scheduled for 3 January 2020.
Dr Abraszko reported to Dr Chase on 9 January 2020. The surgery was said to be successful and the claimant’s back pain was improving. He had a cold left leg and reported some pain going down the left leg. Neurologically he was normal, and he was not using the crutches as much. The claimant was said to be happy with the results.
A Centrelink certificate was completed by Dr Chase on 13 July 2017 noting the first condition as the lower back problem and neck pain with radiation to the left shoulder. On that date,

Dr Chase referred the claimant back to Dr Abraszko for further care of the claimant’s neck and lower back complaints.
Dr Chase wrote to the claimant’s solicitors on 5 February 2022 providing an opinion. She notes that as Mr Bridge’s pain improved following his lower back surgery, his neck pain became more prominent. She expressed a guarded prognosis.

Radiology

Multiple X-rays were taken at Gunnedah Hospital on the day of the accident. The clinical history was given of “MVA findings”:
(a)    chest – no definite evidence of displaced rib fractures;
(b)    thoracic spine – no fractures and mild degenerative change noted in the thoracic spine, and
(c)    lumbosacral spine – partial sacralisation of the L5 vertebral body, degenerative changes at L5-S1 causing exit foraminal narrowing and likely impingement of exiting nerve roots but no evidence of fracture or dislocation.
The Panel notes no X-rays were taken of the claimant’s neck or cervical spine on the day of the accident.
An MRI was done on 23 August 2014 with a clinical history stated of “neck pain, lower back pain, bilateral leg tingling”. The results were:
(a)    multilevel discovertebral bars prominent at C4/5, C5/6 and C6/7 which was left sided and causing slight displacement of the nerve roots;
(b)    early degenerative changes at T/12L1 and disc degeneration at L4/5 and L5/S1, and
(c)    at L5/S1 grade 1 spondylolisthesis with mild bilateral foraminal stenosis.
On 30 June 2015, Dr Kreik requested an MRI of the cervical and lumbar spine on the basis of a whiplash injury and ongoing pain. The findings are relatively similar to the previous scan and the conclusion was:
(a) C4, 5 and 6-7 disc protrusions but no impingement although moderate narrowing of the right C6 and C7 nerve roots, and
(b) disc protrusion at L5-S1 abutting the exiting right nerve root but not impinging the S1 nerve roots.
On 4 May 2016 at the request of Dr Abraszko the claimant had a bone scan with Spect CT with a clinical history given of “Chronic spine pain including lumbar spine and interscapular region”. The result was minor degenerative changes present in the lumbar spine affecting the intervertebral disc space.
On 4 August 2016 the claimant had a lumbosacral spine X-ray in Tweed Heads after being shot with pellets however no foreign bodies were identified.
On 16 August 2016 at the request of Dr Blum the claimant had an X-ray and CT scan of the lumbar spine concluding “mild lower lumbar spondylosis” with mild spinal canal stenosis and bilateral foraminal stenosis at L5/S1 particularly on the right side.
On 10 November 2016 at the request of Dr McEntee, the claimant had an MRI of his lower back for “Chronic low back pain. Possible degenerative disc disease”. This scan was in similar terms to previous scans noting L5/S1 degenerative spondylosis and Grade 1 anterolisthesis. There was a shallow paracentral disc protrusion causing minor impingement at the right S1 exiting nerve root.
On 30 November 2016 the claimant had radiology of both clavicles and the cervical spine. The sternoclavicular joints were normal with no significant degeneration. There was bilateral multilevel foraminal narrowing at multiple levels.
On 11 November 2019, at the request of Dr Abraszko, the claimant had a bone mineral density test which was within normal limits. On 12 November 2019 he had a whole-body scan which showed:
‘Mild right L5/S1 discovertebral arthritis, mild bilateral L4/5 and L5/S1 facet joint arthritis and mild left sacroiliac arthritis. No facet joint arthritis in the cervical spine. Mild degenerative changes elsewhere [shoulders, sternoclavicular joint, left costosternal joint, both knees and right first MTP joint].
An “EOS SPINE” was also undertaken on

13 November 2019 with a clinical history of neck pain. This showed mild degenerative changes in the hips on both sides.
An MRI of the lumbar spine at the request of Dr Abraszko dated 19 February 2020 compared the 30 June 2015 MRI noting “mild progression of the disc degenerative changes since the study of 30 June 2015 but there is no canal stenosis or nerve root compression”.

On 11 March 2020, the claimant had a CT guided discogram at L4-5 and L5-S1 these gave positive responses for symptoms at L4-5 and L5-S1.

Medico-legal reports

Dr Michael Davies provided a report to the workers compensation insurer on

8 September 2014. The claimant said the car that hit him had a bull bar and the claimant had a tow bar and that there was not much damage.
The claimant gave a history of tingling in his legs as he drove to work then he developed back pain with increasing leg symptoms.
The claimant gave a history of a previous back injury 15 – 17 years ago which concerned a “pulled muscle”, some time off work and no treatment since. Dr Davies asked the claimant about a “ruptured disc referred to by Dr Gittoes” and the claimant denied it.
The claimant did not report thoracic or cervical pain. His lower back was examined but tone, power and reflexes were normal in the lower limbs. The claimant reported reduced sensation over the surface of each foot.
The claimant appeared to be deteriorating. Dr Davies said on the basis of no previous back symptoms “his current symptoms were precipitated by the subject motor vehicle accident”. Later Dr Davies notes the existence of pre-existing degenerative changes in the lumbar spine which he says have been aggravated in the accident.
In a separate report dated 5 November 2014 Dr Davies considered the mechanism of the accident and noted the contact was between a bull bar and a tow bar and that, “these things are bolted onto the framework of the car” and therefore more difficult to damage. He considered there were some psychological issues at play and advised some cognitive behavioural therapy may assist.
Dr Lahz, rehabilitation physician provided a report to the claimant’s previous solicitors dated 14 January 2016.[10] She provides a comprehensive summary of the medical records.
[10] Page 190 of the claimant’s bundle.
At page 6 she records the claimant’s history noting that he was a vague historian who sat through the nearly one hour interview without apparent discomfort.
The claimant told Dr Lahz that he was aware of the back of his car being lifted up as it was hit and he felt a jolting sensation but that there was no damage to either car. The claimant said he was aware of tingling sensations. He reported going to work but that he had severe back pain as a result of vibrations of the work machinery he was operating. He had trouble walking and was taken to hospital. The claimant reported persisting pain in his lower back, between the scapula and in his neck.
In terms of his current symptoms he described generalised back pain, lesser pain like glass splinters higher up the back and frequent pulling sensations in the neck.
Mr Bridge reported a lower back injury many years ago and that he was off work for two months but fully recovered.
Dr Lahz comments on the claimant unusually wide-based gait.
After examining the claimant and reviewing the radiology she expressed her views:
(a)    he has features of a chronic pain syndrome;
(b)    his disabling symptoms persist nearly 18 months after the accident;
(c)    his affect was unusual in that he was not concerned about his situation;
(d)    he is not avidly pursing pain management;
(e)    he had an unusual gait;
(f)    he may have had a conversion disorder and psychiatric opinion should be pursued;
(g)    previous drug and alcohol use may have contributed to his lack of drive;
(h)    “a less benevolent interpretation of the clinical situation would [be] symptom exaggeration” although she favoured a psychological reaction;
(i)    the disabilities are disproportionate to the minor damage to the vehicle and his mild soft tissue injuries;
(j)    radiology shows age-related degenerative changes, and
(k)    there were no neurological abnormalities on examination.
Dr Lahz says the prognosis is poor due to the claimant coping passively and his belief he is unemployable.
She assessed WPI at 0% for the cervical and thoracic spine but 5% for the lumbar spine due to the presence of muscle guarding and dysmetria.
Dr Oates provided a report to the claimant’s current solicitors dated 25 October 2017.[11] He lists the documents he was provided, and the Panel notes he was not provided with the report of Dr Lahz.
[11] Page 256 of the claimant’s bundle.
The claimant provided a history of the vehicle that hit him coming to a stop two car lengths behind him and then revving up loudly and coming straight at his vehicle at 30kmph. He confirms neither car was damaged and noted that the police, present at the road block did not come near the two cars. The claimant then apparently told Dr Oates that he went to work and sat in his bulldozer for a couple of hours while the mechanics were repairing the machine and during this time his lower back, thoracic spine and neck began to hurt with his back being the worst.
The claimant reported that his low back pain was getting worse over time. He had some neck and thoracic pain, but it is back pain which is the worst with pain in the buttocks but no significant leg symptoms. He did report that every once in a while, he would get back pain from the bulldozer vibrations in the mines.
The claimant gave Dr Oates a history of the previous back injury and said he was off work for two weeks.
Dr Oates diagnosed a soft tissue injury to the lumbar spine with L5/S1 disc disruption and post-traumatic degenerative changes. In addition, the claimant had a soft tissue whiplash associated disorder. He thought the lower back surgery was related to the accident and reasonable and necessary treatment following three years of conservative treatment.
Dr Bosanquet, orthopaedic surgeon wrote a report for the insurer dated 7 December 2015. He has a history of the claimant working as a labourer all his life in particular as a plant operator and bulldozer driver.
The claimant told Dr Bosanquet that he had pain at the back of his neck which was constant and radiated between his shoulder blades. He described cramps and headaches with pain radiating into the shoulder and arms. The claimant reported constant low back pain with no pain free days and loss of balance.
Dr Bosanquet was advised of a work injury 18 years previously and a couple of weeks off work.
He noted the claimant “walked in an odd, hesitating stumbling fashion with a wide-based gait and stiff right leg”.
The claimant was tender all over the spine but had full range of motion. He was tender all over the spine, flexion was limited but all other movements were normal. There were no neurological deficits in the upper or lower limbs recorded.
Dr Bosanquet diagnosed soft tissue neck and back injuries aggravating underlying degenerative changes in the cervical and lumbar spine and a spondylolisthesis at L5/S1.
While he assessed WPI at 5% each for the neck and back he deducted it all due to the pre-existing degenerative changes.
Dr Abraszko wrote to the claimant’s solicitors on 14 September 2018.[12] She refers to the consultation as a medico-legal assessment. She has a history of the claimant being hit by a vehicle travelling at 30 kmph. The claimant gave her a history of immediate symptoms in the lower back and then neck and thoracic pain starting later in the day. He reported continuing back neck and thoracic spine which was severe and has not improved.
[12] Page 280 of the claimant’s bundle.
Dr Abraszko had a history of a lower back injury 17 years previously and a couple of weeks off work but no treatment.
She diagnoses exacerbation of pre-existing asymptomatic disc protrusions in the neck and pre-existing degenerative changes in the lower back.
Dr Abrasko refers to extensive conservate treatment and notes surgery has been recommended. She agrees with it as the conservative treatment thus far has not relieved his pain. She certified WPI at 10%.
Dr Millons saw the claimant for his current solicitors on 21 April 2022 and submitted a report a day later. He has a consistent history of the accident with the other car being stationary

8m behind his, revving loudly and hitting his vehicle lifting it up. The claimant noted no damage to either vehicle. The claimant says 15 minutes later as he was driving away, he was aware of tingling in the back of both legs to the knees.
The claimant says he reported this to work and went to work but the bulldozer he was supposed to be driving was out of action for an hour and when he stared to drive it, his back became increasingly painful. He reported that incident and an ambulance was called. The claimant told Dr Millons he also had neck pain.
Dr Millons records a comprehensive history of the claimant’s treatment leading up to his surgery. Mr Bridge reported that as his back pain improved following the surgery he became more aware of his neck problems. Mr Bridge gave no history of the January 2022 motorbike accident to Dr Millons.
Dr Millons noted the claimant was soon to have neck surgery and did suggest that as there was “no evidence of any frank neurological deficit in either upper limb” expressed causation about the success of that surgery.
Whilst acknowledging that he was relying on the claimant’s history he considered there was a connection between the car accident on 17 June 2014 and the claimant’s ongoing symptoms and surgery.
He assessed WPI at 20% for the lumbar spine, 1% for scarring and declined to assess the neck on the basis of the upcoming surgery.
In a subsequent report dated 1 February 2023 after the claimant was re-examined,

Dr Millons assessed the claimant’s neck impairment at 25% due to the successful surgery. In total the claimant’s WPI was 41%.
Much of his report contains the similar history although Dr Millons confirmed the circumstances of the 17 June 2014 accident with the claimant. Doctor records that the vehicle slammed into the back of his and while there was little damage “the force of the impact was considerable”.
Dr Millons also records the 12 January 2022 accident but accepts the claimant’s history “that he did not have a mark on his body” and did not sustain a significant aggravation of his problems as a result of that accident.
Dr Bosanquet saw the claimant again on 20 January 2023. He had a history of the 2022 motorbike accident although the claimant did not disclose this.
The claimant reported improved pain levels in his neck but persistent lower back pain although no symptoms in his legs.
Dr Bosanquet restates his opinion that the claimant’s degenerative cervical and lumbar spine conditions were aggravated in the accident and that any aggravation has since ceased. He was of the view the surgeries were unrelated. He said there was no impairment as a result of the accident.
Dr Abraszko provided a report dated 10 March 2023 to the claimant’s solicitors. She notes that she was providing a medico-legal report to the claimant’s solicitors but that she has also seen the claimant as his treating neurosurgeon on 19 occasions.
She reports that the claimant’s neck pain comes and goes and is not as severe as before the operation with occasional radiating pain. He complained of pain between the shoulder blades and pins and needles. His back pain was reported as a dull ache and appears when he performed work at his property. He has on and off radiating pain into his legs.
She assessed WPI at 40%. Interesting though she assessed the cervical spine impairment at 25% and did not deduct anything for a pre-existing condition, she deducted 10% from the lower back pain because there was no severe back pain before the accident. This would appear to be on the basis that the claimant said that he had exacerbation of his pain from work equipment that he used in his five years at the mines where he was working at the time of the accident.

Other assessments

Medical Assessor Ashwell saw the claimant on 16 February 2018 and issued a certificate on 22 February 2018.
He confirmed at [2] he was asked to assess the proposed L5/S1 laminectomy and spinal fusion as recommended by Dr McEntee.
The claimant recounts a history of tingling in both legs with then increased pain in his neck and back area. He went off work for 10 days but then was put off work. Medical Assessor Ashwell has a summary of the claimant’s treatment and noted that when visiting his daughter, the claimant saw Dr Blum who referred him to Dr McEntee on 10 November 2016 who advised him to have surgery but he declined.
The claimant complained of constant low back pain with occasional pain down his legs to the back of the calf. There was some numbness in the front of the thighs and shins.
The claimant complained of constant neck pain but no referral of pain or numbness in the arms.
Medical Assessor Ashwell found a normal cervical spine with no neurological symptoms and a full range of motion in the thoracic spine. There was tenderness in both the cervical and thoracic spine. In the lower back there was a positive axial compression sign, asymmetry of movement, muscle guarding but no nerve root tension on straight leg raising. There were no neurological signs in the lower limbs.
Medical Assessor Ashwell considered the accident would have temporarily exacerbated the pre-existing condition on the basis there was some jolting but no significant damage to the vehicles. He says there was no evidence of disc rupture or protrusion and no clinical evidence of nerve root compression or radiculopathy.
He said:
“under those circumstances there is no indication for surgical treatment as being of any benefit over non-operative treatment. There is also no indication that the motor vehicle accident caused any permanent damage to the lumbar spine area or cause any disc rupture, although it appeared to make the region more symptomatic than apparently existed previously.”

RE-EXAMINATION FINDINGS

Introductory matters

The claimant attended a re-examination with Medical Assessors McGrath and Gray on Thursday, 20 June 2024, commencing at 3:40pm in the Commission’s medical suites.
After the Medical Assessors introduced themselves and explained the purpose of the medical re-examination and the scope of the assessment being limited to his back injury, Mr Bridge said he was under the impression that that his neck was the only injury in dispute and there was no dispute about the lumbar spine.
We quizzed him in some detail about this, but he was quite adamant regarding the neck being the issue; Mr Bridge also said that his right collarbone had been fractured in the motor accident and said that Dr Kriek, his treating GP, had not taken any notice of his complaints with regard to the collar bone fracture and his neck.
We did quote to him the letter from his own solicitor outlining acceptance of the assessment by Medical Assessor Hyde Page of his neck impairment but again Mr Bridge would not accept this. He became quite vehement in his belief that it was only his neck that we were to examine, and that the lumbar spine was already resolved and did not need to be assessed.
Mr Bridge said that with regard to the pain in his back, he had dealt with a lot of, “bullshit docs”. He said he put up with the pain for one year and then he had been, “kicked out of the doctor’s office”, apparently Dr Kriek.
Mr Bridge was advised that there was no mention of a neck injury in the contemporaneous documentation (ambulance and hospital and GP), to which he said that we were quite wrong; he had pain in his neck and in fact all over his body immediately from the time of the motor accident; he emphasised he had broken his collarbone in the accident as well when he was hit from behind.

History provided by the claimant

Mr Bridge said he was now 62, single and had, “four missuses”. He has two adult children aged about 25/26 but he had no recent contact with them.
He currently lives by himself at Mudgee and has done so for the last 16 years. He said that for the last eight years he had done ‘farming’ on his 600 acre farm - but he then said he does no effective commercial or domestic farming. He could not be drawn further on what he did or did not do on the farm.
Regarding his work at the time of the motor accident, he said that he had been a plant operator at various mines, above ground, driving dozers and dump trucks. He generally did 12-hour shifts with four days on and three off.
Mr Bridge said that at the time of the motor accident he had just recently started at the Boggabri Coal Mine being the same company he had worked for, but with different names, over the last six to eight years, generally working 18 days per month.
In terms of sport/recreation, he had played football as a kid but no organised sport in recent years. His hobbies include activities on the farm of 650 acres, but he did not disclose any specific endeavours on that farm.
In the past, before 2014, he had a motor vehicle accident at the age of 15 when he was a passenger in a car that rolled and he said he had no injury from that. In about 2000 he had a backhoe incident which caused lower back pain while doing Telecom work.
Mr Bridge volunteered that he had low back discomfort now and then before 2014, which he attributed to the hard floor of the mine (rock) causing vibration through the machines he was operating. He said that generally after a few days working on the rock floor, he would have, “a bad back for the weekend”. He described that the solid rock was at the bottom of the mine after loose rock had been removed after blasting.
He does not smoke cigarettes and has not drunk alcohol in recent years. He said he had been taking no medications at the time of the motor accident in 2014. Since the accident he takes occasional ‘weed’ for discomfort. He has had a tonsillectomy in the past. He denied any workers compensation claim before 2014.
Mr Bridge was questioned about the medical examinations going into the mines. He said he had undergone three to four of these workplace assessments over the years. He recalled having a medical exam in April 2014; it lasted about one-and-a-half hours and included lifting, pushing, pulling and a chest X-ray. He said he passed that examination.
Later he disclosed having been in the army for about nine years. He said that he left there as they were trying, “to get rid of dead wood”.

History of the accident

Mr Bridge said he was involved in a motor accident on 17 June 2014 at Boggabri. He was in his own utility (a Great Wall tray back). He was stopped in a line of traffic to turn into the mine that was apparently blocked by protesters. It was early morning and dark.
He said the vehicles in front started to move forward and he was about to move forward when he heard an engine revving from behind, then a big ‘whack’ up the back of the ute; he described the back of the ute, “going up”. He said he did not see the vehicle approaching from behind because it was dark and could not estimate the speed. He then pulled up two cars’ distance further up and was able to alight from his vehicle without apparent concern and discussed the situation with the other driver. After talking to the other driver for a while, he said it was agreed that there was, “no damage” and, “let’s get out of here”.
To direct questioning he recalled no direct contact of any part of his body with the internal structure of his vehicle in the motor accident. However, later in the interview, Mr Bridge described in a dramatic fashion about fracturing his collarbone in the accident from bracing his arms on the steering wheel.
He described that the offending vehicle’s bull bar contacted his towbar. To direct questioning, he said there was no obvious damage to either vehicle. However, he described the rear of his vehicle being elevated in the collision, but he could not explain the mechanism of how that might have occurred.
Mr Bridge said that while talking to the other driver, he noticed some tingling in his back (he confirmed the back only) and that continued when he got to work. He said that he informed his supervisor of the accident and he also said he informed work that, “I’m right”. He was then deployed to his own bulldozer but at that stage the dozer was not working because it required some mechanical fixation. He said it was fixed after a few hours and he then used the dozer for cleaning up some loose rocks but then felt some increasing pain in the back particularly after moving down an incline. He said that after 5 to 10 minutes of cleaning up on the dozer, he experienced pain in the low back. He then described an episode of, “the dozer in full body vibration” when he was running the dozer over old, hardened tracks and he said that this, “nearly broke him”. This occurred more than two hours post‑accident and he got off the vehicle and attended the physiotherapist on site.

At that stage, he said the physiotherapist put, “an electric thing on my back” – he said he could not handle the electric sensation. He said that after the full body vibration in the dozer, “I knew I was buggered”. He said he had too much pain, which he indicated was localised to the low back.
On re-questioning about his right collarbone, he said that this was noted two years later to have been fractured in the accident. He then backtracked and denied that it had ever been properly broken but he re-iterated that his whole body ached, and he was in pain after the accident including his neck and the right collarbone. He denied any former injury to the right collarbone.
He was again asked specifically about the onset of his neck/cervical spine. He repeated that, “my whole body was in pain” immediately after the accident.
On the night of the accident, Mr Bridge said that he had low back pain exacerbated with the bulldozer incident. Over two months, he said the pain just went right through him.
He apparently had initial X-rays and spent two months at his brother’s house in Gunnedah. He said for that two months he was, “not doing too good”. He said he was not in a good way and there was a delay before finally seeing a GP at Gunnedah. He then saw her again two years later, saying that the same GP could not recall whether he had, “whiplash or not”.
The history at this stage became increasingly vague and inconsistent. He said early on, in the first few months he was sore, “right over”. With his full body being affected – “all over”. He said he was taking up to 24 pain killing tablets a day at this time. Despite these complaints, he did not attend a GP during the time he was staying with his brother in Gunnedah. On further questioning he said that for the first few months he had no physiotherapy, took no medication of any kind before seeing Dr Kriek. He said he also saw a lady doctor but then he acknowledged that this was four years ago, well distant from the motor accident. The original doctor he saw near Boggabri was Dr Kriek.
After further discussion Mr Bridge acknowledged that there was a workers compensation claim associated with the motor accident and that 10 days post-accident he was ‘sacked’. He then later said that he did see a GP when he was in Gunnedah but he could not recall his name, but he recalled seeing Dr Kriek in Mudgee. He recalled attending Dr Spittaler, neurosurgeon in Newcastle. It was brought to Mr Bridge’s attention that Dr Spittaler had documented no specific injury with regard to the neck but dealt mainly with his thoracic and back pain. Mr Bridge did not accept that the doctor had not acknowledged a specific injury to his neck.
On further questioning about the low back pain, he said the tingling in the legs had disappeared with time and he had a “light” sensation in his legs (he could not remember when). The pain then started sometime later in the low back radiating to an area which he indicated as being in both buttock regions and the proximal hamstrings.
Mr Bridge recalled having needles in the back and said these helped for a while.
In terms of treatment, he recalled at one stage a professor had tried to teach him some exercises. He attended Dr Abraszko, neurosurgeon and has had surgery to both the low back and neck and this surgery has helped, saying that in particular, the neck surgery helped considerably. The low back pain has also improved since his surgery.
He still has pain, and he describes the neck as really good, and he can put up with the residual low back pain. The low back pain is localised to the low back without any leg pain and without associated paraesthesia.
He is having no conservative treatment. He is able to drive but finds that rough roads cause exacerbations. He said he does have some residual neck pain and paraesthesia that does not radiate, although just in the last few days he has reported some right armpit pain.
Mr Bridge was asked about his January 2022 motorbike accident. He said he was riding his own motorcycle wearing a helmet with full safety gear. He said he was travelling at

100 kmph and came into a corner too quickly and he apparently hit the guardrail. He said that immediately after this accident, he was dazed but was able to walk around. This accident occurred near Muswellbrook, and he said he spent two days in observation at Newcastle Hospital but does recall any specific injury from that accident.

Examination findings

On examination Mr Bridge was cooperative and performed all movements at the request of the examiners and appeared to be using his best endeavours. He was in no overt distress and there was no evidence of physical abnormal illness behaviours.
He readily volunteered his history, but this appeared to be intermittently dramatic and at times overdramatic and inconsistent. He was sometimes vague but at other times gave very detailed answers to simple questions posed to him.
He has a midline vertical scar from the umbilicus distally from the lumbar surgery. There is no obvious graft site and he said that he had some artificial graft. The scar was of no concern to him. It was non-tender, there was no material cosmetic problem, no treatment required for the scarring, and it is not keloid.
In the cervical spine, there was no localised tenderness and no guarding; all active movements (flexion/extension, lateral rotation and rotation) were three-quarters range and symmetrical, with no dysmetria.
Peripherally there was no sensory loss. Upper limb power was equivalent in the right and left. Upper limb reflexes were brisk and symmetrical. There was no wasting and no nerve root tension signs. The active range of movement of the shoulders was essentially normal and equivalent right and left.
In the lumbar spine there was no localising tenderness. The range of movement was two-thirds normal with no dysmetria in all planes (flexion / extension and lateral rotation). There was no guarding. There was no limitation of straight leg raising or any other nerve root tension signs and no sensory or power deficit peripherally. Reflexes were brisk and symmetrical. There was no wasting evident on testing.
In the abdomen there was an infra umbilical vertical surgical scar from the lumbar surgery, plus a small umbilical hernia that he said was present before the lumbar surgery.

CONSIDERATION OF THE ISSUES

Is the certificate of Medical Assessor Ashwell binding on the Panel?

The insurer submitted to Medical Assessor Hyde Page and this Panel that:
“the prior Certificate of Assessor Ashwell, being the Assessor of the treatment dispute, is binding regarding the nature of the claimant’s lumbar spine injury and the lumbar spine injury cannot attract a finding of whole person impairment.”
The insurer cites s 61(2) of the MAC Act which provides that a medical assessment certificate “is conclusive evidence as to the matters certified in any court proceedings or in any assessment by the Commission in respect of the claim concerned”.
The insurer relies on the case of AAI Limited v State Insurance Regulatory Authority of New South Wales (the Sproule case) [2016] NSWCA 368 where in respect of a claim made by Ms Sproule at [136] the Court stated that a Certificate is “conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned”.
The insurer also relies on Pham v Shui (the Pham case) [2006] NSWCA 373 which found at [90] “that s61(2)(a) can have no other meaning than that the certificate’s conclusivity applies only to the bare conclusion that the degree of permanent impairment for that purpose was (or was not) greater than 10%; here it was not greater than 10%”.
The insurer suggests that because the claimant did not challenge the decision of Medical Assessor Ashwell, his certificate is binding on the Panel on the basis of the case law and

s 61(2) of the MAC Act.
The insurer says because there is a binding decision that the claimant’s lumbar spine surgery was not caused by the accident, there can be no WPI resulting from that surgical procedure.
The Panel does not accept this argument for the following reasons:
(a) firstly s 61(2) provides that a medical certificate is binding on the court and the Commission for the purposes of the assessment of the claim and this is clearly a reference to the assessment of damages for the claim and the Commission as constituted under s 31 of the Personal Injury Commission Act 2020 (the PIC Act);
(b) secondly s 61(2) does not state that a medical certificate is binding on a decision-maker appointed under s 33 of the PIC Act;
(c) thirdly the quote from the Sproule case was not a finding of the Court as to status of a medical assessment but a restatement of s 61(2) in a case concerning whether the event or series of events surrounding an injury comprised a motor accident within the statutory definition, and
(d) fourthly the Pham case concerned a claimant’s assessment of damages. The Court of Appeal found the certificate as to WPI was effectively binding on the judge assessing the damages in respect of the entitlement to non-economic loss but the causation finding (which was the basis of the WPI assessment) not was conclusive evidence for the purposes of the assessment of economic loss. The decision of Hungerford ACDJ as to the claimant’s damages in that case was set aside.
A Medical Assessor’s decision clearly binds the court and the Commission, but it does not bind all decision makers. If a Medical Assessor’s decision was binding on other Medical Assessors and Review Panels, then there would be no need for the further assessment provisions of s 62. There would also be no need for the review provisions of s 63.
The Panel is of the view that Medical Assessor Ashwell’s certificate is information before this Review Panel but it cannot bind us in the way the insurer suggests.

Is Mr Bridge a reliable historian?

The Panel has significant concerns about the reliability of some aspects of the claimant’s evidence. The Panel notes it is 10 years since the accident and does not expect the claimant to remember each and every complaint made to medical practitioners or events that have occurred in those 10 years. The Panel also considered the report of Dr Lahz (commissioned by the claimant’s solicitors) and her concerns as to the disproportionate nature of the claimant’s complaints and a suggestion of a psychological reason behind this or symptom exaggeration. A similar concern was expressed by Dr Thong, pain specialist. Dr Standford, spinal surgeon was concerned about the involvement of the “contested [compensation] claim”.
There was no evidence of physical abnormal illness behaviours (such as moaning and groaning or self-restricted movements) when examined by the Medical Assessors (the claimant was co-operative) the Medical Assessors formed the view that the claimant was an unsophisticated man who was not malingering but was concerned about his future having lost a well-paid job in the mines.
The ambulance personnel and hospital staff were not present at the scene of the accident. There was no police report (despite the police being present at the scene of the protest where the accident occurred). What the hospital staff have documented must, therefore in the Panel’s view, have been based on information provided by the claimant. They record the speed of the vehicle was unknown (at 10.50am on triage) or that it was driven at 5 – 10kmph (at 11:50am). On 31 July 2014 Dr Gittoes records that the speed of the other vehicle was 30kmph. When Mr Bridge was asked about this by the Medical Assessors, he said the accident occurred when it was dark, and he did not see the vehicle that hit him at any stage before the impact. If he could not see it, the Panel is of the view he was not in a position to judge the speed of it.
While Mr Bridge has conceded an injury to his lower back, the year of that injury has varied (1996 in his statement to the workers compensation insurer and 2000 in his own statement), the length of time off work has varied from two weeks to three months and the precise circumstances has varied from lifting at work, driving a back hoe to working at home.
Perhaps of more concern to the Panel has been the history given to the Medical Assessors of the fractured collarbone. There is no evidence in any of the GP records, the ambulance or the hospital records of any such injury and no evidence to suggest there was a significant enough impact for such an injury to occur.
The Panel also notes a degree of catastrophising in the claimant’s evidence. He described to the Medical Assessors pain over the whole of his body from the moment of impact yet the contemporaneous records (ambulance, hospital, claim form an initial attendance at his GP) document only lower back complaints.
The Medical Assessors, in their experience, consider that, in the circumstances of a compensation claim, the need to give a history many times in a long period after an accident can create a tendency to exaggerate the impact of the accident and the severity of symptoms. The accident looms large in the injured person’s consciousness and everything that occurs after the accident can be blamed on the accident. This is particularly the case with chronic pain.
For the above reasons the Panel is of the view that the claimant’s evidence should be approached with caution.

The lower back injury

Did Mr Bridge injure his back in the accident?

While the medical members of the Panel have doubts that the forces involved in the impact between the vehicle behind the claimant and the claimant’s vehicle were significant enough to cause any injury, the Panel notes the presence of a tow bar on the claimant’s vehicle and the bull bar on the other vehicle.
In the absence of any biomechanical type expert evidence the Medical Assessors are of the view that the mechanism of the accident could cause an injury or worsen an already existing condition in the claimant’s lower back.
The Panel is satisfied on the basis of the contemporaneous records that the claimant did sustain an injury to his lower back. The ambulance record, the hospital notes and the claimant’s workers compensation claim support that finding.

What is the nature of the injury?

The Panel is of the view that the injury caused by the accident was a soft tissue injury on a background of degenerative spinal conditions.
The Panel notes the July 2013 entry is suggestive of a previous disc injury, and that the claimant denies this. The Panel notes the claimant’s own evidence of the nature of his duties at the mines driving bulldozers over rough mining ground and the constant vibrations felt in his spine and that after a week’s work he would need time to rest. The Panel also notes that the claimant’s evidence was of tingling in his legs after the car accident and then particularly significant vibrations at work sometime later causing injury to his lower back.
The Panel also considered the radiology which revealed in June 2014, partial sacralisation of L5 (partial fusion to S1) which is a congenital feature not caused by the accident. Spondylolisthesis at L5/S1 was reported in August 2014 and disc bulges at L5/S1 in June 2015. It is the clinical judgment of the medical members of the Panel that the spondylolisthesis was not caused by the forces involved in the car accident of June 2014. The MRI of 30 June 2015 describes it as “degenerative spondylolisthesis”. The Panel also does not accept that the disc bulges reported in June 2015 were caused by the forces involved in this accident.
The Panel accepts that the claimant had, at the time of the accident, degenerative changes in the spine and that these have been exacerbated in the accident.
It is the clinical judgment of the medical members of the Panel that the car accident of June 2014 did not materially contribute for the need to the lumbar spine laminectomy and fusion surgery. The Panel is of the view that the surgery which occurred six years after the accident was not related to the exacerbation of the claimant’s degenerative condition. The Panel is of the view that the need for the surgery was to address the longstanding underlying constitutional and degenerative conditions which have continued to progress.

What is the impairment of the lumbar spine resulting from the injury?

As the Panel is of the view that there is no continued aggravation of the underlying condition, the Panel is not satisfied that any of the claimant’s current lumbar spine impairment is related to the injuries caused by the accident.

Neck injury

While the Panel notes the legal representatives of the parties did not place in issue the assessment of the claimant’s cervical spine, Mr Bridge was insistent that it was in issue and therefore the Panel has considered it.

Did Mr Bridge sustain a neck injury in the accident?

The medical members of the Panel have doubts that the forces involved in the impact between the vehicle behind the claimant and the claimant’s vehicle were significant enough to cause any injury to the neck. However, the Panel accepts that a rear-end collision at low speed could cause an injury to an already vulnerable neck.
The claimant’s accident occurred on 17 June 2014. The claimant says he developed neck and thoracic pain on the day of the accident when he was at work. The records of the ambulance, hospital and his workers compensation claim do not support this as they nominate only a lower back injury. The claimant had neck and lower back imaging performed on 22 August 2014 at the request of Dr Spittaler although the referral to Dr Spittaler and his report of 7 August 2014 indicates the claimant was experiencing pain between the shoulder blades. The Panel notes this area of the body as indicated by the claimant is more appropriately described as thoracic pain. The Panel notes in any event, Dr Spittaler suggested there was no evidence of acute injury in the cervical spine and no correlation between the C6/7 features in the MRI and the claimant’s clinical presentation.
The Panel has considered the report of workers compensation insurer’s specialist Dr Davies, who in September 2014 takes no history of any neck complaints or thoracic spine complaints. In early 2015 when referred to Dr Russo and for physiotherapy there is no mention of neck pain or symptoms only lower back issues. Doctors Blum and McEntee in 2016 do not record complaints of neck pain or symptoms in their examinations with Dr Blum providing three Centrelink certificates which refer only to the lower back.
The Panel accepts that in 2014 and 2015 the claimant had thoracic spine complaints but not cervical spine complaints indicative of injury.
The claimant told Dr Millons (and Dr Chase reported in February 2022) that Mr Bridge only noticed his cervical spine complaints after his successful back surgery in 2020. Neck symptoms have been complained of on an irregular basis before the back surgery in 2020.
The claimant’s evidence that he seriously injured his neck including fracturing his collarbone is not borne out by the medical evidence.
The Panel is not satisfied that the claimant sustained any significant injury to his neck in the accident. Any neck injury he may have sustained appears to be a short-term soft tissue injury which resolved by the end of 2014 or early 2015.
As a result, the Panel is not satisfied that any neck related impairment that the claimant is currently experiencing is related to the injuries caused by the accident.

CONCLUSION

The Panel has found that while Mr Bridge did sustain an injury to his neck and back in the accident, those injuries were soft tissue injuries which exacerbated underlying degenerative changes in his cervicothoracic and thoracolumbar spine but that the exacerbations were not of any long-term material consequence.
The Panel has also found that the need for the surgery to the claimant’s lower back and neck was not materially contributed to by the injuries sustained in the accident but was directed at the underlying degenerative changes.

The Panel has therefore found that the claimant’s accident-related injuries have not resulted in any current impairment. The claimant’s current neck and lower back impairments are a result of conditions unrelated to the accident.
It therefore follows that Medical Assessor Hyde Page’s certificate must be set aside and a fresh certificate should be issued.

[2024] NSWPICMP 509

29 July 2024