QBE Insurance (Australia) Limited v Sayed
[2024] NSWPICMP 385
•13 June 2024
QBE Insurance (Australia) Limited v Sayed [2024] NSWPICMP 385
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Sayed [2024] NSWPICMP 385 |
| CLAIMANT: | Hosny Sayed |
| INSURER: | QBE Insurance (Australia) Ltd |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Les Barnsley |
| DATE OF DECISION: | 13 June 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury in a motor vehicle accident on 15 July 2021; a medical dispute arose as to whether or not the injury which the claimant sustained was a threshold injury; Held – the injury to the cervical spine was accepted as causally related to the motor vehicle accident, and caused a non-threshold injury; Medical Assessor Herald’s determination was affirmed; the injury referred for assessment was a non-threshold injury. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Herald, dated |
STATEMENT OF REASONS
INTRODUCTION
Hosny Sayed (the claimant) was injured in a motor vehicle accident on 15 July 2021. He was the front seat passenger in a car when it was hit from behind.
A more complete description of the accident is provided below.
QBE Insurance (Australia) Ltd. ABN 78 003 191 035 (QBE) is the relevant insurer with liability to pay any damages to Mr Sayed under the Motor Accident Injuries Act 2017 (MAI Act).
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Mr Sayed submitted an Application for Personal Injury Benefits.
Threshold injury dispute
QBE decided that Mr Sayed had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
An Internal Review of the minor (threshold) injury decision. QBE affirmed the determination.
Mr Sayed filed an application in the Personal Injury Commission (Commission) in respect of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident is a threshold injury.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY- STATUTORY PROVISIONS
Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, Justice Wright stated at [35]:
“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
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 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.
6.7 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.’”
ASSESSMENT UNDER REVIEW
The injury referred for assessment to Medical Assessor Jonathan Herald (the Medical Assessor) in respect of the dispute as to threshold injury was:
(a) cervical spine – disc herniation with radiculopathy.
The Medical Assessor considered the submissions made by Mr Sayed and QBE at [3]-[4].
The Medical Assessor took a pre-accident medical history at [8]. He commented:
“Hosny has had a previous injury. In 2013, he had a C5/6 and C6/7 discectomy and fusion by Dr Parkinson. Of note, the C3/4 and C4/5 levels although degenerate had not required surgical decompression or fusion. Following that, he had improved and was working as a refrigeration technician. He was self-employed but did have to stop in May 2022 after his surgery. He had two shops which had to be closed down. He has a wife and children and requires assistance with heavier activities from them.”
At [9], he took a history of the motor vehicle accident:
“On 15 July 2021, he was involved in a motor vehicle accident. He was the front seat passenger in a car that was being driven by his friend. They were going to see another friend. They were in the Five Dock area and stationary when they were hit from behind. He had severe neck pain and pain radiating to both arms, as well as pain radiating to both legs. He thought it was a soft tissue injury as a result of the impact and was in shock. He thought it would improve on its own. Unfortunately, after about 10 days, it did not improve, and he went and saw his GP Dr Shakaib. Dr Shakaib suggested some investigations, but they were not approved, and he was given some analgesics and referred to a swimming pool. Eventually, he had a CT scan which showed a C3/4 disc prolapse and he was referred to see Dr Parkinson. Dr Parkinson said he required urgent surgery, and he underwent surgery on 4 April 2022. At that stage, he had CT scans and MRI scans confirming a large disc herniation at the C3/4 level causing severe cord compression. He also had features of acute neck pain and myelopathy with difficulty mobilising, a spastic ataxic gait, and numbness and clumsiness in both hands. Following the surgery, his pain persisted but his neurological symptoms improved, and he has been having physiotherapy, as well as anti- inflammatory treatment since then. Currently, he is taking antidepressant medications, painkillers, and pain patches.”
The Medical Assessor noted that Mr Sayed required urgent surgery on 4 April 2022 after it was discovered that he had myelopathy from canal stenosis and he was now on chronic pain management. (Myelopathy is defined as injury to the spinal cord due to severe compression that may be caused by trauma, congenital stenosis, degenerative disease or disc herniation).
At the time of the examination, Mr Sayed suffered from the following symptoms:
“…neck pain and pain radiating to his head, giving him severe headaches and buzzing in his ears, and pain radiating down his back and to his knees…”
The Medical Assessor completed a physical examination, the results set out below:
“14. General presentation
He is a well man with a depressed affect. He is 180 cm in height and 102 kg in weight. Cervical Spine Examination
On examination of the cervical spine, he has well-healed surgical scars. He has two scars from his two previous surgeries. He has stiffness over his cervical spine with restricted motion with only about 25% of range with lateral flexion and forward flexion and limited if any extension. Neurological examination of his upper limbs is grossly intact to tone, power, and reflexes. He walks with a steady gait. He has a negative Spurling’s test of his upper limbs.”
The Medical Assessor provided a summary of relevant radiological and medical imaging at [16]-[17].
The Medical Assessor opined that the most likely cause for the acute disc prolapse and spinal cord compression was due to the motor vehicle accident which occurred on
15 July 2021.
He diagnosed Mr Sayed with a significant C3/4 disc prolapse with spinal canal stenosis and myelopathy. This was diagnosed based on MRI scans and CT scans.
The Medical Assessor issued a certificate under s 7.23(1) of the MAI Act and certified that the following injury caused by the motor accident:
(a) C3/4 disc herniation and cervical myelopathy’
was not a threshold injury for the purposes of the Act.
REVIEW PROCEDURE
QBE lodged an application for review of the assessment of the Medical Assessor.
The delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect resulted in referral of the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
EVIDENCE BEFORE THE REVIEW PANEL
Report by Dr Tony Antoun, SIRA Authorised Health Practitioner, dated 4 August 2022
Mr Sayed was referred to Dr Antoun to
determine whether the motor vehicle accident on
15 July 2021 was a direct cause of the pathology reported on the CT scan & MRI scans of the cervical spine preformed on the 24 March 2022 and 29 March 2022, respectively.
The report contained summaries of the MRI scan of 29 March 2022, and the CT scan of the cervical spine dated 24 March 2022:
“St Vincent's Imaging MRI scan 29 March 2022 concluded severe central canal stenosis due toa large broad based posterocentral disc extrusion at C3/4 causing cord compression with at least cord oedema. Underlying myelomalacia is not excluded. The cord in the midline is compressed to a diameter of less than 2mm. At C4/5 there is at least moderate grade canal stenosis with bilateral posterolateral disc extrusion mildly indenting the cord though no cord oedema or myelomalacia is visible. Multiple sites of high grade foraminal compromise, most pronounced at C3/4 and C4/5 reported by Dr Pascal Abou-Haidar.
*Synergy Radiology - CT scan cervical spine 24 March 2022 Comparison study: CT cervical spine dated 28/07/2016. At C3/C4, there is a central broad based disc protrusion/extrusion measuring anteroposteriorly 9mm causing severe AP canal narrowing of greater than 50% resulting in severe central canal stenosis and most certainly compressing the spinal cord at the C3/4 level. At C4/C5, a broad-based disc protrusion is also noted, measuring 4mm anteroposteriorly slightly more prominent to the left of the midline associated with moderate in severity central canal stenosis. Reported by Dr Irene Tan”
Dr Antoun further summarised the correspondence with Dr Tej Dugal and Dr Abhou Haidar.
He summarised his overall impression as:
“Mr Sayed has been involved an incident on the 15 July 2021 with a long history of cervical disc pathology and previous surgery.
Correspondence with radiologists, Dr Tej Dugal and Dr Pascal Bou-Haidar have confirmed that the reported C3/4 & C4/5 disc protrusions changes appear to be considered acute to subacute in nature with cord oedema indicating a secondary event exacerbating the protrusion or a sudden unprovoked disc protrusion / extrusion on a background of a dysfunctional disc.
The disc pathology on CT scan & MRI of the cervical spine have been reported as acute to subacute in nature and appear to correlate with the claimed time frame and are considered related to & as a direct result of the claimed incident on the 15 July 2021.”
Statement of evidence by Mr Sayed
Mr Sayed made a statement about the circumstances of the accident on 17 May 2024:
“6. Before the accident, I had previously sustained an injury to my lumbar spine at the L4/L5 and L5/S1 levels due to a motor vehicle accident 1993. Consequently, I undertook an anterior discectomy and fusion at these two levels of my lumbar spine.
7. In addition, I sustained psychological injury following the motor vehicle accident in 1993. I
experienced issues of anxiety, depression, and fatigue, as I was restricted by my physical injuries and was unable to do anything. It also took me roughly two years to overcome this injury until it did not prevent me from participating in employment and enjoying life on an unrestricted basis.
8. In 2013, I had a further car accident, when I was rear ended by another vehicle. A few months later, I experienced numbness and weakness in my hands and pain in my neck. I was referred to Dr Richard Parkinson. I underwent an operation with Dr Parkinson on 28 September 2013, however, it was in was in the C5/6 and C6/7 levels. After this procedure, it took me roughly two years to completely recover and I was able to resume operating my business and working in my two shops, managing them and doing all duties required.
9. On 15 July 2021, I was involved in a motor vehicle accident which resulted in traumatic physical and psychological injuries. These injuries have had a detrimental impact on my life.
10. At roughly 1:35pm on the day of the accident, I was seated as a passenger in a vehicle … We were … stationary at a set of traffic lights … my friend suddenly began screaming, as he saw a vehicle approaching from behind, and I had turned my neck to face him.
11. Suddenly, we were subject to a rear-end collision, which involved two other vehicles; … Our vehicle was the first car from the front, meaning we were the last vehicle hit in the accident. Due to the impact of the collision, I believe my neck twisted side to side as I was initially looking at my friend screaming. I remember my entire body was shaking after the collision and I felt something had happened to my neck….
13. Following the accident, I experienced severe neck pain and lost sensation throughout my body, where I could only feel when my hands were on my face. I initially waited for my symptoms to subside as I believed they were merely from the impact of the collision, … after 10 days, my pain had not improved at all, and … visited my General Practitioner and reported the accident.”
Application for personal injury benefits
Mr Hosny applied for personal injury benefits on 4 August 2021. He listed the following injuries as a result of the accident:
“Neck pain
Chronic headaches/ dizziness
Pain radiating to shoulders
Pain in left knee
Unable to lift/ carry heavy (things)”
Operation report, Dr Richard Parkinson, neurosurgeon
Mr Sayed had a C3/4 and C4/5 anterior cervical discectomy and disc arthroplasty on
4 April 2022. Dr Parkinson reported:
“Clinical note: Mr Sayed is a 61-year-old man who underwent a C5-7 anterior cervical discectomy and fusion in 2013 and presented with acute neck pain and a cervical myelopathy with difficulty mobilising and a spastic ataxic gait. He also had numbness and clumsiness in both hands. CT and MRI scanning confirmed a large acute central disc herniation at C3/4 with severe cord compression and cord signal change. There was a bilateral posterolateral disc bulge at C4/5 as well. I elected to do a 2 level disc arthroplasty to maintain movement, reduce the risk of adjacent level degeneration, and achieved a discectomy with canal decompression… He was very keen to proceed and I did not see a reasonable alternative.”
General practitioner’s notes, Dr Sheema Shakaib, dated 25 July 2021
Mr Sayed visited his general practitioner (GP) on 25 July 2021, who reported:
“headache and pain in neck since 15/07/2021
had a MVA at Five Docks [sic]
he was with friend on passenger seat
car was at the lights and there were three cars on the backside collided with their car
airbags did not deployed
no loss of consciousness
feeling neck pain and headache
neck pain moving to both shoulders
also having pain in left knee joint since then
climbing stairs is painful
…
Diagnosis:
Headache
Reason for visit:
Headache
Knee pain
Actions:
Imaging request printed: MRI Scan - Cervical spine. (MVA on 15/07/2021
disc lesion? stenosis? impingement? radiculopathy?
bill to Medicare please)
Imaging request printed: MRI Scan - Knee, Left. (MVA on 15/07/2021
pain in left knee
meniscal injury? ACL ligament?
bill to medicare please)
Imaging request printed: MRI Scan - Brain. (headache + vertigo
MVA on 15/07/2021
SOL? bleed? TIA? bill to Medicare please)
Prescription printed: Panadeine Forte 500mg;30mg Tablet As directed p.r.n. take one or two tablets every 6 hourly when required
SE discussed
safe use of medication discussed
Red Flags explained
Return if symptoms increase or any new symptoms
If severe pain,any sign of weakness, chest pain or SOB , call ambulance on 000
To be followed by regular GP.”
Certificate of Capacity dated 4 August 2021
On 4 August 2021, Dr Sheema Shakaid provided a diagnosis for the motor accident related injury:
“MVA on 15/07/21, on passenger seat front – back collision – neck pain and headache pain radiating to shoulder. Pain in left knee occurred at the time of the accident. Awaiting scan result.”
SUBMISSIONS
Insurer’s submissions, dated 10 December 2023
The insurer sought a review of the Certificate of Medical Assessor Jonathan Herald dated
29 November 2023.
QBE submitted that Medical Assessor Herald failed to provide adequate reasons addressing the significant delay in the development of the symptoms in the claimant’s cervical spine after the motor accident on 15 July 2021. This was an issue clearly raised by the insurer for the Medical Assessor to consider and address when assessing this dispute.
It was submitted that Medical Assessor Herald had failed to carry out the following:
(a) address the clearly ventilated issue of causation made by the insurer in the reply to the application for threshold injury dispute;
(b) determine what weight should be given to the submissions raised by the insurer;
(c) provide reasons as to why he may or may not have accepted the submissions on causation raised by the insurer;
(d) provide reasons as to how an “acute disc prolapse and spinal cord compression” was caused by the motor accident in light of the significant delay in the reporting of the claimant’s symptoms in the cervical spine;
(e) provide reasons why he may or may not have accepted the objective and contemporaneous medical evidence as to the significant delay in the reporting of the claimant’s symptoms in the cervical spine, and
(f) provide reasons why he may or may not have considered the significant delay in the reporting of the claimant’s symptoms in the cervical spine to be relevant in his assessment and opinion that the “acute disc prolapse and spinal cord compression” was caused by the motor accident.
The insurer submitted that simply stating “The most likely cause” does not discharge the requirement of Medical Assessor Herald to set out his actual path of reasoning (Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43) in circumstances where the issue of causation was clearly raised by the insurer for the medical assessor to consider and address when assessing this dispute.
Secondly, the insurer noted that Medical Assessor Herald has relied on the findings of the “MRI scans and CT scans” of the cervical spine undertaken after the motor accident to support his opinion on causation.
It was submitted that there had been no consideration made by Medical Assessor Herald that:
(a) the CT scan of the cervical spine was performed on 24 March 2022, being eight months after the motor accident;
(b) the MRI scan of the cervical spine was performed on 29 March 2022, being eight months after the motor accident, and
(c) the CT scan of the cervical spine was performed on 5 April 2022, being nine months after the motor accident.
Medical Assessor Herald had not considered what weight should be given to the findings of the CT and MRI scans of the cervical spine in circumstances where it was carried out eight to nine months after the motor accident on 15 July 2021.
The failure of Medical Assessor Herald to analyse causation, the failure to consider and address that the first recorded complaint of pain in the cervical spine made 10 days after the motor accident, and the failure to consider the date of the MRI and CT scans of the cervical spine gave rise to a suspicion that he failed to properly consider or did not consider causation.
QBE further submitted that Medical Assessor Herald had not identified the medical evidence in support of the opinion that the claimant presented with symptoms of radiculopathy or myelopathy prior to the cervical spine surgery.
Finally, it was submitted that Medical Assessor Herald’s decision was incorrect in a material respect on the basis of the following:
(a) failed to provide adequate reasons in relation to causation;
(b) failed to address the significant issue of causation raised by the insurer in the dispute. The insurer relies on Farache v Motor Accidents Authority of NSW& Ors [2011] NSWSC 446;
(c) failed to consider the significant delay in the reporting of the claimant’s symptoms in the cervical spine after the motor accident;
(d) failed to explain how the findings seen in the MRI and CT scans of the cervical spine were caused by the motor accident in circumstances where the scans were undertaken eight to nine months after the motor accident and,
(e) failed to refer to the medical evidence in support of the opinion that the claimant presented with symptoms of radiculopathy or myelopathy prior to the cervical spine surgery.
Claimant’s submissions in reply, dated 26 March 2024
Failure to provide adequate reasons as to the issue of causation
Mr Sayed submitted that the delay was not significant, being 10 days after an accident. It is very common for claimants to feel sore and bruised after an accident and hope that their condition is soft tissue and minor in nature and will recover in a matter of weeks with simple rest. To state that 10 days is significant delay is unreasonable. Not calling an ambulance for these types of injures, is also very common, no fractures or urgent medical attention was required and adrenaline after an accident can mask pain for some time.
Mr Sayed submitted that a disc prolapse causing severe cord compression is a most acute condition and his treating specialist Dr Parkinson told him he required urgent surgery, and the claimant underwent surgery. QBE had been unable to point to any evidence to suggest that such an acute condition requiring urgent treatment was present prior to the subject accident.
QBE submitted that Medical Assessor Herald failure to consider the date of the MRI and CT scans of the cervical spine gave rise to a suspicion that he failed to properly consider, or overlooked considering, the question of causation. Mr Sayed submitted that Medical Assessor Herald set out each and every scan that he had perused during his assessment at paragraph 17.
Medical Assessor Herald was not obliged to address every submission and argument raised by QBE (or claimant for that matter). There is a distinction between a Medical Assessor’s role and that of a tribunal or trier of fact in that regard. Furthermore, Medical Assessor Herald noted that he had “considered the documents provided in the application and reply”. He was not required to respond to the insurer’s submissions or supporting documents verbatim.
Misapplication of paragraph 5.8 of the Motor Accident Guidelines
QBE referred to paragraph 15 of the Certificate of Assessor Herald where the following was noted:
“15. Comments on consistency His condition is consistent. On today’s examination, he did not have features of radiculopathy or myelopathy but based on the clinical history, it appears he did have prior to his surgery.” Mr Sayed submitted that this was not a material error as the Medical Assessor concluded that the most likely cause for this acute disc prolapse and spinal cord compression was the motor vehicle accident. The urgently required invasive spinal surgery was caused by the accident and was a non-threshold injury, whether or not myelopathy was present on the date of the assessment.
THE MEDICAL REVIEW PANEL
The Review Panel had its first meeting on 4 April 2024:
“REVIEW PANEL REPORT
1. The Panel discussed the issues.
2. The primary need for clarification was the history as against the clinical examination.
3. Consequently, the Panel considered that it was sufficient to have an examination of the Claimant via Teams.
4. The Panel considered that there were gaps in the information/ documents which have been provided in the response to the Directions previously made and considered it essential that the documents below be provided.
DIRECTIONS MADE BY THE PANEL
5. By 14 May 2024, the claimant’s solicitor is to obtain and provide to Pathways the following documents:
(a) Dr Richard Parkinson’s clinical notes from 1 January 2013 to 31 December 2022.
(b) The treating GP’s clinical notes for the period of two years prior to the subject motor vehicle accident to date.
(c) The Claimant’s statements relevant to:
i. how the accident happened;
ii. what the Claimant experienced in the accident;
iii. what he observed as to the forces generated;
iv. whether or not the airbags deployed;
v.the speeds of the respective vehicles;
vi. the damage to the respective vehicles and,
vii. any other matters which might be relevant to assist the Medical Assessors in coming to a view with respect to whether or not there was an injury to C3/4 in this accident.
6. The claimant’s solicitor is to provide to the case manager for provision to the Medical Assessors, all of the diagnostic images/ reports which the Claimant took to his examination by Dr Herald on 6 November 2023, including the documents listed on Page 5 of his decision.”
On 5 June 2024, the Panel produced this message to Pathways:
“An AVL examination of the claimant was to take place, but the claimant had concerns about handling the technology of a video conference. The Panel considers that it does have sufficient information to determine this matter on the papers and will proceed on that basis.”
THE PANEL’S REASONS
Consideration of the Parties submissions
Causation
QBE submitted that Medical Assessor Herald failed to provide adequate reasons addressing the significant delay in the development of the symptoms in the claimant’s cervical spine after the motor accident on 15 July 2021.
The Panel reviewed QBE’s submission that there was a significant delay in reporting the symptoms in the cervical spine following the subject accident, however, it was recorded that the claimant first complained of pain in the neck to Dr Shakaib at the SMS Medical Centre on 24 July 2021, that is, 10 days after the accident.
The Panel considered it significant that the claimant had previously had a C5/6 and C6/7 interbody fusion (C5/6, C6/7 ACDF) on 28 September 2013 as pointed out by the Medical Assessor and by Dr Parkinson, who noted that the myelopathy subsided, and it was not until after the subject accident that Mr Sayed developed a further sub-acute C3/4 disc herniation and C4/5 disc herniation above the level of the previous fusion. The Panel considered the reason for this was that the two-level fusion made the levels above it vulnerable to disc protrusion and this was addressed by Dr Tony Antoun when he contacted Dr Taj Dugal, a radiologist for his opinion on the current CT of the cervical spine on 28 July 2016 and the previous scan on 14 August 2013, and the context of the MRI of the cervical spine dated
29 March 2022.
Dr Dugal concluded that the C3/4 disc protrusion would be acute or sub-acute with cord oedema indicating a secondary event exacerbating the protrusion or sudden unprovoked disc protrusion on the background of a dysfunctional disc. This was consistent with the motor vehicle accident which was associated with whiplash injury. Dr Dugal also concluded that the C4/5 disc protrusion was also of a similar mechanism, with a lesser degree of protrusion, having occurred in the interval.
His viewpoint was further reinforced when Dr Antoun discussed the scans with Dr Bou-Haidar who reviewed the MRI scan of the cervical spine performed on 29 March 2022 and was notified of the mechanism of injury and the stated date of injury of 15 July 2021. When Dr Bou-Haidar reviewed the films, he noted a previous history of cervical surgery and was able to compare the images of the MRI performed in 2013.
Dr Bou-Haidar stated that at C3/4 there was the start of a small disc protrusion but there was too much of a gap in years to comment on its significance, but then advised there was an associated increase in T2/STIR (Short TI Inversion Recovery) hyper-intensity signal in the posterior column on the right side of the cord reflecting at least cord oedema and underlying myelomalacia.
Dr Bou-Haidar noted that the signs on MRI were reasonably bright, suggesting a more recent event and could correlate with the claimed time frame. Dr Bou-Haidar stated that the C3/4-disc extrusion/changes would be considered as sub-acute in nature and could correlate with the six month timeframe with respect to the subject motor vehicle accident. In other words, he believed the changes could be related to the claimed event timeframe. Based on this clarification, the Panel noted that the disc pathology on CT scan and MRI of the cervical spine reported as acute to sub-acute appeared to correlate with the claimed timeframe and considered it related to and was a direct result of the claimed incident, that is, the whiplash on 15 July 2021.
MRI and CT scans
Medical Assessor Herald had relied on the findings of the “MRI scans and CT scans” of the cervical spine undertaken after the motor accident to support his opinion on causation. QBE submitted that the Medical Assessor had not considered what weight should be given on the findings of the CT and MRI scans of the cervical spine in circumstances where it was carried out eight to nine months after the motor accident on 15 July 2021.
The Panel noted that, although the scans were completed eight to nine months after the motor accident, Mr Sayed first presented to his GP 10 days following the accident with pain in his neck. The Panel considered that Mr Sayed’s radiological imaging prior to the accident, compared to after, had altered significantly. Collectively drawing on the reports of Dr Bou- Haidar, Dr Dugal and Dr Parkinson, the Panel considered that on the balance of probabilities, the pathology of the cervical spine was a direct result of the subject motor accident, and it was not necessary for Mr Sayed to have a record of radiological imaging in the days following the accident.
Radiculopathy
QBE further submitted that Medical Assessor Herald had not identified the medical evidence in support of the opinion that the claimant presented with symptoms of radiculopathy or myelopathy prior to the cervical spine surgery.
The Panel noted that prior to the surgery, Mr Sayed had CT scans and MRI scans confirming a large disc herniation at the C3/4 level causing severe cord compression. He also had features of acute neck pain and myelopathy with difficulty mobilising, a spastic ataxic gait, and numbness and clumsiness in both hands.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
For Mr Sayed’s injuries to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. The Panel noted that Mr Sayed had suffered sensory loss to both his hands, and muscle weakness with difficulty mobilising. These clinical signs satisfied the requirements for radiculopathy as per cl 5.6.
CONCLUSION
In conclusion, the C3/4 disc herniation and cervical myelopathy were not a threshold injury for the purposes of the Act.
As Medical Assessor Herald had concluded such an injury to the spinal cord in the form of myelopathy, was considered a non-threshold injury, and this has occurred as a result of the C3/4 disc prolapse, which was not a pre-existing condition.
Determination
The Review Panel affirms the certificate of Medical Assessor Herald, dated 29 November 2023.
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