Recobas v Allianz Australia Insurance Limited
[2024] NSWPICMP 775
•20 November 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Recobas v Allianz Australia Insurance Limited [2024] NSWPICMP 775 |
| CLAIMANT: | Ana Marie Recobas |
| INSURER: | Allianz Insurance (Australia) Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Shane Moloney |
| DATE OF DECISION: | 20 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; motor accident in 2013; physical injury; assessment of permanent impairment; claimant struck by reversing car but did not fall to ground; previous 2008 motor accident; significant pre-existing cervical spine and shoulder symptoms; histories recorded in prior assessment of pre-existing conditions accepted by the claimant; absence of contemporaneous complaint of shoulder symptoms consistent with claimant’s account to Medical Assessors; no medical explanation why this type of incident would cause shoulder injury or aggravate shoulder symptoms; finding of no Injury or symptoms exacerbation to shoulders caused by motor accident; history by claimant and contemporaneous records support some exacerbation in cervical spine symptoms; no change in pathology; minor nature of motor accident involved trauma to lumbar spine with jolt to cervical spine; ongoing symptoms referable to pre-existing cervical spine condition; injury to lumbar spine caused by motor accident led to L3/4 surgery in 2018; no ongoing radiculopathy; minor scar assessed at 1%; subsequent lumbar spine surgery in 2022 at L4/5 unrelated to motor accident due to delay in onset of radiculopathy and due to canal stenosis; Held – impairment assessed at less than 10%; Medical Assessment Certificate confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the review panel under s 63(4) is as follows:
|
REASONS
BACKGROUND
Ms Ana Marie Recobas (the claimant) suffered injury in a motor accident on 6 March 2013. The claimant was standing in a petrol station when a car reversed into the claimant’s back and pushed her forward. The claimant did not fall to the ground.[1]
[1] Claimant’s bundle, p 6.
Allianz Insurance (Australia) Ltd (the insurer) is liable to pay Ms Recobas any damages under the Motor Accidents Compensation Act 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
The claimant was involved in a motor accident on 26 November 2008 when she sustained significant injuries (the previous motor accident). The various medical assessments relating to the prior motor accident are discussed later in these reasons.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Home dated 14 May 2024 (the medical assessment). Medical Assessor Home assessed the permanent impairment caused by the motor accident at 6%.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
CONDUCT OF THE REVIEW
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 Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The parties provided bundle of documents for the Panel’s consideration. The insurer’s bundle was only eight pages because it seemingly did not repeat the material contained in the claimant’s bundle. The Panel’s enquiry to the parties of the material before it drew no objection by the parties.
On 2 October 2024 the Panel issued a further direction noting the history of pre-accident symptoms recorded by previous Panels. The direction was in the following terms:
“The Panel notes the pre-accident history contained in the medical assessment certificates of the Review Panel dated 5 September 2016 (Claimant’s bundle, p 54) and 9 March 2018 (Claimant’s bundle, pp 83-84).
The source material is not contained in the claimant’s bundle.
The claimant is directed to advise whether she admits the accuracy of the pre-accident histories referred to above. Failing such admission, the claimant is to produce all clinical records for the period from the 2008 motor accident to the subject motor accident.The claimant is to provide a response and produce the further documents by close of business, 16 October 2024.”
The claimant responded to this direction advising that she admitted the accuracy of the pre-accident histories contained in the Medical Assessment Certificates of the Review Panel dated 5 September 2016 (Claimant's bundle page 54) and 9 March 2018 (Claimant's bundle, pp 83-84).
These histories are set out in the discussion of the evidence.[9]
MEDICAL ASSESSMENT UNDER REVIEW
[9] Paragraphs 28 and 31 herein.
This review is from the medical assessment when it was determined that Ms Recobas suffered a 6% permanent impairment for the physical injuries caused by the motor accident. Medical Assessor Home assessed the impairment of the lumbar spine at 5% and the scarring at 1%. The Medical Assessor found that the motor accident did not cause injuries to the cervical spine and either shoulder.
CAUSATION
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAC Act.[10] In Raina v CIC Allianz Insurance Ltd[11] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[10] See s 3B(2) of the Civil Liability Act 2002.
[11] [2021] NSWSC 13 (Raina) at [65].
Clause 1.7 of the Guidelines provides:
“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 motor 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.”
EVIDENCE
Previous motor accident
As noted above, the claimant admitted the accuracy of the histories of pre-accident symptoms recorded by other Medical Panels.
An MRI scan of the spine dated 8 February 2012 showed narrowing of the left C6/7 foramen and focal bulging of the L3/4 and L4/5 discs.[12]
[12] Claimant’s bundle, p 147.
In March 2012 Dr Van Gelder, neurosurgeon, noted cervical spine symptoms in the C7 distribution and suggested a left C7 nerve root compression.[13]
[13] Claimant’s bundle, p 151.
A CT scan of the cervical spine showed a moderate broad-based disc bulge at C6/7 indenting the anterior part of thecal sac.[14]
[14] Claimant’s bundle, p 149.
The claimant attended Dr McGee-Collett, neurosurgeon, for a second opinion on
21 August 2012.[15] The doctor found a depressed left triceps jerk and reports of sensory changes in the left index and middle fingers. A cervical laminoforaminotomy was recommended.[15] Claimant’s bundle, p 155.
Medical Assessments of previous motor accident
Medical Assessor Johnson issued a certificate dated 12 June 2011 when he found that the motor accident aggravated pre-existing degenerative disease in the lower back and cervical spine.[16] Symptoms at that time were intermittent neck pain radiating bilaterally to the shoulders and down the left arm with paraesthesia and numbness over the index and middle fingers of the left hand and intermittent back pain radiating the left leg as far as the foot with global paraesthesia and numbness. The neck and lumbar spine were each assessed at DRE Category II.
[16] Claimant’s bundle, p 122.
A review panel issued a review panel certificate dated 18 December 2011[17] which found no significant clinical findings and no assessable impairment.
[17] Claimant’s bundle, p 139.
A Review Panel issued a certificate dated 9 March 2018 which reviewed the certificate of Medical Assessor Meakin dated 20 June 2017.[18] That Panel found that the previous motor accident caused injuries to the cervical spine, lumbar spine and left shoulder being referred symptoms from the cervical spine.
[18] Claimant’s bundle, p 58.
That Panel conducted a thorough review of the various clinical records. The history is admitted by the claimant. That Panel described the claimant’s neck condition following the previous motor accident and before the motor accident as follows:[19]
[19] Claimant’s bundle, p 58.
“After the 2008 accident, Dr Van Gelder noted neck pain in the left arm and there was paraesthesia in the left-sided 2-4 fingers.
The Panel noted that Dr Van Gelder referred to a CT scan of the cervical spine 2009 with left-sided C6/7 bulge potentially affecting the left C7 nerve root. The latter disc bulge is not mentioned in the formal radiological report. At that time, Dr Van Gelder noted that the arms were neurologically normal. Dr Van Gelder thought the C6-7 disc protrusion significant and opined that subject 2008 accident and increase the size of the left C6-7 disc. The left upper limb symptoms were in a C7 distribution in 2009, with Dr Van Gelder noting that the symptoms/signs consistent with DRE II (5%) as opposed DRE III (15%). In other words, while radicular symptoms were in a dermatomal distribution, there were no objective neurological abnormalities present at the time to confirm radiculopathy….
The Panel noted that the claimant’s condition (including the complaints of left upper limb neurological symptoms in the C7 distribution) progressively worsened after the 2008 accident. Assessor Johnson in 2011 noted left-sided radicular complaints in C7 distribution although the review panel in 2011 disagreed with that, by deciding that the left upper symptoms were of non-verifiable radicular type. Notwithstanding the 2011 Review Panel determination, Dr McGee-Collett (neurosurgeon) in August 2012 noted possible depression of the left triceps jerk and sensory changes in the left middle/index fingers (C7). Dr McGee-Collett’s clinical findings indicated left-sided C7 radiculopathy, conforming with the definition of radiculopathy set out [in the] Guidelines.
The evidence and the documentation persuaded the panel that the claimant complained consistently of neck pain with left upper neurological symptoms in the C7 distribution from the time of the subject accident in 2008, until the second 2013 accident.
Further, by August 2012, a consultant neurosurgeon (McGee-Collett) found the left triceps jerk was depressed. This information is important, especially in light of the earlier conclusions of Dr Van Gelder in relation to left-sided non-verifiable radicular symptoms in the C7 distribution, with presence of enlarging C6-7 disc since the 2008 subject accident. The C6-7 disc protrusion would be anticipated to compress the C7 nerve root, thus correlating with the claimant’s clinical symptoms and signs (depression of triceps jerk and C7 sensory loss).
The Panel considered the second motor accident on 6/3/13, and accepted that this resulted in temporary aggravation of neck pain. However, it also noted the claimant again consulted Dr Van Gelder on 12/8/13, with neck pain into the shoulders and ongoing paraesthesia in left-sided fingers 2-4, as had been present before the 2013 motor accident. Dr Van Gelder noted the appearances and MRI scans of July 2013 and 2012 similar, when technical factors were considered.
The Panel also considered the mechanism of the second accident 2013, which did not involve any fall to the ground. The Panel thought that the second accident 2013 was minor, in comparison to the earlier 2008 accident. The Panel found that the second accident 2013 had not resulted in any additional structural damage/change of the cervical spine, and at most, this accident caused minor, temporary exacerbation of cervical spine symptoms.
The Panel found that the claimant met the criteria this cervicothoracic radiculopathy/DRE III of 15% WPI before the second accident in 2013.
The Panel noted that the claimant had ongoing shoulder investigations after the second 2013 subject accident due to symptom referral for the shoulder regions from the neck. The panel noted that the claimant complained of neck and bilateral shoulder pain for many years, even before the subject 2008 accident. The panel also agree with the 2016 review panel by finding no direct injuries of the shoulders from the 2013 motor accident - certainly not of the kind which, on the information available to this panel, would impact on its present decision. The claimant had not fallen to the ground and the 2013 accident, and given the mechanism of this motor accident, the panel found it medically implausible that she could have injured the shoulders in the accident. The Panel also determined that not been any direct shoulder injuries from the 2008 motor accident.
The Panel decided that the cervical spine surgery was due to the 2008 motor accident. The 2013 accident was minor causing temporary symptomatic aggravation without (additional) structural alteration in the neck.”
The Panel noted that the left shoulder restriction was due to the neck injury and neck surgery from the 2008 accident and that there was only mild right shoulder restriction consistent with the claimant’s age.
The Panel assessed permanent impairment of 15% for the cervical spine, 3% for the left shoulder being referred symptoms from the cervical spine with a deduction of 1%, and 0% for the lumbar spine. This resulted in a combined impairment of 17%.
Medical Assessor Wilding recorded the following history of symptoms following the 2008 and 2012 accidents. This history was also admitted by the claimant. Medical Assessor Wilding recorded:[20]
“General practitioner records were received and did confirm long-standing problems with the neck and back dating from 2008. Problems had also been identified with the shoulders, both of which had been subjected to injections at various times. Ultrasounds and X-rays of the shoulders were conducted on 16 June 2011. This was followed with a bone scan, demonstrating arthritis of the acromioclavicular joints of the shoulders.
She received an MRI scan of the cervical and lumbar spine on the 8 Dec 2012 (three months before index accident). There were no general practitioner records pertaining to the lumbar spine immediately prior to the subject MVA.
It was also noted that there had been a further rear end motor vehicle collision on 7 October 2012 which had temporarily aggravated the symptoms of discomfort from the long-standing neck and back problems.
It was noted that there was mention of mild back, leg and neck pain following the subject MVA from an entry dated 7 March 2013. There was no record of any problem with the shoulders until four (4) months) after the MVA.”
[20] Claimant’s bundle, p 54.
Qualified opinions for the prior motor accident
In October 2012 Dr Bodel found non-verifiable radicular complaints but no clinical radiculopathy and assessed the cervical spine at DRE Category II (5%). The lumbar spine was also assessed at DRE Category II based on asymmetry and guarding.[21]
[21] Claimant’s bundle, p 102.
Contemporaneous medical evidence following motor accident
The St George Hospital notes dated 6 March 2013 referred to the motor accident causing back pain.[22] Progress notes refer to the collision and the claimant was “thrown forward but did not fall over”. Pain was reported in the low back shooting down the left leg and neck pain tingling in the left hand.
[22] Claimant’s bundle, p 160.
On 12 June 2013 the GP noted some neck stiffness and prescribed pain relief medication.[23]
[23] Claimant’s bundle, p 264.
A claim form dated 26 August 2013 referred to the motor accident causing injuries by way of aggravation to the neck and lower back and bruising to the left leg.[24] The claim form noted the injuries from the previous motor accident to the neck, lower back and shoulders.
[24] Claimant’s bundle, p 10.
A medical certificate dated 30 August 2013 referred to the motor accident causing an aggravation of cervical, lumbar and thoracic spondylosis.[25]
[25] Claimant’s bundle, p 15.
The police report recorded the following:[26]
“Whilst she was waiting a black Holden Commodore (VO11) … reversed towards the shop from the bowser that he had filled from…. VO11 has reversed and without seeing the pedestrian and collided with a pedestrian, knocking her and causing her to shudder and stumble. The pedestrian felt immediate pain to a lower back and left calf. The pedestrian was conveyed to hospital for assessment and monitoring.”
[26] Claimant’s bundle, p 21.
An MRI scan of the right shoulder dated 18 July 2013 noted changes in the acromioclavicular joint with bursitis.[27]
[27] Claimant’s bundle, p 188.
The MRI scan of the left shoulder dated 1 August 2013 showed moderate tendinopathy supraspinatus or small partial thickness tear.[28]
[28] Claimant’s bundle, p 190.
In August 2013 Dr Van Gelder noted complaints of radiating pain across both shoulders with paraesthesia in the left arm as far as the middle finger. The MRI scan of the cervical spine in July 2013 was described as similar to the 2012 scan. The doctor opined that if the radicular symptoms were unmanageable then surgery to decompress the C7 nerve root was a reasonable option.[29]
[29] Claimant’s bundle, p 192.
The claimant was reviewed by Dr Dave, orthopaedic surgeon, in October 2013. The doctor opined that most of the symptoms in the left arm were attributable to radicular symptoms.[30]
[30] Claimant’s bundle, p 184.
Associate Professor Sheridan, neurosurgeon, reviewed the claimant in May 2014.[31] The doctor noted markedly decreased range of motion in the shoulder consistent with shoulder injury and pain, paraesthesia and numbness extending down the left arm. The doctor recommended cervical surgery.
[31] Claimant’s bundle, p 197.
An MRI scan of the cervical spine dated 18 July 2014 showed broad-based disc protrusion at C6/7 with moderate left sided foraminal encroachment with potential impingement of the exiting left C7 nerve root.[32]
[32] Claimant’s bundle, p 191.
In September 2014 Dr Davies diagnosed pain secondary to cervical spondylosis and left C7 radiculopathy secondary to C6/7 foraminal stenosis. The doctor opined that the radicular left shoulder and arm pain was due to C7 nerve root irritation at the C6/7 foraminal level.[33]
[33] Claimant’s bundle, p 208.
The claimant underwent a left C6/7 laminoforaminotomy and rhizolysis of the left C7 nerve root on 1 November 2014.[34] Subsequent review in December 2014 showed good relief of the C7 radicular arm pain.[35]
[34] Claimant’s bundle, p 182.
[35] Claimant’s bundle, p 210.
Subsequent evidence
In April 2017 Dr Davies noted an 18-month history of right sided L3 radiculopathy secondary to L3/4 foraminal stenosis. The doctor recommended scans to investigate the pathology.[36]
[36] Claimant’s bundle, p 221.
The claimant was reviewed by Dr Davies in February 2018 with right hip and anterior thigh pain as far as the knee.[37] The doctor opined that the right thigh, hip and knee pain was probably radicular in nature from L3 nerve root irritation due to the L3/4 foraminal stenosis and recommended L3/4 foraminotomy.
[37] Claimant’s bundle, p 212.
The claimant was reviewed by Dr Davies in July 2018 following a partial L3 laminectomy and rhizolysis of the right L3 and L4 nerve roots. The doctor noted a good early result from surgery with complete relief of preoperative radicular leg pain and normal sensation.[38]
[38] Claimant’s bundle, p 213.
The claimant returned to Dr Davies in October 2019 with complaints of new pain in the right hip and posterior thigh over the last six months.[39] Dr Davies noted that the right buttock and posterior thigh pain was not typical of an L3 or L4 radiculopathy and wondered whether there was new pathology at the L4/5 level or elsewhere.
[39] Claimant’s bundle, p 215.
In April 2020 Dr Davies noted improvement and diagnostic relief following a right L3 nerve root block. Conservative management was recommended at that time.[40]
[40] Claimant’s bundle, p 218.
In May 2021 Dr Davies noted the emergence of a different type of pain extending from the buttock to the posterior thigh, posterior calf and into the lateral toes of the right foot.[41] The doctor recommended a new MRI scan noting that the new right leg pain had a L5 or S1 quality.
[41] Claimant’s bundle, p 217.
In July 2021 Dr Davies noted the recent MRI scan which demonstrated moderate lateral recess stenosis at the L4/5 level. A recent right L5 nerve root block had a dramatic impact on the reduction in pain. Considering the improved symptoms Dr Davies recommended no intervention was required.[42]
[42] Claimant’s bundle, p 220.
In February 2022 Dr Davies opined that the claimant had some right L5 radicular pain probably due to L4/5 lateral recess stenosis.[43]
[43] Claimant’s bundle, p 206.
In April 2022 Dr Davies noted disabling bilateral lower limbs symptoms likely due to lumbar spinal canal stenosis with the recent MRI scan demonstrating moderate bilateral L4/5 lateral recess stenosis and severe lateral recess stenosis at L5/S1.[44]
[44] Claimant’s bundle, p 202.
On 4 May 2022 the claimant underwent a lumbar laminectomy due to ongoing bilateral radicular leg pain in the setting of lumbar spinal canal stenosis.[45]
[45] Claimant’s bundle, p 201.
In July 2022 Dr Davies noted the recent lumbar laminectomy and the resolution of significant radicular leg symptoms.[46]
[46] Insurer’s bundle, p 4.
Claimant’s statement
The claimant provided a statement dated 21 February 2019.[47] The claimant described the previous motor accident where she sustained injuries to her “knee, lower back and left shoulder”, and was subsequently assessed by Dr Meakin on 20 June 2017 at 14% whole person impairment for that accident.
[47] Claimant’s bundle, p 22.
The claimant stated that the damages claim for this accident settled in May 2018 for the sum of $337,500 inclusive of costs.
The claimant described the motor accident in the following terms:[48]
“On 6 March 2013 at about 6.30 pm I was standing outside the toilets at the petrol station at Forest Road Rockdale, to go to the toilets. I had my back to the cars that were filling up petrol. At that time agreed car reversed quickly and forcefully and hit me on my back and pushed me forward. I do not fall to the ground however felt the impact and was shaking. I felt immediate pain in my lower back and neck and had bruising to the left leg.”
[48] Claimant’s bundle, p 25.
The claimant stated that she “started to feel pain and restrictions in both shoulders” following the motor accident and underwent MRI scans on 21 July 2013 and 1 August 2013.
Qualified opinions
In August 2015 Dr Bodel opined that the motor accident caused injury to both shoulders evidenced by the MRI scan in July 2013.[49]
[49] Claimant’s bundle, p 113.
Dr Matthew Giblin, orthopaedic surgeon, was qualified by the claimant solicitors and provided a report dated 1 April 2019.[50] The doctor noted the previous neck surgery and low back surgery performed in May 2018.
[50] Claimant’s bundle, p 32.
The claimant then presented with low back pain radiating to both legs. Dr Giblin opined that the motor accident caused an aggravation of an underlying pre-existing symptomatic condition which had previously been assessed at 0% prior to the motor accident. Following the accident the symptoms deteriorated eventually resulting in surgery at the L3/4 level.
Dr Giblin assessed impairment on the basis of the spinal surgery with ongoing radiculopathy at 10% with an additional 1% for the scar.[51]
[51] Claimant’s bundle, p 36.
Dr Giblin provided a further report dated 27 June 2023[52] which noted the laminectomy in
May 2022 with the subsequent deterioration in symptoms. The doctor again assessed the lumbar spine at 10% and the scar at 1% resulting in a combined impairment of 11%.[52] Claimant’s bundle, p 238.
Other medical assessments for the motor accident
Medical Assessor Wilding provided a certificate dated 11 January 2016. The doctor noted the following pre-accident history:[53]
“Prior to the motor vehicle accident on 6/3/2013 Mrs Recobas was experiencing neck pain and radicular pain down the left arm and surgery had been proposed for the cervical spine. She had seen various neurosurgeons who had suggested either an interior or a posterior approach and because she had varying opinions she said she was very confused and had delayed making a decision about surgery. Prior to the motor accident on 6/3/2013 she said her lower back was also aching. She said that both shoulders were stiff and painful.”
[53] Claimant’s bundle, p 41.
The Medical Assessor obtained a history that the motor accident aggravated the neck and low back pain.
The Medical Assessor noted that there was significant cervical spine pathology prior to the motor accident and the claimant was experiencing impairment of the right shoulder of which half was pre-existing and 8% of the left shoulder of which half was pre-existing. There was significant neck pain with radicular pain down the left arm with the recommendation of surgical treatment prior to the motor accident. The Medical Assessor found that the pre-existing impairment due to the left arm radiculopathy resulted in an assessment of DRE category III at 15%.
The Medical Assessor noted that there were pre-existing symptoms in both shoulders prior to the motor accident, the claimant stumbled but did not fall to the ground and as such there was a minor aggravation of pre-existing symptoms in both shoulders.
The Medical Assessor found DRE Category III, which was pre-existing, no assessable impairment of the lumbar spine, 3% of the right shoulder of which half was pre-existing and 8% of the left shoulder of which half was pre-existing. This resulted in a combined assessment for the motor accident of 6%.
A review panel decision of Medical Assessor Wilding’s assessment was issued on
5 September 2016.[54] The history is set out earlier in these reasons.[54] Claimant’s bundle, p 52.
The Panel accepted that injury to the lumbar spine was medically possible and causally related to the accident. The Panel described the long history of symptoms from the neck and both shoulders prior to the subject accident as sufficient to explain the current clinical situation.
The Panel found there was an aggravation of the lumbar spine pathology but no injury to the shoulders or neck. Permanent impairment was assessed at 5% solely attributable to the lumbar spine.
Medical Assessor Menogue issued a further medical assessment certificate dated
25 March 2021.[55] The Medical Assessor found soft tissue injuries to the cervical spine, right and left shoulders. The lumbar spine was assessed at 5% and the right shoulder at 1%.[55] Claimant’s bundle, p 223.
SUBMISSIONS
Insurer’s submissions dated 18 October 2013[56]
[56] Insurer’s bundle, p 1.
The insurer noted that the only evidence in support of any deterioration was the recent report of Dr Giblin which does not provide sufficient evidence of deterioration as the assessment was the same as that proffered in 2019.
Insurer’s submissions dated 24 June 2024[57]
[57] Insurer’s bundle, p 5.
These submissions were filed objecting to the claimant’s review application.
The insurer submitted that the Medical Assessor was entitled to find that the neck and shoulder injuries were not causally related to the motor accident. It submitted that the Medical Assessor made the correct test of causation and reviewed all the evidence before him.
Claimant’s submissions dated 25 September 2023[58]
[58] Claimant’s bundle, p 1.
These submissions were filed seeking a further medical assessment.
After referring to prior medical assessment certificates, the claimant noted the assessment of Medical Assessor Menogue dated 25 March 2021 who found that the injury to lumbar spine was causally related to the motor accident and assessed 5% whole person impairment.
The claimant underwent surgery in May 2018 involving a partial L3 laminectomy and rhizolysis at the L3 and L4 nerve roots. It was noted that the claimant underwent further lumbar spine laminectomy in May 2022.
The claimant referred to the opinion of Dr Matthew Giblin dated 27 June 2023 who noted ongoing back pain with radiation down both legs and assessed impairment of the lumbar spine at DRE lumbar category III on the basis of radiculopathy.
Claimant’s submissions dated 10 June 2024
These submissions sought a review of the medical assessment.
The claimant submitted that the Medical Assessor failed to consider relevant material and provide reasons why the neck and shoulders were not injured in the motor accident. It submitted the fact that there was pre-existing issue in the neck and shoulders does not mean that they could not have been aggravated by the subject accident.
The claimant submitted that the Medical Assessor did not refer to the available evidence in terms of contemporaneous complaint of injury. It was also submitted that there was a denial of procedural fairness by a failure to raise these issues with the claimant.
RE-EXAMINATION
Ms Recobas was examined by both Medical Assessors on 13 November 2024. The examination report is as follows:
“Mrs Recobas was re-examined at the PIC Rooms on the 13th of the 11th of 2024. She was assessed by Medical Assessor Shane Maloney and Medical Assessor Les Barnsley. A Spanish interpreter, NAATI number, was present for the duration of the assessment and Mrs Recobas was accompanied by her daughter Virginia.
At the outset of the assessment, it was determined that Mrs Recobas understood the reason for the assessment. It was explained that the assessment did not have the same confidentiality as a standard medical consultation. It was also explained that the panel doctors would not be involved in her treatment in any way. The broad areas of questions and the areas to be physically examined were indicated.
Mrs Recobas clearly understood the vast majority of the English that was used. Her understanding and responses were frequently checked with the interpreter to maintain procedural fairness.
Mrs Recobas emigrated to Australia from Uruguay in the 1970s. She is married and has one child. She currently lives in a house.
She was asked about her past medical history. She indicated that she had been diagnosed with sarcoidosis and was on long term methotrexate and prednisone therapy under the supervision of a rheumatologist.
She did not recall any other problems prior to the motor vehicle accident in 2008. She commented that that was a long time ago.
In 2008 she was the front seat passenger the vehicle being driven by her husband. She was struck in the rear by a minibus. She reported the immediate onset of neck back and bilateral shoulder pain. She saw her local doctor nearby and was also seen at the local hospital.
When she saw her own doctor, she recalls being referred for X rays and was treated with physiotherapy. She recalls taking both Panadeine forte and Endone. She also received prolonged courses of physiotherapy.
Despite the treatment she said that all areas of her pain persisted. She also developed some pins and needles in the left middle finger and noted some pins and needles in the right more than left leg that affected the whole foot.
She was seen by Doctor James Van Gelder, neurosurgeon, who recommended a cervical laminectomy. She initially reported having the laminectomy before the 2nd motor vehicle accident in 2013 but then corrected herself after some prompting from her daughter. She did not recall seeing other specialists about her neck and back.
She was asked specifically about the symptoms that she was experiencing immediately before the 2nd motor vehicle accident. She reported that she was still having back, neck and bilateral shoulder pain with paraesthesia in the lower limbs and into the left hand involving the middle finger. This element of the history was confirmed by paraphrasing back to her and by closed ended questioning. It was also checked through the interpreter.
The second motor vehicle accident took place on the 6th of March 2013. She was waiting in a queue to use the restrooms at a petrol station. She said that Commodore sedan reversed into her. The back of the car struck her at the lumbosacral junction and the exhaust hit her left leg. She recalls being pushed forward but did not fall.
Mrs Recobas said that her main complaints were worsening of her low back pain. She also described some mild worsening of her neck pain, describing it as “a little bit more” than before the 2nd MVA neck pain but could not remember when it started to hurt in relation to the accident.
Mrs Recobas did not volunteer any exacerbation of her shoulder pain when asked about the effects of the second motor vehicle accident. The medical assessors then asked her specifically about her shoulders. She reported no change to her shoulder symptoms after the second motor vehicle accident in 2013 compared to the period after the accident in 2008 leading up to 2013. This was confirmed with closed ended questions, paraphrasing and reflection, with involvement of the interpreter. She repeatedly emphasised that the accident in 2013 had principally affected her back.
She was asked about her neck pain in relation to the 2nd Motor Vehicle accident. She could not recall how long the symptom aggravation (described by the claimant as ‘a little bit more’) lasted. She proceeded to a left C6/7 laminectomy by Dr Mark Davies, neurosurgeon, in November 2014. She could not recall the details but confirmed on direct questioning that her neck symptoms became no worse than immediately before the 2nd MVA, and that she has ceased to be troubled by sensory complaints in the left hand.
Her main concern has been persistent low back pain. She said this was significantly worse after the second motor vehicle accident in 2013. The symptoms have not resolved over time.
She has had treatment with medications and physiotherapy and has had numerous injections which were of temporary assistance only. The main problem in the period following the accident in 2013 were low back and right sided leg pain. The pain would start in the right posterior superior iliac spine and radiate down the buttock to the leg and the foot. This was associated with pins and needles and numbness.
She eventually came to L3 Laminectomy in 2018. Following this she thinks she had improvement in her right leg symptoms.
In 2022 she developed some left leg pain. This was associated with numbness and tingling in the foot and lower leg. She proceeded to a second lumbar Laminectomy. Unfortunately, she has had persisting symptoms on the left side. She recalls seeing Dr Davies earlier this year and understands that he had recommended some injections.
She was asked about her current symptoms. She said that she currently has no pain in the right leg. She has persisting pain in the left lumbar spine radiating down the leg with numbness affecting the sole of the foot as well as pins and needles. At times the numbness can extend up into the calf as can the pins and needles.
She denied any significant neck pain and has not had any neurological symptoms in either arm such as pins and needles, numbness tingling or weakness. She reports minimal left shoulder discomfort but required prompting to mention this. Both of these historical elements were confirmed on closed-ended questioning, paraphrasing and reflecting back, and further confirmed with the involvement of the interpreter.
She is currently being treated with Physiotherapy and Hydrotherapy for her back. She wears a lumbar support brace continuously. She is taking the following medications for her back symptoms:
· Palexia immediate release 50mg b.d
· Lyrica 75mg mane and 50mg nocte
· Paracetamol 500mg 2 tablets b.d.
· Celecoxib 200mg daily
She is taking the following medications for unrelated medical problems
· Methotrexate 15mg weekly
· Avapro 75mg daily
· Crestor 10mg daily
· Prednisone 3mg/day
· Cipramil 25mg daily.
On examination she weighed 84.6 kilograms, and was 172 centimetres tall.
Examination of the cervical spine flexion was 80% of expected and extension was 50% of expected. Rotation was decreased to 75% on both sides and lateral flexion was also decreased to 75% bilaterally.
There was slight tenderness over both trapezius muscles. There was no guarding and no spasm.
Upper limb neurological examination revealed normal power in all muscle groups on both sides. She had intact biceps, triceps and brachioradialis deep tendon reflexes. Sensation was intact in all dermatomes and in particular testing of the C7 dermatome revealed normal sensation bilaterally.
The circumference of the upper arm measured 10 centimetres above the lateral epicondyle was 27 centimetres on the right and 27 centimetres on the left. The circumference of the forearms measured 10 centimetres below the lateral epicondyle was 25 centimetres on the right and 25 centimetres on the left.
The following table details the range of active movements in the shoulders measured with a goniometer and reported in degrees.
Flexion
Extension
Abduction
Adduction
Internal Rotation
External rotation
Right
150
50
120
40
90
70
Left
100
40
140
40
90
80
There was no wasting of any of the shoulder muscles. There was no crepitus on passive movement of the shoulders.
On examination of the lumbar spine her gait was noted to be normal. She was able to stand on her toes and her heels. There was no guarding or spasm but there was tenderness on palpation of the paravertebral muscles over the lower lumbar spine.
She was able to reach flex to 50% of expected and had very limited extension to less than 25% of what would be expected. Rotation was limited bilaterally to 50% of what would be expected.
Straight leg raising was limited to 30° on the left side in the supine position and reproduced posterior thigh pain. On the right-side straight leg raising was 70°. She had negative sciatic stretch tests on both sides. Straight leg raising was noted to be improved when seated. She had back pain precipitated by neck flexion whilst seated with her legs extended.
Power in the lower limbs was normal. In particular she had full power of ankle dorsiflexion and plantar flexion and big toe extension. Similarly, power of knee flexion and extension and hip flexion and extension were normal.
Deep tendon reflexes were elicited at the knees, where both were brisk, and at the ankles where they were reduced. However, this was symmetric.
Light touch sensation was normal over the entire right leg as was pinprick sensation. On the left leg she reported being unable to feel light touch over the top of the foot and much of the lower leg, however, she was aware that she was being touched. The distribution of this altered sensation was patchy and did not follow any particular dermatome.
There was a nine centimetre vertically oriented linear scar over the midline of the lower lumbar spine. There was no contour changes, slight pigmentary changes and suture marks were visible. Mrs Recobas reported that this scar could become itchy in hot weather under her lumbar brace, and she would intermittently use cream to help this. There was no adherence to underlying structures. It is not visible in her normal clothes. She could readily identify its location. There was a 5cm vertically oriented linear scar over the lower cervical spine. This was on the posterior aspect. She could readily locate it. There was no pigmentary or contour change. She said that it did not bother her.
At the conclusion of the assessment Mrs Recobas’ daughter spontaneously commented favourably on the thoroughness of the assessment.
The panel considered the question of causation of the cervical spine injury. The panel firstly considered the question of whether the accident could have caused an injury to the cervical spine. The panel noted that the accident was of low speed, was not associated with any direct impact to the head and was not associated with any fall. The panel therefore considered that it was most unlikely that the accident in 2013 could have caused an injury by way of pathological change to the cervical spine.
The panel then considered the question as to whether the accident did cause a new injury to the cervical spine or an exacerbation of a pre-existing problem in the cervical spine where that exacerbation was more than negligible. The panel noted that the history obtained from Mrs Recobas today was of a temporary mild aggravation of her neck symptoms. It was noted that this was against a background of long-standing neck pain with radicular symptoms in the left arm. These symptoms had been sufficiently severe that she had been reviewed by 2 neurosurgeons for consideration for surgery in the months prior to the accident in 2013. The panel therefore concluded that the accident in 2013 had a negligible impact on the cervical spine symptoms of short duration.
The panel considered whether or not the accident in 2013 had caused an injury to the shoulders. The medical assessors considered the question as to whether the accident could have caused an injury to the shoulders. It was noted that the accident was low speed, there was no direct impact on the shoulders and no forceful or uncontrolled arm movement. It was therefore considered medically implausible that the accident could have caused any shoulder injury.
The panel also considered the question as to whether the accident in 2013 did cause any injury to the shoulders. Mrs Recobas was unequivocal in her statements that her shoulders were no worse than before the accident. It was therefore concluded that the accident did not cause any shoulder injury.
The panel noted that there had been a direct impact with the claimant’s low back. It was therefore considered that such an injury could aggravate pre-existing low back symptoms. The panel noted that there had been early record of exacerbation of low back pain and that she had experienced ongoing symptoms significantly greater than those experienced before the accident. The panel also noted the development of new pain radiation and neurological symptoms in the right leg. These precipitated the need for the first lumbar surgery. On the balance of probabilities, it was considered that the 2018 lumbar surgery was related to the 2nd motor vehicle accident.
The medical assessors noted the development of the currently troublesome left leg symptoms in 2022, which in turn led to the second lumbar laminectomy. It was considered that the extended period of time between the accident and the symptoms development, that is 9 years, could not be indicative of an injury from the accident leading to these symptoms and they are therefore not caused by the accident.
The whole person impairment (WPI) arising from the accident is therefore restricted to the lumbar spine as the shoulders and ongoing cervical spine injury was not caused by the motor accident.
She has had a lumbar laminectomy at L3/4 without current radiculopathy. This represents DRE II from table 6.7 of the Motor Accident Guidelines. This represents a 5% whole person impairment.
Her lumbar laminectomy scar was assessed as a best fit with 1% WPI on the basis of the TEMSKI criteria, as it is readily located, has pigmentary change, visible suture marks and needs intermittent treatment but has negligible effect on ADL. (Table 6.18, Motor Accident Guidelines).
Her combined WPI is therefore 6%.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[59] and Insurance Australia Ltd v Marsh.[60]
[59] [2021] NSWCA 287 at [40], [41] and [45].
[60] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive reasons provided by the Medical Assessor and adds the following reasons.
The claimant admitted the histories contained in previous examinations which are set out earlier in these reasons.[61] Based on the claimant’s acceptance of these histories, it is common ground that the claimant was suffering from bilateral shoulder symptoms prior to the motor accident.
[61] Paragraphs 29 and 32 herein.
It is also common ground that there was no contemporaneous complaint of any shoulder injury following the motor accident. That absence of recorded complaint is consistent with the history provided by the claimant to the Medical Assessors that there were no onset or aggravation of shoulder symptoms or shoulder injury caused by the motor accident.
For the reasons explained by the Medical Assessors in their examination report, it is medically implausible that the motor accident could cause shoulder injury. Finally, the pathology shown in the bilateral shoulder MRI scans in July and August 2013 explain the claimant’s then symptoms and are referrable to the significant pre-accident pathology for which there was significant pre-existing symptoms.[62]
[62] Paragraphs 39 and 40 herein.
For these reasons, we are not satisfied that the motor accident either caused injury to, or aggravated pathology or symptoms in either shoulder.
The histories adopted by the claimant establish a serious cervical spine condition prior to the motor accident. This pre-existing pathology and symptomatology ultimately led to cervical spine surgery.
The cervical spine scan evidence both prior to and post-accident does not show any change in pathology in the cervical spine.[63]
[63] Paragraphs 41 herein.
The post-accident complaints of neck symptoms are otherwise consistent with the pre-existing serious cervical condition for which surgery had been recommended and for which surgery was subsequently undertaken. We agree with opinions recorded elsewhere that the cervical spine surgery related to the 2008 motor accident.
The claimant’s history proffered to the Medical Assessors was of a minor increase in cervical spine symptoms following the motor accident.
The motor accident did not involve direct trauma to the cervical spine. The trauma from the motor accident was to the lumbar spine which may have involved a jolt causing a short-term exacerbation of cervical spine symptoms following the motor accident.
In these circumstances, we accept that the motor accident caused a very short-term increase in symptoms with no pathological changes caused by the motor accident to the cervical spine. This conclusion is consistent with the contemporaneous clinical records and the claimant’s reported history to the Medical Assessors.
The ongoing cervical spine symptoms and subsequent surgery was caused by the serious pre-existing cervical spine condition which in part was due to the 2008 motor accident.
By reason of the minor nature of the motor accident involving an indirect jolt to the cervical spine region, we are not satisfied there is any present causal relationship between the motor accident and the existing cervical spine impairment.
The Panel accepts that the trauma to the lumbar spine probably resulted in the 2018 surgery to the L3 level. The subsequent lumbar spine arose from symptoms which developed in 2021 and is explained by the ongoing degenerative changes associated with canal stenosis. The later surgery is unrelated to the motor accident as the onset of L5 radiculopathy in 2021, both recorded in the clinical records and confirmed by the claimant, could not have been caused by a motor accident in 2013.
The Guidelines provide that the assessment of minor skin impairment is undertaken on a best fit, based on the various criteria in Table 18. Some of the characteristics of the scar satisfy 0% and/or 1% under Table 18, including no contour defect, no effect on any ADL, minimal need for treatment and no adherence. Applying a best fit we are satisfied that the scar resulting from the L3/4 surgery is 1%.
The lumbar spine condition due to the L3/4 surgery is assessed at DRE category II. There is no radiculopathy associated with that level. As we noted, the subsequent lumbar spine surgery is unrelated to the motor accident.
Whilst there were pre-existing lumbar symptoms, we are not satisfied, within the meaning of cl 1.31 of the Guidelines, that there was objective evidence of pre-existing symptomatic permanent impairment.
The impairment is permanent because the impairment is unlikely to change substantially in the next year or so regardless of treatment.[64]
[64] Paragraph 1.19 of the Guidelines.
CONCLUSION
The certificate issued by Medical Assessor Home is confirmed.
0
3
0