QBE Insurance (Australia) Limited v Sukkar
[2023] NSWPICMP 450
•12 September 2023
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | QBE Insurance (Australia) Limited v Sukkar [2023] NSWPICMP 450 |
| CLAIMANT: | Charlie Sukkar |
INSURER: | QBE Insurance (Australia) Limited |
| REVIEW PANEL | |
| MEMBER: | Susan McTegg |
| MEDICAL ASSESSOR: | Shane Moloney |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 12 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant sustained injury when thrown from his motorbike on 15 December 2017; history of chronic low back pain; Medical Assessor (MA) Wijetunga certified L4/5 anterior lumbar interbody fusion surgery was caused by the accident and was reasonable and necessary in the circumstances; Held – accident aggravated or exacerbated the underlying back condition, particularly the L4/5 disc pathology; accident was a material contribution to the need for treatment to the lower back; surgery does relate to the injury caused by the accident; surgery not reasonable and necessary in the circumstances where no demonstrable radiculopathy or demonstrable instability; surgery proposed would not relieve any nerve root foraminal stenosis at L4/5, any lateral recess stenosis at L5/S1 or disc protrusion at L3/4; having regard to surveillance footage Panel not satisfied lower back condition has significantly impacted on activities of daily living such that the proposed surgery is necessary to improve quality of life; certificate of MA Wijetunga revoked. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Nelukshi Wijetunga dated 2. The Review Panel determines the request for L4/5 anterior lumbar interbody fusion surgery relates to the injury caused by the accident. 3. The Review Panel determines the request for L4/5 anterior lumbar interbody fusion surgery is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
On 15 December 2017 Mr Charlie Sukkar (the claimant) was riding a motorbike when a car failed to give way and collided with his bike causing him to be thrown 10m from the accident site where he was struck by another vehicle (the accident).
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Sukkar under the Motor Accident Injuries Act 2017 (MAI Act).
On 31 May 2021 the claimant asked the insurer to fund the L4/5 anterior lumbar interbody fusion surgery (the surgery).
On 10 June 2021 the insurer declined to fund the surgery on the basis the need for surgery was not related to the accident but was caused by the claimant’s pre-existing back condition.
On 6 July 2021 the claimant requested an internal review of the decision to decline the surgery.
On 20 July 2021 the insurer issued a Certificate of Determination – Internal Review reaffirming its decision to decline the surgery.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24” of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
This dispute was assessed by Medical Assessor Nelukshi Wijetunga who issued a certificate dated 27 March 2023.
TREATMENT – STATUTORY PROVISIONS
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)The reasonable cost of treatment and care,
(b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
ASSESSMENT UNDER REVIEW
In a certificate dated 27 March 2023 Medical Assessor Wijetunga certified the request for L4/5 anterior lumbar interbody fusion surgery was caused by the accident and was reasonable and necessary in the circumstances.[2]
[2] AD1 p 20.
The following treatment dispute was referred to Medical Assessor Wijetunga:
· whether the request for L4/5 anterior lumbar interbody fusion surgery relates to the injury caused by the motor accident, and
· whether the request for L4/5 anterior lumbar interbody fusion surgery is reasonable and necessary in the circumstances.
On examination Medical Assessor Wijetunga reported:
“Examination of the lumbar spine showed normal spinal curvature. He had no tenderness to palpation. There is no muscle spasm or guarding. He demonstrated a full range of symmetrical movements of the lumbar spine.
The neurological examination of his lower limbs was undertaken which demonstrated
normal tone and muscle strength. He has symmetrical reflexes bilaterally. There was
no area of altered sensibility described.”
In respect of causation Medical Assessor Wijetunga stated:
“Mr Sukkar has a documented history of chronic lower back pain. He was not able to offer a plausible explanation to account for the entries and investigations related to lower back pain dating from 2013. Nevertheless, it appears that his back pain came on intermittently and he experienced episodes which lasted for weeks at a time. There is no objective evidence to dispute this.
The mechanism of the accident described, involves a major accident where he sustained fractures to his left leg requiring open reduction internal fixation, repair of his shoulder and he remained in hospital for a period of almost three weeks. As a result of the collision, Mr Sukkar was on a motor bike and was thrown off the bike. This mechanism of action is consistent with significant force which is associated with lower back pain.”
In relation to whether the surgery was reasonable and necessary Medical Assessor Wijetunga stated:
“It is beyond my area of expertise to comment on indications for L4/5 anterior lumbar interbody fusion. However, in so far as the back injury has been caused by the subject accident and L4/5 anterior lumbar interbody fusion is a peer proposed surgical intervention, which is in this case has been recommended by his treating neurosurgeon, the surgery proposed is considered reasonable and necessary.”
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment of Medical Assessor Wijetunga on 30 March 2023 within 30 days of the date on which the certificate of Medical Assessor Wijetunga was made available to the parties.
On 18 May 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in clause 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. [3] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[3] Section 7.26(5A) of the MAI Act.
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.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
In response to a Direction issued by the Panel on 23 May 2023 the insurer uploaded to the portal an indexed bundle of documents sought to be relied upon paginated from page 1 to page 152 which was marked AD1. On 17 July 2023 the claimant uploaded a bundle of documents sought to be relied upon paginated from page 1 to page 1,356 titled Index and Annexures.
In response to a request from the Panel the insurer uploaded the surveillance recordings to the portal on 19 July 2023.
On 17 August 2023 the Panel issued a Review Panel Report and Directions which stated inter alia:
“The Panel considers a re-examination of the claimant is not required because:
(a)There is evidence setting out the clinical findings on examination of Dr Dias, Dr Nair, Dr Mobbs, Professor Cameron and Associate Professor Shatwell.
(b)Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned there is no apparent dispute about the clinical findings of Medical Assessor Wijetunga.
(c)Whilst the Panel proposes to have regard to the surveillance footage the claimant has addressed the surveillance footage in his statement dated 1 March 2022.
(d)The Panel has been furnished with comprehensive medical evidence including the following imaging reports:
·X-ray lumbosacral spine, 3 December 2013
·CT lumbar spine, 12 April 2016;
·CT lumbosacral spine, 31 May 2017;
·CT lumbar spine, 25 October 2018;
·X-ray lumbosacral spine, 8 July 2019;
·MRI lumbar spine, 6 May 2020;
·Bone scan, 6 May 2020;
·CT lumbosacral spine, 15 January 2021; and
·Bone scan, 8 February 2022.
DIRECTIONS
1. In order to facilitate the just, quick and cost-effective resolution of the real issues in the Review, the parties are directed, on or before 1 September 2023 to advise the Commission in writing that they have received this report and to confirm if they agree to the Panel proceeding to determine the issues in dispute without re-examination and on the basis set out above.”
Both parties agreed there was no objection to the matter being determined without re-examination. The Panel proceeded on this basis.
EVIDENCE BEFORE THE REVIEW PANEL
Mr Sukkar is now 48 years of age. He was 42 years of age at the time of the accident.
Pre-accident treating records
On 3 December 2013 the claimant underwent an X-ray of the lumbosacral spine. The reported referred to “Degeneration L4/5 disc”.
On 9 July 2014 the claimant presented to Nepean ED with left testicular pain associated with lower back pain.[6]
[6] Index and Annexures p 786 and 794.
On 11 April 2016 Dr Zaglul Habib, general practitioner (GP) reported:
“Fall on back 4 days back. Lower back pain since then. Had lower back pain before with exercise. Constant pain. Radiation to left leg. No tingling or numbness in the feet … O/E – Mild tender over L/S spine, Restricted Flexion, Neurology - NAD.”[7]
[7] Index and Annexures p 635.
On 22 April 2016 Dr Habib reported “CT L/S shows disc bulging. Having back pain for long time”.[8] He was referred for physiotherapy. On 28 April 2016 Dr Habib completed a Disabled Parking Form. On 11 May 2016 a history of lower back pain and scoliosis was recorded.[9]
[8] Index and Annexures p 636.
[9] Index and Annexures p 741.
On 24 October 2016 lower back pian radiating to the right leg without numbness was reported.[10]
[10] Index and Annexures p 741.
On 23 May 2017 Dr Barich advised him back pain was not a reason for a Disability Parking Form.[11]
[11] Index and Annexures p 740.
On 30 May 2017 Dr Barich GP requested a CT scan of the lumbar spine and referred the claimant to Dr Keven Seex, neurosurgeon for chronic back pain resulting from disc bulges.
A CT scan of the lumbar spine on 31 May 2017 noted:
“Mild diffuse posterior bulge of the intervertebral disc. Facet joints are normal. The spinal canal, lateral recesses and the neural foramina are capacious”.
Application for personal injury benefits
In the Application for personal injury benefits dated 31 January 2018 the list of injuries includes pain in lower back and neck.[12]
Post-accident treating records
Westmead Hospital
[12] Index and Annexures p 143.
The accident occurred on 15 December 2017. The claimant was transported to Westmead Hospital by ambulance. He was diagnosed with the following:
· comminuted right shaft tibial fracture;
· comminuted right mid shaft fibular fracture;
· deep laceration over the left shoulder and acromioclavicular joint, and
· multiple abrasions to left elbow, left wrist, left hand, right hip, left knee and left leg.
The claimant was hospitalised under the care of Dr Graham, orthopaedic surgeon. He underwent the following procedures:
· 16 December 2017 – fasciotomy of posterior compartment of leg and external fixation of right tibial mid shaft fracture;
· surgical repair of the laceration over the left shoulder and left acromioclavicular joint;
· 17 December 2017 – open reduction internal fixation for comminuted mid shaft tibial fracture;
· 19 December 2017 – repeat washout of right leg fasciotomy wound and repair of left knee laceration;
· 27 December 2017 – repeat washout of right leg;
· 1 January 2018 – partial closure of right leg fasciotomy wound, and
· 5 January 2018 – a further washout and closure of right lower leg fasciotomy.
The claimant was discharged from hospital on 6 January 2018 using Canadian crutches and subsequently a walking stick.
On 12 January 2018 Mr Sukkar saw Dr Barich in respect of pain. He referred Mr Sukkar to
Dr Kinzel, orthopaedic surgeon who diagnosed a full thickness supraspinatus tendon tear.On 27 February 2018 Mr Sukkar underwent a right shoulder arthroscopic rotator cuff repair and biceps tendinosis procedure. He was still unable to weight bear and imaging found a non-union of the right mid shaft tibial fracture.
On 2 March 2018 Dr Youssef GP reported inter alia “right leg electric pain” and on
7 March 2018 Dr Habib reported inter alia “Gets electric shock like pain in right leg...”.[13][13] Index and Annexures p 639 and 641.
On 27 April 2018 the claimant consulted Dr Youssef who reported:
“Lower back pain for the last month mainly paravertebral along the lumbar area
Nil tenderness on exam.
Pain on full flexion along the left L5/S1 facet joint.
Mild pain on bilat. Lateral flexion of the spine
Likely muscular pains secondary to unequal weight bearing on feet.
Will change panadeine forte to dolased.”
On 18 May 2018 Dr Youssef reported inter alia “severe back pain secondary to muscle spasm”.
On 22 May 2018 the claimant underwent removal of the right tibial nail, debridement of the fracture site, re insertion of a new tibial nail and a bone grafting procedure.
On 28 August 2018 Dr Habib reported inter alia “still lower back pain, CT L/S report noted and explained to patient…” and on 30 August 2018 Dr Youssef reported:
“Back pain wakes him up from sleeping
Tenderness along the left SIJ (sacroiliac joint)
Very stiff paravertebral muscles.”[14]
[14] Index and Annexures p 651.
On 25 September 2018 Dr Barich reported:
“back pain lower central
Pain after 20 minutes sitting getting difficult to stand
If standing > 10 minutes start pain radiating to legs R > L and some numbness.”[15]
[15] Index and Annexures p 652.
On 21 November 2018 Dr Youssef reported the claimant had back pain secondary to an exacerbation of a disc problem since the accident.
On 27 November 2018 the claimant underwent a CT guided right L5/S1 facet joint block and on 28 November 2018 he underwent a CT guided left L5/S1 facet joint block.
On 6 April 2019 Dr Farid prescribed Endone but recommended the claimant see his specialist for surgical options of pain management as Endone was not recommended.[16] On 18 April 2019 Dr Farid recorded he was concerned about patient abuse of medication and referred the claimant to a pain management clinic.
[16] Index and Annexures p 663.
During a Functional Capacity Assessment on 7 May 2019 the claimant described constant lower back pain and rated it 12/10.
Mr Sukkar continued to consult his treating general practitioners throughout 2019 when he was prescribed Oxycontin and Endone. On 18 May 2019 Dr Youssef recorded “severe back pain secondary to muscle spasm”. On 3 July 2019 Dr Farid reported he contacted Prof Raj by telephone in relation to pain medication. He reported Prof Raj stated he proposed to admit the claimant to hospital for management of his chronic pain.[17]
[17] Index and Annexures p 670.
On 12 January 2021 Dr Barick added Orudis SR 200 SR capsule for chronic lower back pain for disc bulging. The claimant was awaiting approval for the use of medicinal cannabis.
Justin Graham, physiotherapist
On 6 November 2018 Mr Sukkar attended Justin Graham physiotherapist who reported his lower back pain was unchanged and was fairly constant.
On 12 December 2018 Mr Graham recorded:
“Reports feeling tightness in the lumbar area and struggling to stand extended after spending a period of time in flexion.” “Unable to lie flat due to increasing P within the LSP, and increase P on trying to return to standing.”
On 21 March 2019 Mr Graham reported:
“Patient reports Lsp being primary issue at moment. Feeling tightness in area and struggling to stand upright.”
In a report dated 30 April 2019 Mr Graham stated Mr Sukkar reported he felt better when he was active, noting spending time in bed or sitting still for long periods increased his discomfort.[18] He reported feeling tightness in the lumbar area and struggling to stand after spending time in flexion.
[18] Index and Annexures p 1172.
Dr S Raj Sundaraj, pain medicine physician
On 12 June 2019 Dr Sundaraj reported he did not have sufficient information to arrive at a working diagnosis, commenting “This man is confused, a cocktail of complex medication and in particular several opioids”.[19] He recommended an admission to Nepean Private Hospital to investigate and implement management strategies.
[19] Index and Annexures p 1209.
Dr Sundaraj provided a report dated 15 July 2019 in respect of the claimant’s admission to Nepean Private Hospital on 8 July 2019.[20] He reported Mr Sukkar had made arrangements to see a neurosurgeon at Randwick and had to be discharged without completing the treatment program. He stated:
“He is a very well built strong muscular man and he has complained of difficulty performing any daily activity and function. This is not in keeping with my clinical observation and assessment. I do admit that he might have a problem in his lumbar spine which needs investigation and resolution.”
[20] Index and Annexures p 1207.
Dr Mobbs, neurosurgeon
Dr Mobbs saw the claimant on 10 July 2019 with a combination of back and leg pain on a background history of a motorbike accident in 2017.[21] He concluded his problems were arising from the L4/5 level. He reported the claimant used a walking stick and recommended further investigations.
[21] Index and Annexures p 163.
On 6 November 2019 Dr Mobbs reported:
“I note that the patient was involved in a high energy, high velocity motorbike incident in 2017. This has left him with a number of injuries, and of note he has significant ongoing back and leg pain emanating from L4/5. His current level of fitness in my opinion is limited. He finds it difficult to stand or sit for any length of time and at best, he would be suitable for significant reduced hours and sedentary duties only.”[22]
[22] Index and Annexures p 164.
On 3 June 2020 Dr Mobbs stated Mr Sukkar “would be an excellent candidate for an anterior lumbar interbody fusion (ALIF)”.[23]
[23] Index and Annexures p 166.
On 12 May 2021 Dr Mobbs reviewed the claimant and reported:
“There is no doubt that he has advanced discovertebral changes here, and in my
opinion his disc issues are most likely a result of his high velocity, high energy impact when he is on a motorbike. As a consequent of that injury he has had numerous lower limb issues, surgeries, etcetera.”[24]
[24] Index and annexures p 95.
Imaging
X-ray lumbosacral spine, dated 3 December 2013:
· degeneration L4/5 disc.
CT lumbar spine, dated 12 April 2016:[25]
· the T12/L1, L1/2 and L2/3 appear normal;
· at the L3/4 level, there is a mild annular disc bulge causing mild central canal stenosis. There is a moderate to large right posterolateral disc protrusion causing moderate narrowing of the right neural exit foramen with the right l3 nerve root closely associated with the disc within the neural exit foramen. The facet joints appear normal;
· at the L4/5 level, there is a moderate broad based right paracentral disc protrusion and right posterolateral disc protrusion causing moderate to severe central canal stenosis. There is moderate bilateral ligamentum flavum hypertrophy. The right L4 nerve root is closely associated with the disc, distal to neural exit foramen. The facet joints appear normal;
· at the L5/S1 level, there is a small to moderate broad based posterocentral disc protrusion with no significant canal stenosis or nerve root impingement. The facet joints appear normal, and
· no pars defect noted. The SI joints appear normal.
[25] Index and Annexures p 1135.
CT lumbosacral spine, dated 31 May 2017:[26]
· intervertebral disc degenerative changes at L4/5 and L5/S1 levels, and
· no compression of exiting or traversing nerve roots at L4/L5 and L5/S1 levels.
[26] Index and Annexures p 1,218.
CT lumbar spine, dated 25 October 2018:[27]
· mild facet arthropathy noted from L4 to S1 level;
· no acute fracture, dislocation or suspicious bony lesion is identified;
· circumferential disc bulge noted from L3 to S1 level, and
· disc osteophyte complex causing mild to moderate central canal stenosis at L4/5. Disc osteophyte complex together with congenitally short pedicles could cause irritation of multilevel exiting nerve roots in the foramina.
[27] Index and Annexures p 1,177.
CT guided right L5/S1 facet joint block, dated 27 November 2018.
CT guided right L4/5 facet joint block, dated 5 December 2018.
X-ray lumbosacral spine, dated 8 July 2019:[28]
· no fractures or other bony abnormalities are identified in the lumbosacral spine. The vertebral bodies and discs are of normal height with no mal alignment. The pedicles, facet joints, spinous processes and transverse processes have a normal appearance, and
· the sacral neural arches are intact as are the sacroiliac joints.
[28] Index and Annexures p 1,231.
MRI lumbar spine, dated 6 May 2020:[29]
· loss of disc height at L4/5 with endplate Modic change and a disc bulge causing mild narrowing of the canal and subarticular recesses (traversing L5 nerve roots), and
· small right subarticular/foraminal disc protrusion at L3/4 with an annular fissure. There is mild resulting narrowing of the right subarticular recess (traversing L4 nerve root) and right L3 neural foramen.
[29] Index and Annexures p 1,235.
Bone scan, dated 6 May 2020:
· mild to moderate degenerative arthropathy of the L4/L5 discovertebral joint;
· no evidence of active facet arthropathy in the lumbosacral spine, and
· mild sacroiliitis bilaterally (left more than right).[30]
[30] Index and Annexures p 1,174.
CT lumbosacral spine, dated 15 January 2021:[31]
· chronic L4/5 intervertebral disc degeneration with narrowed exit foramina, may compromise 4th nerve roots. The 5th nerve roots transiting down lateral recess of the spinal cord at this level may also be affected, and
· there is a significant bilateral sacroiliitis.
[31] Index and Annexures p 1,238.
CT guided right L4/5 facet joint block, dated 25 February 2021.
Bone scan, dated 8 February 2022:
· the scan findings are consistent with moderate degenerative arthritis at L4/5 discovertebral joint;
· scan features of mild arthritis in the right sacroiliac joint are also seen, and
· no scan evidence of active arthritis in the lumbar spine facet joints.
Investigation reports
Quantumcorp report dated 27 June 2019[32]
[32] AD1 p 84.
This report is in respect of surveillance of the claimant undertaken on 5, 7, 13, 14,
15 May 2019, 3, 13, 14, and 15 June 2019. The claimant was observed getting in and out of vehicles, walking, exercising on a treadmill and generally moving with no obvious restriction.
Procare report dated 10 November 2020[33]
[33] AD1 p 116.
This report is in respect of surveillance of the claimant conducted on 4, 5 and
6 November 2020. The claimant was observed walking, and at 4 Seasons Beauty shop. Again, no restrictions were apparent.
Procare report dated 10 March 2021[34]
[34] AD1 p 128.
This report is in respect of surveillance conducted on 2, 3, 4 and 5 March 2021.
On 2 March 2021 the claimant was seen to bend over whilst looking into a deep freezer. After selecting items from the freezer, he squatted down to place the items in the lower basket of the trolley.
On 3 March 2021 the claimant was observed at the gym performing leg extension exercises with 12 repetitions and leg press exercises. The same day the claimant was seen to bend without apparent difficulty whilst looking into a vehicle.
On 4 March 2021 the claimant was observed at the Train Station Gym 24/7. He was seen to work on the decline bench, doing planks and performing leg extensions with 10 to 12 repetitions per set. He also undertook reverse flies, pullups, rear deltoid back presses and front lateral pull downs with three sets of ten repetitions each.
Claimant’s statement
In his statement dated 1 March 2022 the claimant addressed the surveillance footage.[35] He states he was unable to attend the gym for at least a year following the accident due to the severity of his injuries. Thereafter he says he made slow and progressive attempts to return to the gym. Mr Sukkar stated prior to undertaking any exercises he takes a pre-workout supplement to increase his stamina and strength allowing him to push through a workout notwithstanding the pain. He also reported he was on high dose daily medication which assists him in completing the exercises at the gym. Mr Sukkar also said he wears a back brace around his lower back to alleviate muscle tension and reduce pressure on the spine. After exercising Mr Sukkar states he often bathes in an ice bath or Raddox.
[35] Index and Annexures p 88.
In relation to use of the treadmill Mr Sukkar states he no longer uses it for longer than half an hour and he ensures it is on a low incline. He also described holding onto the sides of the machine in order to support his lower back and knee.
In using the cable back machine on 15 May 2019 Mr Sukkar states he sets the machine on a lower weight, and he also wears a back brace.
Mr Sukkar states when shopping he often leans on the trolley, and he ensures the items he is lifting are not of excessive weight.
In performing leg exercises such as those seen on 3 and 4 March 2021 Mr Sukkar states he uses the support of his hands to press down his knee to alleviate the pressure of the weights and he uses a light weight for the right leg.
Mr Sukkar states since the accident he has tried to remain as fit and active as he can. He describes this as a lifestyle not a hobby.
Medico legal reports
Professor Ian Cameron, physician in rehabilitation medicine
Professor Cameron assessed the claimant and provided a report dated 27 November 2020.[36] He noted a pre-accident history of right shoulder arthroscopic surgery in 2011 and multiple pre-accident episodes of back pain after heavy lifting in the gym which he said resolved.
[36] AD1 p 51.
He reported complaints of pain from both shoulders, lower back pain and right lower leg pain. He reported the right lower leg gives way and he had had multiple falls. He also reported neck pain. Current medications were Oxycontin, Endone, Pristiq and Norflex.
The claimant reported he attended the gym but infrequently and with difficulty.
On examination Professor Cameron reported the lumbar spine showed mildly and symmetrically reduced range of motion to 80% normal. He also noted there appeared to be very mild kyphoscoliosis present concave to the left in the thoracolumbar spine. He did not detect any neurological abnormalities in the lower extremities.
Professor Cameron diagnosed severe injury to the right lower leg, fractures of the tibia and fibula and a soft tissue injury to the left and right shoulders. He noted the first recorded GP consultation with the GP related to back pain occurred approximately nine months after the accident. He concluded with the possible exception of the low back pain the accident had caused the claimant’s disabilities. Dr Cameron thought surgery was contraindicated because it will not assist the claimant’s recovery and may be associated with adverse effects.
Professor Cameron provided a supplementary report dated 28 March 2021 after reviewing the surveillance footage.[37]
[37] AD1 p 57.
He reported the claimant was physically active and involved in both strenuous and non-strenuous activities. He concluded the assertion by the claimant that he was substantially restricted in daily life was not evident in the surveillance footage.
Associate Professor Michael Shatwell, orthopaedic surgeon
Associate Professor Shatwell assessed the claimant and provided a report dated
7 December 2020.[38] He reported complaints of lower back pain, pain in his knee and right shoulder.[38] AD1 p 60.
Associate Professor Shatwell reported the claimant said he could not stand for more than 10 minutes or walk for more than 50 to 100m. He was said to be uncomfortable when sitting for more than half an hour or driving for more than 15 minutes.
On examination Associate Professor Shatwell noted good muscular development of the thighs and upper limbs and signs of callosities on the front of the metacarpophalangeal joints on both hands. The claimant said this was from lifting weights at the gym, although he reported he avoided any overhead use of weights and only used light weights for repetitions and general fitness.
Associate Professor Shatwell reported Mr Sukkar had suffered from low back pain since his youth, noting he was felt to have scoliosis when he was 16. He suffered from intermittent back pain over the years and was given a disability sticker for his car in October 2016 for low back pain. He noted a CT scan of the lumbosacral spine performed on 12 April 2016.
Associate Professor Shatwell found the changes at the L4/5 disc were longstanding and not caused or aggravated by the accident. He noted no complaints of low back pain at the time of the accident, noting it developed after the claimant returned home.
Associate Professor Shatwell provided a supplementary report dated 31 March 2021 after reviewing the surveillance footage.[39] He found the claimant embellished his symptoms noting the surveillance recorded in the gym and during activities showed a greater range of movement than demonstrated during his examination. Associate Professor Shatwell concluded there was no significant limitation of movement in the spine or limb joints.
[39] AD1 p 76.
Dr Dias, occupational physician
Dr Dias assessed the claimant and provided a report dated 16 November 2020.[40] Dr Dias reported Mr Sukkar sustained an episode of lower back pain in April 2016 while performing a squatting exercise at the gym. He reported he was referred for a CT scan, managed his symptoms of lower back pain with analgesia and stretches and recovered within two to three months. He reported an exacerbation of lower back pain in May 2017, underwent a CT scan on 31 May 2017 and recovered within approximately six to eight weeks. Dr Dias reported
Mr Sukkar was pain free and asymptomatic with respect to his lumbar spine for approximately four to five months prior to the accident.[40] Index and Annexures p 109.
The claimant described ongoing pain, stiffness and discomfort of the neck, lower back, right shoulder and right knee. He described radicular symptoms of pins and needles and numbness, affecting the right lower limb. The claimant reported he struggled to walk or stand for more than about three minutes at a time due worsening pain in his lower back and right leg. However, he also stated he had returned to gym based activities in a diminished capacity and currently attends his local gym once to twice a week on average.
Dr Dias reported dysmetria of the lumbar spine, with pain and discomfort on lateral flexion of the lumbar spine. On examination he noted mildly reduced right sided ankle reflex and reduced right sided leg raise of 50º. Dr Dias concluded the neurological examination suggested right L5 radiculopathy.
Dr Dias acknowledged intermittent symptomatic degenerative lumbar spondylosis with episodes of lower back pain secondary to disc protrusion in April 2016 and May 2017 but reported that the lower back pain had resolved within two to three months with conservative treatment, and he had remained pain free and asymptomatic for several months prior to the accident. He diagnosed persistent aggravation of pre-existing degenerative lumbar spondylosis with associated L4/L5 and L5/S1 disc protrusions and associated persisting right L5 radiculopathy secondary to an acute musculoskeletal impaction injury.
Dr Nair, orthopaedic surgeon
Dr Nair assessed the claimant on 10 August 2022.[41] The claimant presented with neck, back, right shoulder and right lower extremity pain. He reported a standing tolerance of 5 to 10 minutes, sitting for 30 minutes, and walking for 60 minutes. He reported he attends the gym but only to walk on the treadmill although he does attempt to perform exercises using machines. He reported a 40% global reduction in the thoracolumbar range of motion.
[41] Index and Annexures p 97.
Dr Nair noted that whilst the claimant had pre-existing degenerative changes in his lumbar spine, he did not have persistent and intrusive symptoms. He stated:
“The accident in question was a high energy accident, causing multiple injuries. Scrutiny of the imaging revealed significant disc collapse and pathoanatomy at the L4/5 level. The remaining motion segments looked structurally intact radiologically.
Thus, based on the evident at hand, the subject accident has caused the requirement for surgery. The proposed surgery is reasonable and necessary and would be accepted treatment by a qualm of spinal surgeons.”
In relation to the question of whether the surgery was reasonable and in response to Associate Professor Shatwell Dr Nair stated the rates of adjacent segment pathology following anterior lumbar fusion was miniscule when compared to posterior lumbar fusion, particularly in the lower demographic.
In relation to the surveillance footage Dr Nair stated:
“My scrutiny of the surveillance is consistent with the description of function provided by Mr Sukkar. Mr Sukkar stated that he is able to perform rudimentary tasks, albeit resulting in pain. He did state that he deems it incumbent on himself to maintain physical literacy.”
Dr Nair further stated:
“Scrutiny of the images of an MRI scan and a bone scan revealed significant single level disc pathoanatomy. The bone scan revealed significantly increased uptake consistent with increased osteoblastic activity, which is an acute phenoma, thus it is with deference that I disagree with his (Assoc Prof Shatwell) assertion that the lumbar spine was not injured.”
Commenting on the opinion of Professor Ian Cameron Dr Nair states “it is inappropriate for a rehabilitation physician with no surgical training or expertise to pontificate on the nuances, risks, inconveniences and intrusiveness of surgery…”.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 30 March 2023 addressing the decision to be made by the delegate as to whether the assessment was incorrect in a material respect.[42]
[42] AD1 p 1.
The insurer submits Medical Assessor Wijetunga failed to give her own opinion on the medical questions referred to her by applying her own medical experience and medical expertise in accordance with the decision in Wingfoot Australia Partners Pty Limited v Kocak.[43] In Wingfoot the High Court said at [47]:
“The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion… the function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[43] Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 143; 252 CLR 480.
The insurer also submitted that the Medical Assessor who is a qualified specialist in Occupational Medicine and is not a surgeon failed to possess the relevant medical experience and medical expertise to determine the dispute.
The insurer also noted on examination Medical Assessor Wijetunga found the claimant’s lumbar spine and lower limbs were within normal limbs with no evidence of radiculopathy. Accordingly, the insurer submitted Medical Assessor Wijetunga failed to provide reasons as to how the proposed surgery related to the injury caused by the accident or was reasonable and necessary.
In relying upon the opinion of Dr Mobbs neurosurgeon as to causation Medical Assessor Wijetunga failed to consider that Dr Mobbs had not seen the surveillance footage taken between 2 and 5 March 2021 which, it is submitted, demonstrated the claimant undertaking activities which were inconsistent with his stated level of disability and restriction, including intensive weight training.
Claimant’s submissions
The claimant provided submissions dated 20 April 2023.[44] The claimant submitted he suffered orthopaedic polytrauma in the accident and even though he had intermittent lower back pain prior to the high velocity accident the complaints were periodic and resolved.
[44] Index and annexures p 1.
To the extent the surveillance demonstrated a capacity to engage in physical activity the claimant submits that Medical Assessor Wijetunga noted the antiquity of the surveillance vis-à-vis her assessment of the claimant.
The claimant noted the mechanism of the accident where the claimant sustained fractures to his leg requiring open reduction and internal fixation, repair of his shoulder and hospitalisation for almost three week was consistent with the significant force associated with lower back pain.
The claimant submits the Medical Assessor did not need to be a neurosurgeon to find the proposed surgery to be reasonable and necessary in circumstances where all conservative measures have been exhausted and the last remaining treatment option is the proposed surgery. The claimant submits the surveillance is antiquated, ignores the circumstances of the accident and the multiple injuries sustained by the claimant.
The claimant provided submissions in respect of the substantive dispute on
2 September 2022.[45][45] Index and annexures p 68.
The claimant asserts following the accident he had difficulty ambulating because of his injured lower limbs and he developed lumbar spinal pain which was progressive. His back was stiff and uncomfortable.
It is conceded the claimant was diagnosed with scoliosis from a young age and received physiotherapy from time to time but had not undergone treatment for about three or four years before the accident. It is submitted the claimant’s spine was not an impediment to him riding a high performance motorcycle or living an active lifestyle at the time of the accident.
The claimant conceded he experienced back pain following an incident at the gymnasium in April 2016 which was treatment with stretches and analgesia. The claimant asserts he fully recovered within two or three months.
The claimant submits it is wrong to assert there was a delay in reporting the lower back pain where it was referred to in the Application for personal injury benefits within two months of the accident. The claimant also submits that this conclusion ignores the serious lower limb injuries suffered, his altered gait, his use of crutches, the transient nature of the historical complaints and the ineffectiveness of treatment to resolve his complaints since the accident.
The claimant notes Dr Dias, Dr Nair and Professor Mobbs all support the need for surgery. Dr Dias diagnosed the claimant with a persistent aggravation of pre-existing degenerative lumbar spondylosis with associated L4/5 and L5/S1 disc protrusions and an associated persistent right L5 radiculopathy secondary to an acute musculoskeletal injury. He expresses the view the pre-existing complaints were isolated in April 2016 and 16 May 2017 and noted the claimant had been pain free and asymptomatic for several months prior to the accident.
Dr Nair acknowledged the lumbar degenerative disc disease but notes he did not have persistent and intrusive symptoms prior to the accident.
The claimant notes on 10 July 2019 Prof Mobbs spoke to the claimant’s gait index which he assessed at 48. He noted the claimant was ambulating with a walking stick. The Panel notes this is inconsistent with the claimant’s presentation in the May 2019 surveillance footage.
The claimant submits that Prof Mobbs considered the claimant’s problems with his lower back and radiculopathy to be related to pathology at the L4/5 level.
THE MEDICAL EXAMINATION
PANELS DETERMINATION
Consistency of presentation
The Panel finds the surveillance footage demonstrates inconsistency in the claimant’s presentation.
On 21 March 2019 physiotherapist Justin Graham reported the claimant was struggling to stand upright and on 30 April 2019 he reported the claimant struggled to stand extended. During May 2019 he reported complaints of back pain and on 7 May 2019 during a functional capacity assessment the claimant described the pain as 12/10. However, the surveillance undertaken during May and June 2019 shows the claimant getting in and out of vehicles, walking, and exercising on a treadmill with no apparent restriction.
On 10 July 2020 Dr Mobbs reported the claimant used a walking stick and on 16 November 2020 Dr Dias reported Mr Sukkar struggled to walk or stand for more than approximately three minutes at a time due to worsening pain in his lower back and right lower limb although he had returned to gym based activities in a diminished capacity. On 7 December 2020 Associate Professor Shatwell reported Mr Sukkar could not stand for more than 10 minutes or walk for more than 50 to 100m although he noted the claimant had good muscular development of the thighs and upper limbs. These histories are at odds with the surveillance film of 4, 5 and 6 November 2020 where the claimant can be observed walking with no apparent restriction.
In his statement dated 1 March 2022 the claimant addressed the surveillance footage asserting he has tried to remain as fit and active as he can, that he has modified his gym activities since the accident and at the time of exercising has usually taken high doses of medication.
Dr Nair concluded the surveillance footage was not inconsistent with the claimant’s report of his physical functioning.
However, the Panel notes that on 3 and 4 March 2021 the claimant was observed to perform exercises without difficulty at the gym. The Panel finds that the freedom of movement displayed by the claimant on the surveillance footage is not consistent with his report to both treating and medico-legal specialists and is satisfied there has been some embellishment by the claimant as to the extent of his disability and the impact on his day-to-day functioning.
The Panel also notes that regardless of any embellishment it is clear from the medical records that the claimant has consistently reported complaints and sought treatment pertaining to his lower back since 27 April 2018.
Causation of the proposed surgery
This claimant was involved in a significant accident when the insured vehicle collided with his motorbike causing him to be thrown 10m from the accident site before being struck by another vehicle. He was taken to Westmead Hospital with a comminuted right shaft tibial fracture, comminuted mid shaft fibula fracture, a deep laceration to his left shoulder and AC joint and multiple abrasions to the left elbow, left wrist, left hand and right hip, left knee and left leg. He had several operative procedures while in hospital including fasciotomy with external fixation to his right tibia followed by open reduction and internal fixation, repeat wash out of his right leg on two occasions in December 2017, partial closure of his fasciotomy wound on 1 January 2018 followed by a further wash out and closure of the fasciotomy wound of his right leg on 5 January 2018.
Following the accident Mr Sukkar experienced pain in his right shoulder, saw an orthopaedic surgeon and was shown to have a full thickness supraspinatus tear leading to arthroscopic rotator cuff repair.
Mr Sukkar had non-union of his right mid shaft tibial fracture and on or about 27 April 2018 he consulted his GP about increasing lower back pain over the last month. This was more than four months after the accident.
Mr Sukkar had facet joint injections in December 2018 which gave him symptomatic improvement for six months and then consulted neurosurgeon, Dr Mobbs in relation to his low back. Dr Mobbs diagnosed advanced L4/5 disc issues as a result of the high energy impact of the accident and proposed operative intervention in the form of L4/5 ALIF.
Mr Sukkar had conservative management over four years including physiotherapy, hydrotherapy, a gym based program as well as the cortisone injections, analgesia and pain management under review by a pain management consultant. He had pre-existing scoliosis three to four years prior to the accident with occasional physiotherapy. He did have an episode of low back pain in April 2016 while performing gym exercises.
The Panel notes the CT scan of the lumbosacral spine undertaken on 31 May 2017 for chronic low back pain showed intervertebral disc degenerative change at L4/5 and L5/S1 without compression of exiting or traversing nerve roots at those levels. The Panel also notes Mr Sukkar was referred to Dr Seex, neurosurgeon on 30 May 2017 although there is no evidence that he, in fact, saw Dr Seex and nor is there is any evidence of complaint pertaining to the back after 31 May 2017.
The Panel concurs with the view of Medical Assessor Wijetunga. Whilst the claimant had a documented history of chronic low back pain the high velocity accident involving two impacts resulted in serious injury, hospitalisation for three weeks and the necessity to undergo numerous surgical procedures. Even though no specific complaint was made of lower back pain for four months post-accident the Panel accepts the medications prescribed to treat pain resulting from the multiple injuries sustained by the claimant, in particular, to his right leg and both shoulders may have acted to mask his lower back pain.
The Panel notes the history of complaint pertaining to the lower back thereafter and is satisfied the significant force involved in the accident aggravated or exacerbated the claimant’s underlying back condition, particularly, the L4/5 disc pathology.
In AAI Limited v Phillips[46] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accident Compensation Act 1999, a provision in similar terms to s 3.24(2) of the MAI Act.
[46] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
The Panel finds the accident was a material contribution to the need for treatment to the lower back and finds the proposed surgery does relate to the injury caused by the accident.
Is the proposed surgery reasonable and necessary in the circumstances?
The treatment proposed, the L4/5 ALIF was recommended by Dr Mobbs and seconded by another spinal surgeon, Dr Nair based on the findings of a bone scan and an MRI which showed some inflammation and degenerative changes at the L4/5 disc.
Usually, spinal fusion is done for instability at that segment or for radiculopathy. The flexion extension views, however, do not show any instability and Medical Assessor Wijetunga did not find any radiculopathy.
When Mr Sukkar was seen by Professor Cameron, he had reported multiple pre-accident episodes of back pain. Professor Cameron felt the subject accident was associated with injuries to the right lower leg and soft tissue injury to the left and right shoulder due to the accident but with the possible exception of the lower back.
Associate Professor Shatwell diagnosed aggravation of the right shoulder rotator cuff disease. He concluded the changes at the L4/5 disc were longstanding and did not consider there had been any significant aggravation of the underlying degenerative change in the lumbar spine due to the accident. After viewing the surveillance footage Associate Professor Shatwell found the claimant embellished his symptoms and was able to undertake various activities which were inconsistent with his stated level of disability.
The Panel finds the claimant’s ability to undertake gym exercises such as planking and weight drills as demonstrated on the surveillance footage indicate no marked disability in the claimant’s lower back notwithstanding his assertion that he is able to push through a workout by taking high dose medication before exercising and a pre-workout supplement.
The Panel has had regard to the opinion of Dr Mobbs, the treating orthopaedic surgeon. However, not only has Dr Mobbs not had regard to the pre-accident imaging, the history he obtained as to the claimant’s level of fitness and his ability to sit or stand for any length of time is not consistent with the claimant’s activities of daily living as demonstrated by the surveillance footage.
Whilst Dr Nair, also supported the surgery and had an opportunity to scrutinise the surveillance footage the Panel does not agree with his assessment of that footage or that it was consistent with the description of his function provided by Mr Sukkar.
The Panel notes on 12 April 2016 prior to the accident a CT scan of the lumbar spine had shown a moderate broad based right paracentral disc protrusion and right posterolateral disc protrusion causing moderate to severe central canal stenosis at the L4/5 level. The disc was said to be closely associated with the right L4 nerve root at the neural exit foramen and there was also a moderate to large right posterior lateral disc protrusion at L3/4, that is the level above, causing moderate narrowing of the right neural exit foramen with the right L3 nerve root closely associated with the disc. The disc protrusion at the L3/4 level would not be addressed by an anterior interbody fusion at L4/5.
Further, the Panel notes the CT scan of the lumbar spine dated 25 October 2018 showed mild to moderate central canal stenosis at L4/5 with probable irritation of multilevel exiting nerve roots in the foramina. The disc protrusion at the L3/4 level would not be addressed by the anterior approach proposed by the ALIF and nor would the findings shown on the CT of narrowed exit foramina which may be compromising the L4 and L5 nerves, the latter in the lateral recess.
Whilst the Panel accepts the accident aggravated the L4/5 disc lesion, the video surveillance suggests the aggravation has, in the main, settled.
The Panel does not consider the proposed ALIF surgery to be reasonable and necessary in the circumstances for the following reasons:
(a) the Panel finds if the claimant had demonstrable radiculopathy or demonstrable instability L4/5 interbody fusion would be indicated. However, in the absence of instability or radiculopathy and having regard to the surveillance footage which suggests the claimant is not significantly disabled by his back condition the Panel does not consider the proposed surgery to be reasonable in the circumstances;
(b) the surgery proposed is a major procedure and considering the available imaging the Panel does not consider it to be reasonable and necessary where it would not relieve any nerve root foraminal stenosis at L4/5, any lateral recess stenosis at L5/S1, or the disc protrusion at the L3/4 level which can only be addressed by doing a decompression laminectomy from behind, and
(c) having regard to the surveillance footage the Panel is not satisfied the claimant’s lower back condition has significantly impacted on his activities of daily living, such that, the proposed surgery is necessary to improve the claimant’s quality of life.
PANEL CONCLUSION
The Panel determines the request for L4/5 anterior lumbar interbody fusion surgery relates to the injury caused by the accident.
The Panel determines the request for L4/5 anterior lumbar interbody fusion surgery is not reasonable and necessary in the circumstances.
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