QBE Insurance (Australia) Limited v Edwards
[2024] NSWPICMP 479
•17 July 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Edwards [2024] NSWPICMP 479 |
CLAIMANT: | Glen Edwards |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Bridie Nolan |
MEDICAL ASSESSOR: | Clive Kenna |
MEDICAL ASSESSOR: | Ian Cameron |
DATE OF DECISION: | 17 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; whole person impairment; treatment dispute; claim for injury to lower back during the use and operation of a roller for the local council in 2016; injury diagnosed as muscle strain and was the subject of a workers compensation insurance claim; recurrence of lower back symptoms in 2018 at which time claimant made claim for compulsory third party insurance for motor accident in 2016; subsequent incident in 2021; causation of injury, impairment and need for treatment; Held – injury and impairment relates to 2016 accident; treatment relates to 2016 accident and is reasonable and necessary in the circumstances. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION MEDICAL ASSESSMENT – PERMANENT IMPAIRMENT - TREATMENT Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% 1. The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act 1999 as follows: (a) the Review Panel confirms the certificate of Medical Assessor Dixon dated 17 April 2023. Whether the following L4/5 decompression surgery performed on 5 June 2019 relates to the injury caused by the motor accident. 2. The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act 1999 is as follows: (a) the Review Panel confirms the certificate of Medical Assessor Dixon dated 17 April 2023. Whether the L4/5 decompression surgery performed on 5 June 2019 was reasonable and necessary in the circumstances. 3. The assessment made by the review panel under s 63(4) of the Motor Accidents Compensation Act 1999 is as follows: (A) the Review Panel confirms the certificate of Medical Assessor Dixon dated 17 April 2023. |
STATEMENT OF REASONS
INTRODUCTION
The insurer, QBE, seeks a review of a medical assessment pursuant to ss 57 and 58 of the Motor Accidents Compensation Act 1999 (MAC Act). The medical assessment the subject of this review was conducted by Medical Assessor Dixon (the Medical Assessor), whose certificate and reasons are dated 17 April 2023 (the medical assessment).
The Medical Assessor assessed the degree of permanent impairment at 11% and determined that L4/5 decompression surgery performed on 5 June 2019 relates to the injury caused by the motor accident and was reasonable and necessary in the circumstances. The details of that assessment are set out later in these Reasons.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident. The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) of the MAC Act for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 63 of the MAC Act, on review by a review panel.
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the certificate for the medical assessment for which the review is sought. By decision dated 26 July 2023, the President’s delegate referred the medical assessment to the Review Panel (the Panel) as she was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
The Panel issued a direction to the parties requesting a provision of a joint bundle, which was provided.
BACKGROUND TO THE DISPUTE
Glen Edwards (the claimant) claims that on 4 July 2016, as an employee of Lithgow Council, he was operating a large 15 tonne roller compacting a road surface relatively steep in slope. At the bottom of slope, unable to turn the roller, he placed it into reverse to ascend the slope.
The roller was fitted with a vibration mode to compact the road service. The front rollers were connected by metal couplings as well as hydraulic lines to the cabin/engine section of the roller. Whilst in reverse, the front of the roller came adrift and apart from the cabin and, as a result, the cabin fell and dropped to the road surface and dug into the road. The claimant was thrown off the seat and onto the steering wheel. The claimant was held in place by his lap seatbelt. The continuing motion of the roller digging into the ground caused severe jolting to the claimant throwing him up and down. The claimant was not able to hit the emergency button to shut the roller down immediately, taking some moments before he could hit the emergency shutdown.
He immediately felt a sharp knife-like pain on the side of the left side of his lower back. He was taken to Lithgow Hospital and was off work for several weeks diagnosed with a muscle strain. He returned on light duties. He continued with ongoing back pain, which he would just work through without complaint and says he made occasional visits to the general practitioner.
On 16 July 2018, he claims had difficulty getting out of bed with a severe onset of back pain. He was taken to hospital and treated for the pain and tingling in both his legs and toes with associated numbness. He then spent some time off work and resumed light duties. His Workcover claim at the time identified this incident as an acute exacerbation of the 2016 injury.
He thereafter claims he suffered further exacerbation of his back pain when he subsequently attempted to pick up a road closure barrier on 18 October 2018 and had spasm in his back with sharp pain in his right leg and was driven directly to Lithgow Hospital and at that stage, he realised he had a serious problem with his back, for which he had the reasonable belief that it stemmed from the work injury on 4 July 2016. He lodged a motor vehicle accident compensation claim. Under workers compensation insurance at the hand of Dr David Bell, a spinal specialist, the claimant underwent epidural injections and then L4/L5 compression surgery in June 2019 at Dudley Private Hospital.
Following the surgery, he experienced improvement in his symptoms. He nonetheless claims continued to have ongoing problems.
On 18 January 2021, the claimant had a recurrence of back pain whilst driving a roller at work for which he made a further WorkCover Claim.
PARTIES’ SUBMISSIONS
The insurer brings this medical dispute on the basis of the issue of causation.
The insurer submits that any injury sustained in the accident would have resolved in July 2016, and any ongoing symptoms in the lumbar spine requiring surgery relates to the subsequent incident in July 2018 or January 2021. In support of its contention, it observed that following the 2016 incident the claimant was not attended to by ambulance personnel. He attended Lithgow Hospital on the day of the accident where he was treated at the emergency department. The claimant’s initial attendance with his nominated general practitioner at Bowenfels Medical Practice was on 11 July 2016 where he complained of pain in his lumbar spine. He attended an initial consultation with Tablelands Sports and Spinal Physiotherapy on 11 July 2016. He was unable to work as a roller operator for Lithgow Council from 4 July 2016 to 15 July 2016.
The next recorded complaint of back pain in the clinical notes of Bowenfels Medical Centre was made on 26 July 2018 where the claimant complained of right sciatica. This was two years later. He did not seek any medical treatment and did not take any time off from work from 16 July 2016 to 12 July 2018. It observes that the next consultation with Tableland Sports and Spinal Physiotherapy was on 6 September 2018. The claimant was unable to work until 10 September 2018 after which he returned to light duties, working five hours per day and four days per week. It relies on the fact that there were a few, if any, complaints before the 2016 incident and the few symptoms complained of by the claimant in the medical records, which it submits consistent with the absence of any recommendation for a radiological investigation following the 2016 accident.
It also relies upon a report dated 24 September 2019 by Professor Anderson who opined that that the alleged ongoing symptoms to the lumbar are not related to the motor vehicle accident on 4 July 2016, which opinion based on the following:
(a) the low risk of structural degeneration in the lumbar spine based on the loading conditions;
(b) the time elapsed from the date of the motor vehicle accident to the presentation in July 2018;
(c) the presence of other risk factors, such as the claimant’s occupation (physically demanding jobs), lifestyle and sociodemographic (body mass and smoking), psychological (anxiety and depression) and his age, and
(d) that:
“…given these findings, associating lumbar spine changes with a single minor trauma incident is, in my opinion, problematic. In the subject case, the claimant has presented with lumbar spine degeneration and associated sciatica. However, given that 1) the loading conditions are likely to have given rise only to a low risk of structural injuries in the lumbar spine, 2) the time elapsed between the incident and the presentation in 2018, and 3) the presence of other risk factors, the connection with his current condition and the subject accident is, in my opinion (and based on the material provided), a tenuous one”;
Dr Robert Breit, orthopaedic surgeon, in a revised opinion further to the receipt of that of Adjunct Associate Professor Anderson opined that there was no relationship between the motor accident and the injury to the lumbar spine.
The insurer also relies on a further incident the subject of a WorkCover claim which occurred on 18 January 2021, when the claimant was operating a roller at work.
The claimant responds to the opinion of Dr Anderson by submitting that the Adjunct Associate Professor did not have the benefit of interviewing the claimant to ascertain his history of continuous back pain, supported by his partner’s statement to the Commission to like effect. He submits that his stoic nature was such that he only consulted his doctor on a couple of occasions when the pain was severe, in which cases he was prescribed Panadeine Forte. He submits the 2016 incident is the primary incident of which the incidents in 2018 and 2021 are secondary exacerbations.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65], Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act, to include a legally qualified member.
MEDICAL ASSESSMENT UNDER REVIEW
By certificate and reasons dated 17 April 2023, the Medical Assessor certified that the claimant’s injuries – lumbar spine soft tissue, lumbar disc protrusion requiring surgery and skin – scarring of the lumbar spine – were caused by the motor accident and gave rise to an impairment which was greater than 10% (viz. 11%). The Medical Assessor also certified that the L4/5 decompression surgery performed on 5 June 2019 relate to the injury caused by the accident and was reasonable and necessary in the circumstances.
The reasons for the certificates to this effect were that the claimant had a back strain injury with subsequent L4/5 disc protrusion requiring decompression laminectomy and discectomy and has residual low back pain and lumbar stiffness and erector spinae muscle spasm and L5 radiculopathy on the right, as a consequence of the L4/5 disc protrusion which occurred when the cabin of his roller collapsed onto the ground. The reason for the back strain injury was the significant jarring that occurred, not only when the cabin of the roller fell to the ground but the fact that the vibrating impacting mechanism continued to impact while the cabin collapsed and the claimant was thrown about inside the cabin, with the vibration of the impactor leading to the falling of the cabin of the ground, in which he sustained a back strain injury.
The Medical Assessor considered the reports of Dr Bodel and the original report of Dr Breit, which opinions were similar to the Medical Assessor’s. Dr Briet however changed his opinion following receipt of the report of Associate Professor Anderson. The Medical Assessor reasoned relevantly as follows:
“It is noted in the Expert report of Associate Professor Robert Anderson dated 24 September 2019 from the clear photographs of the damaged roller with the cabin clearly having fallen to the ground with separation of the tractor wheels at the back and the heavy roller at the front when the articulated arms had given way. He measured various angulations of the dynamics of the incident and graphic reconstruction and looked at the force vectors, noting that there would have been a force acting on the seat in a forward direction when the cabin fell to the ground. He failed to consider that there had been repetitive jarring of the claimant’s back in the cabin, as the impacting device was still working while the roller decoupled itself and the cabin fell to the ground. He did look at other traumas in the past, one of which included a right sided head trauma following an assault in February 2017 and a car door injury to the claimant’s ankle in February 2017 and a thoracic scan following a gear box falling onto his chest, back in 2010. The claimant did report today that his back was asymptomatic at the time of his subject motor vehicle accident.
His conclusion was that the lumbar spine changes with a single minor trauma incident was problematic but I am at odds with this evidence, where the claimant was driving a heavy machine, namely the Council roller, which disarticulated while the impactor was working, causing him to be jerked about at the time in the cabin due to the impacting machine continuing, which was further exaggerated when the cabin collapsed onto the ground.
On the balance of probabilities, notwithstanding the Expert report of Professor Robert Anderson’s biomechanical assessment, the claimant has had a significant back strain injury in the subject motor accident with an L4/5 disc rupture which ultimately required surgical intervention.”
EVIDENCE
The parties filed a joint bundle of documents in accordance with the Standard Direction issued on 4 August 2023 to which the Panel has had detailed regard in the preparation of these reasons.
The claimant underwent a CT of his lumbar spine undertaken by Dr Matthew Healey on 23 July 2018, the report of which records a small broad based posterior disc bulge at L3/4 and a small to moderate broad based disc bulge at L4/5. Dr Healey recommended guided epidural steroid injections in the first instance. The epidural steroidal injections were undertaken by Dr David Bell on 17 January 2019.
Adjunct Associate Professor Robert Anderson in his report dated 24 September 2019 took the approach of examining the geometry of the roller; to describe, in the worst case, what the kinematics of the event were and in particular what the vertical fall speed would have been as the cabin area fell and was arrested by the underside of the roller hitting the ground; to describe the likely forces at play as the claimant interacted with his seat with reference to ergonomic and biomechanical studies of falls onto the base of the spine; to place these forces into the context of injury tolerance criteria; and to discuss the concordance of the claimant’s injuries with the mechanisms present during the subject collision.
The description of the likely forces at play were described as minor trauma, and inconsistent with the injury complained of. However, the report failed to consider the effect of ongoing vibration of the roller on any injury.
The Adjunct Associate Professor opined that the is a risk in the present case of the lumbar spine pathology being misattributed to the subject accident. The Adjunct Associate Professor considered the nature of the claimant’s background, circumstances, and work to be of significance when considering the aetiology of the conditions that he attributed to the subject accident. He considered therefore associating the claimant’s lumbar spine changes with a single minor trauma incident problematic. He concluded that in the subject case the claimant presented with lumbar spine degeneration and associated sciatica. However, he opined, given that first, the loading conditions were in his opinion likely to have given rise only to low risk of structural injuries in the lumbar spine; second, the time lapse between the incident and presentation in 2018; and third, the presence of other risk factors, the connection with his current condition and the subject accident was in his opinion, and based on the material provided, a tenuous one.
Dr James Bodel in his report date 25 September 2020, following obtaining a history and undertaking a clinical examination of the claimant, was of the opinion that the disc rupture at L4/5 was caused by a motor accident on 4 July 2016. He considered that the claimant’s long-term prognosis remained guarded. He opined that on the balance of probabilities the need for surgery was as a consequence of the injury on 4 July 2016. The documentation prior to the event in July 2018 when he spontaneously deteriorated, in his opinion, clearly showed that there was evidence of pathology present at L4/5 and L3/4 levels prior to the spontaneous deterioration in association with his working in general. The need for surgery therefore was as a consequence of the original disc injury occurred on 4 July 2016.
Dr Robert Breit in his report dated 25 September 2020 following a history taken and examination of the claimant and upon considering the material provided by the insurer, observed that there were no chronic pre-existing changes in the radiological investigations and that the radiological findings were consistent with the radicular complaints. The doctor remarked that the insurer had provided a “very thorough chronology of general events involving [the claimant]” but none was of relevance to his back injury. He remarked that the subsequent assault experienced by the claimant did not involve an injury to the back and there have been no further injuries. He was of the opinion that there is a relationship between the injury the pathology and the subject accident. He concluded that the ongoing complaints did relate to the injury of 4 July 2016 and that neither of the subsequent incidents constitute an injury but rather symptomology due to the natural history of the pathology.
Dr Robert Breit in his report dated 22 October 2020 following receipt of Adjunct Associate Professor Anderson’s report observed that Dr Anderson had gone into some detail not only with the analysis of the forces but also with the literature and effects of trauma at different levels. He observed that Dr Anderson found that the level of trauma of the subject accident to be low. He observed fact that Dr Anderson had pointed out multiple other factors which were relevant and unrelated to the accident. He opined that upon considering the opinion by Dr Anderson that the motor vehicle accident of July 2016 was not a substantial contributing factor to the lumbar disc pathology and the requirements for the lumbar spine surgery.
In a statement dated 9 February 2021, the claimant set out the various incidents in which he has been involved (which the Panel notes is largely supported by medical evidence provided in the joint bundle):
(a) in 1998, he was involved in a minor pushbike accident where he hurt his neck;
(b) in 2003, he injured his hand when he punched the wall;
(c) in 2007, while working on a car he suffered in minor cut to his leg from a rusty exhaust pipe;
(d) in 2009 whilst volunteering with the State Emergency Service (SES) injury where we had a cup left eyebrow;
(e) in about 2017, his son was at a party which was not going well. He attended the party to remove his son. Unfortunately doing so he was hit by another person attending the party. He had headaches for a while and saw Dr Brown who sent him for a scan which he understands was clear. Those problems resolved within a month or two after the incident;
(f) in February 2017, he suffered a minor injury to his lower leg when a car got slammed onto it, and
(g) he has recovered from all these incidents.
He set out the circumstances of the 4 July 2016 motor accident, which have been set out above. He stated that prior to this injury he never had any significant pain in his lower back. He said he continued to work although with some restrictions. He said his back pain would ease from time to time. He would suffer particularly when working on the loaders and the roller. The pain would flare up at times and he would generally just push through and continue with work as best he could. He stated he mentioned his back pain on several occasions to his general practitioners that in late 2017 and early 2018.
On or about 16 July 2018 he woke up early with severe back pain and had difficulty getting out of bed. He had tingling in both his legs and down to his toes as well of some numbness. He attended Lithgow Hospital, was provided with some treatment and prescribed Panedeine Forte.
The claimant’s clinical records record a meagre attendance on the claimant’s general practitioner:
(a) on 11 July 2016, Dr Hilton Brown records that the claimant attended upon having suffered a work injury one week before. He was referred to physio and was to be reviewed on 22 July 2016.
(b) The claimant was seen again on 27 March 2017 with a headache following a history of an alleged assault one month ago. Concussion was queried. The claimant had some residual light-headedness. It is recorded that the claimant under winter CT scan for his brain for right sided head trauma one month before.
(c) The claim was not seen again until 26 July 2018 complaining of right sciatica pain. A workers compensation certificate was given until 4 July 2018. The comment was that he should consider physio.
(d) The claimant was not seen again until 23 October 2018 for a referral letter to Dr David Bell and MRI for a lumbar spine for right sciatica for his Workcover claim.
(e) He was seen again on 30 October 2018 to review the MRI.
(f) The claimant attended again on 8 November 2018 regarding his back injury.
(g) And again, on 21 January 2019 for a prescription of Endone 5mg tablets.
RE-EXAMINATION
The Panel determined that it was necessary to re-examine the claimant, which examination took place on 19 December 2023 conducted by Medical Assessor Kenna, in person.
The following is Medical Assessor Kenna’s examination report.
“HISTORY
When seen on 19 December 2023, Glen Edwards was 56 years of age. He presented alone.
I went over the main findings of Assessor Drew Dixon’s report of April 2023 to clarify a number of details. He re-affirmed the accident of 2016. In his considered view, it was the principal incident in which there was onset of back and subsequent symptoms predominantly involving the right lower extremity. That his back never recovered from that initial incident of 4 July 2016 and although he continued working, he has continued to experience symptoms on a daily basis.
The background to this of course was that he was and still is employed by the Lithgow City Council and had worked there from 2011 as a plant operator and as a roller driver. This job also involved some labouring work for the Council.
He was seen by Dr David Bell, orthopaedic surgeon of Orange as back and leg symptoms in July 2018, had become particularly acute, he attended Lithgow Base Hospital, and also saw his GP. The MRI confirmed a right-sided disc prolapse at L4/5.
There was a trial of an injection but eventually he underwent a decompression laminectomy and discectomy at L4/5. That operation occurred on 5 September 2019.
Nevertheless, he acknowledged that compared to his pre-operative state his symptoms were less severe.
The important point to note is that although there was improvement, that is some effective pain relief pertaining to the right leg as well as the lower back, nevertheless he stated he continued to experience both back and right leg pain post-operatively, although not as intense as was previously the case.
Hence, it is important to note that at the time following the surgery, his overall region of pain pattern remained unchanged, but it was less intense. Nevertheless, he continued to experience both back pain and right leg symptoms.
Post surgery
He was off work for some six months and then returned to work eventually to his usual hours of 8.5 hours a day, five days per week, with a lifting restriction of 20kg and to avoid any repetitious bending or stooping.
His job duties at the time were mainly relief grading work and driving a grader, but with less driving involving the steam roller.
Hence, from the time post-operatively when he returned to work after the operative procedure, he would still experience pain involving the back and right lower extremity. His back pain never settled post-operatively and was prone to further aggravation, almost on a daily basis.
Nevertheless, whilst there was improvement pertaining to his right leg symptoms, there was still residual sciatica and there was also some improvement in back pain, although back pain to an extent also still continued to the point that he still required medication involving anti-inflammatories and analgesics (generally over the counter) to do his work duties.
Hence, when he did return to work post-operatively, he was on light duties for the next 6-8 months. It did not involve any roller work and was basically acting as a foreman. Nevertheless, he was experiencing symptoms on a daily basis in part dependent upon the level of activity involved at work.
In that respect, he re-aggravated his back in an incident on 18 January 2021. He was operating a roller at work and also lifted a traffic barrier around that time.
Subsequently as a result of increased pain, he saw his general practitioner who considered it was a recurrence of his previous injury.
That was confirmed in a letter by his GP, Dr Hilton-Brown, to the insurer who stated that he felt that this was a recurrence of his previous injury, noting that the claimant was ‘injury free’ until 18 January 2021, when he had the subsequent injury at work.
I subsequently asked him about this, and he states that is incorrect wording. He was never symptom free. He was experiencing aggravation essentially almost on a daily basis, but just would not make a report and that usually he would just rest at home that being the case.
Current symptoms
At the time of my assessment, he has had no further surgery. Whilst there was claimed to be a second incident, that is a result of the incident in January 2021, he reiterated that in actual fact that was just one of many times when he experienced increase in the level of pain and that he had never recovered from the initial injury in 2016 and the symptoms remain essentially the same involving back and associated right leg symptoms.
Following the incident in 2021, he was off for about a month, possibly more. He then returned to work in a foreman type activity and using his words, he also acted as a gofer.
This unfortunately, however, has involved a lot of driving which has also flared his back some four months ago.
Indeed, at the time of my examination as a result, he was put off work and has not worked for the last four months, although he is still employed as a council worker for Lithgow Council. When asked about possible return to work, he indicated that both he and the Council were at a loss as to what type of duties he could perform without causing further aggravation.
He no longer sees Dr Bell, the key point being that in 2019 following the surgery, he continued to experience ongoing symptoms, but he regained a work capacity, generally avoiding the roller. He acknowledges that there have been numerous aggravations, not just the incident of 18 January 2021, and there has generally been the same distribution of symptoms but increased level of pain on a temporary basis.
In that respect, he has had an epidural injection recently – two in the last three months. He has attended physiotherapy usually twice weekly.
He states that he is currently trying to avoid surgery but acknowledges that over time his activity tolerance limits have gradually deteriorated to the point that he really is not able to work to do his previous activities, as he states he is ‘rat shit’ most days.
At the time of my assessment, his current symptoms were intense central low back pain, i.e. lower lumbar. Intense pain involving the right mid buttock and referral of symptoms down the back of the right leg to the sole of the right foot.
He weighed 59kg and for his age and height appeared gaunt and severely underweight.
CLINICAL EXAMINATION
All movements were grossly restricted. He had alteration of gait with a fairly pronounced limp, protecting or favouring the right leg.
He was not stable enough to walk on toes and heels. That became evident because his lumbar spine was essentially rigid with muscle spasm. Subsequent to that, standing on toes and heels, he was unable to tilt the pelvis.
I noted a well-healed 4cm scar, central and vertical, extending from L4 to S1 in the midline. It was not particularly pigmented but there were clear suture marks present.
Lumbar spine
Muscle guarding and spasm present and non-uniform (asymmetric) range of movement as follows.
Right leg distal symptoms followed a nerve root pattern reflective of L5 and S1.
All movements were very restricted. He had no extension whatsoever unless he bent his knees. Forward flexion was limited to only 20%. There was little in the way of side bending. Rotation occurred only in the upper thoracic spine, as rotation in either direction reproduced symptoms.
He had a flattened lumbar spine with total loss of lordosis.
On palpation, muscle spasm extending from L4 to S1.
MOVEMENTS
RANGE EXHIBITED
Flexion
80% restriction
Extension
100% restriction
Rotation to the right
30 % restriction
Rotation to the left
20 % restriction
Lateral bending to the right
50% restriction
Lateral bending to the left
70% restriction
With regard to straight leg raise, note that this was positive on the right leg, negative on the left, with reproduction of pain distally.
Note alteration of dermatome involving nerve root L5 with feathering over the dorsal aspect of the right foot, particularly involving the large toe and the second and third toes.
Note that L5 fatigued on repetition. Ankle reflexes were equal right and left i.e. reflexes were intact.
Evidence of radiculopathy involving positive straight leg raise, dermatomal alteration of sensation involving specific nerve root L5. There was also evidence of decreased power involving the L5 nerve root.
NEUROLOGICAL TESTS
REFLEXES
REFLEX
LEFT
RIGHT
KNEE JERK
Normal
Normal
ANKLE JERK
Normal
Normal
LEFT
RIGHT
Sciatic nerve stretch (straight leg raise)
Normal/abnormal
Normal/abnormal
Femoral nerve stretch (prone knee bending)
Normal/abnormal
Normal/abnormal
SENSATION: Normal.
Two-point discrimination sensation was abnormal with a point separation of > 6mm with poor sensitivity to light and firmer touch over the affected dermatomes.
MUSCLE WASTING: note that the thighs were of the same girth as the calf, which is very unusual and whilst there was no asymmetry in measurements, his ‘wasted state’ could be a contributory factor.
LEFT (cm)
RIGHT (cm)
THIGH
(10cm above the superior pole of the patella)
34
34
CALF
34
34
MUSCLE POWER
LEVEL
MOTOR POWER
LEFT
RIGHT
L3
5/5
NORMAL
NORMAL
L4
5/5
NORMAL
NORMAL
L5
5/5
NORMAL
NORMAL
S1
5/5
NORMAL
NORMAL
5 is active movement against gravity with full resistance
4 is active movement against gravity with some resistance
3 is active movement against gravity only, without resistance
MUSCLE ATROPHY:
THIGH
LEFT = RIGHT
CALF
LEFT = RIGHT
No unilateral muscle atrophy present.
DURAL TENSION TESTS
TEST
RIGHT
LEFT
PRONE KNEE BEND
Normal
Normal
STRAIGHT LEG RAISE
positive
Normal
Scarring
Central vertical scar, 4cm, slight color contast, with some suture marks visible.
Claimant is conscious of the scar(s) or skin condition, some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes, claimant is able to locate the scar(s) or skin condition, minimal trophic changes, staple marks or suture marks are visible, anatomic location of the scar(s) or skin condition is not usually visible with usual clothing/ hairstyle, minor contour effect, negligible effect on any ADL
Best fit: 1%WPI
PERMANENT IMPAIRMENT
Body Part or System
AMA Guides/ The Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI*
%WPI* from pre-existing OR subsequent causes
%WPI* due to motor accident
1
Lumbar Spine
DRE III
ch3,pgs 102-107,AMA4
Tables 7 & 8
The Guidelines
Yes
10
0
10
2
Scarring
TEMSKI
Yes
1
0
1
11%WPI = percentage whole person impairment.”
PANEL’S REASONS
The Panel adopts the clinical findings and impairment assessment of Medical Assessor Kenna, as they are consistent with the medical and other evidence before it.
The Panel is satisfied that the claimant is a credible historian and that the absence of reporting to his general practitioners or other health practitioners the ongoing nature of his symptoms is consistent with his stoic and phlegmatic disposition.
The Panel has considered Adjunct Associate Professor Anderson’s report it is not persuaded that its conclusions are pertinent and reliable in the absence of considering the full mechanism of the accident, in particular the vibrations of the roller, and the unabated history of the claimant’s lower back symptoms since that time.
The Panel further observes that the fact that an expert does not infer causation on the balance of probabilities does not mean that the Panel may not: a fact is probable where a person, judging the probability of that thing, has the appropriate degree of confidence in its existence or correctness, based on or judged according to reason. See Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [143]-[144]; Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [138]-[141].
The Panel is satisfied that the claimant sustained an injury to his lower back in a work-related motor vehicle accident in 2016. On the balance of probabilities, the Panel is satisfied that this injury resulted in an L4/5-disc protrusion. Although there was no radiological investigation undertaken at the time, in the Panel’s opinion this does not preclude the probability that the injury, was materially contributed to by that incident. The mechanism of injury is consistent with the pathology.
The Panel is satisfied that the claimant continued to endeavour working despite his recurring symptoms of back pain and sciatica, but he reached the point in mid-2019 that he was unable to continue, and he underwent an operative procedure involving a decompression laminectomy and discectomy.
It is important to note that whilst there was improvement following surgery, the claimant never fully recovered and was left with residual back pain, reduced functional mobility of the lumbar spine and residual L5 radiculopathy involving the right lower extremity. These symptoms were secondary to the injury sustained when, as the claimant describes, the roller cabin collapsed onto the ground, and continued vibrating while still moving.
Whilst the claimant experienced a recurrence of back pain whilst driving a roller on 18 January 2021, the perception that this was a separate, identifiable, and supervening incident, sufficient to break the causal nexus from the 2016 incident, is the product of his general practitioner’s unfortunate expression, viz. wherein he stated the claimant had been “injury free” in the meantime. That has never been the case.
The Panel is satisfied that the claimant has never fully recovered from the initial injury in 2016; he has had persistent back as well as right leg pain. He reported to Medical Assessor Kenna that he would often just go home and rest rather than attending the hospital. The Panel is therefore satisfied that this 2021 incident was suffered as a result of a further exacerbation of his 2016 injury. Indeed, the claimant reported to Medical Assessor Kenna that he had had numerous other like episodes when he simply did not go to hospital but went home and rested. Accordingly, the Panel concludes that the 2021 incident resulted in only a temporary aggravation of symptoms (and not pathology) of what was a pre-existent ongoing problem and disability.
Whilst the claimant may have experienced increased symptoms, nevertheless he continued to have symptoms indicative of L5 radiculopathy on the right consistent with those which had emerged following the initial accident in 2016. That being the case, his current clinical presentation was caused by the initial incident in 2016 and any subsequent events were aggravations of his pre-existent lower back condition from which he had never fully recovered, despite surgical intervention.
Whilst there were numerous subsequent incidents post the initial motor vehicle accident of 2016 and operative procedure, this has not altered his impairment. He continues to present with symptoms indicative of L5 radiculopathy on the right.
The Panel is therefore satisfied that the claimant’s L4/5 decompression surgery performed on 5 June 2019 was related to the 2016 accident and was a reasonable and necessary in the circumstances of the claimant’s unabated lower back symptoms.
The Panel is also satisfied that the claimant’s current clinical presentation also relates to the initial incident and subsequent operative procedure. He has been left with residual L5 radiculopathy in respect of which he is prone to aggravation essentially on a daily basis. The Panel therefore concludes that his current symptoms (and impairment) are due to the 2016 motor accident.
CONCLUSION
In the premises, the Panel confirms the certificate of the Medical Assessor.
0
3
0