Read v Allianz Australia Insurance Limited
[2024] NSWPICMP 856
•12 December 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Read v Allianz Australia Insurance Limited [2024] NSWPICMP 856 |
CLAIMANT: | Lynn Read |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Adeline Hodgkinson |
DATE OF DECISION: | 12 December 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Rear-end collision; traumatic brain injury; concussion injury; hearing loss; head soft tissue injury; threshold injury; prior head injury; seizure disorder; temporal lobe epilepsy; consistency of presentation; post-concussive symptoms; mild grade concussion; seizure at 20 months post-accident; cognitive impairment due to brain trauma; distinctly unlikely; no medical evidence to support a predisposition to develop epilepsy; Held – Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment – Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate of Medical Assessor Ian Cameron dated 18 May 2024. |
STATEMENT OF REASONS
INTRODUCTION
Lynn Read (the claimant) is a 73-year-old woman who was injured in a motor vehicle accident on 4 January 2020. The vehicle in which she was travelling was struck from the rear and pushed into a fence. The claimant states that she suffered injuries to her cervical spine, thoracic spine, lumbar spine and, most relevantly, a traumatic brain injury with resulted damage to the left temporal lobe causing epilepsy. She also alleges a concussion injury being bilateral cochlear.
The claimant sought a concession from the insurer that the injuries she sustained ought to be considered non-threshold injuries. The insurer declined to make this concession and, after a review, confirmed this decision. Thereafter, the claimant lodged an application for an assessment of threshold injury with the Personal Injury Commission.
On 7 May 2024 the claimant was assessed by Medical Assessor Ian Cameron who, in a certificate dated 18 May 2024, determined that the head-soft tissue injury was a threshold injury.
The claimant sought a review of this determination and, in a certificate dated 17 July 2024 the President’s delegate, Ratoula Gupta, determined that there was a reasonable cause to suspect that the medical assessment is incorrect in a material respect and accordingly the matter was referred to this medical panel.
The Panel met on 26 September 2024 by Teams and determined that there was a requirement for the parties to provide all the material which was before Medical Assessor Cameron and Medical Assessor Howison and additionally that there was a requirement to examine the claimant.
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 cl 14A(1) of the 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 provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
The claimant was re-examined by Medical Assessor Christopher Oates and Medical Assessor Adeline Hodgkinson on 12 November 2024. The re-examination was scheduled as a video conference over Teams. Due to technical difficulties the claimant joined by telephone only.
Past Medical and personal history
Lynn is a 73-year-old retired HR manager. She described herself as someone who had always enjoyed regular exercise, walking or swimming on most days.
She had taken a cholesterol lowering medication for a few years and for a slightly longer time has taken an antihypertensive agent. While the documents submitted to PIC reported hearing loss prior to her accident, Lynn Read denied this was of significance.
In her treating neurologist’s report there was mention of a prior head injury while swimming. This was explained as a head-to-head collision with another swimmer, with no significant injury and no loss of consciousness.
History of the motor vehicle accident
Lynn Read was driving home on the 4/1/2020 and was slowed or stopped at lights. She has been told that she was hit from behind by another vehicle pushing her towards a median barrier. She has no memory of the impact of the accident. She remembers “waking” and seeing where her car was placed and that the airbags had been deployed. She remembers police and other drivers helping her. She has a recollection of her time in the ambulance and travelling to The Sutherland Hospital. She remembers her husband meeting her at the hospital and taking her home later that night after assessment.
In the days after the accident Lynn Read visited her General practitioner (9/1/2020). It was at that consultation that she reported she had noticed blood in the left ear. This was in association with pain.
19. In the following weeks and months Lynn returned to her normal activities. She resumed driving and her musculoskeletal aches and pains settled. She was left with a sense that her hearing and balance was not as previously. She resumed swimming, walking and general independence.
History of seizure disorder
On 20 October 2021 she described that she was visiting a friend when the friend reported that she went “blank”, staring into space. Her friend helped her to the bathroom. She remembers feeling a little “sick”. She presented to the emergency department but was sent home without a diagnosis. Over the following months she experienced 5 similar episodes. She was referred to a neurologist, Dr Venkat. He ordered tests for a stroke work up and a 7 day EEG in June 2022.
In July 2022, Dr Venkat was able to positively diagnose temporal lobe epilepsy and commenced treatment. Since that time there have been no further seizures. After a 12-month suspension from driving she has now resumed driving a motor vehicle. She continues on Tegretol 200mg bd.
She has resumed her active lifestyle, swimming, walking and socialising as previously.
Current treatment, symptoms and condition
While able to perform personal care and all activities of daily living, such as shopping, driving, managing household activities, Lynn remains concerned about her memory impairment. She describes this as difficulties in activities such as being unable to answer “Trivia” questions, occasionally forgetting having watched a movie and other episodes of “forgetfulness.
Her mother developed dementia very late in her life (in her 90s) and Lynn worries that this will occur in her, possibly as a result of the motor vehicle accident.
Consistency of presentation
Lynn gave a detailed history in general consistent with the documentation. There was no attempt to embellish symptoms. She denied headaches, pain and psychological distress – other than worry about the future.
26. She did minimise or dismiss symptoms and complaints experienced prior to the accident. For example stating that her hearing loss was not significant prior to the accident.
Review of documentation
Although she denied to ambulance officers that she hit her head, the bruising noted by the GP is consistent with a blow to the head.
The blood noted on the left ear with local tenderness of the pinna is likely to be a superficial injury. It cannot be attributed to any particular structure of the skull or ear. There is no CT evidence that a deeper structure in the skull or middle ear was involved.
Her GCS on all occasions was 15/15. In the Sutherland Hospital the abbreviated WPTA test was appropriately performed with no abnormality noted. She was cleared at 1845.
Continuous memories were disturbed, consistent with a brief concussive episode. She had no recall of the impact but memories of being in the car and helped out of the vehicle. This is likely to be minutes rather than a longer period.
All brain imaging both immediately and later – CT Brain and MRI brain showed no evidence of trauma. MRI brain imaging showed signs of microvascular change consistent with age, hyperlipidaemia and hypertension.
Her GP documented some post concussive symptoms. There was good resolution over the next 20 months.
Diagnosis of Mild grade I concussion is consistent with the history of soft tissue injury to the head. The criteria for TBI at MAG 6.164 are not satisfied. There was good resolution of symptoms and return to normal activities and function as expected. This indicates the mild concussion resolved.
The first seizure occurred at 20 months post injury. The seizures are now well controlled and do not affect the resumption of most preinjury activities.
The material contained in the report of Dr Robin Fitzsimons dated 19 June 2023 which is the primary material in support that the sequalae of the motor vehicle accident led to the onset of epilepsy. The Panel does not agree with the opinion of Dr Fitzsimons noting the following:
·The motor vehicle accident occurred on 4 January 2020.
·There were no symptoms of any epilepsy or amnesia until October 2021. The delay in the onset of any symptoms, in the Panel’s view preclude any finding that the sequalae of the motor vehicle accident has caused the epilepsy noting the 18 months between the motor vehicle accident and the onset of any symptoms.
·The Panel does not concur that there has been any left-sided hearing loss of that the material supports any contention that any alleged hearing loss was a consequence of the motor vehicle accident.
·The Panel does not accept that any bruising around the region of the left ear is indicative of any brain injury nor would any bleeding from the left ear be reflective of a brain injury.
·The Panel does not agree with the finding that even were a mild traumatic brain injury to have occurred that this would, after some 18 months, precipitate any temporal lobe epilepsy particularly noting that there is no material to support a predisposition to develop epilepsy. That is, there is no identifiable specific factors which would predispose the claimant to temporal lobe epilepsy other than her age.
The Panel is of the view that following the examination of the claimant and an examination of all the documentation that the contention of Dr Robin Fitzsimons that there is an association between the motor vehicle accident and the development of epilepsy is incorrect.
The Panel Medical Assessors used their medical expertise and experience and determined that the accident could not have caused epilepsy because the mild grade I concussive soft tissue injury to the head had resolved many months before the onset of the epilepsy, making it extremely unlikely that there is any link between the two conditions. The epilepsy is more likely than not to represent the spontaneous onset of a seizure disorder with age.
Association of a seizure disorder following a mild TBI
The Panel assesses the injury as a threshold injury.
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