Shinko v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Shinko v Allianz Australia Insurance Limited [2024] NSWPICMP 246
CLAIMANT:	Natalie Shinko
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	23 April 2024
CATCHWORDS:	MOTOR ACCIDENTS – The claimant sustained injury in a motor vehicle accident on 25 February 2021; Medical Assessor Kenna certified lumbar spine decompressive surgery at one level did not relate to the injury caused by the accident and the need for surgery related to an incident two years post-accident when the claimant rolled over in bed; Held – prior to 20 March 2023 left sided pain due to meralgia paraesthetica and not radiculopathy; disc prolapse occurred when claimant rolled over in bed resulting in low back pain with acute radicular symptoms; proposed surgical treatment not related to the injury caused by the accident; on examination no evidence of ongoing radiculopathy; surgery no longer clinically indicated; surgery not reasonable and necessary in the circumstances.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel affirms the certificate of Medical Assessor Clive Kenna dated 10 October 2023. 2. The Review Panel determines the request for lumbar spine – decompressive surgery at 1 level does not relate to the injury caused by the accident. 3. The Review Panel determines the request for lumbar spine – decompressive surgery at 1 level is not reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

On 25 February 2021 Ms Natalie Shinko (the claimant) was driving her vehicle when a mini truck turned right turned across the path of the claimant’s vehicle causing a collision (the accident). Ms Shinko sustained injury and was conveyed by ambulance to hospital.
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Shinko under the Motor Accident Injuries Act 2017 (MAI Act).
Ms Shinko submitted an Application for personal injury benefits dated 8 March 2021 in respect of injury sustained in the accident.
On 5 April 2023 the claimant asked the insurer to fund the L4/5 anterior lumbar interbody fusion surgery (the surgery).
On 14 April 2023 the insurer declined to fund the surgery on the basis the need for surgery was not related to the accident.
On 27 April 2023 the claimant requested an internal review of the decision to decline the surgery.
On 10 May 2023 the insurer issued a Certificate of Determination – Internal Review reaffirming its decision to decline the surgery.
The claimant filed an application with the Personal Injury Commission (Commission) seeking a medical assessment to resolve the treatment dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (b) “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24” of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
This dispute was assessed by Medical Assessor Clive Kenna who issued a certificate dated 10 October 2023.

TREATMENT – STATUTORY PROVISIONS

Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)The reasonable cost of treatment and care,
(b)Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and cate for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

On 30 January 2024 the claimant uploaded to the portal an indexed bundle of documents sought to be relied upon paginated from page 1 to page 198 (claimant’s documents).
On 27 February 2024 the insurer uploaded to the portal an indexed bundle of documents sought to be relied upon paginated from page 1 to 373 (insurer’s documents).

ASSESSMENT UNDER REVIEW

In a certificate dated 10 October 2023 Medical Assessor Kenna certified the following treatment and care did not relate to the injury caused by the accident and was not reasonable and necessary in the circumstances:
· lumbar spine – surgery – decompressive surgery at 1 level.
The following treatment dispute was referred to Medical Assessor Kenna:
· whether the lumbar spine – surgery – decompressive surgery at 1 level relates to the injury caused by the motor accident, and
· whether the lumbar spine – surgery – decompressive surgery at 1 level is reasonable and necessary in the circumstances.
In respect of causation Medical Assessor Kenna reported Ms Shinko had been treated conservatively for low back pain, however, she continued to attend the gym, worked 12 hour shifts as well as studying. She reported persistent low back pain following the accident which she felt progressively deteriorated over time. She had a gastric sleeve operation and lost 40 kg.
Medical Assessor Kenna noted that Ms Shinko went two years without any radicular symptoms involving the lower extremity until there was an episode in bed in early 2023 when she turned over from the prone position and in doing so, experienced low back pain with acute radicular symptoms involving the lower extremity. He concluded she had extruded the disc at the L5/S1 level which was confirmed on imaging. Her weight again ballooned from 80kg to 102 kg. Subsequently Dr Abraszko recommended an operative procedure due to the large L5/S1 disc protrusion.
Following the accident and prior to the incident two years post-accident the MRI findings did not indicate the presence of any disc protrusion or extruded material and nor were there any clear signs of radiculopathy.
Medical Assessor Kenna concluded the requirement for surgical decompression was due to the extrusion which occurred two years post-accident. The need for surgery related to the incident two years post-accident and not to the accident.

REVIEW PROCEDURE

The certificate of Medical Assessor Kenna was not made available to the parties until 10 October 2023. The claimant lodged an application for review of the medical assessment on 20 October 2023 within 30 days of the date on which the certificate was made available to the parties.
On 30 November 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act, 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[2]
[2] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.

EVIDENCE BEFORE THE REVIEW PANEL

Pre-accident treating records

Liverpool Hospital

Ms Shinko presented to hospital following a motor vehicle accident whilst changing lanes at 80kmph. Her injuries included lower lumbar tenderness.

Hoxton Park Medical Centre

Ms Shinko had a history of Crohn’s disease, obesity and GORD (gastrointestinal reflux disease).
On 18 March 2019 Ms Shinko attended following her involvement in a rear end collision on 17 March 2019. A CT scan showed no acute fracture. Her headache was slightly improved, and she had no dizziness and no weakness.[3]
[3] Claimant’s bundle p 56.
On 14 October 2019 it was reported Ms Shinko had undergone a recent sleeve gastrectomy.

Post-accident records

Statement of claimant dated 14 May 2021

Ms Shinko provided a statement dated 14 May 2021.[4] At that time she was 36 years of age.
[4] Claimant’s bundle pp 4 and 134.
She reported she was driving her vehicle on 25 February 2021 when a mini truck collided into the right side of her vehicle. She reported she instantly felt pain in her neck, shoulders and legs.
At paragraph 24 of her statement Ms Shinko stated in the days following the accident she as bedridden. She could not move her neck, and had bruises to her body, chest, arms and hips.
She states as a result of the incident she suffered from depression, anxiety, post-traumatic stress disorder, constant chronic shoulder pain and constant chronic neck pain. There is no mention of the lumbar spine.

Application for personal injury benefits

In the Application for personal injury benefits dated 8 March 2021 Ms Shinko described her injuries as:
·        whiplash;
·        internal and external bruising;
·        muscular injury on whole right leg, neck and back;
·        swelling of right shoulder;
·        cannot turn my neck all the way side to side & back to front without severe pain, and
·        severe back pain & cannot sit or sleep for long periods of time.[5]
[5] Claimant’s bundle p 184.

Ambulance report

The ambulance report states the claimant was complaining of cervical spine pain, pain of the right shoulder, right collar bone and right upper arm.[6]

Liverpool Hospital
[6] Claimant’s bundle p 192.

The Emergency Department (ED) Discharge Referral dated 25 February 2021 reported involvement in a moderate speed motor vehicle accident – T-bone collision. Ms Shinko complained of “neck pain right shoulder and right chest pain and right abdominal pain”.[7]

Hoxton Park Medical Centre
[7] Claimant’s bundle p 173.

On 3 March 2021 it was reported Ms Shinko had been involved in an accident where her car had been hit by another car from the side. She reported pain in the cervical spine, the anterior chest wall and the right shoulder.[8]
[8] Claimant’s bundle p 74.
On 10 March 2021 it was recorded she had sustained cervical spine pain and right shoulder pain. A Certificate of capacity/certificate of fitness dated 10 March 2021 has a diagnosis of “MVA and injury cervical spine and R shoulder”.[9]
[9] Claimant’s bundle pp 26 and 76.
On 24 March 2021 cervical spine and right shoulder pain was reported together with numbness in the right arm and upper limb.[10]
[10] Claimant’s bundle p 77.

Julyana Goergis, physiotherapist

In an Allied health recovery review (AHRR) dated 13 October 2021 Ms Goergis reported neck pain with radiculopathy, left C6 radiculopathy, neuralgia, paraesthesia, right lower back, right shoulder pain and anxiety.

Sam Bardough, chiropractor

In an AHRR dated 3 December 2021 Mr Bardough diagnosed meralgia paraesthesia (compression of the lateral cutaneous nerve of the thigh).
On 27 June 2022 and 11 July 2022 Mr Bardough recorded in his clinical notes as follows:
“Pt still reporting numbness and pain in the lower limbs bilaterally
Very tender on palpation
Can’t touch the lower back without significant discomfort
Rom still reduced and limited significantly”.[11]
[11] Insurer’s bundle pp 346, 347.
On 20 September 2022 Mr Bardough reported the claimant was limping, her pain was getting worse, she had referred pain in both legs which felt like a crawling sensation.[12]
[12] Insurer’s bundle p 357.

Dr Balsam Darwish, neurosurgeon

In a report dated 27 April 2021 Dr Darwish reported the MRI scan of the lumbosacral spine on 13 April 2021 showed L5/S1 disc dehydration and annular tear but no obvious nerve root cauda equina compression.[13] He considered she had symptoms suggestive of left C6 radiculopathy and may require C5/C6 anterior cervical discectomy and fusion.
[13] Insurer’s bundle p 90.
On 10 June 2021 Dr Darwish reported Ms Shinko complained of neck pain radiating to the left upper limb and paraesthesia over the lateral aspect of the right thigh. He noted she was pregnant with twins.[14]
[14] Insurer’s bundle p 92.

Dr Renate Abraszko, neurosurgeon

On 6 April 2022 Dr Abraszko reported:
“On examination her gait was normal. She had altered sensation over the right thigh in the distribution of the right femoral nerve. She is overweight. … Examination of the reflexes in the lower limbs is normal. MRI of the lumbar spine from 12 April showed L5-S1 disc dehydration and annular tear. There is no obvious nerve root or cauda equina compression. …”
On 27 July 2022 Dr Abraszko reported:
“MRI of cervical spine revealed mild disc bulge at C5-C6 level with no indentation of the spinal cord. MRI of the lumbar spine showed disc desiccation and disc protrusion slightly bigger at L5-S1 level than previously.”
On 19 October 2022 Dr Abraszko reported the bone scan revealed mostly arthritis, active plantar fasciitis and bilateral knee problems, active bilateral sacroiliitis and inflammatory markers. She reported the nerve conduction studies showed meralgia paresthetica on the left side rather than a left S1 radiculopathy. She thought the pain in the coccyx was due to psuedoarticulation and recommended a steroid injection.[15]
[15] Claimant’s bundle p 43.
On 29 March 2023 Dr Abraszko reported:
“Natalie was admitted to Liverpool Hospital and Campbelltown Hospital where she was brought by ambulance on 20 March 2023. She had a sudden onset of severe pain down to her left leg. At that time, there was tenderness over the lumbar spine. There was positive Laségue’s sign. Reduced power in L4 nerve root distribution. No clonuses. No scans were done. She had a previous scan in May last year, which showed L5-S1 disc bulge.
On today neurological examination of the lower limbs, Laségue’s sign is at 70 degrees on the left side. Power was slightly decreased in plantarflexion of the left foot, 4/5. Decreased sensation in the left L5 nerve root distribution.”[16]
[16] Claimant’s bundle p 45.
On 5 April 2023 Dr Abraszko wrote to the insurer seeking approval for surgery. She stated:
“We are seeking approval for the operation of Ms Natalie Shinko, presented with severe left leg pain and foot weakness due to large 5/S1 disc protrusion being a result of her injury on 24 February 2021. Please consider this as a matter of urgency due to severe pain and left foot weakness - … foot drop.”[17]

Campbelltown Hospital
[17] Claimant’s bundle p 41.

An ED Discharge Referral confirms the claimant presented on 19 March 2023 with “left sided back pain, radiates to left hip and thigh”.[18] The examination report was as follows:
[18] Insurer’s bundle p 86.
“LUMBAR
Tender L4/5.S1
L paraspinal tenderness L4/5
Passive SLR – positive L
LL NEURO
Sensation reduced posterolateral thigh and calf
Power
L2 – L5 R5
L3 – L4 R5
L4 – L4 R5
L5 – L4 R5
Sa – L5 R5
Knee jerk L = R brisk
Ankle reflex L – R brisk
No clonus
Downgoing plantars bilaterally.
Gait – antalgic, n focal deficits
Mob unaided.”[19]
[19] Insurer’s bundle p 88.
The assessment included “Has some mild weakness in L4/L5 distribution with associated paraesthesia – likely L4/5 radiculopathy”.

Medico legal reports

Dr John Sheehy, neurosurgeon

Dr Sheehy examined the claimant and provided a report dated 9 November 2021[20]. Ms Shinko was seven months pregnant with twins.
[20] Insurer’s bundle p 37.
He reported the claimant’s main symptom was right lateral thigh pain radiating from below the groin to as far as the knee associated with numbness over the lateral thigh and an electric pain at times in the lateral thigh. He reported the low back symptoms had improved.
On examination he reported lumbar movements were restricted, normal tone, power and reflexes in the lower limbs and an altered sensation of light touch over the right lateral thigh.
Dr Sheehy reported the accident caused an aggravation of underlying degenerative changes of the lumbar spine. He recommended treatment of lateral cutaneous nerve symptoms in the thigh. He addressed a question regard anterior cervical surgery, but no question was raised in respect of surgery for the lumbar spine.

Dr Anil Nair, neurosurgeon

Dr Nair assessed the claimant at the request of her lawyers and provided a report dated 6 August 2021.[21]
[21] Claimant’s bundle p 177.
He reported following the accident the claimant had significant pain in the subaxial cervical spine radiating into the upper extremities and pain in her lumbar spine radiating into the right lower extremity. He reported the pain in the lumbar spine is provoked by sudden activities with radiating into the right thigh region. He also reported paraesthesia in the right thigh region.
On examination he reported thoracolumbar range of motion was flexion 40º, extension 20º, rotation to the right 20º, rotation to the left 40º, lateral flexion to the right 20º and lateral flexion to the left 30º. He noted reflexes including knee and ankle jerks were present and symmetrical. The median hamstring reflex was present bilaterally. He noted she had paraesthesia over the anterior aspect of the right thing in a lateral femoral cutaneous never of the thigh distribution.
Dr Nair concluded Ms Shinko had clinical and radiological evidence of a C5/6 disc herniation and clinical and radiological evidence of L5/S1 degenerative disc disease. He also reported she had clinical evidence of meralgia paresthetica of the right thigh. He suggested she may require surgery to the cervical spine and decompression of the lateral femoral cutaneous nerve of the thigh.

Tia Gaffney, mechanical engineer

Ms Gaffney prepared a collision reconstruction analysis report dated 21 April 2023.[22]
[22] Insurer’s bundle p 44.
Photographs of the claimant’s Toyota Kluger demonstrates moderate damage to the right front corner, significant damage to the front bumper cover, rearward deformation to the right front quarter panel and the right front wheel. There is indirect damage to the bonnet and the entire bumper cover.
The insured vehicle was an Isuzu tabletop truck which sustained damage to the front bulbar and bumper bar.
The claimant’s vehicle was estimated to be travelling at 72 kmph and it was estimated she applied the brakes approximately one second prior to the accident. Ms Gaffney concluded at an impact severity of 22.6km/h the injuries sustained by the restrained driver were likely to be minor in nature.

SUBMISSIONS

Claimant’s submissions

The claimant provided submissions dated 20 October 2023.
The claimant submits Medical Assessor Kenna disregard the causal connection between the accident and the disc protrusion and the requirement for surgery.
The claimant relies on the report of Dr Abrazko dated 5 April 2023 who opined that the claimant suffered a large disc protrusion at L5/S1 due to the accident on 25 February 2021.
The claimant submits:
“If the Claimant suffered a disc protrusion in the subject accident on 24 February 2021, one would expect the material inside the disc to further extrude over time, further compressing the nerve root. Even if this process were accelerated by the claimant turning over in bed, the causal chain between the accident and the requirement for surgery would not be broken. The Claimant turning over in bed cannot be said to be a ‘novus actus’ (per the test articulated in Mahony v J Kruschich (Demolitions) Proprietary Limited and Another (1985) 156 CLR 522 )”.

Insurer’s submissions

Submissions dated 23 June 2023

The insurer provided submissions in respect of the treatment dispute dated 23 June 2023.[23]
[23] Insurer’s bundle p 22.

Pre-existing conditions

The insurer submits the claimant’s history of Crohn’s disease and obesity with gastric sleeve procedure in or around October 2019 are relevant to the subsequent peripheral nerve complaints in the lower limbs. Further, surgeon Dr Khaleal on 26 July 2019 noted a history of meralgia paresthetica in the left thigh.
The insurer also notes orthopaedic issues in 2018 and 2019 including right knee pain, chronic back pain and myalgia pain. Following an earlier motor vehicle accident on about 17 March 2019 there were complaints of lower lumbar pain and L3/4 spinal tenderness.

Supervening events

The insurer notes:
·        initial diagnostic investigations demonstrated no canal narrowing, discal change or nerve root compression;
·        an MRI of the lumbar spine over two years post-accident identified new pathologies at the disc and nerve roots;
·        bone scans demonstrate that the new pathology emerged in a context of widespread degenerative change and inflammatory symptoms;
·        a clinical history of obesity and meralgia paresthetica, and
·        pregnancy with twins associated with spinal symptoms.
Evidence that the accident did not cause a need for surgery as follows:
·        the airbags did not deploy. The accident’s mechanical parameters were not severe;
·        biomechanical engineer Ms Gaffney concluded the non-deployment of the airbags was indicated of an impact at less than 20kmph where the level of injuries were likely to be minor;
·        the NSW ambulance did not identify complaints of symptoms at the lumbar spine;
·        there is no record of complaint relating to the lumbar spine at Liverpool Hospital which investigated the cervical spine, the right shoulder, abdomen and pelvis;
·        the initial certificate did not identify an injury to the lumbar spine;
·        the MRI of the lumbar spine dated 13 April 2020 revealed no central canal narrowing or nerve root compression at any level. Mild degenerative spondylosis at L5-S1 and mild to moderate facet arthropathy at L4-5 and L5-s1 bilaterally;
·        the MRI of the lumbar spine of 4 May 2022 confirmed normal alignment and preserved disc heights;
·        a bone scan on 24 June 2022 found degenerative signs in joints at the shoulder girdle, hips, knees, small joints of the hands and feet with enthesopathy (soft tissue inflammation). The scan revealed active bilateral sacroiliitis consistent with wear and tear degenerative processes;
·        nerve conduction studies on 26 September 2022 revealed meralgia paresthetica on the left;
·        an admission to Campbelltown Hospital on 20 March 2023 with left sided back pain was diagnosed as musculoskeletal back pain as a result of her pregnancy, and
·        the MRI of the lumbar spine on 3 April 2023 revealed demonstrable change to the disc and nerve root after the earlier scan of 13 April 2021.

The need for surgery

Dr Sheehy found the claimant had sustained an aggravation of underlying degenerative changes of the lumbar spine. The claimant reported her low back symptoms had improved.
Dr Nair found evidence of L5/S1 degenerative disc disease. He made no surgical or treatment recommendations.
Dr Abraszko was not apprised of the pre-accident and post-accident history and was not able to properly consider the aetiology of the claimant’s presentation or the cause of the condition when she made a request for surgery on 5 April 2023.

Submissions dated 13 November 2023

The insurer provided submissions dated 13 November 2023 in response to the application for review.[24]
[24] Insurer’s bundle p 1.
The insurer notes that initial diagnostic investigations, including CT, MRI and nerve conduction studies, demonstrated no canal narrowing, discal change or nerve root compression. There was no evidence of disc protrusion following the accident. The insurer submits the bone scans demonstrated that the new pathology emerged in a context of widespread degenerative change and inflammatory symptoms. Medical Assessor Kenna has taken this into account.
The insurer also notes reports from Dr Darwish surgeon and Dr Nair, orthopaedic surgeon contained little complaint of lower back pain. There were no radicular symptoms and reflexes were normal. Notably Dr Sheehy neurosurgeon documented improvement in the alleged lower back symptoms.
It is noted that Medical Assessor Kenna documented the following:
(a)      references to the claimant’s weight, for which she has had gastric sleeve operative procedure and lost 40kg;
(b)     she delivered twins;
(c)      there were radiological findings of pre-existing degenerative change;
(d)     the claimant went two years without any radicular symptoms involving the lower extremity;
(e)     it was not until an episode in April 2023, that she experienced low back pain with acute radicular symptoms involving the lower extremity;
(f)      there were no clear signs previously of radiculopathy, and
(g)      the extrusion material on radiological imaging was new and not related to the motor accident. The pathology is not related to the accident.
The insurer also submitted Medical Assessor Kenna noted that prior to MRI imaging of the lumbar spine on 3 April 2023, over two years post-accident, no request for surgical intervention at the lumbar spine had been alluded to or proposed. The insurer submitted Medical Assessor Kenna clearly explained why he considered the need for surgery was not causally related to the accident but stemmed from the isolated incident in April 2023.

THE MEDICAL EXAMINATION

Ms Shinko was examined by Medical Assessors Stubbs at the medical suites at the Commission on 12 February 2024

Background

In 2021 when the accident occurred Ms Shingo was 36 years old. She was a dispensary technician working long shifts. Her husband was a consultant. They lived in a single story freestanding home.
Ms Shinko had a regular gymnasium membership which she paid monthly. She underwent a gastric banding procedure performed in 2019 for her then weight of 130 kg. She was on regular medication. The couple were keen to have a child and she was undergoing In Vitro Fertilization (IVF) treatment.
There was another motor vehicle accident in March 2019 when she was rear-ended. No claim was made.
On 25 February 2021 Ms Shinko was driving a 2020 Toyota Kluger which was hit on the driver’s side by a small truck. Ms Shinko’s mother was a front seat passenger. The cabin was deformed, and Fire and Rescue Services were required to open the driver’s door and extract Ms Shinko. She was taken by ambulance to the Liverpool Hospital as a possible back injury and assessed there.
The vehicle was towed away and written off. Ms Shinko’s husband hired a car to go to the hospital and took her home that day. The initial injuries were to the cervical spine, right shoulder and low back.
Ms Shinko has not returned to work since the accident. However, in part this is due to her participation in the IVF program. She was successfully delivered of twins in January 2022 approximately 11 months after the accident. She has continued taking maternity leave caring for the two infants who are now 25 months old.
After the accident there was an admission to the Campbelltown Hospital when she rolled over in bed during the night and developed acute sciatica. The twins were 13 months old at that stage. She was assessed in the hospital for a day or two and saw Dr Renata Abrasko who recommended surgery. The insurer declined and her back has improved.
The initial treatment after the accident was with a chiropractor who suggested she have an MRI scan for the right shoulder. That pain has continued to get worse. The low back pain has also worsened although there was a distinct change in character with the rolling over episode. That pain was aggravated by coughing and sneezing and tended to spread down the leg particularly to the outer side of the left foot. Those acute features have resolved now. There is low back pain which primarily starts at the small of the back and radiates into both buttocks. There is also a burning sensation in the outer side of the right thigh.
Presently she is not undergoing any treatment. The children are in childcare two days a week and she is walking regularly for exercise. The pain and numbness in the left leg that was distinct from the thigh has abated and it is now confined to patchy numbness on the lateral side of the right foot involving both the dorsum and sole of the foot.

Clinical examination

Ms Shinko was a cheerful cooperative lady. She is 167cm tall and weighs 105.5kg. She was able to dress and undress without assistance and wore a hospital gown over her underwear for the examination.
Ms Shinko was very cooperative in the clinical examination.
She climbed stairs using a handrail but has a normal walking pattern though with some weakness standing on tiptoes, some unsteadiness in a single leg stance and there was a positive right Trendelenburg sign.

Cervical spine

There is a modest degree of stiffness in the cervical spine but no spasm or guarding and no dysmetria. Neck movement was three quarter of the range in all directions.
Axial compression causes discomfort in the low back but no major pain in the neck. Ms Shinko reported the neck was occasionally painful and stiff and she occasionally sees the chiropractor for this. She said massage helps and she sometimes takes Lyrica. There was no hypersensitivity to light touch. Nerve root traction signs were negative. The Valsalva manoeuvre was negative. Brachial stretch tests were also negative.

Lumbar spine

There are similar findings in the low back. The pain starts in the centre of the lumbar spine and spreads into both buttocks although it is now uncommon for it to spread down into the calf. There was numbness with diminished sensation to light touch in the lateral border of the right foot. The girth of the upper and lower limbs was equal and clinical power was 5/5.
Knee extension was full when sitting but straight leg raising caused local low back pain. Movement was symmetrical but there was some local hypersensitivity in the small of the back. Range of motion was more restricted than the neck, about three quarters normal with fingertips to knees and with limited extension. Rotation of the whole trunk is about 4/5 of full range, and right equals left. Biceps, triceps, supinator, knee, and ankle jerks were all normal. The sensory disturbances were in the S1 dermatome and confined to the lateral side of the right foot.

The upper limbs

The upper limb examination was entirely normal. There was no wasting, excellent muscle strength and no evidence of any peripheral nerve root entrapment. Girth of the arms and forearms was equal between the two sides.

The lower limbs

Examination of the lower limbs also showed a full active range of movement. There was no difference in girth between the two sides of the thighs and calves. The only positive sign was the presence of an area of burning and numbness spreading down the lateral side of the thigh which is provoked by firm pressure just medial to the anterior superior Iliac spine. Sensation was diminished to light touch in this area as well. This is meralgia paraesthetica.

Consistency of presentation

Ms Shinko presented well with no inconsistencies.

Imaging

Medical Assessor Stubbs had the opportunity to view and comment on the imaging studies.

MRI lumbar spine, 13 April 2021

The report reads:
“Clinical notes: Ongoing lower back pain radiating to the right leg.
Report:
The last fully formed disc space is designated L5/S1. The conus medullaris is located at T12/L1.
Preserved lumbar lordosis, no spondylolisthesis. Vertebral body height is maintained.
L1-2, L2-3, L3-4 & L4-5: No central canal or neural exit foraminal narrowing. Moderate facet arthropathy on the left at L3-4 and bilaterally at L4-5.
L5-S1: Mild disc desiccation and probable small annular fissure. Small left paracentral disc protrusion, no central canal narrowing. No neural exit foraminal narrowing. Bilateral mild facet arthropathy with small facet effusions.
No incidental findings with the visualised retroperitoneal soft tissues.
Impression
- No central canal narrowing or nerve root compression at any level.
- Mild degenerative spondylosis at L5-S1 and mild to moderate facet joint arthropathy at L4-5 and L5-S1 bilaterally.”[25]
[25] Claimant’s bundle p 35.
Medical Assessor Stubbs noted the images show slight posterior displacement of L5 on S1. He reported the T2-weighted images show a somewhat distorted signal from the nucleus pulposis with a small posterior protrusion. The protrusion has lifted from the posterior longitudinal ligament from the upper border of S1 with a bright fluid signal coming from this region but this is separate from the intervertebral disc. The disc is a reasonably good height, the annular signal is well preserved but shows patchy changes with a mixture of dark and bright signal consistent with intervertebral disc degeneration. There is no disc prolapse in the transverse views only a mild senile bulge.

MRI cervical and lumbar spine, 4 May 2022

The report reads:
“Comparison is made to the previous MRI lumbar spine of 13/04/2021.
There is normal alignment of the lumbar spine. Vertebral body and anterior vertebral disc heights are preserved. There is desiccation of the L5/S1 disc. There is facet arthropathy along the lumbar spine which is most pronounced on the left at L3/L4 and L4/L5 where it is moderate.
From L1/L2 to L4/L5, there are mild posterior disc bulges, most pronounced at L4/L5 with no significant canal or foraminal narrowing.
At L5/S1, there is a mild broad based posterior disc bulge with a focal protrusion in the central to left paracentral zone which is slightly larger than previously. There is a small central annular tear. There is mild resultant left canal narrowing with disc contacting but compressing the descending left S1 nerve. There is no significant foraminal narrowing.
The visualised paraspinal tissues are unremarkable. There is an incompletely visualised T2 hyperintense structure measuring at least 56mm arising from the right kidney represents a cyst.
Comment:
Fairly similar appearances compared to previously. Although the L5/S1 disc protrusion seems to be slightly larger than previously. It contacts the descending left S1 nerve without causing compression.”
Medical Assessor Stubbs reported the T2-weighted transfer images are clearest in the sequence and show that there has been a disruption of the posterior portion of the posterior inferior annulus from its attachment to the posterior end plate of S1. The annular signal is still patchy but overall darker. He noted some of the annulus protrudes into a 1 or 2mm gap created by the slight rearward shift of L5 and S1.

Bone scan, 24 June 2022

The report in respect of the lumbar spine reads:
“Lumbar Spine and Pelvis and Hips:
[…] Active bilateral lumbar L4-L5, mild to moderate bilateral L5-S1 facet joint arthritis, mild reactive periostitis at the L3-L4 levels.
Conclusion:
[…] With regards to back pain:
a. There is active bilateral sacroiliitis more in keeping with the wear and tear degenerative process with no joint destruction but given the soft tissue inflammation suggest review with inflammatory markers in case there is an inflammatory component of the sacroiliitis.
In the inflammatory component is elevated ESR CRP etc then review with rheumatologist may be a consideration for assessment of spondyloarthropathy inflammatory sacroiliitis.
b. Overall, the findings in the pelvis/lumbar spine, favour bilateral sacroiliitis dysfunction with bilateral trochanteric bursitis osteitis pubis and lumbar facet joint arthritis as described. The L4-L5 facet joints are the most active.”[26]
[26] Claimant’s bundle p 40.
Medical Assessor Stubbs reported the whole-body bone scan showed uptake isotope in the metacarpophalangeal joint index finger of the left hand, the medial side of the right elbow, the C56 intervertebral disc with mild activity about the upper thoracic spine, sacroiliac joints bilaterally, and the spine but not the lower lumbar spine. Bone scanning measures isotope uptake in bone. Increased isotope uptake indicates repair/remodelling and shows the presence of active processes like osteoarthritis and bone repair in the early stages.
The absence of activity in the lumbosacral region of the spine two years after the accident would be consistent with resolution of any process caused by the accident. Whilst it does not provide any useful information about the impact of the accident it does confirm stability at the lumbosacral junction and that no active process is occurring.

Nerve conduction study, 26 September 2022

The report reads:
“Conclusion:
The EMG study shows:
Mild chronic neurogenic changes with no evidence of active denervation in the muscle innervated by the left S1 nerve root.
No evidence of right or left L5 and S1 nerve roots significant impingement from the L5/S1 disc protrusion.
No evidence of femoral neuropathy and L2 or L3 nerve root pathology for the numbness on the lateral aspect on the right thigh.
In summary:
The numbness on the lateral aspect of the right thigh is due to lateral femoral cutaneous nerve lesion, hence meralgia paraesthesia.
There is no clinical or electrophysiological evidence of significant impingement on the right or left L5and S1 nerve roots.”[27]

X-ray of the lumbar spine, 14 October 2022
[27] Claimant’s bundle p 33.

Medical Assessor Stubbs noted the X-ray of the sacrococcygeal spine demonstrated slight posterior displacement of L5 on S1 of one to two mm and a minor posterior superior endplate defect on S1 but no calcified tissue.

MRI lumbar spine, 3 April 2023

The report reads:
“Clinical notes: Left leg radiculopathy
Comparison: MRI lumbar spine dated 04/05/22.
The last fully formed disc space is designated L5/S1. The conus medullaris is located at T12/L1. Preserved lumbar lordosis, no spondylolisthesis. Vertebral body height is maintained. No incidental findings with the visualised retroperitoneal soft tissues.
L1-2, L2-3, L3-4, L4-5: No central or neural exit foraminal narrowing. No facet arthropathy.
L5-S1: Disc desiccation and left paracentral/subarticular disc protrusion with new superimposed extruded component that is compressing the descending left S1 nerve root. No central canal narrowing. Bilateral mild neural exit foraminal narrowing. Bilateral mild to moderate chronic facet arthropathy.
Impression
[28] Claimant’s bundle p 37.
Chronic left paracentral/subarticular disc protrusion with new superimposed extruded disc material tracking into the left lateral recess and compressing the descending left S1 nerve root.”[28]
Medical Assessor Stubbs viewed the images and noted there was a slight posterior shift on L5 on S1 with a central posterior disc protrusion. He noted there had been repair of annular detachment from S1. The annulus is generally darker and more uniform than shown on the two earlier MRI scans. The extent of the disc bulge has increased over the two year period.
Comparing the three MRI images sequentially Medical Assessor Stubbs reported there has been a slight increase in the annular disruption which has occurred associated with a small ossification centre which limits the disc protrusion. The bulge is noticeably larger in the most recent images but the retrolysis hasn’t progressed. Detachment of the annulus at the endplate of S1 posteriorly is noted on the first two films and progresses to resolution on the last film. Endplate detachment is thus resolved by the time of the clinical intervertebral disc prolapse. The variegated annular signal on the first MRI scan at L5-S1 progressively resolves. This fits with the clinical picture of the intervertebral disc prolapse, the relative mismatch between intervertebral disc hydration and annular strength that occasionally occurs as part of normal disc aging.

PANELS DETERMINATION

Does the proposed surgical treatment relate to the injury caused by the accident

In AAI Limited v Phillips[29] Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the Motor Accident Compensation Act 1999, a provision in similar terms to s 3.24(2) of the MAI Act.
[29] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Davies J found the motor accident need only be a material contribution to the need for treatment and he further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
The claimant submitted she suffered a disc protrusion on 25 February 2021 following by a continuation of pathology over time further compressing the nerve root and even if the process was accelerated by the claimant turning over in bed the causal chain would not be broken.
There is a gap between the motor vehicle accident of 25 February 2021 and the onset of the established lumbar disc prolapse on 20 March 2023.
In the interval Ms Shinko successfully completed a ful- term twin pregnancy and cared for two infants, one still cot bound and the other just learning to walk. Which did not support the diagnosis of left intervertebral disc prolapse and radiculopathy.
There was no complaint of lower back pain recorded in either the report of the NSW Ambulance Service or in the clinical records of Liverpool Hospital immediately following the accident. However, the Application for personal injury benefits dated 8 March 2021 referred to severe back pain although the claimant’s statement dated 14 May 2021 made no mention of lower back pain. Mr Shinko consulted her general practitioner on 10 March 2021 and on 24 March 2021 when the focus was on the cervical spine and right shoulder, with no mention of lower back pain.
On 27 April 2021 Dr Darwish reported the MRI scan of the lumbosacral spine dated 13 April 2021 disclosed disc dehydration and annular tear but no obvious nerve root compression.
On 6 August 2021 Dr Nair considered there was radiological evidence of L5/S1 degenerative disc disease and evidence of meralgia paresthetica of the right thigh. He considered she may require surgery to the cervical spine and decompression of the femoral cutaneous nerve of the thigh.
On 9 November 2021 Dr Sheehy reported the accident caused an aggravation of underlying degenerative changes of the lumbar spine but the only surgery proposes was in relation to the cervical spine.
On 3 December 2021 Mr Bardough chiropractor diagnosed meralgia paraesthesia and on 27 June 2022 and 11 July 2022 he recorded back pain, numbness and pain in the lower limbs and reduced range of motion. By 20 September 2022 he reported the claimant was limping and described the referred pain in both legs as “like a crawling sensation”. The Panel notes Ms Shinko was under the care of Dr Abraszko at this time who also considered the leg complaints to be symptoms of meralgia paraesthesia.
In her report dated 19 October 2022 Dr Abraszko did not find radiculopathy rather she considered the left-sided pain was due to meralgia paraesthetica and the low back pain was due to a pseudo articulation of the coccyx.
Dr Renata Abrasko confirmed a florid intervertebral disc prolapse with radiculopathy on 29 March 2023 and requested permission for immediate surgery. In her letter of 5 April 2023, she stated she believed the disc protrusion was caused by the accident two years earlier.
The MRI studies of 13 April 2021 shows a probable annular fissure. The MRI studies of 4 May 2022 demonstrate a small left paracentral disc protrusion at L5 /S1, similar in appearance but slightly larger than previously. However, the radiologist reporting on the third MRI on 3 April not only observed a left paracentral disc protrusion but also a superimposed extruded component that was seen to compress the descending S1 nerve root.
Intervertebral disc prolapse generally occurs between the ages of 30 and 55 and in the experience of the Medical Assessors the majority of disc prolapses occur in the morning when the disc is at maximum hydration and generally during the usual activities of daily living although they can occur as a result of misadventure. The clinical picture is usually of immediate and disabling pain with the development of inflammation which becomes progressively worse over time.
The Panel finds if the accident contributed to the disc prolapse it would have expected the progression of symptoms in the immediate post-accident period.
Having regard to the absence of significant and disabling pain and of radicular features between the accident and 20 March 2023 the Panel finds the disc prolapse occurred when Ms Shinko rolled over in bed resulting in experienced low back pain with acute radicular symptoms involving the lower extremity.
Whether or not the proposed surgery is reasonable and necessary the Panel finds the chain of causation has been broken by the action of the claimant in rolling over in bed. Until the events of 20 March 2023 the Panel notes there was no suggestion surgery to the lumbar spine was required even though the claimant had been under the care of neurosurgeon Dr Abraszko for the near 12 month period preceding that date and had consulted neurosurgeon Dr Darwish in April and June 2021. Whilst there was paraesthesia over the lateral aspect of the left thigh it was generally agreed it was as a result of meralgia paresthetica.
Furthermore, in the two year period between the accident and rolling over in bed on 20 March 2023 the claimant had been assessed by neurosurgeons Dr Nair and Dr Sheehy for medico-legal purposes and neither considered Ms Shinko required decompressive surgery at the L5/S1 level.
The Panel finds the proposed surgical treatment does not relate to the injury caused by the accident.

Whether the proposed surgical treatment is reasonable and necessary in the circumstances

The Panel notes that clinical studies have shown that the normal course is for reabsorption of the protruded annulus over a period of time, although it is conceded that surgery may be required for a massive disc prolapse or a persistent one.
The clinical course is for the expected resolution of symptoms and that is what has occurred.
The Panel notes that on examination Medical Assessor Kenna found no evidence of ongoing radiculopathy when he examined the claimant on 11 August 2023. This was consistent with the findings of Medical Assessor Stubbs.
Whilst the claimant continues to experience some low back pain the pain and numbness in the left leg has abated and is confined to patchy numbness on the lateral side of the right foot. The claimant is not undergoing treatment. The Panel finds the proposes surgery is no longer clinically indicated where it is apparent non-operative treatment has been resulted in the ongoing resolution of the leg pain and sciatica.
The Panel finds the proposed surgery is not reasonable and necessary in the circumstances.

CONCLUSION

The Panel affirms the certificate of Medical Assessor Kenna dated 10 October 2023.
The Panel determines the request for lumbar spine – decompressive surgery at 1 level does not relate to the injury caused by the accident.
The Panel determines the request for lumbar spine – decompressive surgery at 1 level is not reasonable and necessary in the circumstances.

[2024] NSWPICMP 246

23 April 2024