Reed v Allianz Australia Insurance Ltd
[2022] NSWPICMP 287
•14 July 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Reed v Allianz Australia Insurance Ltd [2022] NSWPICMP 287 |
| CLAIMANT: | Brad Reed |
INSURER: | Allianz Australia Insurance Ltd |
| REVIEW PANEL: | Principal Member John Harris Medical Assessor Wing Chan Medical Assessor Christopher Grainge |
| DATE OF DECISION: | 14 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 28 June 2018; the claimant had a history of back pain and prior discectomy but was asymptomatic at the time of the motor accident; post-accident the claimant underwent spinal fusion and developed a pulmonary embolism; the issues in dispute where whether the claimant suffered a non-minor injury and the extend of any permanent impairment; Held – the motor accident aggravated pre-existing arthritis and made the lumbar spine asymptomatic leading to spinal surgery; the pulmonary embolism was caused by the surgery; the contextual meaning of the meaning of minor injury in the Motor Accident Injuries Act 2017 is directed to what is caused by the motor accident; the surgery and the resulting deep vein thrombosis were caused by the motor accident; the pulmonary embolism will cause some damage to the arteries within the lungs, the extent to which depends on how promptly the treatment occurs; that injury is to an organ (the lung) and is not a minor injury as it is not “an injury to tissue that connects, supports or surrounds other structures or organs of the body”; impairment assessed at 20% with a deduction of 5% for the pre-accident discectomy. |
Medical Assessment – Minor injury
Medical Assessment – Permanent Impairment
Review Panel Assessment of Minor Injury
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel confirms the certificate dated 14 February 2022 that:
The lumbar spine injury is NOT A MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.
Review Panel Assessment of Minor Injury
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 17 November 2021 and issues a new medical assessment certificate determining that:
The pulmonary embolism is NOT A MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.
Review Panel Assessment of Permanent Impairment
Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 14 February 2022 and issues a new certificate determining that the lumbar and cervical spine injuries caused by the motor accident give rise to a whole person impairment which, in total, is GREATER THAN 10%:
REASONS
BACKGROUND
Mr Brad Reed (the claimant) suffered injury in a motor accident on 28 July 2018 when he was involved in a motor accident with the insured’s motor vehicle. Mr Reed was stationary in his vehicle when the insured vehicle struck his vehicle from behind causing rear end damage to the tray.
The insurer insured the driver of the other motor vehicle for liability to pay Mr Reed any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issues in dispute are whether Mr Reed’s injury is classified as a “minor injury” within the meaning of the MAI Act and whether the injuries caused by the motor accident give rise to an impairment greater than 10%. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act” and the degree of permanent impairment.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
Medical Assessor Home provided separate certificates both dated 14 February 2022. In the certificate concerning minor injury, Medical Assessor Home determined that the lumbar spine injury was not a minor injury for the purposes of the MAI Act. In a separate certificate, Medical Assessor Home determined that the injuries caused by the motor accident gave rise to a permanent impairment of 25%.
Medical Assessor Haber provided a certificate dated 17 November 2021 when he determined that a venous thrombosis with emboli was a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]
[2] Sections 3.11 and 3.28 of the MAI Act.
[3] Section 4.4 of the MAI Act.
THE REVIEW
The insurer applied for referral of the medical assessment to a review panel within 28 days after the parties were issued with the original certificate for the medical assessments issued by Medical Assessor Home.[4] The claimant applied for referral of the medical assessment issued by Medical Assessor Haber.
[4] Section 7.26(10) of the MAI Act.
The President’s delegate referred the three medical assessments to the Review Panel (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 7.26(5) of the MAI Act.
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 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 review provisions provide[6] that a review panel consists of two medical assessors and a member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[6] 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.[7]
[7] 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.[8]
[8] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[9]
[9] Section 7.26(6) of the MAI Act.
The Panel was initially only referred the review concerning the assessment issued by Medical Assessor Haber. Bundles of documents were filed by the parties in that matter.
All three medical assessments were then referred to the Panel.
On 14 April 2022 the Panel issued the following direction in the three reviews.
“The Panel advises that it has been convened in all three matters and that it will determine the three medical disputes together.
The Panel has received bundles from the parties which have been uploaded in
R-M10473421/21.
The parties are directed to file any further material or otherwise communicate with the Panel through the portal in R-M10473421/21.
The claimant is directed to file any further documents (not otherwise included in the two bundles before the Panel), by close of business, 22 April 2022.
The insurer is directed to file any further documents (not otherwise included in the bundles), by close of business, 29 April 2022.
The insurer is directed to file, as part of its bundle, submissions addressing the following issues:1.If the Panel finds that the lumbar surgery undertaken in February 2020 was causally related to the motor accident, is it accepted that this is not a minor injury as defined in the Motor Accident Injuries Act, 2017.
2.That radiculopathy can occur at any time and is not limited to the time of the assessment: see David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 at [84] – [104].
The claimant can file any submissions in response by close of business, 6 May 2022.
The parties will be advised of the details for the claimant’s examination by the Panel.”There was no response by either party to this direction.
On 26 May 2022 the parties were advised that Mr Reed would be examined by Medical Assessor Chan on 23 June 2022.
On 16 June 2022 the Panel issued the following further direction.
“The Panel notes that there has been no response by either party to its direction dated 14 April 2022.
Accordingly, the parties are advised that the Panel has the following material before it:1.Two bundles filed by the parties in matter R-M10473421/21 (claimant’s bundle – 492 pages and insurer’s bundle – 183 pages);
2.The three medical assessments which are the subjects of the reviews before this Panel; and
3.Decisions of the President’s Delegates in the three applications to review the medical assessments.
The examination before Medical Assessor Chan will proceed as scheduled.”
There was no response by the parties to this direction.
STATUTORY PROVISIONS
A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the MAI Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential. “
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act[11]. Clauses 6.6 and 6.7 of the Guidelines provide:
“6.6. Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
[11] See s 3B(2) of the Civil Liability Act, 2002.
ASSESSMENTS UNDER REVIEW
Medical Assessor Home provided two certificates dated 14 February 2022. In the Minor Injury determination, the Medical Assessor accepted that the claimant sustained symptomatic aggravation of underlying L4/5-disc degeneration which progressed resulting in the surgical procedure by way of fusion at that level. This constituted a non-minor injury within the meaning of the MAI Act. The Medical Assessor otherwise concluded that the claimant suffered a soft tissue injury of the cervical spine which was a minor injury for the purposes of the MAI Act.
Medical Assessor Home assessed permanent impairment at 25% based on 20% for the lumbar spine and 5% for the cervical spine.
Medical Assessor Haber found that the venous thrombosis with emboli is a minor injury for the purposes of the MAI Act. The Medical Assessor noted the spinal fusion at L4/5 on 17 February 2020 and the development of clots some six weeks later. He opined that these were “common complications” of operations.
Medical Assessor Haber stated that that claimant only suffered “minor discomfort” from the venous thrombosis and fully recovered from the emboli (clots) in the lungs. These conditions were caused by the motor accident but were a minor injury as defined by the MAI Act.
SUBMISSIONS
Claimant’s submissions dated 21 January 2021[12]
[12] Claimant’s bundle, page 13.
The claimant submitted that he suffered injuries to the neck, back and both shoulders. The injuries which fell outside the definition of minor injury were:
- cervical spine – radiculopathy at C7;
- lumbar spine – herniation at L4/5, and/or
- lumbar spine – annular tear at L5/S1 with S1 radiculopathy.
The claimant relied on the MRI scan dated 27 September 2018 which showed the relevant pathology following the motor accident. It was submitted that the MRI scan shows “injury to the C7 nerve root’ which is not a minor injury. Further the annular tear at L5/S1 satisfies the definition that the injury is not minor. This submission is supported by Assessor Wijetunga in an unrelated matter.
The claimant also relied on a series of certificates such as that dated 31 October 2019 which referred to left S1 radiculopathy.
The claimant otherwise submitted that the opinions expressed by Dr Kohan, particularly in reports dated 31 March 2020 and 13 August 2019 establish that the recurrent disc herniation for which surgery was undertaken was related to the motor accident.
Claimant’s submissions dated 20 December 2021[13]
[13] Claimant’s bundle, page 491.
These submissions sought a review of the certificate issued by Medical Assessor Haber on the basis that there was no reasoning why a venous thrombosis and pulmonary emboli were a minor injury.
It was submitted that these are injuries to the organs which fall outside the definition of minor injury. A pulmonary emboli is a blood clot in the lungs which is an injury to an organ.
Insurer’s submissions dated 27 April 2021[14]
[14] Insurer’s bundle, page 3.
The insurer submitted that the claimant suffered a muscle strain in the cervical spine and refers to the opinions expressed by Dr Kohan (4 September 2018 and other times) that there is no evidence to confirm the presence of two or more clinical signs of radiculopathy. The bone scan and MRI scan showed degenerative changes and does not support a finding of minor injury.
The insurer referred to the lumbar spine diagnosis made by various medical practitioners of “muscle strain” (general practitioner), treating physiotherapist and neurosurgeon. It was noted that Dr Kohan reported radicular pain in the L5 dermatome and submitted that these were not causally related to the motor accident given the history of pre-accident symptoms, 2014 surgical procedure at L4/5, prior imaging, pre-existing Grade 1 spondylolisthesis and reporting by Dr Kohan. The insurer submitted that there was “no evidence” confirming the presence of two clinical signs of radiculopathy causally related to the motor accident.
The insurer submitted that the imaging did not establish a non-minor injury and the annular tear in the lumbar spine was not causally related to the motor accident. The bilateral shoulder injury was soft tissue only and did not satisfy the meaning of non-minor injury.
Insurer’s submissions dated 20 December 2021[15]
[15] Insurer’s bundle, page 182.
These submissions were filed opposing the review of Medical Assessor Haber. The insurer submitted that the Medical Assessor had used the “entire gamut of clinical skill and judgement” in coming to his decision.
Insurer’s submissions dated 9 March 2022
These submissions were filed on the minor injury dispute. It referred to the pre-accident scans being the CT scan dated 30 July 2013, MRI scan dated 4 November 2013 and MRI scan dated 21 June 2014.
The insurer submitted that the claimant continued to work following the accident and did not seek medical assistance. When the claimant consulted his general practitioner four days later, there is no reference to lumbar spine injury. The insurer noted that the MRI scan of the lumbar spine dated 27 September 2018 reports the “same findings as the 2014 MRI”.
The insurer submitted that the back pain was the same as pre accident symptoms and the surgery would have occurred citing:
- physiotherapy entries dated 4 March 2019 and 13 May 2019;
- operation report showing degenerative changes against a background of previous microdiscectomy, and
- Dr Kohan’s opinion dated 31 March 2020 that the fusion was associated with recurrent disc herniation.
The insurer referred to various material including the “Lumbar Disc Nomenclature from the Spine Journal” which was apparently relied upon by a Review Panel[16] when concluding that the L4/5 acute traumatic injuries were not sustained in a motor accident.
[16] The insurer referred to Briggs v IAG Ltd [2020] NSWSC 1318.
The insurer noted the findings by Medical Assessor Home that the post motor accident pathology was identical to the pre-accident pathology and did not explain his reasons nor address the matters raised above.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed a bundle of documents in accordance with the initial Direction in the first matter allocated to the Panel.
Pre-accident medical records
The CT scan of the lumbar spine dated 30 July 2013 showed likely impingement on the left L5 nerve root.[17] Osteoarthritis of the facet joints was noted, more marked at L4/5.
[17] Claimant’s bundle, page 51.
The MRI scan of the lumbar spine dated 4 November 2013 noted left sided disc protrusion at L4/5 with associated annular tear compressing the left L5 nerve root and small disc protrusion with associated annular tear at L5/S1.[18]
[18] Claimant’s bundle, page 52.
A series of reports from Dr Simon McKechnie, neurosurgeon discussed the claimant’s condition in 2013/14.[19] On the last occasion on 25 August 2014, Mr Reed reported left lower back pain over the facet joints.
[19] Claimant’s bundle, pages 53-56.
Hospital records show the admission on 26 March 2014 for a left L5 rhizolysis and L4/5 medial factectomy.[20]
[20] Claimant’s bundle, page 48.
MRI scan of the lumbar spine dated 24 June 2014 noted a clinical history of three post L4/5 discectomy with persistent pain. The radiologist reported the following:[21]
“At L4/5 there is disc dessication. The prior left sided discectomy and partial laminectomy is note. There is no evidence of recurrent disc herniation. There is a degree of epidural fibrosis in the laminectomy bed and left lateral recess. This encases the left L5 nerve root. No epidural haematoma. There is facet joint arthroplasty.
At L5/S1, there is a small left central disc protrusion with an associated annular tear. This abuts the left S1 nerve root. This has remained stable.”
[21] Claimant’s bundle, page 47.
On 3 November 2017 Dr Alam recorded that Mr Reed was tender and stiff in lower back muscles.[22]
General practitioner
[22] Claimant’s bundle, page 36.
Mr Reed initially consulted his general practitioner, Dr Andrew Ma, on 1 August 2018 who noted bilateral shoulder pain and tenderness. The clinical note states:[23]
“neck o/e tender midline and max T4”.
[23] Insurer’s bundle, page 18.
The certificate of capacity issued at that time specifies no capacity from 31 July 2018 to 4 August 2018 lists the injuries as “MVA muscle sprains”.[24]
[24] Insurer’s bundle, page 24.
On 16 August 2018 Dr Ma referred to pain in the mid back and locally tender at L4/5.[25]
[25] Insurer’s bundle, page 119.
In a letter dated 21 August 2018 addressed to Dr Kohan, Dr Ma noted that the claimant was involved in a motor accident on 28 July 2018 and suffered persistent pain down the right shoulder and upper arm and mid lumbar spine.[26] Subsequent certificates refer to the motor accident causing “neck and lumbar spine injury”.[27] The subsequent statements by Dr Ma in these records show that he accepted that the motor accident caused injury to the lumbar spine.
[26] Insurer’s bundle, page 29.
[27] Insurer’s bundle, page 60 (certificiate dated 2 November 2018).
On 30 October 2019 Dr Ma noted neck movements causing pain over the right shoulder consistent with a C4/5 disc injury and pain in the lower lumbar spine radiating down the lateral side of the left leg.[28]
[28] Claimant’s bundle, page 186.
Certificates signed by Dr Ma subsequently referred to a left S1 radiculopathy.[29]
[29] See for example 27 November 2019, claimant’s bundle, page 189.
On 5 December 2019 Dr Ma noted ongoing neck pain around the C3 region into the right shoulder and deltoid suggesting nerve root involvement at C3 and C7 and pain down the right buttock and back of the left leg to ankle suggestive of S1 nerve root pathology.[30]
Dr Kohan
[30] Insurer’s bundle, page 140.
The claimant was reviewed by Dr Kohan on 4 September 2018 with complaints of severe neck pain radiating bilaterally to the elbows and “some right sided lower back pain” which developed following a motor vehicle accident.[31] The doctor noted a history of lumbar discectomy five years previously due to left sided radiculopathy which “completely settled”. The new pain was not associated with radicular pain or numbness in the lower limbs and bladder function was normal. Dr Kohan noted the cervical diagnosis was “not clear” and could be compression of the C5 nerve root or possibly facet joint pain. The back pain may be local pain syndrome or associated with L4 or L5 irritation.
[31] Insurer’s bundle, page 16.
On 30 October 2018 Dr Kohan noted significant neck and lower back pain from a “severe motor accident”.[32] The neck pain was associated with occipital headaches radiating over the trapezius bilaterally. Back pain was on the right side around L4/5 with no radiation to the lower limbs. Dr Kohan opined that the neck pain was probably “related to muscle and possibly joint capsule secondary to the motor accident” with some suspicion of injury to the C4/5 disc. He opined that the recent SPECT scan showed bilateral L4/5 increased uptake which corresponded to the right sided pain.
[32] Insurer’s bundle, page 14.
Dr Kohan’s referral to the physiotherapist, Edwina Chan, dated 30 October 2018 stated that Mr Reed had “severe neck pain and L4/5 facet arthropathy, neck pain possibly primarily muscular/facet pain”.[33]
[33] Insurer’s bundle, page 59.
On 7 May 2019 Dr Kohan noted ongoing neck and increasing lumbar pain. The claimant referred to recurring left sided numbness affecting the lower back bilaterally.[34]
[34] Claimant’s bundle, page 30.
On 18 June 2019 Dr Kohan noted neck pain on the right side with some radiation but no definitive radicular arm symptoms and back pain with left sided radicular pain in the L5 dermatome. Facet joint injections did not provide significant relief. Recent bone scan showed increased uptake at L4/5 fact joints. Leg pain was associated with peri-radicular scarring causing increased irritation of the left L5 nerve root and back pain correlated with the Grade 1 spondylolisthesis.[35]
[35] Insurer’s bundle, page 10.
Dr Kohan recommended lumbar decompression and fusion at L4/5 due to progressive worsening and unresponsiveness to non-surgical management.
On 13 August 2019 Dr Kohan observed that the recent motor accident was “sufficient in my opinion to cause aggravation of pain at previously injured level at L4/5”.[36] The doctor opined that Mr Reed had “mechanical back pain with weight bearing situation” which is consistent with the radiology. Dr Kohan also doubted the opinion that this was a soft tissue injury as it is “not associated with exacerbation of pain with weight bearing positions”.
[36] Insurer’s bundle, page 127.
Findings at surgery on 17 February 2020 were severe facet arthroplasty, L4/5 spondylolisthesis, L4/5 instability with grade 1 spondylolisthesis on the background of a previous microdiscectomy. Left L4/5 discectomy and decompression of left nerve root was performed and fusion at L4/5.[37]
[37] Insurer’s bundle, page 147.
On 31 March 2020 Dr Kohan reported that the claimant was seven weeks post-surgery “for stabilisation of L4/5 which was associated with recurrent disc herniation and instability on the background of previous microdiscectomy several years ago”.[38] On 21 May 2020 Dr Kohan noted significant improvement with no further leg pain.[39]
[38] Insurer’s bundle, page 8.
[39] Insurer’s bundle, page 163.
A discharge referral dated 14 April 2020 noted pulmonary emboli in the right middle and lower lobe secondary to left lower limb deep vein thrombosis.[40]
[40] Claimant’s bundle, pages 116 and 268.
On 23 July 2020 Dr Kohan referred to problems caused by a left deep venous thrombosis causing leg swelling and calf pain and contributing to the back pain.[41] Referral was made for Mr Reed to consult a vascular surgeon.[42]
[41] Insurer’s bundle, page 170.
[42] Insurer’s bundle, page171.
Physiotherapist
Ms Edwina Chan, physiotherapist first treated Mr Reed for chronic neck and back pain following the motor accident on 7 January 2019.[43] Ms Chan observed that he had right sided neck pain into the right arm and back pain associated with high levels of pain and disability and noted:
“His short form Orebro questionnaire scored 86/100. He also scored 8/10 for anxiety and 9/10 for depression on the same questionnaire. He reported his pain mainly being right sided for the neck pain and back pain. There was nil referred pain down his legs. On examination, he had very limited range of motion in his cervical spine… also had limited lumbar flexion on bending forwards… And had difficulty sitting”.
[43] Insurer’s bundle, page 77.
Treatment recommendations included consultation with a psychologist for anxiety and depression.
Radiology
An X-ray of full spine dated 14 August 2018 showed degenerative changes at C5/6 and C6/7 and a Grade 1 spondylolisthesis at L4/5.[44]
[44] Insurer’s bundle, page 26.
A bone scan dated 25 September 2018 showed mild C4/5 disco-vertebral arthritis and moderate bilateral L4/5 facet joint arthritis.[45]
[45] Insurer’s bundle, page 35.
An MRI scan of the cervical and lumbar spine dated 27 September 2018[46] showed spondylotic narrowing of the left C6/7 intervertebral foramen with potential compromise of the C7 nerve root and no evidence of the recurrent disc protrusion at L4/5. The specific findings at L4/5 were mild disc desiccation, mild concentric disc bulge, prior left sided discectomy and partial laminectomy and epidural fibrosis in the left lateral recess encasing the left L5 nerve root. At L5/S1 there was a small left protrusion with tiny annular tear.
[46] Insurer’s bundle, Page 36.
A CT guided injection into the degenerate right L4/5 facet joint was performed on 5 December 2018.[47] A further injection into the left L4/5 facet joint was performed on 29 May 2019.[48]
[47] Insurer’s bundle, page 65.
[48] Insurer’s bundle, page 107.
A lumbar spine X-ray dated 14 June 2019 showed Grade 1 spondylolisthesis at L4/5 and dessication with facet joint arthroplasty in the lower spine.[49]
[49] Insurer’s bundle, page 111.
A cervical spine MRI scan dated 18 August 2020 reports no significant interval changes since the previous MRI scan of 27 September 2018.[50]
Qualified opinions
[50] Claimant’s bundle, page 119.
Dr Robin Mitchell, physician was qualified by the workers compensation insurer and provided a report dated 20 October 2018.[51] The doctor was provided with a history of complete resolution of low back symptoms prior to the motor accident. Dr Mitchell noted that current restrictions were appropriate give the level of pain reported.
[51] Claimant’s bundle, page 104.
Dr Casikar, neurosurgeon, was qualified by the workers compensation insurer and provided a report dated 1 August 2019.[52] The doctor obtained a history of severe pain in the neck and back on the third day following the motor accident. Dr Casikar opined that Mr Reed sustained a soft tissue aggravation of the pre-existing degenerative changes which had resolved. The doctor noted that Mr Reed was “pain focused” and thought there would be a poor outcome from surgery.
[52] Claimant’s bundle, page 68.
Dr Eugen Gehr, orthopaedic surgeon, was qualified by the claimant and provided a report dated 9 December 2020.[53] The doctor obtained a history of immediate onset of neck and back pain with left leg symptoms since the time of the accident. On examination, Dr Gehr stated that he found “spasm, dysmetria, positive nerve root tension test on the left and decreased sensation in a L5/S1 (distribution) on the left side” and “spasm, dysmetria and decreased sensation in a C6/C7 distribution on the right side”.[54]
[53] Claimant’s bundle, page 80.
[54] Claimant’s bundle, page 86.
Dr Gehr diagnosed left side radiculopathy with fusion resulting in a deep vein thrombosis (DVT) with emboli and cervical spine soft tissue injury with right radicular symptoms.
RE-EXAMINATION
Mr Reed was examined by Medical Assessor Chan on 23 June 2022. The examination report is as follows:
“Mr Reed attended the assessment by himself on the 23 June 2022. He was identified by his NSW driver license. His partner had driven him to the assessment. RAT test conducted was negative. Mr Reed said he preferred to be standing as he had pain in his back which was aggravated by his car journey.
History of the accident and treatment
Mr Reed had been employed to deliver frozen cut meat in a Ford Ranger with a refrigeration unit in the rear of the vehicle. He said there was no crumple zone in the rear of the vehicle. On the day of the accident, it was sunny day, his vehicle was stationary waiting to make a right hand turn. Suddenly, a removalist truck crashed into the rear of his vehicle. He said he was shaken up by the collision. No police or ambulance attended the scene of the accident.
After exchanging details with the truck driver, he drove to a nearby car park. He informed his employer about the accident and sat for an hour in the car park before going home.
He did not experience any symptoms immediately after the accident. The following day he had pain and stiffness in his neck. The pain radiated to the right arm and elbow. He did not have any pain in his left arm. He had tingling sensation in the right hand. He said he had pain across the lower back with pain radiating to the left heel along the posterior aspect of the left lower limb. I noted that Dr Kohan’s report stated that the back pain was in the right lumbar area with no radicular pain in the lower limbs. I brought this to his attention. Mr Reed maintained that he had pain in the back with radiation to the left lower limb after the accident.
Mr Reed consulted Dr Ma four days after the accident on 1 August 2018. Dr Ma referred him to have an x-ray of his cervical and thoracic spine. No fracture was detected on the x-ray.
Dr Ma referred Mr Reed to Dr Kohan who saw him on the 4.9.18. Mr Reed’s main complaint then was pain and stiffness in his neck affecting his neck movement with pain radiating to both scapular area of the back of the shoulders. He also complained of right sided lower back pain. Dr Kohan found no neurological deficit in his examination of his cervical spine, upper limbs, lumbar spine and lower limbs. Dr Kohan referred him to have an MRI of his cervical spine and lumbar spine and a Whole Body Bone Scan with Tomography.
Dr Kohan reviewed him on 30.10.18 with the MRI of his cervical and lumbar spine which was performed on 27.9.18 and bone scan which he had on the 25.9.18. Dr Kohan commented in his report of the 30.10.18 that he had persisting pain in his neck but more so in his lower back. With the bone scan report that he had ‘moderate bilateral L4/5 facet joint arthritis’, Dr Kohan referred him for x-ray guided steroid injection of his right L4/5 facet joint. In addition, Dr Kohan encouraged him to start swimming and referred him to see a spinal physiotherapist, Ms Edwina Chan in view of his severe neck pain which was possibly ‘primarily muscular/facet pain’ and his ‘L4/5 facet arthropathy’ back pain.
I asked Mr Reed if he had been referred for psychological counselling. He said that this had been discussed, but he had not been referred to any pain management specialist.
I asked Mr Reed if he had benefited from Ms Chan’s treatment. He replied that there was not much benefit by way of reduction of pain or improvement in his neck and back movement.
After he had the CT guided injection to his right and left L4/5 facet joints which he said did not improve his low back pain, Dr Kohan reviewed him on the 18.6.19 and proposed lumbar decompression and fusion at L4/5 of his lumbar spine to him.
On the 17.2.20, Mr Reed had lumbar decompression and L4/5 posterior interbody fusion at St George Private Hospital. Severe facet arthropathy and L4/5 spondylolisthesis were reported in the operative findings.
One and a half months after his back surgery, his left ankle and foot became red and swollen after walking. He also had pain in the left side of the chest. He said he called a Telehealth doctor who called an ambulance to take him to the Emergency Department at St George Hospital.
A CT spiral angiography with contrast performed at St George Hospital on the 12.4.20 showed pulmonary emboli in the segmental branches of the right middle lobe, right lower lobe and left upper lobe pulmonary arteries.
He had a doppler on 14 April 2020 at St George Hospital which revealed a thrombus in the left popliteal vein two cm below the knee crease which extended distally to the distal portions of the posterior tibial and peroneal veins. No thrombus was found in the right leg from the common femoral vein to the trifurcation below the knee. He was treated at St George Hospital with an anticoagulant, Apixaban and discharged home on 16 April 2020.
He had another Ultrasound lower limb doppler on 14 October 2020. The report of this doppler stated that “No DVT is seen between the left common femoral vein and the popliteal vein. There is residual thrombosis with incomplete compressibility of the mid posterior tibial vein and peroneal vein.”
On the 19.11.20, the respiratory team at St George Hospital decided that he could cease anti-coagulation medication.
After the DVT he had discomfort in his left leg. Dr Kohan had referred him to Dr Lemeah, a vascular surgeon to see if anything could be done to improve the discomfort in his left leg.
I asked Mr Reed how his back condition after the surgery was. He replied that the symptoms in his lower back after the back surgery was the same as what he had experienced before the surgery.
Mr Reed had no further accident or injury after subject accident. As mentioned in the history, he developed DVT in his left leg and had pulmonary embolism after he had lumbar spine decompression and L4/5 posterior interbody fusion.
Current Symptoms
Mr Reed had not worked since the accident. He lives with his wife and two children, a girl age 10 and a boy age 4 in a three bedroom unit on the third floor. There is no lift in his block of unit. His wife is currently working in an administrative job in UTS.
With respect to his chest, he said he still experience some discomfort. When he takes a deep breath, he felt something in his lung in the subcostal margin.
He held his neck very stiffly. He said movement of his neck led to tightness in the neck muscles and headache. He had no symptoms in his right or left upper limbs.
He said that he has jabbing pain in his lower back when he bends forward or sideways. The pain would radiate to his left leg and ankle. Sometimes he had burning sensation in the left three middle toes. The pain in the right side of his lower back was localised and did not radiate past the buttock and he had no symptom in his right leg.
Current Medications
He is taking medication for his blood pressure and Palexia and Targin for pain relief.
Examination
Mr Reed walked into the consulting room with a normal gait. He said he had pain in the neck and lower back and preferred to stand rather than being seated. For the practically the whole assessment he was standing and holding his neck and back quite still as he told me about the accident, his symptoms and the treatments he had.
Cervical spine
He had the normal curvature in the cervical spine. He indicated the painful spot on either side of the base of the neck and in the right and left sub-occipital part of his neck. There was no tenderness, muscle spasm or guarding in the paravertebral muscles of the neck.
I showed Mr Reed the three planes of motion of the cervical spine and asked him to try his best to do those movements. Active flexion and extension of his cervical spine and active lateral flexion to the right and left side of the cervical spine were one fifth of the normal range of movement [ROM]. Rotation to the right and left side of his neck was ¼ the normal ROM of the cervical spine. The ROM of his cervical spine in all planes of movement was symmetrical and were very restricted. He said the onset of pain in his neck on movement had inhibited him moving turning his head.
Touch sensation, motor power (C5 -shoulder abduction, elbow flexion; C7 -elbow extension wrist flexion) and the tendon reflexes (biceps (C5), triceps (C7) and brachioradialis reflexes) were present and equal in both upper limbs. There was no sensory loss that was anatomically localised to an appropriate spinal nerve root distribution. The girth of the arm being 35.5 cm in both arms and the girth of the forearm being 30.5 cm in both forearms, measured at the same distance from the lateral epicondyle of each elbow. Hence, there was no muscle atrophy in his right upper limb when compared to his left upper limb.
As there were no clinical findings of asymmetry of reflexes, muscle atrophy, muscle weakness and no sensory loss that is anatomically localised to an appropriate spinal nerve root distribution, he did not have signs of cervical radiculopathy consistent with section 6.138 of the Guidelines.
Shoulder, elbow and wrist joints
He had no complaint in his shoulders and had full range of movement in the shoulder, elbow and wrist joints of both upper limbs.
Lumbar spine (Lumbosacral)
Mr Reed had the normal curvature in the lumbar spine. A vertical midline scar 7cm in length was noted in the lumbar area of his back, consistent with L4/5 posterior interbody fusion which he had. The claimant was not conscious of the scar which had good colour match with the surrounding skin. The claimant could locate it. There was no contour effect, no trophic changes on the scar and the suture marks were barely visible. The location of the scar was not visible with his usual clothing. The scar had no effect on any ADL and no adherence to the underlying structures. The scar required no treatment.
Mr Reed wore a compression stocking in his left leg. He kept his lower back fairly still. He said he was apprehensive of bending for fear of making his low back pain worse. As bending to remove and putting on the compression stocking would exacerbate his low back pain, the compression stocking was not removed for the examination.
There was no tenderness, muscle spasm or muscle guarding in the paravertebral soft tissue of the lumbar spine. Active flexion and extension of the lumbar spine was one fifth of the normal range of movement of the lumbar spine. Active lateral flexion of the lumbar spine to the left side and to the right side was equal and one quarter of the normal range of movement [ROM]. He had a very restricted but symmetrical ROM in his lumbar spine. He said that exacerbation of the pain in his lower back had inhibited the movement of his lumbar spine.
Tendon reflexes and power were present, equal and normal in both lower limbs. Touch sensation was normal in the right lower limb. Touch sensation in the left lower limb was normal in the thigh, and left knee. However, the touch sensation was duller in the lower two third of the left leg and the whole of the left foot. Hence there was no sensory loss anatomically localised to an appropriate spinal nerve root distribution in the left lower limb.
The girth of the right and left thigh measured at 10 cm from the upper pole of the patella was 54 cm, and the girth of the right and left calf measured at the same distance from the lower pole of the patella was 41.5 cm in the right the left leg. Hence, there was no muscle atrophy in the left lower limb when compared to the right lower limb.
Mr Reed was apprehensive about lying down on the examination couch for fear that it might aggravate the pain in the lower back. Hence the lower limb tendon reflexes, test for sensation and sciatic stretch test was conducted with him sitting on the examination couch with his legs ‘hanging’ freely over the side of the couch. He was asked to extend his knee, one at a time, as best as he could, and the sciatic stretch test was performed. The sciatic stretch test was negative in both lower limbs.
Mr Reed had the same symptoms – pain in his lower back radiating to the back of his left lower limb to the left heel and to the right buttock, which he had before the surgery to his lower back in 2020. There were no loss or diminished sensation, loss or diminished power and no loss or diminished reflexes that was anatomically localised to an appropriate spinal nerve root distribution. He had non-verifiable radicular complaints.
As there were no clinical findings of asymmetry of reflexes, muscle atrophy, sciatic nerve root tension, muscle weakness, sensory loss that was anatomically localised to an appropriate spinal nerve root distribution, he did not have signs of lumbar radiculopathy consistent with section 6.138 of the Guidelines.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.
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[55] and Insurance Australia Ltd v Marsh.[56]
[55] [2021] NSWCA 287 at [40], [41] and [45].
[56] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[57] that radiculopathy can be present at any time to satisfy the concept that the injury is not minor for the purposes of the MAI Act.
[57] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[58] that the claimant bears the onus of proof in establishing any injury is not a minor injury for the purposes of the MIA Act.
[58] [2022] NSWPICMP 6 at [44]-[62].
A critical issue for determination is the nature and extent of the lumbar spine injury and whether it caused the fusion surgery undertaken on 17 February 2020. The determination of those issues is common to the ultimate determination of all three medical assessments.
The Panel adopts the examination report of Medical Assessor Chan and adds the following reasons.
Both parties referred to conclusions of fact in other cases as supposedly supporting their respective positions. The claimant referred to an assessment of Dr Wijetunga[59] that an annular tear is not a minor injury. The insurer referred to medical articles as somehow displacing causation is this particular case.
[59] Claimant’s bundle, page 16.
Factual findings on causation in other cases do not create legal precedent: Edwards v Noble.[60]
[60] [1971] HCA 54 at [14] per Barwick CJ.
In any event, the small annular tear in the L5/S1 disc was present before the subject accident and there is no need to consider if the annular tear is a minor injury as it was not caused by the motor accident.
Cervical spine injury
There was no history of injury to or symptoms in the cervical spine prior to the motor accident.
Four days after the motor accident, Mr Reed consulted his treating general practitioner, Dr Ma. Dr Ma’s clinical record stated “R deltoid ? lump on 2/8/2018, burning sensation R lower shoulder blade. Pain R iliac crest, L supraspinatus region, neck o/e tender midline C7 and max T4”.
The X-ray of the cervical spine performed on 14 August 2018 showed degenerative changes at C5/6 and C6/7 levels with no fracture or dislocation.
When Dr Kohan examined Mr Reed for the first time on the 4 September 2018, six weeks after the accident, the doctor reported that he had:
“[G]eneralised mild weakness in both upper limbs proximally which is due to fear of exacerbation of the pain. Distally, however, his muscle groups are all showing normal power with flexion and extension at the elbow and finger flexion and extension. His reflexes are symmetrical at the elbow including biceps and triceps.”
In Dr Kohan’s examination there were no clinical signs that met the criteria of radiculopathy of the cervical spine consistent with 6.138 of the Guidelines.
The MRI report cervical spine report stated that there was significant spondylotic narrowing of the left C6/7 intervertebral foramen with potential compromise to the left C7 nerve root. There was no disc protrusion or canal stenosis. No tear of the disc was reported.
At the examination by member of the Panel, there were no clinical findings of asymmetry of reflexes, muscle atrophy, muscle weakness and sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. Hence, Mr Reed did not have signs of cervical radiculopathy consistent with cl 6.138 of the Guidelines.
Based on the above contemporaneous medical information, Mr Reed had sustained soft tissue injury to the cervical spine causally related to the accident.
As there were no bony fracture, no tear in the intervertebral disc, no clinical signs in the examination of his cervical spine by Dr Ma, Dr Kohan and the member of the Panel that met the criteria of radiculopathy of the cervical spine consistent with cl 6.138 of the Guidelines. The cervical spine injury is a minor injury for the purposes of the MAI Act.
Shoulder injuries
Mr Reed could not recall if had any direct injury to his right shoulder or if his shoulder had hit the interior of his cabin during the impact of the accident. He felt pain in his cervical spine and the right shoulder after the motor accident but no complaint in his left shoulder. Mr Reed has not been referred to have an X-ray or ultrasound of his shoulders.
The right shoulder pain had resolved, and Mr Reed now had a full range of motion in his right and left shoulders. As such, the right shoulder injury is a soft tissue which is a minor injury as defined under the MAI Act. There was no injury to the left shoulder.
Lumbar spine injury
Mr Reed had pain in his lumbar spine for a few years prior to the motor accident with pain radiating to the left leg worse with bending forward. He eventually had an elective left L5 rhizolysis and L4/5 medial factectomy by Dr McKechnie on 26 March 2014.
Three months post-surgery Mr Reed had a lumbar spine MRI scan as he had persistent back pain.
On 3 November 2017 the Bayhealth Centre clinical notes stated:
“Low back pain, h/o L4/5 disc bulge – discectomy, tender, stiff rt lower back muscles, spines non tender, neuro- NAD Reason for contact – lower back strain.”
Accordingly, Mr Reed had documented episode of low back pain nine months before the accident. The claimant’s history is that this had settled down before the motor accident and we were not referred to any documents suggesting the contrary. He continued to work in an active job consistent with his condition being asymptomatic.
Following the motor accident Dr Ma referred Mr Reed to have an X-ray of his whole spine which reported a L4/5 Grade 1 spondylolisthesis, preservation of disc spaces and no compression fracture.
Lower back complaint was first documented after the motor accident by Dr Ma on 16 August 2018 with local tenderness at L4/5 and referral to a physiotherapist.
When Dr Kohan first examined Mr Reed six weeks after the accident on 4 September 2018 the doctor observed pain in the right lower lumbar region with no radicular pain or paraesthesia or numbness in the lower limbs. Bowel and bladder function was normal and lower limb reflexes were symmetrical with no clonus or gait disturbance.
The whole body scan with tomography report of 25 September 2018 stated in its conclusion that Mr Reed had “Mild C4/5 disco -vertebral arthritis” and “Moderate bilateral L4/5 facet joint arthritis”. The facet joint arthritis was present in the lumbar spine MRI performed on the 24 June 2014 and was not caused by the motor accident.
The Panel noted that the MRI findings dated 27 September 2018 were similar and were present in the lumbar MRI performed four years before the subject accident on 24 June 2014. Hence, the L4/5-disc desiccation, facet joint arthropathy and epidural fibrosis encasing the left L5 nerve root were pre-existing findings. At L5/S1 the small left central disc protrusion with a tiny annular tear which abuts on the left S1 nerve root without significant compression and facet joint arthropathy was pre-existing and seen on the previous lumbar spine MRI and were not caused by subject accident.
Mr Reed did not sustain any bony fracture to his lumbar spine in the motor accident. The lumbar spine MRI did not show any tear in the intervertebral disc. The small annular tear reported in the L5/S1 disc was present before the subject accident and no intervertebral disc tear was caused by the subject accident. In addition, the minimal spondylolisthesis at L4/5 was present before the accident. Based on the imaging and clinical findings, the Panel concluded that Mr Reed had sustained soft tissue injuries to the lumbar spine causally related to the accident and aggravated the arthritis at L4/5.
Dr Kohan commented in his report six weeks after the accident that whilst he had pain in the right lumbar area, there was no radicular pain or paraesthesia or numbness in the lower limbs.
When Dr Kohan reviewed Mr Reed on 30 October 2018, he again commented in his report that his “lower back pain is mostly in the right side paraspinal around L4/5 region” with no radiation to the lower limbs. With the absence of pain in his lower limbs and the bone scan report of increased uptake in the L4/5 facet joint, Dr Kohan opined that his right-side lumbar pain was due to the facet joint arthritis as evident in his referral note to Ms Chan dated 30.10.18 when he wrote “L4/5 Facet arthropathy” in the diagnosis section of the handwritten referral note.
Ms Edwina Chan, spinal physiotherapist, examined Mr Reed at the first consultation on 7 January 2019. The Panel noted that Ms Chan commented in her report of the same date that whilst Mr Reed complained of pain in his neck and lumbar spine, there was no referred pain down his legs.
The Panel noted that in Dr Kohan’s examination of Mr Reed, he stated that “lower limb reflexes are symmetrical with no evidence of clonus or any gait disturbance”. He did not comment if there was any weakness in Mr Reed’s lower limb muscles or any sensory impairment in his lower limbs. With no complaint in his lower limbs, it is of no surprise that a sciatic stretch test was not conducted on the lower limbs. Apart from the symmetrical reflexes in his lower limbs there were no findings that would support the presence of radiculopathy of the lumbar spine in accordance with cl 6.138 of the Guidelines in the three months after the subject accident.
The insurer referred to the initial absence of recorded complaint of lumbar spine injury to the general practitioner and the first recorded complaint on 16 August 2018
In Norrington v QBE Insurance (Australia) Ltd[61] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[61] [2021] NSWSC 548 (Norrington).
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[62] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga[63]) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox[64]).
[62] [2016] NSWCA 229 at [64]-[66].
[63] [2004] NSWCA 34 at [35].
[64] [2014] NSWSC 888 at [31]-[32].
These principles establish that the lack of contemporaneous complaint is a relevant, but not a determinative factor.
The clinical note on 1 August 2019 is brief and identifies pain “at T4 max”. The note, by reason of its brevity, does not exclude lumbar spine injury rather it does not refer to it.
The record of complaint of lumbar pain on 16 August 2018 does not mean that symptoms only commenced at that time. Logically the lumbar spine symptoms developed prior to 16 August 2018. Further, in a referral to Dr Kohan dated 21 August 2018, Dr Ma referred to pain in the lumbar spine following the accident and certified that body part in medical certificates. These records suggest the development of lumbar pain shortly after the motor accident.
Based on the records and Mr Reed’s history to various doctors, we accept that he suffered an onset of back pain within days of the motor accident. It is medically plausible that such an onset is related to the motor accident particularly in the absence of any intervening event.
Further, the underlying pre-motor accident degenerative changes, reasonably severe in this case, are more susceptible to aggravation by the motor accident.
The nature of the motor accident was capable of aggravating degenerative changes in the lumbar spine. Indeed, medical reports served by the insurer support injury by way of aggravation, albeit, that any aggravation was short term.
Dr Kohan records a consistent history over a number of consultations of reasonably severe lumbar spine following the motor accident and recommended surgery due to a worsening condition unresponsive to non-surgical management.[65]
[65] Insurer’s bundle, page 10.
We note that Dr Casikar opined that Mr Reed was pain focused. We agree with that observation based on a reading of the clinical notes, the level of pain medication consumed following the motor accident and the examination conducted by Medical Assessor Chan. Our conclusion that Mr Reed was pain focused does not detract from his claim that the motor accident aggravated his lumbar spine condition, caused an onset of pain rendering it symptomatic and ultimately leading to spinal surgery. Indeed, as Mr Reed was pain focused it makes the causal relationship between the injury and the fusion surgery more compelling. This conclusion is otherwise consistent with the recommendations by treaters that Mr Reed have psychological treatment.
Unlike Dr Casikar, we accept, based on the record of ongoing complaints, that the effects of the motor accident were ongoing.
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[66]
[66] [2018] NSWSC 1710 (Phillips) at [29].
We accept that there are other non-motor accident causes for the surgery including the previous surgery, periradicular scaring from the previous surgery and the significant underlying degenerative changes.
Mr Reed sustained soft tissue injuries causally related to the accident and aggravated the facet joint arthritis resulting in pain which ultimately led to the surgery undertaken by Dr Kohan.
For these reasons we accept that the motor accident materially contributed to the surgical procedure.
There is no medical evidence to support the presence of two signs of radiculopathy of the lumbar spine. There was no bony fracture, no tear or rupture of the disc which is all consistent with a minor injury for the purposes of the MAI Act.
However, our findings of the motor accident causing the surgery leads to the issue of whether this is a non-minor injury of the lumbar spine.
“Injury” is defined in s 1.4 of the MAI Act and means personal or bodily injury and is defined to extend to other meanings not here relevant.
“Motor accident” is also defined in s 1.4 of the MAI Act and means “an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused” during certain circumstances.
We have earlier found that the surgical procedure was causatively related to the motor accident. The surgery involved the cutting of skin, tendons, ligaments, and cartilage and takes any injury the concept of “minor injury” because it is caused by the motor accident.
We raised with the parties (see [18]-[22]) whether surgery causally related to the motor accident means that this is a non-minor injury and received no response. Medical Assessor Home appears to have concluded that this is sufficient.[67]
[67] Medical Assessment Certificate, page 12.
Both ss 3.11 and 3.28 refer to the cessation of statutory benefits if “the person’s only injuries resulting from the motor accident were minor injuries”. Section 4.4 is expressed in similar terms. The contextual meaning of minor injuries in the MAI Act is directed to what is caused by the motor accident. The surgery and the resulting DVT were caused by the motor accident.
Looking at the consequences of the motor accident in determining whether the injuries are not minor is consistent with the exclusion of radiculopathy from the meaning of minor injury because that is a consequence of the motor accident caused by injury to a spinal nerve root.
Based on our finding that there is a causal nexus between the motor accident and the surgery, we are satisfied that the claimant sustained a non-minor injury to the lumbar spine.
Pulmonary embolism
The DVT developed in Mr Reed’s left leg after the lumbar decompression surgery. The subsequent pulmonary embolisms developed a few weeks after the surgery and were causally related to the surgery. We agree with the medical expertise of Medical Assessor Haber which is consistent with the medical expertise on the Panel. This onset of symptoms accords with the nature of the surgical procedure and the timing of the development of the symptoms. We were otherwise not referred to any opinion that the DVT and pulmonary embolism were unrelated to the surgery.
Medical Assessor Haber appeared to conclude that the symptoms resolved and therefore were a minor injury.
That is not the correct test as symptoms can occur at any time and is not limited to the time of the assessment.[68]
[68] see David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227 at [84]-[104].
Having held that the surgery was causally related to the motor accident, the question is whether that injury is a non-minor injury at any time, not at the time of assessment.
The claimant submitted that a “pulmonary emboli is a clot in the lungs”. No relevant submission was made contradicting that submission. Further, the Panel is comprised of medical experts who can provide relevant medical expertise on these issues.
The blood clots likely travelled from the legs because Mr Reed had a DVT in the legs. The DVT then travelled to the pulmonary artery in the lungs and was blocked within the arteries of the lung.
The pulmonary embolism will cause some damage to the arteries within the lungs, the extent to which depends on how promptly the treatment occurs.
The definition of minor injury is “an injury to tissue that connects, supports or surrounds other structures or organs of the body”. The lung is obviously an organ of the body. The damage which occurred to the pulmonary artery is not “tissue that “connects, supports or surrounds other structures or organs of the body” but damage to the artery within the lung. Accordingly, a pulmonary embolism does not fall within the definition of minor injury in the MAI Act.
Assessment of permanent impairment
For the above reasons the Panel concludes that the fusion is causatively related to the motor accident. Clause 6.145 provides that multilevel compromise includes spine fusion and rates as DRE categories IV and V. [69]This means that the assessment of permanent impairment of the lumbar spine is 20% based on chapter 3, pages 102-107 of AMA 4 and Tables 6.7 of the Guidelines.
[69] See cl 6.143.
The insurer submitted that the prior surgery at L4/5 by way of discectomy and partial laminectomy “was at least DRE III” even if the claimant “may have been asymptomatic”. No relevant submission was made why Mr Reed was “at least DRE III” in the context of its submission that he may have been asymptomatic.
Table 6.7 of the Guidelines refers to previous spinal operation without radiculopathy and rates as DRE II, III or IV. In light of the absence of symptoms we assess the prior impairment at DRE II. The previous operation relates to the same level as the fusion and is in the “same region”. We finally, observe that as the claimant did not have a pre-existing symptomatic condition there may have been no deduction under cl 6.31.
The terms of the clause suggest that any onus is on the insurer to satisfy that there should be a deduction for pre-existing impairment because the clause provides that there must be “evidence of a pre-existing symptomatic permanent impairment in the same region”.[70] It is clear from the words of the clause that it must be established that there was objective evidence of a symptomatic pre-existing impairment rather than the concept being disproved by the injured person.
[70] See the discussion of where an onus lies in Vines v Djordjevitch [1955] HCA 19 at [8].
The comments on onus are consistent with observations by the Court of Appeal of where the onus lies on a deduction for pre-existing conditions under the workers compensation legislation.[71]
[71] See Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [37]. Similar comments were made in Pereira v Siemans Ltd [2015] NSWSC 1133.
There is no doubt that Mr Reed had undergone previous surgery at L4/5. His evidence which we accept is that he was asymptomatic, consistent with the absence of recent pre-motor accident contemporaneous notes of any lumbar spine complaint.
With some hesitation, we make a deduction pursuant to cl 6.31 for the impairment of the lumbar spine based on DRE II (5%).
With regard to the degree of permanent impairment of the cervical spine, Mr Reed has symptoms in the cervical spine. At the Panel examination, there was no muscular guarding in the paravertebral muscles, the movement in his neck was restricted but symmetrical (no dysmetria). There was no neurologic impairment – no non-verifiable radicular complaints and no signs of radiculopathy of the cervical spine consistent with cl 6.138. Hence, the examination findings of his cervical spine were consistent with DRE cervicothoracic category I with 0% permanent impairment.
The impairment is permanent because it is unlikely to change substantially with or without treatment and is not likely to remit despite medical treatment.
There is no assessable impairment of the shoulders.
The overall permanent impairment is 15%.
CONCLUSIONS
For these reasons, the Panel concludes that the Medical Assessment Certificate dated 17 November 2021 relating to the pulmonary embolism is revoked, and a new Medical Assessment Certificate is issued.
The certificate dated 14 February 2022 assessing the lumbar spine as a non-minor injury is confirmed.
The certificate for permanent impairment is revoked as we have reached a different percentage although the outcome is the same, that is, the claimant has a greater than 10% impairment caused by the motor accident.
The new certificates are contained at the commencement of these Reasons.
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