QBE Insurance (Australia) Limited v Rahe
[2024] NSWPICMP 233
•17 April 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Rahe [2024] NSWPICMP 233 |
| CLAIMANT: | Claudia Rahe |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 17 April 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant was injured as a passenger in a high-speed collision on 26 July 2014 at Pappinbarra; claimant underwent multi-level cervical fusion and disc replacement surgery five years post-accident; causation in issue; medical dispute as to whether cervical surgery relates to accident and is necessary and reasonable; consideration of sections 5D and 5E of the Civil Liability Act 2002, Briggs v IAG and clauses 6.5 to 6.7 of the Motor Accident Guidelines; Panel satisfied as to both issues; Held – certificate of Medical Assessor Herald confirmed; no issue of principle. |
| DETERMINATIONS MADE: | CERTIFICATE The Review Panel confirms the certificate of Medical Assessor Jonathan Herald dated 31 May 2023. CERTIFICATE 1. The Review Panel confirms the certificate of Medical Assessor Jonathan Herald dated 31 May 2023. |
STATEMENT OF REASONS
INTRODUCTION
Claudia Rahe (the claimant) was injured in a motor accident on 26 July 2014 at Pappinbarra on the New South Wales Central Coast (the accident). The claimant was a passenger in the backseat behind the driver of a 4-Wheel Drive being driven by her nephew. The four occupants of the vehicle were on their way to the family farm near Wauchope. It had just started to rain. The insured vehicle was travelling at high speed in the opposite direction. As it rounded a corner and over-corrected, the driver lost control. The vehicle slid onto the wrong side of the road. It collided with the driver’s side of the vehicle in which the claimant was travelling, pushing it in the bank of a wall. The vehicle essentially was crushed. Ambulance and police officers attended. The claimant was conveyed to Port Macquarie Base Hospital medicated and in a neck brace. The insurer wholly admitted liability for the claim.
The claimant visited her general practitioner (GP) after a few days. The claimant says that she complained of chest pain, breathlessness, neck pain, back pain and headaches. The claimant was referred to a specialist (Dr Day) who recommended cervical surgery. The claimant was reluctant to undergo surgery. Instead, she consulted a physiotherapist and a sports medicine practitioner. After ceasing work, the claimant obtained a second opinion from Dr McEntee, orthopaedic surgeon, who also recommended an operation on her neck. After failing conservative treatment, the claimant eventually underwent a C4/C5 disc replacement and fusions at C5/C6 and C6/C7 levels, some five years after the accident.
The claimant developed post-operative complications and underwent further surgery for removal of hardware. The claimant may require further surgery. The claimant has been left with voice problems and complains of residual neck pain, headaches, and upper shoulder pain radiating to her back. There also is complaint of tingling and numbness in both hands and feet, as well as secondary depression. The claimant has ceased work as a real estate agent.
QBE (the insurer) insured the owner and/or driver of the offending motor vehicle for liability to pay the claimant any damages and/or statutory benefits under the Motor Accidents Compensation Act1999 (the Act).
There is a dispute between the claimant and the insurer about:
(a) whether any treatment and care provided is reasonable and necessary in the circumstances under s 58 of the Act, and
(b) whether any treatment and care relates to an injury caused by the accident under s 58 of the Act.
This is a medical dispute within the meaning of the Act.[1]
[1] See Part 3.4 s 58 of the Act.
The claimant was referred for assessment by Medical Assessor Jonathan Herald, who certified as follows:
The following treatment and care:
RELATES TO THE INJURY caused by the motor accident
and
- C4/C5 disc replacement; and C5/C6 and C6/C7 fusion surgery on 25 September 2019
The following treatment and care:
- C4/C5 disc replacement and C5/C6 and C6/C7 fusion surgery on 25 September 2019
IS REASONABLE AND NECESSARY in the circumstances.
THE REVIEW
The insurer sought a review of Medical Assessor Herald’s certificate on the basis that the assessment was incorrect, within the meaning of s 63 of the Act, in a number of material respects. The insurer brought the application within the time prescribed by s 63(7) of the Act (28 days).
Pursuant to s 7.26(5A) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of 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 the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rule 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 based solely upon the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the Act.
ASSESSMENT UNDER REVIEW
The insurer submitted that Medical Assessor Herald erred in his assessment on the following bases:
(a)failure to provide adequate reasons as to the issue of causation;
(b)failure to apply s 146 and s 147 of the Motor Accident Permanent Impairment Guidelines (V1 effective from 1 June 2018) relating to causation, and
(c)failure to apply s 1.41 of the Motor Accident Guidelines (the Guidelines) relating to inconsistencies, between the Medical Assessor’s clinical findings and information obtained through medical records and/or observations, which must be brought to the claimant’s attention.
Each of those bases will be summarised briefly.
As to the alleged failure to provide adequate reasons as to the issue of causation, the insurer said that Medical Assessor Herald did not address the alleged significant delay in the development of the symptoms in the claimant’s cervical spine after the accident. The insurer notes the absence of references to neck pain in the ambulance report, the Port Macquarie Base Hospital clinical records and the notes of the GP who examined the claimant, four days after the subject accident. The insurer submits that the first record of the claimant’s complaint of neck pain was to her GP on 17 April 2015, nearly 10 months after the accident.
As to the alleged failure to apply s 1.6 and s 1.7 of the Guidelines, the insurer submits that Medical Assessor Herald failed to address and apply those provisions of the Guidelines, in relation to causation, which was an issue clearly ventilated by the insurer.
As to the alleged failure to apply s 1.41 of the Guidelines, the insurer notes the opinions expressed by Dr John Watson, orthopaedic surgeon, Dr Ashish Jonathan, neurosurgeon, and Dr Anthony Smith, orthopaedic surgeon, all of whom, (it is said) were of the opinion that there was no causal relationship between the cervical spinal surgery and the accident. The insurer submits that Medical Assessor Herald should have brought those contrary opinions to the claimant’s attention. It is further submitted by the insurer that the claimant failed to disclose prior symptoms in her cervical spine in 2012, 2013 and 2014, which were particularised by the insurer which. The insurer submits, there should have been brought to the claimant’s attention.
The insurer says that Medical Assessor Herald failed to consider relevant evidence relied upon by the insurer when determining the issues of causation and reasonable and necessary need for cervical spine surgery.
The insurer’s application for review was opposed by the claimant. The claimant submitted that the insurer’s submissions are incorrect and entirely unpersuasive and therefore the certificate ought to be confirmed. The claimant relied upon her submissions served in the initial treatment dispute application as well as her review submissions.
As to causation, the claimant noted that Medical Assessor Oates certified on 4 September 2017 that the claimant suffered a soft tissue injury to the cervical spine in the accident. Medical Assessor Oates assessed 5% whole person impairment arising from that injury to the cervical spine. He also found 3% whole person impairment arising from right greater occipital neuralgia. The claimant notes that the insurer did not challenge Medical Assessor Oates’ certificate nor his findings.
As to the alleged failure to provide sufficient reasons for the delay in complaints of cervical symptoms, the claimant refers to Medical Assessor Herald’s notation of her denial that she did not mention the cervical spine at the time of the accident. The claimant said that she did in fact complain of neck pain but this was not recorded. The claimant refers to contemporaneous evidence of neck symptoms, which Medical Assessor Herald noted. The claimant says that, in the circumstances, there is no failure to provide reasons which would disclose any material error.
As to the alleged inconsistencies involving the opinions of Drs Watson, Jonathan and Smith, the claimant says that the insurer conflated the topic of “inconsistencies” with “different medical opinions”. The claimant says that Medical Assessor Herald was entitled to form a different opinion to the other medical practitioners cited.
As to the alleged inconsistent history, the claimant submits that the history of being given Fentanyl in the ambulance and being placed in a neck brace, is consistent with the clinical records. The claimant notes that the insurer does not articulate how the history which she gave is inconsistent with the clinical records of NSW Ambulance, Port Macquarie Base Hospital and Burleigh Heads Medical Centre. The claimant accepts that the triage notes of Port Macquarie Hospital recorded no abnormalities to head or neck and nil neck pain.
The Review Panel notes the claimant’s submissions and evidence in support of the need for cervical surgery. There is no need to summarise those submissions in detail as it ultimately is a matter for the Review Panel to determine if that surgery was necessary and reasonable and relates to the accident. The Review Panel notes the history recorded by Dr Zavattaro, in his report dated 16 April 2014, to Dr McMahon. Dr Zavattaro treated the claimant for a frozen left shoulder. Dr Zavattaro records that the claimant “gets minimal neck pain and has no neurological symptom.”
President’s delegate Catherine Freeman issued a Determination of an Application for Review of a Medical Assessment on 3 August 2023 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The bases of that decision were stated to be that Medical Assessor Herald failed to address the clearly ventilated issue of causation, failed to determine what weight should be given to the insurer’s submissions, failed to provide reasons why he did or did not accept the insurer’s submissions on causation, or provide reasons why he may or may not have accepted the histories contained in various treating medical records. The President’s delegate also referred to the insurer’s submissions that Medical Assessor Herald failed to apply the relevant sections of the Guidelines in relation to causation and the need to bring inconsistencies to the claimant’s attention.
Accordingly, the application was accepted and was referred to the Review Panel, which is to consider and determine the following issues:
(a) whether the physical injuries give rise to a need for C4/C5 fusion and C5 disc replacement surgery on 25 September 2019 is causally related to the injury sustained in the accident, and
(b) whether the physical injuries give rise to a need for a C4/C5 fusion and C5 disc replacement surgery on 25 September 2019 is reasonable and necessary in relation to the injury sustained in the accident.
The Review Panel indicated it wished to view the original hard copy diagnostic scans referred to by Dr Neil Cochrane at page 1244 of the claimant’s review bundle:
(c) MRI of the cervical spine performed on 10 August 2015 by South Coast Radiology;
(d) CT scan of the cervical spine performed on 17 August 2015 by South Coast Radiology, and
(e) SPECT/CT bone scan performed on 17 August 2015 by South Coast Radiology.
The Review Panel notes those diagnostic scans were not referred to by Medical Assessor Herald and apparently were not seen by him. That imaging was provided and is summarised in the re-examination report.
CAUSATION
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act.[5] Section 5D deals with the general principles of causation and s 5E prescribes the balance of probabilities as the onus of proof which the claimant always bears in relation to any fact relevant to the issue of causation.
[5] Section 3(B)(2) of the Civil Liability Act 2002.
In Briggs v IAG Limited t/a NRMA Insurance[6] his Honour Justice Wright stated at [35]:
[6] [2022] NSWSC 372.
“the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological 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 judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) Claimant’s submissions to Medical Assessor Herald:
In summary, the claimant notes she underwent C4/C5 fusion and C5 disc replacement surgery on 25 September 2019, only after previously refusing major surgery and first exhausting all conservative treatments to try and treat her injuries. The claimant refers to Professor Day’s recommendations she undergo neck surgery in August 2015, one year after the subject accident and due to her progressive and ongoing complaints, that had worsened since the accident. The claimant says that, subsequent to the accident, her work as a real estate agent was impacted, due to her neck injury. The claimant concedes one isolated report of neck pain in 2012, which did not impact her work, and resolved. The claimant submits that the motor accident was the sole cause of her neck pain.
(b) Claimant’s submissions in reply to insurer’s review application (previously summarised).
(c) Certificate and Reasons of Medical Assessor Jonathan Herald determining causation, necessary and reasonable treatment (physical) disputes (previously referenced).
(d) Certificate and Reasons dated 5 September 2017 by Medical Assessor Christopher Oates determining whole person impairment dispute. Medical Assessor Oates conducted a clinical examination and reviewed imaging studies pre-dating and post-dating the motor accident. His findings upon clinical examination of the cervical spine were as follows:
“There was dysmetria present in flexion, extension and rotation. There were possible non-verifiable radicular complaints affecting the right upper extremity. This seems to be in a C7 distribution. There was muscle guarding present with tightness in the upper trapezii bilaterally. Reflexes and sensation in both upper limbs were normal…… There were insufficient criteria to make a diagnosis of cervical radiculopathy. There was loss of range of movement with flexion full range, extension three-quarters of normal, lateral flexion three-quarters of normal bilaterally, rotation to the right two-thirds of normal and to the left full. There was full range of movement of right and left shoulders in all six planes.”
Medical Assessor Oates concluded as follows:
“The diagnosis is cervical spine soft tissue injury with right occipital nerve rotation. Based on the evidence to hand, the accident was a cause of this injury.”
Medical Assessor Oates certified that the motor accident caused 5% whole person impairment arising from injury to the cervical spine and 3% whole person impairment arising from right greater occipital neuralgia.
(e) NSW Ambulance Patient Care Report and Incident Report:
The notes record a high speed collision impacting the side of the vehicle in which the claimant was a seat-belted rear seat passenger. Nil loss of consciousness, full recall of events, nil trauma pain to head or neck. Nil tenderness upon palpation of neck, nil motor/sensory deficits to limbs. On examination, primary survey cervical spine potential injury. Spinal immobilisation with short cervical collar.
(f) Records of Burley Heads Medical Centre:
These commenced on 2 January 2011 and conclude on 26 June 2019. There are references from December 2011 to migraine once a year. There are references in August 2012 to diagnostic imaging of the cervical and lumbosacral spine due to recurrent episodes of severe low back pain and neck pain. Cervical spondylosis is noted. In March 2014, there is reference to possible frozen left shoulder. The entry relating to the motor accident records low back pain. The first reference to neck pain is on 16 October 2014. Medical Assessor Hearld and the claimant record the date of that entry incorrectly. It states: “ongoing pain neck”. The second reference to neck pain post-accident is on 17 April 2015 which records neck pain recently much worse with tension headache. On 30 July 2015, chronic neck pain daily is recorded. The claimant was not coping. On 31 July 2015 is noted continuous head and neck pain since motor vehicle accident one year ago, worse recently. The claimant was referred to Dr Day. Panadeine Forte was prescribed. On 29 September 2015, there was a discussion with Dr McMahon re neck surgery. Undated reports of X-Rays of the cervical and lumbosacral spine (pages 72 and 73 of the claimant’s bundle) appear to pre-date the accident and referenced minor cervical curvature concave to the left, slight retrolisthesis at C4/C5 and C5/C6 associated with generative change, reduction in disc height at C4/C5 and C5/C6 with mild osteophytic in keeping with the disc degeneration.
X-Ray of the cervical spine performed ten months after the accident has the following findings:
There is slight straightening of the spine with some loss of the normal lordosis. The C2/C3 and C3/C4 discs appear normal. There is slight narrowing of the C4/C5 and C5/C6 discs with slight marginal osteophyte. C6/C7 and C7/T1 discs appear normal. There are facet joint osteoarthritis changes throughout the cervical region. In the oblique views, there appears to be osteophyte encroaching on extraverbal foramina on the left side of the C5/C6 level and to a lesser degree on the right side at the C5/C6 and C6/C7 level.
There is a report of a MRI of the cervical spine (undated) (at pages 100 and 101 of the claimant’s bundle) which refer to mild to moderate multilevel cervical degenerative disc disease most prominently at C5/C6 level, mild narrowing of the spinal canal at C4/C5 and C5/C6 levels. Underlying C5/C6 disc protrusion. Variable degenerative narrowing of the exit foramina of mild to moderate severity, most prominently C3/C4 on the left, C4/C5 on the right and C5/C6 on the left.
There is a letter dated 20 May 2016 from Dr Gregory McMahon who saw the claimant upon referral from Dr Schwindack, neurosurgeon. The history is stated as follows:“Claudia gives a history of sustaining a whiplash injury in a significant motor vehicle accident in 2014. She describes being a rear-seat passenger in a 4-wheel drive which was struck head on by another 4-wheel drive resulting in the vehicle being pushed up a bunk and trapping her and the other occupants in the vehicle for an extended period.”
Initially, she struggled mostly with chest pain as a result of sternal injury, which slowly resolved. Following this, she noticed some significant progressive axial neck pain, with associated occipital radiation. This has been ongoing and problematic for her and she has sought a number of specialists’ opinions including initially with Dr Greg Day who offered spinal fusion surgery at C4/C7 to try and help with a combination of the neck pain, radiating arm discomfort and occipital radiation. Claudia was initially booked in to have this done but subsequently declined as she was understandably anxious about major surgery.
She then went on to have a second opinion with Dr Chris Schwindack who has reassured her that there is no immediate need for surgery and has identified a key trigger area for her being occipital region.
The remainder of the clinical notes record the relevant history leading up to the claimant undergoing the subject cervical surgery which it is not necessary to traverse.(g) There are reports in 2016 and 2017 from Dr Leagh Dotchin, interventional pain physician, to Dr McMahon. Dr Dotchin treated the claimant for persistent neck and occipital pain. Dr Dotchin says that the claimant noticed significant progressive axial neck pain after her sternal injury slowly resolved. Dr Dotchin notes a significant fall from bed in which the claimant injured her right rotator cuff which has interacted with her neck pain and occipital pain collectively causing significant issues. Dr Dotchin notes that the claimant did not injure the neck in her fall.
(h) There is a report dated 16 February 2016 by Dr John Watson, orthopaedic surgeon, who was qualified by the insurer. The claimant relies upon that report in her case. Dr Watson took a history that the claimant continued to have pain in the cervical spine, sternum and back of the skull, following the accident. The claimant had injections in four separate areas into her neck. This was followed by review by Dr Greg Day, orthopaedic surgeon, who undertook steroid injections on three to four occasions under X-Ray control to the cervical spine. Various surgical options were discussed with Dr Day, including anterior cervical fusion, plus disc replacement.
Under the heading PRESENT SYMPTOMS, Dr Watson records the claimant stating she has neck pain on the right side maximum around C5/C6, as well as sternal pain. Dr Watson records a PAST HISTORY of a motor vehicle accident 15 years ago and a frozen shoulder which required manipulation and a steroid injection under general anaesthetic. Dr Watson records his findings upon examination and notes the available diagnostic scans. He refers to a bone scan on 17 August 2015 which confirms significantly degenerative changes at the C4/C5, C5/C6 and C6/C7 level with osteophytes. The investigations suggest degenerative changes. The claimant continues to have ongoing subjective symptoms. Dr Watson opines that treatment undertaken for the neck appears to be directly related to injury caused by the motor accident.
(i) Report dated 6 November 2017 by Dr David Low, orthopaedic surgeon, to the claimant’s solicitors. Dr Low states that the claimant sustained a fractured sternum, fractured ribs and an aggravation of previously asymptomatic degeneration in her cervical spine. He records that the claimant suffers with ongoing severe neck pain, headaches and arm pain. She has been diagnosed with greater occipital neuralgia. Dr Low also notes there was a delay in obtaining imaging of the claimant’s neck, notwithstanding that she was complaining of severe headaches and neck pain. He notes Dr Day’s suggestion of two-level fusion or arthroplasty surgery. He assesses 10% whole person impairment from aggravation of underlaying degeneration in her cervical spine, causing a greater occipital neuralgia, severe neck, arm and shoulder pain and, in particular, pain between the shoulder blades. Dr Low opines that the claimant’s prognosis is poor.
Dr Low notes the past medical history of bilateral shoulder issues. The claimant had a frozen shoulder that required manipulation before the subject accident. Following the accident, the claimant had an acromioclavicular joint dislocation after falling out of bed, requiring a reconstruction. Dr Low also records that the claimant had insignificant neck pain and mild headaches in the past. However, nothing like the head and neck pain she now has, as a result of the accident.
Dr Low records the results of his clinical examination. Her neck rotates to 70 degrees on the left and to 40 degrees on the right. She has more pain rotating her neck to the right than to the left. Extension is to 30 degrees and flexion is to 60 degrees. The claimant walks normally with a normal gait pattern. There is no abnormality in her lower limbs. Height and weight are ideal. Dr Low opines that the motor accident is the source of the claimant’s neck pain and headaches, shoulder and arm pain, and pain between her shoulder blades. The soft tissue neck injury, which aggravated the underlaying previously asymptomatic degeneration in her cervical spine, is causing her to experience greater occipital nerve neuralgia, causing a occipital headaches and cervico occipital pain, with some referred pain to her upper limbs, with pins and deedless in her hands.
Dr Low states that the claimant’s cervico occipital headaches are the biggest source of her problems. Her neck pain is constant, chronic and disabling. He believes that the claimant is permanently incapacitated. He assesses whole person impairment which is not relevant to the Panel’s consideration.(j) Report dated 4 December 2020 by Dr Lawrence McEntee, orthopaedic spine surgeon, to the claimant’s solicitors. Dr McEntee records that the claimant had no major neck or low back problems prior to the accident. Since the accident, the claimant reports axial neck pain and associated headaches, paraesthesia down both arms and low back pain, radiating into the hips and upper legs. Her neck and arm pain were her most significant problems. Dr McEntee diagnosed radiculopathy. Dr McEntee said that the initial surgery, performed on 25 September 2019, involved C4/C5 total disc replacement, C5/C6 and C6/C7 anterior cervical decompression and fusions. The claimant required further surgery on 6 January 2020 and 11 March 2020 for post-operative wound infections. Dr McEntee opines that the initial surgery was reasonable and necessary as a direct result of the accident.
(k) Report dated 2 June 2019 by Dr Geoffrey Miller, specialist surgeon, to the claimant’s solicitors. Dr Miller states that, as a result of the motor accident, the claimant sustained a fractured sternum and a flexion/extension injury to her cervical spine. As a consequence, the claimant thereafter developed an axial condition affecting her cervical spine, with a right sided non-verifiable radiculopathy and right greater occipital neuralgia. In a further report dated 2 July 2019, Dr Miller opines that the motor accident aggravated the claimant’s cervical spine and, after extensive conservative treatment without improvement, the claimant was referred to Dr McEntee for possible surgery.
(l) In a report dated 1 May 2021, Dr Neil Cochrane, neurosurgeon, reports that in the accident, the claimant:
“…suffered injury to her cervical spine, likely initially a whiplash associated disorder and thereafter, by means of aggravation and acceleration of cervical spondylosis, refractory cervical pain. This ultimately led to reasonable and necessary surgery performed by Dr McEntee, which included a C4/C5 anterior cervical disc replacement (arthroplasty) inter body fusions with anterior plate construct at the C5/C6 and C6/C7 levels.”
Dr Cochrane also refers to problems with the claimant’s speech and voice. He notes the claimant suffers significant headaches and raises the possibility of further fusion surgery.
(m)Report dated 23 August 2023 by Sven Roehrs, occupational therapist, to the claimant’s solicitors. The assessment was undertaken by video conference. Mr Roehrs notes the medical reports to which reference has been made. He summarises the pre and post-accident medical history. He describes in detail the claimant’s self-reported ongoing symptoms and recent experience of pain. He lists the claimant’s current treatment and medications, describes her pre-accident leisure activities, which she can no longer undertake. He describes the claimant’s inter-personal relationships and psychological status. He then deals with the claimant’s current care needs, describes his observation of ranges of movement in her cervical and lumbar spine, as well as both shoulders. He describes his functional capacity assessment of the claimant, assesses her current and future care needs and expresses opinions as to restrictions upon her working capacity. None of that is directly relevant to the Review Panel’s consideration.
The insurer relied upon the following material:
(a) tabulation of medical material in the parties’ bundles which the insurer submits are of relevance.
(b) Insurer’s submission seeking a review (previously summarised).
(c) Insurer’s submissions for treatment dispute. The insurer submits that the need for surgery to the cervical spine was not reasonable and necessary and not related to the motor accident due to the following:
(i)causation issues in light of the gap of recorded complaints of pain in the neck in the motor accident;
(ii)specific reference made by the ambulance officers and staff at Port Macquarie Base Hospital, that the claimant did not complain of pain in her neck immediately after the motor accident;
(iii)the claimant did not complain of pain in her neck during her initial attendance with her nominated general practitioner four days after the motor accident;
(iv)Dr Anthony Smith believed that, if the claimant experienced pain in her neck, she would have felt such pain within one to two days following the motor accident;
(v)there is a prior history of neck complaints in the three months prior to the accident in addition to a long-standing history of cervical spine pathology, and
(vi)the claimant underwent C4/C5 fusion and C5 disc replacement surgery five years after the motor accident. The insurer submits this is not indicative of a person that sustained an acute injury in the neck in the motor accident.
The insurer refers to Dr Smith’s report dated 18 March 2022 which apparently states there was:
“…no relationship between the surgery undertaken on the neck by Dr McEntee on some three occasions now, and the motor accident…. If there was a substantive increment in the quantum of pain in the neck following the motor accident …. then the quantum increase in her neck symptoms would have arisen within 24 to 48 hours of the motor accident.”.
The Panel notes that Medical Assessor Herald refer to Dr Smith “who has seen her in three occasions and suggested again there is no relation” between the claimant’s neck symptoms and the accident. Despite those references, Dr Smith’s report is not in evidence before the Panel.
(d) Report of Dr John Watson, orthopaedic surgeon, dated 16 February 2016 (previously described).
(e) Report of Dr Ashish Jonathan, consultant neurosurgeon, dated 5 October 2021 to the insurer’s lawyers. Upon physical examination, Dr Jonathan found that cervical mobility was severely restricted in all directions. Upper limb power was normal. Sensation was reduced to 70% in the left C6 and C7 dermatomes, the back/spine was normal. Dr Jonathan describes the various diagnostic scans to which reference has been made previously. Dr Jonathan refers to the ambulance record to which reference has been made previously. He notes the diagnosis made by Dr Ewing in 2012 of cervical and lumbar spondylosis. Also that the claimant underwent neck surgery as a child. Dr Jonathan notes inconsistencies between the past medical history and the history given by the claimant to various examiners. Dr Jonathan notes that the claimant did not immediately report neck pain after the motor accident. He then opines as follows:
“There is a significant gap in time between the motor vehicle accident and Ms Rahe developing neck pain. For this reason, I believe that there is no causal connection between the accident and Ms Rahe’s neck symptoms. Subsequent radiological examinations showed only degenerative changes and no evidence of trauma. In my opinion, the neck symptoms are causally related to degenerative disease of the cervical spine (cervical spondylosis).”
Dr Jonathan says that he was told by the claimant that, following the accident and prior to the cervical surgery, she was experiencing only neck pain, but no arm pain. He says this indicates there was no radicular pain. He notes Dr McEntee’s assessment that the claimant had radicular pain and that Dr Dotchin accepted occasional right-sided radicular pain. Dr Jonathan then opines as follows:
“If Ms Rahe did indeed have radicular pain, it developed several years after the reported accident and did not arise as a result of the accident, but rather due to the degenerative disease of the cervical spine, a condition she was diagnose to have to in 2012.”
Dr Jonathan concludes that, if the claimant did not have radicular pain, the surgery was not indicated.
RE-EXAMINATION
Report from Medical Assessor Geoffrey Stubbs is as follows:
“Claudia Rahe – medical examination PIC rooms 15 December 2013 conducted by Assessor Stubbs.
Background: Ms Rahe is 61 years old and lives in Burleigh Waters. She is married and lives in a single level four-bedroom home with a husband and adult son. She last worked 12 months ago as an Uber driver and prior to that as the business development manager with a finance company. At the time of accident, she was 52 and a partner in a real estate agency. She enjoyed surfing, golfing and had two poodles, to exercise. She reported that there was some tendency to asthma either seasonal or exertional and she had suffered from an odd migraine headache, which did not affect her working, activities of daily living and socialising. She considered herself well, but did note that there are occasional stress-related headaches and sometimes occasional stress-related chest pain.
The accident occurred after recent rain on a bitumen but narrow country road. Ms Rahe’s nephew was driving a Mitsubishi Pajero four-wheel-drive. Ms Rahe was sitting in the rear seat on the driver-side. An oncoming range Rover lost control in the conditions and swerved to the side of the road. The Pajero veered left try to avoid the collision but this took place in line with the rear driver side door. There was considerable confusion and some panic after the accident. Ms Rahe was aware of immediate central sternal pain limited her breathing. Police and ambulance attended the accident site. Ms Rahe was taken to the Port Macquarie hospital and diagnosed to have fractured ribs and a fractured sternum. She was sent home from the hospital and advised to seek follow-up from her general practitioner the following ASAP.
She recalls the GP noting the pain and providing a prescription for tramadol. Ms Rahe believes her complaints were of neck pain and headaches as well is the fractured sternum and possible fractured ribs. She started vomiting from the tramadol and the local medical service attended to provide anti-emetic injections.
Ms Rahe continued to suffer symptoms but the central chest pain and right rib pain resolved over the next three months. Headaches began in the occipital region and spread across her scalp to both temples and frontal regions. Massage from an osteopath provided some relief and she was provided Lyrica twice daily, nonsteroidal anti-inflammatory agents and Tapentadol ,a synthetic opiate. Pain persisted and was made worse with physical activity. The pain radiated to both shoulders (she means the trapezius muscle) and down both arms in a cape like distribution. There were no associated visual effects but there was nausea and vomiting. The symptoms persisted.
Ms Rahe was asked about the lack of contemporary GP record of headaches. She said she mentioned the headaches to him several occasions. She was eventually referred to Prof Greg Day and had investigations (MRI scans) . She was given pain management therapy and told that there were injuries to the cervical spine.
She eventually saw Dr Dotchin in the Gold Coast who suggested surgery which in the end was performed by Dr Lawrence McInerney. Several years elapsed over this period of time.
Ms Rahe was unable to work to full capacity and she and her partner decided to wind up the real estate business because of declining clientele. The business was sold in late 2016. In late 2017 she returned to the workforce as a manager with a firm that provided short-term finance. She is at pains to stress this was not a loansharking business. The business ceased operations during the Covid-19 period. She got by on government benefits. When the firm was reopened in late 2021, she went back to work for them to reorganise a new office branch, but was ‘shown the door’ in December 2021. She started Uber driving in between April and July 2022 but has not worked in the past 18 months.
In early 2019, she had three level cervical surgery, including one disc replacement and anterior interbody fusion at two levels. This was performed by Prof. McEntee. There were complications after surgery. Firstly, she woke up with a husky voice, suggesting injury to the recurrent laryngeal nerve, a known complication. Further, there was evidence of persistent problems with wound infection and two subsequent surgeries were performed to drain abscesses. In the early stages of Covid she was able to work from home but as noted above the office shutdown 2020 and did not reopen till late 2021.
She regards the surgery is failure as it has not significantly alleviated her headaches. The only relief she obtained was a series of Botox injections to the upper cervical musculature. These would give 8-10 weeks relief but always wore off. The Botox is repeated probably six times and under the direction of Dr Greg Day.
In short, she remains incapacitated by occipital to frontal headaches. The surgery has not benefited her and she continues to rely on osteopathic local heat and massage for symptom relief. She ceased the opiate medication which she regards as of no help.
Clinical examination: Ms Rahe is a well presented articulate lady. She was consistent during the history taking and cooperative in the clinical examination. She was unaccompanied in the clinical examination. She was examined in a singlet and tights. There are no complaints other headaches spreading into the neck and arms pain. She stands 172 cm tall and weighs 72 kg. She can tip toe and heel toe walk stand on each leg independently though she does feel less balanced than she would expect.
Cervical spine: there are anterior scars consistent with the recorded surgery. The scars are barely perceptible. Cervical movements show flexion to half range , limited extension and rotation in both directions to about half range and side bending to about three quarters range. She will attempt a sit up and can raise ahead slightly off the examination couch with discomfort. Upper limb strength is 4/5 shoulders and forearms at 5/5 in brief. Girth of the arms is 28 cm right equals left; 23 cm right equals left in the forearms. There has been previous carpal tunnel syndrome surgery as the cloak like distribution of symptoms was attributed to carpal tunnel compression. The surgery has not changed the pain. The neurological examination of both hands is normal but there is mild positive carpal tunnel compression test on both sides with the pain referred approximately. Tinel’s sign is negative. Compression and tensions signs were negative. In the cervical spine, there are no positive nerve root traction signs and strengths right equals left. There is no dermatomal sensory disturbance. Manual traction to the cervical spine relieved her symptoms, as does light touch across the temples, and back of this neck. Compression testing of the cervical spine induces bilateral temple pain of ‘shocking character’ but does not provoke neck pain. As noted, her voice is notably hoarse.
Lumbar spine – has a full range of lumbar spine movement, normal reflexes power and tone. There is no hypersensitivity. – In short normal.
Upper limbs – apart from the finding of positive bilateral carpal tunnel compression test, the findings are normal. Range of motion of the shoulders was performed with her supine, rather than standing, to isolate any effects that the cervical spine might have on shoulder movement. Done this way shoulders are absolutely normal. So, too are the rest of the upper limb joints.
Lower limbs – excellent range of movement in all the lower limb joints, brisk symmetrical reflexes, unrestricted straight leg raising with negative traction question signs. In short – normal.
Summary: Ms Rahe was involved in a high-energy motor accident and suffered a fracture of the sternum and ribs. Her continuing and consistent complaint is occipital to frontal headaches. She receives relief from local cutaneous stimulation, such as light massage, local heat and traction. Her cervical spine movement, though inclined to exacerbate her headaches, is relatively good, given the three level cervical surgery. There is a notable post-surgical complication in the development of an injury to the recurrent laryngeal nerve.
It is now nine years since the accident. Her complaints of headaches have been very consistent. The clinical examination shows no evidence of radiculopathy in either upper limb apart from the positive carpal tunnel compression signs. The headaches are amenable to relief and have a distribution that follows the distribution of the greater and lesser occipital nerves – C2 and C3 dermatomes. The spinal surgery is at the lower levels in cervical spine and the surgery hasn’t helped the symptoms. Rather, she has a recurrent laryngeal nerve injury. She is seen by a variety of practitioners. Local stimulation from either massage or a TENS machine, traction and manipulation are of temporary benefit, but the symptoms return.
The overall impression was of straightforward lady giving clear answers to what she sees as a continuing and disabling problem of recurrent headaches. The issue raised of the late reporting of the headaches is contested by Ms Rahe, who says she complained about them from the beginning.
Imaging studies –
Pimdara MRI cervical spine 10 August 2015 – well-defined spinal cord, capacious spinal canal at C5/C6 and C6/C7 where there is disc degeneration with posterior marginal osteophytes. This is a dark but show essentially age-related changes with a typical accentuation the lower three levels. Minor narrowing of foraminal outlets. Type II and III changes in the C5/C6 level. Transverse studies showed generally capacious spinal canal normal spinal cord and no evidence of significant nerve root compression. In all a normal study for age.
Pimdara MRI brain 10 August 2015 – normal study no intracranial pathology. In particular no evidence of upper cervical ligamentous damage. – Note the attached referral is for the history of constant headaches constant neck pain and neck movement restriction and the accompanying pain drawing follows the pattern described localised pain at the from the base of the cervical spine through to the occiput and spreading to the frontal regions of both sides. History has a note ‘tumour removed as a child’. This did not come up during the history taken but given that happened in childhood that is understandable.
Pimdara MRI bone scan cervical spine/CT cervical spine 17 August 2015 – scout view confirms a healed fracture in the body of the sternum with slight angulation about mid sternal level. CT of the brain shows some slight posterior distortion in the bony structure and much enlarged mastoid sinuses on the left-hand side. Transverse views of the cervical spine show some small bony osteophytes in association with the posterior lips of the vertebral bodies and the facet joints. Changes seen in the bone of the skull may fit given on the 10 August 2015 referral of cranial surgery as a child. CT scan shows a mild increase uptake in the anterior elements of the mid cervical spine. There is some increased activity on the left fourth rib consistent with a history of rib fractures. The overall impression is of age-related degenerative changes. The SPECT images confirm generalised mild increase in activity in the thoracic and cervical spine is most pronounced at the areas where the CT scan shows most developed osteophyte changes. Scan also confirms fracture of the sternum. Summary mostly age-related degenerative changes, no evidence of recent injury other than the sternal and rib fractures. Whole spine regional bone scan confirms upper thoracic vertebral body mild increase in activity.
Summary – the imaging is about 12 months after the motor vehicle accident. The fracture sternum and fractured left ribs confirmed. There is a general increase in isotope activity throughout the whole of the thoracic spine and the lower cervical spine but consistent with age-related changes. The imaging studies do not give any useful clues as to the cause of the headaches.”
FINDINGS
The Review Panel notes that the first reference to neck pain in the clinical record was made on 16 October 2014, less than 12 weeks after the accident, contrary to the insurer’s assertion. The Review Panel accepts the claimant’s statement that she was preoccupied with her sternal pain prior to her first reporting her neck pain.
The Review Panel finds that the accident caused injuries to the claimant’s cervical spine as a matter of medical determination. The delay in reporting the cervical symptoms is acceptable, given the distracting nature of the injuries suffered by the claimant.
The Review Panel further finds that the accident caused injuries to the claimant cervical spine as a matter of factual non-medical determination. The delay in reporting the cervical symptoms is acceptable, for the reason stated being only a delay of about three months.
The Review Panel finds that the following treatment and care:
· C4/C5 disc replacement, and
· C5/C6 and C6/C7 fusion surgery on 25 September 2019
RELATES TO THE INJURY caused by the accident, and the following treatment and care:
· C4/C5 disc replacement and C5/C6 and C5/C7 fusion surgery on 25 September 2019
IS REASONABLE AND NECESSARY in the circumstances.
CONCLUSIONS
In reaching these conclusions and findings, the Review Panel has attempted to apply the principles of causation, as explained in Briggs (above).
For these reasons, the Review Panel confirms the certificate of Medical Assessor Jonathan Herald dated 31 May 2023.
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