QBE Insurance (Australia) Limited v Simonds
[2023] NSWPICMP 550
•2 November 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Simonds [2023] NSWPICMP 550 |
| CLAIMANT: | Cassandra Simonds |
| INSURER: | QBE Insurance Australia Ltd |
| REVIEW PANEL | |
| MEMBER: | Terence Stern OAM |
| MEDICAL ASSESSOR: | Mohammed Assem |
| MEDICAL ASSESSOR: | Geoffrey Stubbs |
| DATE OF DECISION: | 2 November 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether physical injury to the lumbar spine was a threshold injury; motor vehicle accident on 19 July 2019, when four wheel drive in which claimant was a passenger fell from a bridge, landing on its roof; previous history of back injury; claimant did not establish that the accident caused other than threshold injury to the lumbar spine; Held – Medical Assessor’s determination of non-threshold injury set aside. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement certificate issued under s 7.23 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the Certificate of Medical Assessor Murray Hyde-Page dated 11 April 2023. 2. Certifies that the claimant’s injury to the lumbar spine is a threshold injury according to the Act. |
STATEMENT OF REASONS
INTRODUCTION
Background
Ms Simonds (the claimant) was born in May 1992.
On 19 July 2019, the claimant was the front seat passenger, wearing a seatbelt in a Land Cruiser, when the driver lost control, the vehicle slid off a 3m bridge, landed on its nose, and then flipped onto its roof.
The claimant alleged that she had sustained injuries to her neck, back and shoulders. There was no direct blow to her head, but she gave a history that she did have transient loss of consciousness and loss of memory as to the details of the accident.
The claimant was taken by ambulance to Port Macquarie Base Hospital, where, after X-rays and observation, she was allowed home the next morning.
Diagnostic investigations indicated a lumbo-sacral disc protrusion with an annular tear.
Subsequently, the claimant was reviewed by a spinal surgeon and came to a L5/S1 micro discectomy on 29 January 2021.
On 23 December 2019, the claimant’s general practitioner (GP) referred her to Dr Raj Reddy, neurosurgeon, for opinion and management of complaints of ongoing cervical radiculopathy pains.
On 28 January 2020, the claimant’s GP referred her to Dr Michael Prowse, rheumatologist, for nerve conduction studies on the left arm/cervical spine.
On 17 September 2020, Dr Prowse opined that the claimant had an L5 radiculopathy and findings on CT scanning.
The claimant was referred to the Department of Neurosurgery at John Hunter Hospital (JHH), to which she was admitted on 4 November 2020.
The primary diagnosis, based on diagnostic investigations, was a posterior L5/S1 disc protrusion:
“…admitted… under the care of the neurosurgery team (Dr Edgar) for the investigation and management of back and leg pain. An MRI lumbar spine demonstrated the posterior L5/S1 disc protrusion without nerve root compression. She was managed non-operatively.”
On 1 December 2020, Dr Amanda Paterson, neurosurgical registrar, reported to the GP that, on examination, the claimant had a mildly weak right ankle plantar reflex, limited by a lot of pain. The MRI demonstrated an L5/S1 disc protrusion, abutting the S1 nerve roots and causing mild canal stenosis.
The claimant was admitted to JHH on 29 January 2021, where she underwent right L5-S1 discectomy, indicated by a primary diagnosis of a right posterior central disc protrusion, with right S1 radiculopathy.
APPLICATION UNDER REVIEW
On 11 May 2023, the insurer lodged an Application for Review of the determination of Medical Assessor Murray Hyde-Page that the claimant had a non-threshold injury of the lumbar spine.
On 7 June 2023, the President’s delegate certified as to satisfaction that there was a reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and that the Review Application was therefore accepted and would be referred to a Review Panel.
Reasons for Determination of Medical Assessor Murray Hyde-Page certified 11 April 2023
The Medical Assessor took a brief history of the accident, stating:
“she was asleep and woke up as the accident occurred. She was able to get out of the vehicle satisfactorily and make her way back up onto the roadway.”
The Medical Assessor noted that the claimant:
“was… moving quite comfortably and freely… observed her during the assessment, as well as coming into and out of the examination. She walked freely and comfortably. I noted that she had very good cervical spine movements in all directions.”
The Medical Assessor set out his observations as to clinical examination at [14-18] and in respect of the lumbar spine at [16].
Medical Assessor Hyde-Page set out at [23] that the nature of the accident would have been severe enough to cause the injuries.
The Medical Assessor stated that the claimant had significant stiffness in the lumbar spine with the formal examination.
On neurological examination of the lower limbs, she had normal straight leg raise on both sides with negative sciatic tension.
The claimant had some altered sensation on the dorsum of her right foot compared to the left, which appeared to involve the L5 and possibly S1 nerve roots. She had no significant wasting of her right calf compared to the left with less than 1cm decrease.
MATERIAL BEFORE THE REVIEW PANEL
Submissions of the insurer of 11 May 2023:
“[6]Did not confirm nor explain how the Claimant demonstrated two or more clinical signs of radiculopathy.
[7]No reported abnormality of reflexes to indicate a clinical sign of radiculopathy.
[8]As to sciatic nerve root tension signs, the straight leg raise was normal.
[9]No clinical signs of radiculopathy
[10]Failed to objectively assess loss of sensation of the dorsum of the foot, but instead relied solely on the independent medico-legal reports.
[11]Did not identify two or more clinical signs to constitute a diagnosis of radiculopathy.
[13]Failed to assess radiculopathy according to the Guidelines and determined a non-threshold injury in circumstances where the neurological symptoms did not meet the assessment criteria.
[14]Failed to provide Reasons as to why the Claimant’s pre-existing lumbar injury could not relate to the assessment of causation, and in doing so, failed to respond to the Insurer’s arguments as to causation.
[15] Failed to provide Reasons in support of the determination of injury.
[16] Failed to set out the actual pathway of reasoning.
[17]Under the heading ‘Causation’, stated that the accident would have been severe enough to cause the injuries, including to the lumbar spine.
[18]Despite acknowledging that both Dr Wallace and Dr Keller had found that any injury to the lumbar spine related to the pre-existing conditions, and that the surgery was unrelated to the subject accident.
[19]Refers to the Insurer’s Submissions at [193-194] of the minor injury Submissions.
[20]Referred to Dranichnakav v Minister, as to failure to respond to a substantial, clearly articulated argument, equates to a failure to accord procedural fairness.
[22-23]Failed to bring the incident of inconsistency, the stiffening up, to the attention of the Claimant.”
Submissions of the claimant in Reply of 2 June 2023:
“[1] No material error ‘concerning non-threshold injury’.
[5]The need for surgery arose from the lumbo-sacral disc protrusion. There were two separate elements that were not threshold injuries, the disc protrusion and the surgical scar.
[7]Whether radiculopathy is present now or not is not necessarily a threshold injury issue.
[8]The Assessor specifically addressed the pre-existing lumbar back complaints. He carefully considered the initial post-accident back complaints which progressed to sciatica.
[10] Causation of the injury requiring surgery is readily established.
[11]Refers to Dr Sing:
‘…Her symptoms are likely resulting from the car accident…’”
CAUSATION
Guidelines
With respect to causation, the MAI Guidelines provide:
“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 the Personal Injury Commission) 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 nonmedical informed judgement.
6.7 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 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.”
Legislation on causation
Section 5D of the Civil Liability Act 2002 (CLA) provides:
“(1) A determination that negligence caused particular harm comprises the following
elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the
occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Case law on causation
The assessment of causation through application of s 5D of the CLA is examined in Peet v NRMA Insurance Ltd [2015] NSWSC 558, where Hidden J notes:
“The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.”
Hidden J refers to the High Court’s judgement in Wallace v Kam [2013] HCA 19, where the Bench unanimously explained the test of causation under s 5D(1)(a) of the CLA, at [16]:
“The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a ‘but for’ test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.”
The ‘but-for’ test is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
Threshold injury
Section 1.6(2) of the MAI Act provides:
“(2) A "soft tissue injury" is (subject to this section) an 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 4(1) of the MAI Regulation provides:
“4 Meaning of “threshold injury”, section 1.6(4) of the Act
(1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
THE EVIDENCE BEFORE THE REVIEW PANEL
The Panel had all of the material which was available to Medical Assessor Hyde-Page and considered all such material, including the JHH reports.
Report of Dr Drew Dixon of 15 June 2022
Dr Drew Dixon reported, on a medicolegal basis, after reviewing the documents, a clinical examination, and examination of the diagnostic investigation, that the claimant had sustained:
(a) a whiplash injury to the neck;
(b) headaches secondary to occipital neuralgia and following a severe whiplash;
(c) post-traumatic stiffness of the shoulders (Nguyen);
(d) low back strain with lumbosacral disc protrusion, requiring lumbosacral discectomy, and
(e) persisting radicular complaint of the right lower limb with features of mild radiculopathy with wasting of the right leg below the knee, and diminished hamstring jerk.
He considered that these injuries were caused by the accident.
He assessed the injury of the cervical spine at DREII 5%, the post-traumatic stiffness of the right shoulder with trapezial muscle pain as per Nguyen at 5% whole person impairment (WPI), the left shoulder injury, as per Nguyen, at 2% WPI, injury to the lumbar spine DRE III 10% WPI and scarring from the site of the laminectomy 1% WPI.
Report of Dr Andrew Keller of 7 November 2022
Dr Keller, occupational physician, reported on a medicolegal basis on 7 November 2022. He took a history and recorded the claimant’s complaints at page 5:
“Ms Simonds reports she suffers pain everywhere. She has constant lower back pain that she rates between 5 and 10/10 in intensity on a scale with 10 as the most severe. The pain radiates to the right lower limb.”
At page 6, Dr Keller conducted a physical examination, reporting that:
“…in the cervical spine, she demonstrated flexion and extension 30 degrees, rotation of both sides 45 degrees, flexion to both sides 45 degrees. There was no spasm and at other times the neck movements were rapid and full including chin on chest flexion, rotation of chin towards each shoulder and full elevation representing maximisation of her incapacity.”
He continued on page 6 that the claimant:
“…reported reduced sensation from the left ear through the left trapezius, deltoid, upper arm, forearm, and into all fingers on the left hand crossing multiple dermatomes without anatomical explanation. This is not consistent with her nerve conduction study performed on 19 March 2020 showing borderline right sided carpal tunnel syndrome and no abnormality on the left.”
On page 9, Dr Keller concluded that:
“Ms Simonds was involved in a frightening accident that caused her immediate neck pain without nerve or disc injury. It is my opinion that this now recovered.”
In respect of causation, Dr Keller opined at page 9:
“It is likely that the accident caused a cervical spine soft tissue strain. The evidence suggests that she had a previous lumbar strain complaint and awoke with sudden lower back pain in September 2020 unrelated to the accident. It is not my opinion that her lower back pain or surgery relates to the effects of the accident.”
Report of Dr Raymond Wallace of 21 November 2022
Dr Raymond Wallace, orthopaedic surgeon, reported on 21 November 2022. After taking a history and examining the claimant, he reported on page 5:
“Ms Simonds notes a constant aching pain at the cervical spine in the region of the C5, C6 and C7 spinous processes radiating intermittently to her bilateral upper limbs to the level of the elbows.”
On examination, Dr Wallace recorded:
“…cervical spine shows no swelling or deformity. She has a range of movement of flexion 60°, extension 20°, left rotation 50° and right rotation 50°, left lateral tilt 20° and right lateral tilt 20°. There is tenderness at the C7 spinous process. Neurological examination of her upper limbs shows equal and symmetrical reflex.”
He continued at page 6 - 7:
“Examination of her lumbar spine shows a 5 cm posterior longitudinal scar which has healed to a fine white line and is minimally visible. She has an active range of movement at the lumbar spine of forward flexion to the knees, extension 10°, left lateral tilt 30°, right lateral tilt 30°, left rotation 20° and right rotation 20°. There are no tender areas. Her gait is normal…
Neurological examination of her lower limbs shows her reflexes are unable to be elicited.”With respect to causation, Dr Wallace considered:
“Ms Simonds’ cervical spinal condition has been caused by injuries sustained in the index motor vehicle accident of 19 July 2019. There is no objective medical evidence that she suffered any injury at her lumbar spine at the time of the index motor vehicle accident…
Her lumbar spinal disability is due to pre-existing degenerative disc disease at the L5/S1 level which is constitutional in origin and unrelated to the index motor vehicle accident.”
Re-examination of the claimant
The Panel decided that both Medical Assessor Assem and Medical Assessor Stubbs would jointly re-examine the claimant and did so on 10 October 2023.
History given to the Panel by the claimant
Pre-accident history
The claimant grew up with a passionate interest in horses and had been a regular competitor in equestrian events. She left school after year 10 with difficulty reading and believed she had dyslexia. She started a hairdressing apprenticeship on the Gold Coast. She did not return to this work after a 2013 horse riding accident. She returned to her family home in Kempsey and started working in the stockroom of Akubra Hats.
In late 2016, while working at Akubra hats, she fell from a chair and hurt her back. She returned to work in an activity managed program before eventually being dismissed in 2020. The claimant was asked about the program including the accident, the fall in 2013, the plain X-rays of the spine taken in 2016 and the period of physical therapy and other treatment for the low back pain that followed.
She could not, at first, recall either the 2013 fall or the 2016 work accident.
She was asked about the treatment for low back pain at McClay Chiropractic between 2016 – 2018, and her presentation to hospital on 11 February 2019 with back pain. She said that these did not happen or, at least, she could not remember them, though she later identified Mr Scott Peisley, the man who gave her the dry needling treatment. She believed that she was fully fit and functional at the time of the motor vehicle accident and showed photographs, which she had on her mobile phone, of her horse riding in competition. One is dated
April 2018. The other, she said, was taken before the motor vehicle accident at the Royal Easter show in 2019.
The claimant was asked about the development of the low back pain and a consultation with Dr Raj Reddy. She did not remember Dr Reddy or the consultation. She was asked about the investigations performed and did recall that she had two nerve conduction studies but not when they were performed.
She was asked about other investigations including in respect of the 2013 episode, when she was thrown from a horse, and an X-ray performed on 17 August 2016. She did not recall this. She was asked about the work accident and the resultant low back pain. She said this fully recovered.
She did not recall whether there were restrictions on either hours or conditions of work. When asked about the emails between the rehabilitation provider and her employer about frequent absenteeism she reported that she was unaware of the emails, there was no absenteeism and there were no restrictions on her activities.
She did not recall assessments by Dr Keller and Dr Wallace.
She was asked about the GP notes including the report of Dr Maram of May 2020. He had recorded her working on a full-time basis at Akubra Hats and that it was not until the second half of 2020 that she ceased work. She was also asked why the medical certificates that concerned her work accident of 2016 also mention injuries to the neck, shoulders, and upper limbs. She reported this was untrue. She had complained of low back pain ever since the motor vehicle accident but not before.
She was asked about the apparent absence of complaints of low back pain and right leg pain to the GPs until the second half of 2020.
She reported that this was not a new onset of pain but, rather, a continuation of the pain she had from the motor vehicle accident. She was asked about the consultation with Dr Michael Prowse a rheumatologist whom she had already seen for left upper limb pain following the motor accident. He thought she had a right S L5 radiculopathy and arranged for the MRI study of the spine.
She reported that the pain had been present since the motor vehicle accident. She then went on to say “all of a sudden, I [had] pain down my right leg a few months after the accident… There was pain everywhere… it was much worse”.
The accident
The claimant was injured in a motor vehicle accident on 19 July 2019. She was the front seat passenger in a four-wheel-drive being driven along an unmade country road. Crossing a small bridge, the four-wheel-drive went out of control and partly ran off the bridge. The driver reached across and undid her seatbelt. Almost immediately, the four-wheel-drive toppled over the bridge and finished up lying on the roof. Both the claimant and the driver got out of the vehicle (as did the two rear seat passengers as recorded in the ambulance report) and made their way back to the road. An ambulance was called, and she was taken to the Emergency Department of Port Macquarie Base Hospital. Her complaints were generalised pain in the neck, back, and shoulders. After a night’s observation she was discharged home.
After a short period off work, she returned to Akubra Hats on light duties. The Return to Work Program commenced after her December 2016 injury. She could not complete the program and ceased work with worsening low back pain together with the right leg pain.
By September 2020, she was under investigation at the Neurosurgical Outpatients Clinic of JHH.
Laminectomy
She subsequently underwent an L5-S1 laminectomy for a right S1 radiculopathy. The surgery had not helped. She has had a further neurosurgical opinion from Dr Lawrence
Mc Entee. This included a lower limb nerve conduction study, which is not available, but which the claimant understands to be normal. She said that she has been offered a “cage”. The Panel understood this to be a spinal fusion.
Recent history
The claimant is now 31 years old. She is working as a traffic controller at roadworks on a casual basis. She presently spends her time at her partner’s or her parents’ home.
She is now working on a part-time basis as a traffic controller for Crescent Head Traffic Control.
The claimant is still taking significant amounts of medication. She was at one stage on opiates. This has been discontinued since March 2021. The claimant did not remember when the opiates were commenced.
The claimant confirmed that she presented to Port Macquarie Base Hospital Emergency Department in October 2022 with right leg pain. She was admitted there after “4 to 5 days”, and then sent for further investigations to JHH, and again admitted for about the same period of time. She was in Port Macquarie hospital between 27 and 30 October 2020, and JHH between 4 and 9 November 2020.
She saw Dr John Christie a neurosurgeon on 1 December 2020. She subsequently underwent a laminectomy for radiculopathy but reported no improvement.
Panel’s physical examination
The claimant was unaccompanied during the physical examination. She undressed to her underwear and wore a hospital gown. She can dress and undress without assistance and climbed on and off the examination table without difficulty. She stood at 165 cm tall and weighed 104.6 kg. On general examination, she could tiptoe on both sides but with complaint of right leg pain, and she could walk on her heels with the toes off the ground with complaint of low back pain. She declined to hop. She wears thongs rather than lace up shoes because she cannot tie lace up shoes.
Diagnostic images
Included images of the MRI of the cervical thoracic and lumbar spines performed in
October 2020 and the CT scan three weeks before. The Panel agreed with the radiological diagnosis. The cervical and thoracic spine showed no signs of injury or other abnormality. A minor posterior disc osteophyte in the mid thoracic region would be a typical finding in normal spines.
In the lumbar spine there was a large central disc prolapse At L5-S1. Nuclear material could be seen pushing into the extended outer fibres of the intervertebral disc. This had the appearance of an acute disc prolapse. Also noteworthy was that the reporting radiologist knew of the CT scan of the lumbar spine mentioned in the history.… “As per being performed three weeks ago” which would correspond to the CT scan seen dated 16 September. The radiologist did not make clear whether the history of worsening pain, and pins and needles in the right lower limb, were a feature from the motor vehicle accident of 2019, or of more recent onset.
The CT scan certainly showed a posterior limbus vertebra. Posterior limbus vertebrae are less common than anterior limbus vertebrae and are less studied. There is a sizeable literature on anterior limbus vertebrae in elite adolescent athletes: gymnasts, and wrestlers seem to be particularly well represented. These are taken to represent avulsion injuries of the anterior ring apophysis, posterior limbus vertebrae being an avulsion is of the posterior apophysis. Typically, they come from the lower vertebrae. The CT shows that both the site of displacement and “free” fragment show typical sclerosis. (The displaced fragment is not actually free but continues to be connected to the main part of the vertebral body bite fibrocartilage scar tissue). This is not a new injury.
The MRI showed a recent protrusion of the intervertebral nuclear material into the superficial in fibres of the annulus fibrosis intact the out of the third of the annulus including the posterior longitudinal ligament remains intact and are still anchored to the bony displaced and now ossified ring epiphysis.
Voluntary forward flexion is fingertips just below the groin. Extension is also very limited. Lateral flexion is right equals left to the supra condylar level of both femurs. There is complaint of mid lumbar tenderness but no spasm or guarding and no dysmetria in movement pattern. When sitting she can flex forward at the hips and fully straighten both knees. The slump test is negative. Passive rotation of the pelvis is normal but causes complaints of numbness in the arms.
Thoracic rotation is three quarters normal right equals left, without discomfort spasm or guarding.
Cervical flexion and extension is half normal without pain, spasm or guarding. Lateral flexion is full, right equals left. Cervical rotation is variable. Isolated examination there is complaint of pain and tenderness at half normal range but active whole spine active rotation is full range.
She can clap her hands above her head but complains of mid thoracic back pain, isolated flexion and abduction are poor and variable, but she can comfortably pull her T-shirt off over her head. External and internal rotation are normal.
Elbows, wrists, and hands have a normal range of movement and nerve entrapment signs at elbow and wrist are negative Nerve root tension signs in the cervical and lumbar spine are negative.
Straight leg raising is 60° right equals left without difficulty. Girth of the thighs is 55 cm right equals left the calf’s 39.5 cm right equals left. Girth of the upper arms is right 37 cm left centimetres and the forearm right 28 cm left equals 27.5 cm. She is right hand dominant. There is complaint numbness in both hands and both feet in a non-anatomical distribution. Light touch sensation is normal in both upper and lower limbs. Hip flexion line spine is limited to 60° but easily exceeds 90° sitting. Knees and ankles abnormal movement and a stable. Manual muscle testing is 5/5 in all groups.
There were inconsistencies in the physical examination. This was pointed out the Claimant, which she put down to the long car journey that the preceded the examination, and the continuing low back and right leg pain.
There were no longer any signs of lumbar nerve root compression. A radiculopathy is reported prior to surgery. This is no longer present.
Panel’s reasoning
The claimant has claims for the following injuries:
• cervical spine – whiplash injury;
• right shoulder – post-traumatic stiffness, and
• left shoulder – post-traumatic stiffness.
The clinical examination did not show any clinical abnormalities in any of these regions. The claimant had a full range of cervical movement and, likewise, had a full range of shoulder movement. These injuries might be expected after the motor vehicle accident but were soft tissue injuries which had now resolved.
The claimant also has a claim for a lumbar spine injury with a disc protrusion requiring lumbosacral discectomy and associated right leg pain described as an S1 radiculopathy. Like the other injuries, it is plausible that there was a soft tissue injury to the lumbar spine, caused by the motor vehicle accident. Medical Assessor Hyde-Page did not see the claimant until
4 April 2023. Dr Keller, occupational physician, saw her for a medicolegal examination in November 2022. He thought the surgery on the lumbar spine was unrelated to the motor vehicle accident. Dr Wallace, an orthopaedic surgeon, saw the claimant for a medicolegal examination in November 2022. He also concluded there was no evidence of the lumbar spine injury from the motor vehicle accident. Dr Drew Dixon, orthopaedic surgeon, reported in June 2022. He had a very different view of all the injuries. However, Dr Dixon reported there was no pre-existing history of neck, shoulder, or back pain.
The claimant was seen twice for treatment and opinions about her cervical spine. She saw Dr Michael Prowse, rheumatologist, in January 2020 about her left arm and neck injury. He did not see her for lumbar spine, but on reviewing her again in September 2020, he noted a recent onset of back pain and right sciatica. She saw Dr Raj Reddy, a neurosurgeon, in December 2019 in relation to her cervical spine complaint, but there is no mention of lumbar spine problems at that time.
The reports of Port Macquarie Base Hospital and JHH record that by September 2020, there were complaints of right sciatica which persisted through 2020. This is in line with the September 2020 report of Dr Prowse.
The claimant had a lumbar disc excision performed in January 2021.
On the available evidence, the claimant suffered an acute intervertebral disc prolapse at L5-S1 in the second half of 2020.
What Dr Dixon was unaware of was a prior history of low back pain. He reported that the claimant told him that there was no history of prior neck, shoulder, or back pain. However, there was a fall from a horse causing injury in 2013; the cause of the limbus vertebrae discussed in the comments on radiology. This injury had resolved. There was a work injury at Akubra hats in late 2016, where she also hurt her back. This was covered by Worker’s Compensation, and she was under a long medically manage return to work program until finally being dismissed in 2020. The claimant reported she returned to competitive show riding but could not at first remember any chiropractic or other treatment through this time.
The most likely scenario was that the displacement of the posterior ring apophysis, the posterior limbus vertebrae, occurred when the claimant was still an adolescent. She had the 2013 episode of back pain in a riding fall. The ring apophysis cannot be displaced after the completion of spinal growth. The ring apophysis fuses to the vertebral body at the end of growth. This is at the end of the puberty growth spurt and two to three years later than the closure of the major epiphysis plates in arms and legs. In 2013, the claimant was 21, about the upper age one would expect if the fall from the horse was to have caused this injury. Many limbus vertebrae are incidental findings on imaging. If there was low back pain it was short lived and is now forgotten. A minority cause persistent back pain.
On the other hand, the penetration of nuclear material into the annulus fibrosis of L5 S1 disc and the subsequent disc protrusion was a recent phenomenon and in keeping with the history of a significant increase in symptoms and disabilities in late 2020. One would expect the nuclear material to be reabsorbed and the disc prolapse to have reduced if it was caused by the motor vehicle accident in July 2019. The symptoms would be resolving rather than suddenly increasing a year later.
There was, therefore, a gap of around 12 months between the motor vehicle accident and the onset of the symptomatic L5-S1 intervertebral disc prolapse. Had the disc prolapse been caused by the motor vehicle accident, the Panel would have expected immediate and disabling symptoms. The Panel, therefore, agreed with the prior medical assessments of
Dr Keller and Dr Wallace, that the disc prolapse was not caused by the motor vehicle accident. This view was also in keeping with the reports of Dr Prowse and Dr Reddy, who saw the claimant after the accident for continuing neck and shoulder symptoms but not for the back pain/sciatica. The Panel’s view is that the motor accident was not a contributing cause to the later disc prolapse. This is consistent with the known history of intervertebral disc prolapse. The majority happen during the normal activities of daily living and only occasionally follow traumatic events and when they do so the symptoms are immediate. There was no causal relationship between the accident and the subsequent surgery, and no impairment arises. The subsequent surgery was entirely appropriate but not caused by the motor vehicle accident.
The Panel did not find any evidence of the continuing radiculopathy after the surgery though some signs might be expected even with successful surgery and may have been present in June 2022 but are expected to fully resolve.
Panel’s conclusion
The claimant had a complex medical history involving multiple incidents that are likely to have impacted her lumbar spine, notably, a fall from a horse in 2013, and another fall from a chair in 2016. The Panel carefully reviewed her imaging studies, starting from the thoracic and lumbar spine scans conducted on 17 August 2016, which revealed several spinal abnormalities including moderate thoracic kyphosis, mild adolescent Scheuermann’s disease, and a rudimentary S1/2 disc with mild loss of disc height. On 3 July 2018,
Dr Kostalas noted that the claimant was seeing a chiropractor for sciatica. On
11 February 2019, she presented to hospital with lower back pain.
After the motor vehicle accident on 20 July 2019, the claimant had tenderness over the right flank but no midline spinal tenderness on palpation. The CT pan scan was reviewed, and no significant abnormality was found. She was discharged with simple oral analgesia.
Despite further medical, physiotherapy and specialist consultations for her neck complaints, the claimant did not complain of severe acute back pain until 2 September 2020. Dr Hilary Steenson subsequently arranged a CT scan of the lumbar spine, which was conducted on
16 September 2020. A day later, Dr Prowse noted the onset of lumbar spinal pain radiating to her right leg, described as having a duration of "several weeks".
Given the nature of the motor vehicle accident, and the hospital records, the Panel acknowledges the possibility of a soft tissue injury in the accident to the lumbar spine. However, the late onset of more severe symptoms—specifically, back pain radiating to her right leg—casts doubt on attributing these symptoms to the 2019 accident. These symptoms did not manifest until 14 months later, effectively severing a reasonable causal relationship to the motor vehicle accident.
The Panel also examined the reports from Dr Drew and Dr Wallace. Dr Drew's report of
15 June 2022 lacked a comprehensive timeline for the claimant’s back complaints, while
Dr Wallace, who examined her on 21 November 2021, concluded that there was no objective medical evidence of lumbar injury from the 2019 accident. Medical Assessor Hyde-Page acknowledged an injury to the lumbar spine based on the description of the accident but considered the radicular symptoms in her right leg to be resolved.
In light of these factors, the Panel concluded that the claimant likely sustained a soft tissue injury to the lumbar spine due to the 2019 accident which is a threshold injury according to the Act. The later onset of acute lower back pain radiating to her right leg 14 months after the motor vehicle accident, is consistent with what would be expected following an acute disc prolapse that is not causally related to the subject accident.
The Panel therefore concludes that the claimant’s injury to the lumbar spine is a threshold injury according to the Act.
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