QBE Insurance (Australia) Limited v McKenzie
[2024] NSWPICMP 377
•13 June 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v McKenzie [2024] NSWPICMP 377 |
| CLAIMANT: | Hayley McKenzie |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Louis Izzo |
| MEDICAL ASSESSOR: | John Schmidt |
| DATE OF DECISION: | 13 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; accident in October 2018; claimant front-seat passenger; insured vehicle crossed in path of claimant’s vehicle; onset of urological symptoms commenced two weeks after the accident; claimant’s history of immediate onset inconsistent with contemporaneous records and claim form; no evidence of spinal injury causing bladder symptoms; no report of injury to the bladder in contemporaneous records; mechanism of injury does not support the basis for bladder injury; claimant predisposed to anxiety; severity of the motor accident and the associated physical injuries likely explanation for development of urological symptoms; clause 6.2532 of the Guidelines requires objective evidence of injury to the bladder to the urethra; objective testing did not establish bladder or urethra injury; flow studies and/or responses to BOTOX therapy not objective evidence of injury; Held – medical assessment revoked; claimant not assessed as does not satisfy clause 6.25. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the Medical Assessment Certificate dated 27 October 2022 and certifies that the following injuries caused by the motor accident gives rise to a permanent impairment not greater than 10%: · urinary tract including bladder – urinary incontinence. Combined certificate WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 2. The Panel revokes the combined Medical Assessment Certificate dated 26 April 2023 and certifies that the following injuries caused by the motor accident gives rise to a permanent impairment not greater than 10%: · right wrist – fracture distal radius and soft tissue injury; · left arm and wrist – soft tissue injury; · right hip – soft tissue injury; · cervical spine – soft tissue injury; · chest – possible rib fracture and soft tissue injury; · head – soft tissue injury; · upper extremities – scarring, and · urinary tract including bladder – severe urinary incontinence. |
REASONS
BACKGROUND
On 18 October 2018 Ms Hayley McKenzie (the claimant) was injured in a motor vehicle accident when the insured vehicle crossed in front of the path of the claimant’s vehicle. The claimant was a front seat passenger who was asleep at the time of the accident.
QBE Insurance (Australia) Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms McKenzie any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms McKenzie’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA4). Where there is any difference between AMA4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Korbel and dated 27 October 2022 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the insurer within 28 days after the parties were issued with the original certificate for which the review is sought.[3]
[3] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]
[4] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
The parties filed a joint bundle of documents of over 2,000 pages for the Panel’s consideration.
In early May 2024 the Panel was reconstituted with a change in the legal Member.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[8] In Raina v CIC Allianz Insurance Ltd[9] 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.”
[8] See s 3B(2) of the CL Act.
[9] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor was requested to assess the urinary tract including bladder based on severe urinary incontinence.[10]
[10] Bundle, p 17.
The Medical Assessor noted a history of stress incontinence in the latter part of the last pregnancy in 2015 which settled within three months of the birth of the child with no further neurological problems. Reference was made to the motor accident causing a fractured right radius with internal fixation and a number of orthopaedic procedures to both upper limbs.
The Medical Assessor noted a history two weeks after the motor accident of the need for pads for urinary leakage and blood in the urine. The claimant was referred to Dr Doyle, urologist, who confirmed history of urgency and urge incontinence and carried out a cystoscopy which was normal.[11]
[11] Bundle, p 267.
The reasons on causation provided by the Medical Assessor were that the bladder problems commenced after the motor vehicle accident and the urodynamics studies confirmed severe detrusor overactivity. The response to Botox therapy was described as reasonable.
The Medical Assessor assessed permanent impairment of the bladder at 9% pursuant to Chapter 4, page 149, table 7 of AMA 4.
MATERIAL BEFORE THE PANEL
Pre-existing conditions
There are various clinical records showing a history of domestic violence and abuse with symptoms of post-traumatic stress disorder, depression, anxiety and stress.[12]
[12] See for example, bundle, p 939, p 1,041, p 1,131, p 1,167, p 1,217, p 1,370.
On 11 October 2018 the claimant attended Wyong Hospital complaining of multiple non-specific symptoms.
Medical records post-accident
The ambulance record included the following history:[13]
“Pt was ? restrained u and has had an offset collision with another vehicle. Vehicle was stated to be travelling at approximately 50 KPH and another vehicle is turned in front of same. Pt states that she was asleep at the time of the incident. Pt states that seatbelt may have slipped down onto the shoulder and head has made small star shatter on windscreen. Pt denies LOC and was located sitting in front seat with R arm supported on lap. Pt denies any head or neck pain with full range of motion, Pt with contusions and abrasions to left arm in arm, ? Consistent with seatbelt having moved. Pt with pain and deformity to R wrist with #. Good distal perfusion and sensation with increased pain upon movement. Slight discomfort to L knee but nil gross evidence noted to area. Pupils equal and restrictive, GCS = 15, SPI2 = 98%, Nil SOB or WOB, Abdo soft. Pt with some minor lacs to L wrist had been sustained the early hours of the AM and patient was en-route to ED have assessed when the incident occurred.”
[13] Bundle, p 792.
The discharge record of John Hunter Hospital dated 18 October 2018 noted recent motor accident with fractured right distal radius, bruising to the left arm and possible minor injury with no clinical evidence.[14] Hospital records do not refer to any urological or bladder injury.[15]
[14] Bundle, p 339.
[15] Bundle, pp 800 – 803.
On 22 October 2018 the general practitioner (GP) noted the motor accident caused multiple injuries including to the right wrist, right lower rib cage, right renal angle and bruises of the left forearm.[16]
[16] Bundle, p 302.
The abdominal ultrasound performed on 25 October 2018 was reported as normal.[17] The lumbar spine X-ray performed on 25 October 2018 was normal.[18] The X-ray of the pelvis and right hip dated 31 October 2018 was normal.[19]
[17] Bundle, p 270.
[18] Bundle, p 272.
[19] Bundle, p 338.
The claimant completed a claim form on 31 October 2018.[20] The claimant referred to the motor accident when the insured vehicle turned across the lane of travel of her vehicle. The claimant felt her head hit the windscreen noting injuries including a broken wrist, whiplash, sore ribs, left shoulder, left knee and left foot injury. There was no mention of any urological condition at that time.
[20] Bundel, p 25.
On 5 November 2018 Dr Gorniak questioned whether the claimant was urinary incontinent.[21] This was the first reference to incontinence noting there were various attendances on medical practitioners as late as 2 November 2018. The GP referred the claimant to hospital for opinion and management of lower abdominal pain and urinary incontinence following the recent motor accident.[22]
[21] Bundle, p 305.
[22] Bundle, p 319.
A CT of the abdomen and lumbar spine dated 8 November 2018 showed no abnormalities.[23] Dr Allen noted a normal CT lumbar spine and identified no cause for the patient’s symptoms which were described as severe pain over the left flank/kidney and new urinary incontinence.
[23] Bundle, p 852.
The MRI scan of the thoracolumbar spine dated 9 November 2018 noted a clinical history of urinary incontinence with standing, no sensation of loss, no feeling of bladder fullness, strong rectal pain, saddle numbness of the left thigh and the right thigh was normal. The MRI scan showed no significant fracture or lesion and no signs of neural impingement.
On 13 November 2018, Dr Meads, orthopaedic surgeon, referred the claimant to Dr Doyle for review of urinary incontinence.[24]
[24] Bundle, p 856.
In a report dated 28 November 2018 Dr Doyle, urologist, noted that he had seen the claimant on 8 November 2018 following a motor vehicle accident in October.[25] The history at that time was several days of urgency, urge incontinence and macroscopic haematuria with no voiding symptoms. The claimant was unable to tolerate any pelvic examination but denied any loss of sensation in the perianal area.
[25] Bundle, p 601.
The MRI scan of the spine was unremarkable. Dr Doyle concluded that the claimant had sustained a soft tissue injury of the bladder wall which had produced symptoms which he understood had “improved in any case”.[26]
[26] Bundle, p 601.
On 14 December 2018 the claimant was reviewed by Dr Doyle. The claimant stated she was still suffering from urinary incontinence and now reported the development of urgency followed by urge incontinence. The claimant reported voiding every three hours and regularly sees blood in the urine. The doctor noted this is highly unusual for a soft tissue bladder injury to be bleeding after two months and therefore recommended cystoscopy and retrograde pyelograms to ensure there was no other pathology present.[27]
[27] Bundle, p 602.
The pelvic ultrasound dated 12 March 2019 was reported as normal.[28]
[28] Bundle, p 545.
The claimant was reviewed by Dr Doyle on 20 March 2019 who noted that the claimant did not have the cystoscopy and pyelograms. The claimant reported ongoing episodes of macroscopic haematuria and urinary incontinence which seemed to be a mixture of both stress and urge incontinence. The doctor noted a history of incontinence prior to the motor accident which was limited to the late term of a pregnancy.[29]
[29] Bundle, p 547.
The doctor recommended Oxytrol patches and rebooked the claimant for the cystoscopy and pyelograms.
Dr Doyle performed a cystoscopy and bilateral retrograde pyelograms on 9 April 2019. The claimant advised that haematuria had subsided. Dr Doyle advised that the examination was entirely normal, and the evaluation was completed from the doctor’s point of view.[30]
[30] Bundle, p 556.
The claimant was reviewed by Dr Jane Manning, urogynaecologist, on 6 March 2020.[31] The doctor noted a history of urinary incontinence following the motor accident with a significant history of likely post-traumatic stress disorder from an abusive childhood.
[31] Bundle, p 605.
Dr Manning noted that the claimant had a period of incontinence of three years in connection with an episode of domestic violence in 2015 which subsequently resolved. The doctor noted severe incontinence following the recent motor vehicle accident when the claimant was “thrown from her vehicle”.
Dr Manning recorded that the claimant was a smoker and a heavy coffee drinker which can aggravated urge.
There was no history of childhood enuresis, no recent history of bladder infection with childhood infections. There was no difficulty with the stream, with feelings of incomplete emptying and post-void emptying.
The doctor noted there was evidence of severe phasic detrusor overactivity and there may be some impaired voiding which could be neurogenic. The period of incontinence coincided with an episode of domestic violence which was likely related to pre-existing urge. Dr Manning opined that there was a background tendency for some time which was triggered by the motor accident.
Dr Manning recommended BOTOX injections and noted that the recent traumatic events may have been a trigger for the changes in the bladder.
The claimant was reviewed by Dr Manning on 13 May 2020.[32] The doctor noted that the bladder was inflamed at the trigone, especially on the right. The doctor opined that the pain may relate to central sensitisation associated with post-traumatic stress disorder.
[32] Bundle, p 620.
The claimant was reviewed by Associate Professor Crimmins, neurologist, on 5 May 2020.[33] The doctor noted the motor accident which provided ongoing problems for the claimant’s quality of life and she had moved to the Central Coast to avoid domestic violence in Sydney. The doctor noted the closed head injury and previous symptoms of syncopal episodes in the context of previous post-traumatic stress disorder as a consequence of domestic violence in her early life.
[33] Bundle, p 814.
The claimant’s history included two children aged 4 and 10 years and smoking four cigarettes a day.
The doctor recommended BOTOX therapy as a means of treating headaches and formal neuropsychological evaluation.
The claimant was reviewed by telephone by Dr Manning on 22 June 2020.[34] The claimant reported that she was 16% better and had warning in the day before leakage. Dr Manning raise the suggestion of a bladder infection.
[34] Bundle, p 624.
On 4 September 2020 Dr Crimmins noted ongoing Botox therapy for chronic migraines.[35]
[35] Bundle, p 816.
In late 2020 the claimant underwent right ulnar shortening osteotomy and right cubital tunnel release.[36]
[36] Bundle, p 1,000.
Dr Manning provided a further report dated 15 March 2023 following a review by way of telephone.[37] The doctor noted the dispute as to whether there was neurological involvement to support a change in bladder function. Dr Manning stated that “bladder syndrome is a nociplastic pain condition” and there was no need for signs of cauda equina lesion or pudendal neuropathy.
[37] Bundle, p 2,011.
Dr Manning opined that the direct bladder trauma she experienced would be sufficient to precipitate the change in pain processing and noted that Botox treatments had worked well, were not a long-term solution but showed efficacy for detrusor overactivity and suggested in the latest Cochrane review.
Dr Manning provided an amended report dated 21 March 2023[38] which noted the test on the balance of probabilities. The doctor noted the earlier letters dated 6 March 2020 and
27 November 2020 and the claimant’s denial of any incontinence following domestic violence. Dr Manning said she clearly misunderstood the claimant at that time. The doctor noted the claimant’s bladder recovered following childbirth with transient incontinence a common and recognised condition.[38] Bundle, p 2,012.
Dr Manning noted that “pathophysiology of overactive bladder and chronic bladder pain are conditions that are poorly understood and very likely multifactorial in cause with environmental trauma being a major factor”. The doctor confirmed that the “current permanent bladder dysfunction was noted immediately after the direct bladder trauma occurred”.
Dr Manning opined that severe urge/detrusor overactivity and bladder pain is not only caused by spinal cord injury and opined that it was “well accepted that overactive bladder and detrusor overactivity have many possible causes and that it is not always due to easily demonstrable spinal cord lesions”.
Dr Manning referred to the article by Luke Grundy of the role of inflammatory events triggering an overactive bladder and opined that the claimant “clearly suffered a severe inflammatory event with her bladder injury”.
A statement provided by Colin Evans dated 11 March 2021 confirmed that the claimant was wearing a seatbelt at the time of the accident.[39]
[39] Bundle, p 2,002.
Qualified opinions
Dr John O’Neill, neurologist, was qualified by the insurer and provided a report dated
28 October 2020.[40] Dr O’Neil stated:[41]“There is certainly no neurological cause for the reported ‘incontinence’ of urine. In particular, there are no neurological symptoms, signs or radiological support for a possible lesion of the conus medullaris or of a cauda equina syndrome. Again, I am sure the reported incontinence has a psychosomatic basis and I note that it was present at the time of domestic violence in 2015.
I cannot exclude the possibility that there might be a very mild right ulnar sensory neuropathy but this would need to be confirmed by nerve conduction studies which have never been undertaken. In any case, it is only a transient complaint, occurring for a couple of hours after hand exercises.
In short, I have no doubt that the continuing neurological symptoms arising from the accident of 18/10/2018 have a psychosomatic basis.”
[40] Bundle, p 30.
[41] Bundle, p 36.
Mr Michael Griffiths, engineer, provided a report dated 22 December 2020.[42] Mr Griffiths opined that some of the reported injuries can only be sustained if the claimant was not wearing a seatbelt.
[42] Bundle, p 47.
Associate Professor Shatwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 12 February 2021.[43] The doctor opined that urinary incontinence was unlikely to have been caused by the motor accident and suggested the ongoing symptoms were due to the claimant’s anxiety regarding her injuries.
[43] Bundle, p 141.
Associate Professor Shatwell provided a further report dated 7 September 2021[44] which commented on the report of Mr Griffiths. The doctor opined that there was evidence that the claimant was restrained by a seatbelt because of a lack of head, neck and knee injuries. He noted that the positioning of the seatbelt was unknown particularly in circumstances where the claimant was asleep.
[44] Bundle, p 1,808.
Associate Professor Shatwell provided a further report dated 23 November 2021.[45] The doctor noted that the claimant continued to have Botox for headache and bladder symptoms with some improvement.
[45] Bundle, p 1,812.
The doctor opined that there was no likelihood that the restraint the seatbelt would have caused any permanent injury to the abdominal viscera and that any bladder symptoms were not caused by the motor accident.
Associate Professor Shatwell provided a further report dated 20 May 2022 following a further examination and review of materials.[46] In relation to the issue before the Panel, the doctor noted that he was “out of touch with urological medicine though trained in general surgery including urology prior to specialising in orthopaedic trauma surgery”.
[46] Bundle, p 1,822.
The doctor noted there was no suggestion of any abdominal injury at the time of the accident on reviewing the records of the ambulance service and the hospital notes. In his opinion there was no link between urinary problems and the motor accident based on his experience of looking after patients following motor vehicle accidents over many years.
Dr Robert Wines, urologist, was qualified by the insurer and provided a report dated
27 November 2020.[47] The doctor noted that the claimant denied any significant lower urinary tract symptoms with some incontinence during one of the pregnancies that resolved.[47] Bundle, p 157.
Dr Wines provided the following opinion on causation:[48]
“This lady was involved in what sounds like a minor motor vehicle accident. She does not appear to have suffered any obvious injury that would impact on the normal function of the genitourinary tract. However, symptomatically, she described an abnormal pattern of micturition and Dr Manning demonstrated bladder instability which can have a neurological cause. However, no stress incontinence was revealed today on vigorous coughing nor was there any evidence of the need to void during the consultation of over an hour.
My impression is that the motor vehicle accident is not of significance in the production of her symptoms. She has a disturbing past history and I am unsure of the impact this could have on the development of the symptoms. The neurological findings requires a reassessment to exclude undiagnosed pathology such as multiple sclerosis which can present like this as can idiopathic bladder instability. There are factors in the history and examination which are not in keeping with underlying genuine urological pathology being present.”
[48] Bundle, p 158.
Other medical assessment certificates
Medical Assessor Cameron provided a medical assessment certificate dated
27 August 2020.[49] The Medical Assessor found that the proposed treatment, consultation with the neurologist, consultation with Dr Meads on the left arm radial tunnel injection were caused by the accident and reasonable and necessary.[49] Bundle, p 1,800.
Medical Assessor Carter provided a medical assessment certificate dated 4 September 2020 when he found that a consultation with a gynaecologist both relates to the injury caused by the motor accident and was reasonable and necessary in the circumstances.[50]
[50] Bundle, p 1,996.
The Medical Assessor noted that the clinical notes were reviewed and made no reference to stress incontinence between 2018 and the motor vehicle accident. The Medical Assessor provided the following reasons on causation:
“The history indicates convincingly that there was severe stress incontinence of urine with an onset within two weeks of the motor vehicle accident on 18 October 2018. There is no history from Mr McKenzie or from any of the documentation provided that suggest she had anything more than minimal stress incontinence prior to the accident in October 2018. Cystometry gave objective evidence of pathology in the bladder and all the data strongly indicates a relationship between the motor vehicle accident and the onset of stress incontinence.”
The Medical Assessor opined that the temporal association with the motor accident along with the documentation of severe detrusor muscle overactivity gave rise to the conclusion that the treatment and care regarding the stress incontinence related to the injury caused by the accident.
Medical Assessor Cameron provided a further medical assessment certificate dated
1 March 2022 concerning consultation and Botox injections recommended by Dr Crimmins.[51] The Medical Assessor noted that the Botox injections recommended by Dr Crimmins and improved recovery based on self-reporting noting that the claimant was no longer taking regular opioid medication.[51] Bundle, p 1,841.
The Medical Assessor found that the Botox injections recommended by Dr Crimmins were reasonable and necessary and caused by the motor accident.
Medical Assessor Cameron assessed impairment of the various physical injuries at 5% whole person impairment. The Medical Assessor also produced a combined certificate of 14%.[52]
[52] Bundle, p 1,968.
SUBMISSIONS
Claimant’s submissions dated 6 June 2023[53]
[53] Bundle, p 2,016.
The claimant submitted that cl 6.252 “is saying that if incontinence is to be assessed under chapter 4 related to this lovely green, then there must be objective evidence of neurological impairment”.
The claimant submitted that the Medical Assessor found “neurogenic bladder problems related to the motor vehicle accident” which were confirmed by the urodynamic studies carried out by Dr Manning and responses to Botox therapy. It is submitted that the results of the urodynamic studies and the response to Botox therapy where two factors which constitute the objective evidence to conclude that the bladder problems were neurogenic in nature.
The claimant referred to the opinion of the treating urogynaecologost, Dr Manning, that the bladder problems are neurogenic in nature and referred to the recent report dated
31 March 2023.The claimant submitted that the decision in Woelms was distinguishable and had no relevance to this case as there was no objective evidence in that case and sustained any injury to the bladder or urethra in the motor accident. The claimant referred to the opinion of Medical Assessor Carter who found that the cystometry provided objective evidence of pathology in the bladder.
The claimant noted that the further objective evidence was the urodynamic studies carried out by Dr Manning in the claimant’s responses to the Botox therapy.
The claimant submitted that the Medical Assessor placed her at the top of the first category given the ongoing symptoms.
Insurer’s chronology[54]
[54] Bundle, p 170.
The insurer provided a 40-page chronology. There were various clinical records showing a history of domestic violence and sexual abuse with symptoms of post-traumatic stress disorder, depression, anxiety and stress. Some of the documents referenced in the chronology are not before the Panel.
Insurer’s submissions dated 31 May 2021[55]
[55] Bundle, p 4.
The insurer noted that the matter was not ready for assessment because the physical injuries had not stabilised. It referred to the opinion of Associate Professor Shatwell dated 12 February 2021 that the complaints were not reasonable and were psychosomatic in origin.
In relation to the allegation of urinary incontinence, the insurer disputed the condition noting that there was a history of incontinence symptoms in the context of pregnancy.
The insurer noted that urinary symptoms were first mentioned in the clinical notes on
5 November 2018.The abdomen CT scan dated 8 November 2018 showed no abnormalities.
In a report dated 9 April 2019, Dr Doyle, urologist, advised he was unable to find any abnormality after conducting a clinical examination and performed a cystoscopy and bilateral retrograde pyelogram. The doctor indicated that the examination of the claimant was entirely normal.
On 6 March 2020, Dr Manning, treating urogynaecologist, noted there was some impaired voiding which could be neurogenic coincided with episodes of domestic violence.
The insurer noted that the claimant denied that that this history was correct when she was examined by Medical Assessor Carter.
The insurer relied on the opinion of Dr Robert Wines, urologist, who provided a report dated 27 November 2020. Dr Wines opined there may be neurological cause, but the subject accident was not of significance in the production of those symptoms.
The insurer relied on the opinion of Dr O’Neill that the symptoms were not attributable to any neurological cause.
Insurer’s submissions dated 22 May 2023[56]
[56] Bundle, p 1926.
These submissions were filed seeking leave to review the medical assessment.
The insurer referred to cl 6.252 of the Motor Accident Guidelines and noted that if there is objective evidence of neurological impairment related to spinal injury then chapter 4 of AMA 4 is utilised. If there is objective evidence of injury/trauma to the bladder and/or urethra then Chapter 11 of AMA 4 is used.
The insurer noted that the Medical Assessor did not just diagnose a traumatic injury to the bladder or urethra caused by the motor accident. It submitted that cl 2.52 of the Guidelines required objective evidence of neurological impairment to assess urinary bladder dysfunction under table 17 of AMA 4.
The insurer submitted that the Medical Assessor appeared to have premised his diagnosis on the urodynamics direct studies conducted by Dr Manning in March 2020. In the report dated 27 November 2020, Dr Manning commented that there was evidence of severe phasic detrusor overactivity which could be neurogenic and should be further evaluated. Accordingly, it was submitted that the urodynamic studies performed in March 2020 do not support the Medical Assessor’s diagnosis of “neurogenic bladder problems”.
The insurer noted that Dr O’Neill found no neurological cause of the reported incontinence and no radiological support for a possible lesion. Associate Professor Shatwell confirmed that scan showed normal appearances with no cause found for the increased frequency of micturition.
The insurer noted that Dr Patrick noted mild dysmetria in the cervical spine and no neurological symptoms in the cervical, thoracic and lumbar spine with no clinical evidence of lumbar radiculopathy. The doctor did not diagnose a bladder injury and expressed the view that urinary incontinence was largely a pre-existing condition.
The insurer referred to the Review Panel decision of Insurance Australia Ltd v Woelms[57] and noted the Panel’s findings in that matter that cl 1.252 of the permanent impairment guidelines (comparable to cl 6.252 of the Guidelines) required objective evidence of either injury to the bladder or urethra or objective evidence of neurological impairment to the spine.
[57] [2023] NSWPICMP 150 (Woelms).
The insurer otherwise submitted that detrusor overactivity was not consistent with a neurogenic bladder.
The insurer noted that table 17 provides a range of whole person impairment between 1% to 9%. There were no reasons provided by the Medical Assessor why he chose a figure at the top of the range noting findings that there is no urgency to pass urine and voids every 1.5 to 2 hours.
RE-EXAMINATION
Ms McKenzie was examined by both Medical Assessors on 22 May 2024. The examination report is as follows:
“The claimant described the motor accident noting that she was asleep when it happened. She stated that she woke up and felt immediate pain in her leg and arm.
The claimant advised that on the day of the accident Hayley was discharged because she was worried in regard to her children’s welfare.
Following discharge from hospital she lay in bed for the next two weeks. During this time, and from the time of the accident, she was incontinent of urine and suffered macroscopic hematuria.
The claimant was referred to the history of Medical Assessor Korbel that incontinence of urine commenced 2 weeks following the accident and the absence of complaint during that period.
The claimant replied that she was “dizzy and out of it and does not remember exactly” when symptoms commenced.
Symptoms
The claimant stated she can use her sphincter muscle innervating the external anal sphincter and can voluntarily contract (squeeze) the anal sphincter.
The claimant stated that she has no loss of sensation around the external genitalia.
The claimant stated that she has the ability to contract the urethra and control urinary flow midstream.
The claimant reported that she does not suffer pain related to the distribution of the pudendal nerve.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[58]
[58] Section 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[59] and Insurance Australia Ltd v Marsh.[60]
[59] [2021] NSWCA 287 at [40], [41] and [45].
[60] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
History of onset of urinary symptoms
The claimant advised the Medical Assessors that there was immediate onset of urinary symptoms.
There was no recorded history of urinary symptoms at the hospital and the initial consultations with the GPs. The absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[61] and AAI Ltd v McGiffen.[62]
[61] [2021] NSWSC 548 (Norrington).
[62] [2016] NSWCA 229 at [64]-[66].
The urological condition is not mentioned in the claim form dated 31 October 2018.[63] An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[64] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[63] See [29] herein.
[64] [2014] NSWSC 888 at [31]-[32].
The urological condition is first recorded in the GP’s note of 5 November 2018 in circumstances where it is not mentioned in a GP consultation on 2 November 2018 or on previous occasions.
The history recorded by the treating specialist, Dr Doyle, on 8 November 2018 of several days of urgency is inconsistent with immediate onset of symptoms following the motor accident.[65]
[65] See [34] herein.
The claimant was asked by the Medical Assessors about the absence of early reference to the urological symptoms. The claimant replied that she was “dizzy and out of it and does not remember exactly” when symptoms commenced.
We do not accept the claimant’s history that there was an immediate onset of urinary symptoms. This is because of the absence of reference in the contemporaneous records and the claim form, the precise record on 5 November 2018 when the symptoms are present with immediate referral to hospital, Dr Doyle’s recorded history and the claimant’s acceptance to the Medical Assessors of her poor recollection.
Spinal injury causing bladder symptoms
There is no suggestion in the medical reports (see for example the opinion of Dr O’Neill and the comments by Dr Manning) that there was a spinal injury causing bladder symptoms.
The pudendal nerve (S2-S4) plays a critical role in the regulation of urine and innervates the external genitalia and sensation around the anus and vagina. It also innervates the external anal and urethral sphincter.
There is no evidence of neurological impairment in the spine causing urological symptoms.
Injury to bladder
The bladder and urethra are contained within the pelvis (pelvic ring). There was no report of injury to the pelvic ring of bones which could impinge on the bladder causing injury to the bladder muscle (bruising and rupture).
The cystoscopy and bilateral retrograde pyelograms on 9 April 2019 reported by Dr Doyle were entirely normal. We note that this test would be expected to show the presence of any bladder or urethra injury.
The mechanism of the injuries sustained in the motor accident does not support the basis for any bladder injury.
There are multifactorial causes of urinary incontinence. These include:
“(1). Childbirth – The claimant has had two children:
(a). Aged 15 – Normal Vaginal Delivery (NVD) following a five-hour active labour. Hayley was delivered of a baby weighing 7 lb. 10 oz.
(b). NVD (Aged 13) of a baby weighing 7lb approx.
Although there were no complications of childbirth, childbirth is a contributing factor to incontinence later in life even if childbirth was uncomplicated. There is a hiusotyr of urological symptoms following a childbirth.
(2). Smoking – The claimant smokes.
(3). Obesity – The claimant is not obese.
(4). Heavy lifting in the workplace – The claimant has not performed heavy repetitive lifting.
The claimant has not subjectively suffered from prolapse whereby she has noticed descent of the bladder/rectum /uterus.
Following the accident, the claimant has suffered from post coital bleeding which is not related to the accident. Post coital bleeding can possibly cause hematuria.
The claimant was not catheterized whilst hospitalized following the motor accident. Trauma to the bladder by a catheter can cause hematuria.
The claimant has suffered from two Urinary Tract Infections (UTI) since the motor accident. Recurrent UTI’s can result in incontinence and hematuria.
(5) Anxiety.”
There is a history of psychological symptoms. The claimant was predisposed to anxiety given her history. The severity of the motor accident and the associated physical injuries are the likely explanation for the development of an anxiety condition and the onset of urinary symptoms.
The claimant has severe detrusor instability but no anatomical or pathophysiological cause of incontinence as a result of the motor accident.
Dr Manning’s opinion was based on a history of immediate onset of symptoms and direct bladder trauma. For the reasons expressed earlier, we do not accept that there was an immediate onset of symptoms. We otherwise do not accept, based on the mechanism of the accident and the reported symptoms, that there was direct bladder trauma. The history that Dr Manning obtained that the claimant was “thrown” from the vehicle is otherwise incorrect.
Medical Assessor Carter concluded there was injury based on the cystometry which the claimant submitted purportedly provided objective evidence of pathology. A cystometry is a clinical diagnostic procedure which evaluates bladder function. It is not “objective” evidence of any bladder pathology.
We are not bound by any opinion and as we noted, required to form our own opinion. However, that does not mean that we cannot agree with a view expressed in the matter. Our opinion accords with that expressed by Dr Wines, that is, there was no underlying urological pathology caused by the motor accident.
Clause 6.252 of the Guidelines provides:
“Objective evidence of neurological impairment is necessary to assess incontinence related to spinal injury (AMA4 Guides, Chapter 4, 4.3d). Objective evidence of injury to the bladder and urethra associated with urinary incontinence is necessary to assess urinary incontinence due to trauma (AMA4 Guides, Chapter 11, 11.3 and 11.4).”
There is no neurological impairment from any spinal injury causing incontinence.
The claimant cited three bases to satisfy the requirement of objective evidence in cl 6.252 of the Guidelines. Two of these were the same, although differently worded, that is, the reference by Medical Assessor Carter to the cystometry and the urodynamic studies undertaken by Dr Manning. These are flow studies which are otherwise known as urodynamic studies which record the symptoms but do not objectively show injury in the bladder or the urethra.
The claimant’s response to BOTOX does not show objective evidence of injury to the bladder or urethra but is evidence of a response to treatment.
The responses to treatment and the urodynamic studies are consistent with the cause of the symptoms being due to anxiety.
The tests undertaken by Dr Doyle (cystoscopy and bilateral retrograde pyelograms) were normal. Those tests are entirely inconsistent with objective evidence of injury to the bladder and urethra.
We do not accept that the claimant has established objective evidence of injury to the bladder or the urethra within the meaning of cl 6.252 of the Guidelines. Accordingly, there is no entitlement under the Guidelines to be assessed for permanent impairment based on the severe detrusor instability.
The parties referred to the decision of Woelms. The factual findings in Woelms have no relevance to whether the claimant has or had objective evidence of injury to the bladder or urethra.
CONCLUSION
For these reasons the Medical Assessment Certificate and the Combined Medical Assessment Certificate are revoked. Replacement certificates are issued at the commencement of these Reasons.
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