Slocombe v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Slocombe v AAI Limited t/as GIO [2022] NSWPICMP 491
CLAIMANT:	Lisa Slocombe
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Chris Oates
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	1 December 2022
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (1999 Act); medical dispute about whole person impairment (WPI) and Review of Medical Assessor’s (MA) assessment of (no injury) and no permanent impairment under section 63 of the 1999 Act; claimant’s musculoskeletal injuries had been assessed at 9%; further assessment sought due to gastric reflux and rectal haemorrhage and anal seepage allegedly due to medication use; claimant had longstanding history of medication use and previous complaints of gastrointestinal issues and rectal bleeding; there were inconsistent histories and the claimant reported poor memory; therefore the Panel considered the claimant’s evidence unreliable; Held – gastric reflux was present before the accident, may have worsened but no additional impairment; claimant has experienced haemorrhoids since the accident which, on balance is due to medication use and attracts a 1% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate of Medical Assessor Truskett dated 8 December 2021. 2. Certifies that Lisa Slocombe’s degree of permanent impairment resulting from the injuries sustained in the 28 February 2017 motor accident is not greater than 10% based on: (a) the Panel’s assessment of the impairment from the claimant’s colorectal injury, and (b) the certificate of Medical Assessor Assem dated 18 December 2019.

STATEMENT OF REASONS

introduction

Lisa Slocombe was involved in an accident on 28 February 2017. She was a passenger in a car driven by her husband when there was a collision with a car that ran a red light.
She made a claim for damages against GIO, the third-party insurer of the at-fault vehicle.
A medical dispute has arisen during the course of the claim concerning the claimant’s whole person impairment (WPI) which is relevant to her claim for non-economic loss damages. The claimant referred that dispute for assessment and on 18 December 2019 Medical Assessor Assem issued a certificate which says that the claimant’s WPI was 9%.
On or about 9 February 2021 the claimant lodged an application for further assessment in relation to additional injuries, not assessed by Medical Assessor Assem being gastric reflux and rectal haemorrhage and seepage.
Those proceedings were referred to Medical Assessor Truskett and on 8 December 2021, he determined that the injuries he was asked to assess did not result in any impairment.
The claimant was dissatisfied with that result and lodged an application for review with the Personal Injury Commission (the Commission). A delegate of the President determined there was reasonable cause to suspect a material error in Medical Assessor Truskett’s decision and the President has convened this Review Panel (the Panel).

Legislative framework

General

Ms Slocombe’s claim and her entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are limited and restricted by the provisions in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[2].
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment such as Medical Assessor Assem’s, further medical assessments such as Medical Assessor Truskett’s and the review of medical assessments by the current Panel[3].
[3] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Chapter 10 of the AMA 4 Guides provides for the evaluation of permanent impairment of the digestive system. There are several tables in this chapter possibly relevant to the assessment of the claimant’s alleged injuries as follows:
(a)    Table 2 concerns the assessment of upper digestive tract disorders (oesophagus, stomach, duodenum, small intestine and pancreas);
(b)    Table 3 concerns the assessment of colonic and rectal impairments;
(c)    Table 4 provides for anal impairment, and
(d)    Tables 5 (stomas), 6 (liver and biliary tract) and 7 (hernias) are not relevant to this claimant or her assessment.
Clauses 1.244-1.249 of the Guidelines provide further guidance in terms of the effects of medication as follows:
“1.247 Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0 - 2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides). Upper digestive tract disease caused by the use of anti-inflammatory medications resulting in severe and specific signs or symptoms must be assessed as a class 2 impairment according to Table 2 (page 239, AMA4 Guides).
1.248 Colonic and/or rectal disease caused by the use of opiate medication must be assessed as 0 – 2% WPI class 1 impairment according to Table 2 (page 239, AMA4 Guides). Assessment of constipation alone results in 0% WPI.”

assessment under review

Medical Assessor Truskett examined the claimant on 3 December 2021. The claimant attended with her personal nurse and carer.
The Medical Assessor was asked to assess the following injuries:
(a) gastric reflux – stomach, and
(b) rectal haemorrhage and seepage – colorectal.
Medical Assessor Truskett took a history from the claimant as follows:
(a)    Ms Slocombe was born in Samoa and came to Australia after finishing school;
(b)    she worked in administrative and customer service roles and said she was working a few months before the accident (which the assessor suggests is not verified by the records);
(c)    she had no previous surgery but was diagnosed with discoid lupus in 2011 with her only symptom being a rash (which the assessor suggests is not verified by the records which suggest joint pain was present) and said she had no gastrointestinal issues before the accident (which the assessor says is also not verified by the records);
(d)    Medical Assessor Truskett has a history of the claimant being in the front passenger seat at the time of the accident;
(e)    Ms Slocombe told Medical Assessor Truskett that a car failed to stop at traffic lights and the offending vehicle struck the right (driver’s) side of their vehicle and the airbags deployed. She thought she may have hit her head because she was knocked out “for a few minutes”;
(f)    emergency services attended the scene of the accident and Ms Slocombe was assessed by ambulance personnel as was her son. Her son was transported to hospital, had treatment in emergency but was not admitted. She followed the ambulance but was not assessed at the hospital, and
(g)    she went to her general practitioner (GP), Dr Patu, had imaging and was given prescriptions for medication. She described having “a dislocation of her neck” (which the Medical Assessor doubts is the correct diagnosis). She said she was referred to a neurosurgeon and orthopaedic surgeon but could not recall their names. She was seen by rheumatologist, Dr Liew who made no recommendations for treatment. She had physiotherapy and sees a psychologist.
In terms of current symptoms, Medical Assessor Truskett took a history of the onset of upper and lower digestive tract issues about a year before his examination (that is three years after the accident). Ms Slocombe complained of:
(a)    epigastric pain – present all the time and made worse with medication. Reflux is worse with processed food. She vomits two to three times a day but has gained 20kg (weighing 80kg five years ago) she says due to reduced activity;
(b)    lower abdominal pain – on a daily basis, four times a day up to five minutes and is colicky worse with overeating or drinking fizzy drinks;
(c)    bowel habits – the claimant said she opened her bowels a few times a week with loose motions. She wakes from sleep to open her bowels but is unable to do so (every day). She says she has no control over her bowel function and this has been present for 18 months;
(d)    rectal bleeding and pain on defaecation (said to have commenced a year previously that is in 2020), and
(e)    back pain from the top of her neck to her tailbone and pain in the left and right side of her legs with palpitations of the heart.
Medical Assessor Truskett has a list of 14 medications the claimant says she takes:
(a)    Nurofen four per day for the past four years;
(b)    Nonsteroidal anti-inflammatory;
(c)    Cymbalta 60mg one daily;
(d)    Antidepressant one daily for two years;
(e)    Lyrica 150mg one daily for four years;
(f)    Lyrica 75mg one in the morning for four years. (Pain modulator);
(g)    Movicol sachets one daily for two years. (Laxative);
(h)    Palexia 50mg Immediate Release half to one twice a day;
(i)    Palexia Slow Release 50mg one tablet twice a day as directed for four years. (Narcotic analgesic);
(j)    Panadeine Forte 500mg one to two tablets per day since the accident. (Narcotic analgesic);
(k)    Panamax 500mg two tablets three times a day. (Simple analgesic);
(l)    Plaquenil 20 mg tablet one three times a day for lupus;
(m)     Rectogesic cream twice daily to anus for anal pain;
(n)    Scheriproct ointment twice daily to anus, and
(o)    Somac 40mg one daily for three years. This is a proton pump inhibitor for dyspepsia which Medical Assessor Truskett says the medical records indicate she has been taking since February 2016.
His examination of the claimant includes the following:
(a)    the claimant’s nurse was dressed in uniform and Ms Slocombe asked her to massage her back during the assessment. The nurse also helped Ms Slocombe on and off the couch;
(b)    the claimant stood a few times during the assessment;
(c)    she smokes but does not drink and weights 103kg (which she says is up 20kg and that five years ago at the time of the accident she weighed 80kg). Medical Assessor Truskett notes this puts her in the obese class 2 (out of 3) category;
(d)    there was generalised tenderness but no guarding, release and percussion tenderness. He says “this degree of tenderness is usually found in the presence of peritonitis” which she does not have,
(e)    there were no swollen organs and no palpable masses and no ascites or abdominal wall or groin hernias, and
(f)    on examination of her perineum her anus was closed with a small tissue in the cleft and some skin tags but no evidence of prolapsing haemorrhoids or incontinence and no anal fissure could be seen.
He summarises the various medical and medico-legal reports of relevance and notes the presence of the shopping centre fall in 2014 which led to a claim and litigation. The claimant said that at that time she had diarrhoea and not constipation with rectal bleeding.
He refers to the claimant’s medico-legal expert, Dr Vickers’ report of 29 August 2020 and says:
“Medical records indicate that she had been taking narcotic analgesics and nonsteroidal anti-inflammatants for many years prior to the motor vehicle accident and there is therefore no relationship to taking these medications and her motor vehicle accident. It is clear that Dr Vickers has made his conclusion based on [an] incomplete history of prior medications and prior gastrointestinal symptoms that can be found in her medical records of her general practitioners.”
Medical Assessor Truskett thought there was inconsistency in the history compared to the examination and noted Ms Slocombe’s pre-accident pain killing medication before the accident included Celebrex and Panadeine Forte two tablets three times a day from 2014. He notes the history of haemorrhoids and bleeding and a referral to the Liverpool Gastroenterology Department a month before the accident.
He said he challenged her on the many inconsistencies, and she said her GP had made mistakes in the written records.
He said she had pre-accident dyspeptic symptoms and rectal bleeding evident in the records before the accident which she denied. He notes she claimed “massive weight gain” which was not substantiated in the medical records
He suggested there was no mention of the accident in her first GP’s notes and that she had a different GP who she saw after the accident.
Medical Assessor Truskett was not satisfied there were any injuries caused by the accident and therefore found no impairment.

Other assessment – Medical Assessor Assem

The claimant attended an examination with Medical Assessor Assem on 13 December 2019 for the first WPI of her physical symptoms. She attended with her husband but no nurse.
Medical Assessor Assem was asked to assess:
(a)    neck – C4-5 annular tears with disc protrusion at C5-6 and C6-7 and soft tissue injury;
(b)    lower back – facet arthralgia and radicular complaints with sciatica and annular tears and/or disc protrusions at L3-4, L4-5 and L5-6 and soft tissue injury;
(c)    left shoulder – referred pain from the neck and subacromial bursitis, deltoid pain and supraclavicular brachial plexus soft tissue injury;
(d)    right shoulder – referred pain and soft tissue injury, and
(e)    right knee – retro patellar crepitus with chondral fissuring and soft tissue injury.
The Panel notes that the claimant did not seek any assessment of gastrointestinal or abdominal injuries in her 2019 application for assessment which supports her history of symptoms emerging the year before her assessment with Medical Assessor Truskett (2020).
Medical Assessor Assem has a history of the claimant not working at the time of the accident but that she was caring for her father who had an aortic aneurysm.
The claimant “denied any previous musculoskeletal accident, injuries or complaints” however Medical Assessor Assem put to her the total and permanent disability application she made in 2016 which “she was unable to explain”.
Medical Assessor Assem read to her the various entries in GP notes regarding her fall in 2014. The claimant said her motor accident injuries are different and that the pain is more intense. She said she never needed a walking stick before the accident.
Medical Assessor Assem took a history from the claimant of their car t-boning another car as it turned in front of them (therefore they hit the other car’s passenger side). He also has a history of her sitting in the back seat, behind her husband and hitting her head against the seat in front and twisting her left knee. The Panel notes this history is more fulsome than paragraph 17 in the claimant’s statement of 2 February 2021 and is a history, in the Panel’s view that could only come from the claimant.
Ms Slocombe told Medical Assessor Assem she went to Dr Patu “as he is able to communicate in the Samoan language”.
The claimant’s current symptoms included:
(a)    no significant improvement in her condition;
(b)    reliance on a walking stick intermittently since the accident;
(c)    her neck was sore with pain in her head and she takes six to eight Panadol a day for relief;
(d)    pain in both shoulders;
(e)    pain in her back radiating to her left hip and left leg;
(f)    pain in both knees;
(g)    pain in both elbows, both wrists, all her fingers, pain in the chest, ankles and abdomen, and
(h)    facial pain involving her nose, watery eyes and pain in her cheeks.
The Panel notes that apart from abdominal pain there is no complaint to Medical Assessor Assem of reflux, haemorrhoids or other gastrointestinal symptoms.
Ms Slocombe told Medical Assessor Assem she was taking Panadeine Forte, Cymbalta, Nurofen and Voltaren. The Panel notes that when examined by Medical Assessor Truskett, two years later, the claimant was apparently taking 14 medications.
Medical Assessor Assem noted inconsistencies in that the claimant denied previous musculoskeletal issues, but the records disclosed a long history of similar symptoms relevant to her lupus and the fall. He noted attendance on Dr Patu two days after the accident and Dr Hoang a week after the accident then a gap of several months without seeing any doctor at all.
Medical Assessor Assem said:
“She now has widespread complaints that cannot be explained on the basis of the accident or any organic basis. In fact, it was difficult to find a part of her body where she was not experiencing pain. Dr Liew tried to explain her symptoms on the basis of fibromyalgia as there was no other possible medical explanation.”
Medical Assessor Assem reviewed the documentation and diagnosed soft tissue injuries to the neck, lower back, right and left shoulder and right knee and found 9% WPI (neck 5%, right shoulder 2% WPI and left shoulder 2% WPI).
The Panel has concerns about Medical Assessor Assem’s findings due to the very different history given to him and in her statement as to the mechanics of the accident. There is a history of the claimant’s vehicle hitting the passenger side of the offending vehicle when it turned right in front of them (to Medical Assessor Truskett) as opposed to the offending vehicle hitting the driver’s side of the claimant’s vehicle as it failed to stop at a red light (to Medical Assessor Assem). The claimant was either sitting in the front seat being hit by the airbag or sitting in the back seat and hitting her head on the seat in front of her. This is a significant discrepancy and gives the Panel cause to question the assessment of the claimant’s musculo-skeletal injuries.
However, for the purposes of this assessment, noting the Panel is restricted to considering the claimant’s reflux and anal seepage issues, the Panel will adopt the findings of Medical Assessor Assem.

submissions

Claimant’s submissions

The claimant’s submissions in support of the review are dated 13 January 2022.
The claimant asserts Medical Assessor Truskett made an adverse finding about the claimant’s credibility on the basis she did not mention her car accident to her usual general practitioner (GP) in Prestons and she saw a new GP (Dr Patu) in Blacktown two days after the accident and did not mention to him an earlier accident in 2014.
The claimant says this is incorrect in that there is a reference on 3 March and 20 March 2017 to the car accident in the notes from the Prestons’ GP and multiple references to the car accident in Dr Patu’s records from 28 February 2017 onwards.
The claimant acknowledges that her credit is in issue but says there is a possibility the Medical Assessor had not read the entirety of the medical records.

Insurer’s submissions

The insurer accepts that Medical Assessor Truskett failed to refer to the 3 and 30 March 2017 attendances at Prestons Medical Centre but says this error is not material to the outcome of the assessment. The insurer says the injuries of gastrointestinal issues, haemorrhage and anal seepage only emerged long after the accident. The insurer also says that Medical Assessor Truskett did have a history of the claimant’s attendances on Dr Patu on 28 February 2017 and was aware of the onset of musculo-skeletal pain.

The insurer says Medical Assessor Truskett preferred the contemporaneous clinical entries and records and noted that inconsistencies in the records / history were put to the claimant however Medical Assessor Truskett did not make a finding of credit but an expression of his preference for the written records.
The insurer’s original submissions in respect of the further assessment include:
(a)    a comprehensive summary of the GP records;
(b)    a list (at paragraph 21) of the radiology and certificates from the GPs notes;
(c)    a summary of the claimant’s Centrelink file, and
(d)    a summary of the solicitor’s file in relation to the October 2014 fall including two medico-legal reports from Drs Sheehan and Oldtree Clark.

Procedural matters

The Panel met on 21 July 2022 and on 2 August 2022 issued a report and directions to the parties.
The Panel noted that The Prestons Medical Centre records [R5] and Dr Patu’s records [R6] were out of date (June 2018 and May 2020 respectively) and advised the Panel would be assisted by updated records and directed the claimant to provide them.
The parties were given the opportunity of providing any final submissions.
The claimant provided the records on 1 September 2022 (document AD6) but neither party has provided any further submissions.
The claimant provided two documents to Assessor Berry at the time of, or shortly after the medical examination on 25 October 2022 namely a statement from her nurse and a health summary document. These documents were received by the Panel and the parties provided with the opportunity to respond to them. No responses or further submissions were received.

What is in issue between the parties?

There is clearly an issue about the reliability of the claimant’s evidence in particular what she has told various doctors and the significance or otherwise of her pre-accident history.
The impairment related issues for the Panel to determine is:
(a)    What is the nature of any gastrointestinal or digestive injury or condition caused by the accident?
(b)    What is the impairment flowing from that injury or condition?
(c)    If any injury or condition is related to the consumption of medication is the need to consume that medication caused by any accident-related injury (e.g. to the neck, back, shoulders, knees)?

review of the evidence

Claim form and other evidence

The medical certificate attached to the claim form signed by Dr Patu and dated 24 August 2017 (page 246) provides a diagnoses of:
(a)    bilateral shoulder pain,
(b)    bilateral knee pain,
(c)    low back pain;
(d)    headaches, and
(e)    post-traumatic stress disorder.
The claimant was certified fit for pre-injury duties on 26 February 2017, but Dr Patu recommended massage, analgesia and physiotherapy.
The claimant has signed a statement dated 2 February 2021 in which she says:
(a)    she was diagnosed with Lupus in 2013, saw a dermatologist and it caused pimples;
(b)    she was upset after her grandmother died, saw a psychologist in 2015 (whose name she cannot remember) and had some counselling;
(c)    she fell at Macarthur Square in October 2014 and injured her right knee, hip, back and neck and she pursued a claim which settled in about 2016;
(d)    she had digestive upset due to medications in 2015 but “my recollection is that my digestive symptoms improved”;
(e)    she had a total and permanent disability claim through her previous lawyer PK Simpson “which was successful”;
(f)    she had rectal bleeding in early 2017, she had a referral to a gastroenterologist but she did not follow that up;
(g)    she was a back-seat passenger [17], there were three in the back seat and her brother-in-law was in the front seat. The airbags deployed “my head hit the dashboard very hard, and I also hit my chest on the dashboard. I blacked out and do not remember anything from the first few minutes after the collision”[20]. The Panel notes the inconsistency within the two paragraphs. If the claimant was a back-seat passenger how did she hit her head and chest on the dashboard? If she was sitting in the front seat and the airbags went off how did any part of her body his the dashboard?;
(h)    she was assessed by ambulance officers and advised to go to hospital, but she declined as she was worried about her husband and son and was in shock, and
(i)    she had pain in her neck and chest travelling into her shoulder with bad headaches, pain in both shoulders and pain in her knees.
The claimant’s nurse and carer Chrystel Orca provided a statement to Medical Assessor Berry dated 26 October 2022[5]. She says:
[5] This statement was shared with the parties and submissions invited in relation to it.
(a)    she was recently employed full time but had to reduce the amount of care provided as the cost was becoming too much for the claimant;
(b)    she could not attend the appointment with Medical Assessor Berry as she had flu-like symptoms;
(c)    she works part time at Royal Prince Alfred Hospital as a registered nurse and cares for Lisa two to three days a week;
(d)    she says she helps with the claimant’s day to day life, medications, taking her to appointments, showering her and clothing her, moving her around and taking her shopping and to the doctors;
(e)    she helps in the bathroom as the claimant burps and passes wind uncontrollably, she has sudden bowel movements at home and in public “due to her gastro conditions”;
(f)    she has pains and aches when walking and sitting for too long;
(g)    she “make her dietary meals”;
(h)    “I have seen Lisa at her worst times where she is extremely depressed and suffers anxiety, mood swings, troubled concentration or memory fatigue, irritated and has also mentioned suicide”;
(i)    she is constantly depressed and very sad and constantly cries. Lisa has nightmares and flashbacks from the accident, and
(j)    she believes the claimant needs a full time carer due to her accident on 26 February 2017.

Treating doctors and medical evidence

Radiology

There is a lumbar spine X-ray report dated 25 September 2017 addressed to Dr Patu noting painful and tender lumbar spine but no significant features (page 251).
An MRI of the claimant’s head undertaken on 7 February 2019[6] due to “unexplained chronic headache” was normal. A CT of the claimant’s abdomen and pelvis was undertaken on 29 March 2019[7] due to a history of “PR bleeding” and the results were scattered minor colonic diverticulosis but no other bowel abnormality.
[6] Page 41 of AD5.
[7] Page 42 of AD5.
An ultrasound of the claimant’s pelvis was done on 22 July 2020 with a history of “lower abdo pain” and multiple medications since 2017 with pain, constipation and diarrhoea. There was no uterine or ovarian pathology detected.

Treating specialists

Dr Mark Liew sent a letter to Dr Patu dated 1 August 2018[8]. He noted “incapacitating widespread pain to the musculo-skeletal system” which she related to the accident. She also said, “she has always been very active without any problem to the musculoskeletal system prior to the injuries in question”. He noted she was overweight and there were multiple soft tissue and muscle tender points but “no inflammatory arthropathy” although limited range of motion in the whole of the spine associated with discomfort and pain in all directions. He says:
“Widespread soft tissue pain to the musculoskeletal system. Spinal pathology such as a disc lesion, in particular to the cervical and lumbar spine not excluded. More recent development of fibromyalgia possible given chronic symptom complex of widespread pain, non-refreshed sleep and fatigue. Significant psychogenic component contributing to severe incapacitating pain complex probable”.
[8] Page 255 of the claimant’s bundle.
Dr Liew recommended a whole spine MRI plus exercise and core muscle strengthening with Lyrica from 75-150mg. After the MRI was received, he reviewed the claimant on 15 August 2018 and wrote a further letter to Dr Patu (page 257). He diagnosed widespread soft tissue pain with probable secondary fibromyalgia. He noted non-specific disc bulges to low cervical and lumbar spine with psychogenic components “contributing significantly to severity of symptom complex and disabilities”.
The Panel notes Dr Liew, like Dr Patu, did not have a history of the previous fall and soft tissue injuries or apparently the claimant’s diagnosis of lupus which casts doubts on his opinions.
Dr Atapattu, psychiatrist, wrote to Dr Patu on 7 November 2018[9] noting a history of mental health issues since the accident and a development of anxiety, anger and frustration. The claimant reported chronic pain and “a significant impact on financial aspects due to not being able to work and also an impact on the family life etc”. She said she had stopped work and studies since the accident. He notes her medication (Sertraline) and has “no history of mental illness”.
[9] Page 259 of the claimant’s bundle.
Dr Atapattu diagnosed symptoms of post-traumatic stress disorder and mixed anxiety and depression and recommended increasing her sertraline to 200mg. The Panel notes that Dr Atapattu was not given a history of the claimant’s previous mental health issues, or the 2014 supermarket fall which calls into question his opinions.
Dr Catherine Turner provided a letter to the claimant’s GP dated 1 July 2020[10]. In that letter Dr Turner has a history from the claimant of bleeding “on and off since 2017 often with defecation, the development of loose motions in the last year, bowel motions twice a day with blood and mucus in the stool”. No weight loss but “narcotics and medicines for anxiety” because of a car accident. The claimant’s abdomen was soft and non-tender and there was an anterior posterior haemorrhoid. She was planning a gastroscopy, colonoscopy and small bowel biopsy.
[10] Page 64 of AD6.
The result of the colonoscopy[11] revealed right sided diverticula otherwise a normal colon and 4^th degree haemorrhoids which would be the likely cause of bleeding.
[11] Page 65 of AD6 dated 3 November 2020.
The result of the upper gastrointestinal endoscopy[12] was that of a normal oesophagus, stomach and duodenum.
[12] Page 66 of AD6 and dated 3 November 2020.
While there are a number of test results and four or five referrals to Dr Turner, there is no further report from Dr Turner. The Panel notes that Dr Turner does not appear to have the full history of the claimant’s pre-car accident gastrointestinal issues.

Prestons Family Doctors

The notes of the Prestons Family Doctors (Prestons) record[13] the claimant was prescribed Panadeine Forte twice a day on 11 October 2016, 15 December 2016, 27 January 2017.
[13] Page 50 of the claimant’s bundle.
Other entries of relevance include:
(a)    6 May 2013 – neck pain on waking – Valium and Voltaren prescribed;
(b)    8 May 2013 – left knee pain (gout) – Valium prescribed;
(c)    14 and 20 June 2013 – gastro symptoms – nausea, vomiting, diarrhoea;
(d)    24 October 2013 – lupus diagnosis, facial rash and hair loss – weighed 93kg – low fat diet and exercise recommended;
(e)    1 October 2013 – lupus discoid – alopecia and generalised joint [pain] and malaise referral to Dr Graham rheumatologist;
(f)    14 March 2014 – Centrelink medical certificate – systematic lupus permanent facial rash, painful joints in ankles, knees, hands hair loss – unfit for work from 1 March to 1 June 2014;
(g)    19 May 2014 – lupus and depression – Centrelink medical certificate – “ankles and knees pain” unfit for work from 19 May to 17 August 2014;
(h)    31 October 2014 – fall last week and injured right leg, pain worse, body aches nearly everywhere – Panadeine Forte prescribed two tablets, four times a day;
(i)    11 October 2014 – post fall in August, still both shoulder and hip pain, headaches;
(j)    9 February 2015 – painful right knee and hip since fall;
(k)    13 March 2015 – normal brain CT fell on wet floor in shopping centre, lost job due to many sick leaves, pain persists in neck and occipital region, left wrist, restricted bilateral shoulder movement – Panadeine forte one to two tablets, three times a day;
(l)    25 March 2015 – osteophytes on neck, bilateral arm pain since fall headache – Voltaren 50mg one tab twice a day;
(m)     1 April 2015 – MRI shows degenerative changes all levels, ongoing headaches, neck pain, bilateral trapezius pain, ceased work due to pain, left wrist and forearm, depressed, lost her home – Cymbalta and Lyrica prescribed;
(n)    14 April 2015 – ongoing neck pain and left upper limb including wrist – Lyrica increased from 25mg to 75mg – referral to Dr Darwish “for opinion and management of ongoing neck pain with left upper limb radiculopathy, especially wrist pain”;
(o)    23 April 2015 – weight 96kg lifestyle changes – Celebrex, Cymbalta Lyrica and Plaquenil prescribed;
(p)    2 June 2015 – ongoing neck and trapezius pain, still depressed unable to work since accident;
(q)    26 June 2015 – bilateral knee, wrist and lower back pain since fall, Celebrex, Panadeine Forte, Plaquenil and Temaze prescribed;
(r)    8 July 2015 – chondral fissures in both knees, lower back pain associated with discopathy – Celebrex, Panadeine Forte and referral to Dr Dao for bilateral knee pain after fall and Dr Sheridan for lower back pain;
(s)    25 August 2015 – cervical spine tender along spine, restricted range of motion, left shoulder and left wrist tender. L5 disc prolapse. Cymbalta, Lyrica and Plaquenil – note Centrelink medical certificate page 158 – L5/S1 disc protrusion, both knees chondral fissure, left neck shoulder, neck, left wrist pain unfit from 25 August 2015 to 21 February 2016;
(t)    2 September 2015 – right shoulder pain as well as left wrist and left shoulder pain;
(u)    4 September 2015 – weight 101kg;
(v)    September 2015 – first left then right hearing loss – needed referral to ear nose and throat surgeon for severe profound hearing loss and form filled out for income protection;
(w)   1 October 2015 – referral to unknown doctor for opinion and management of severe hearing loss after a fall in the bathroom hitting left side of head on the bathtub;
(x)    25 November 2015 – Somac 40mg prescribed along with Celebrex, Lyrica, Planequil;
(y)    5 January 2016 – ongoing back pain from injury;
(z)    8 March 2016 – chronic pain, unable to help herself, needs assistance with housing dept of housing form filling in;
(aa)    3 March 2016 – ongoing neck pain and depression – Cymbalta prescribed;
(bb)    22 July 2016 – has triggered neck muscle and shoulder pain – says has past history of neck injury – tender right paracervical and shoulder muscle pain – Panadeine Forte prescribed, Voltaren prescribed and Cymbalta;
(cc)     1 August 2016 – still has pain in right shoulder muscle still has mild pain;
(dd)    7 September 2016 – total and permanent disability proceedings form;
(ee)    13 September 2016 – ongoing neck pain radiating both shoulders, back radiating to hips L5 disc prolapse, left shoulder pain – Lyrica changed from 75mg once a day to twice a day, Cymbalta, Panadeine Forte;
(ff)    11 October 2016 – ongoing shoulder pains, comes and goes, sometimes very severe. Requests for Cymbalta, Celebrex and Panadeine Forte – Centrelink medical certificate unfit for work from 11 October to 11 November 2016 due to ongoing neck and shoulder pains bilaterally – medications prescribed;
(gg)    9 November 2016 – bleeding after no 2 in the toilet paper – history of haemorrhoid – patient is very worried – Cymbalta prescribed;
(hh)    15 December 2016 – flared lower back pain, has past history of back problems, denies numbness in legs, currently taking Celebrex, tender and restricted range of motion, Panadeine Forte prescribed;
(ii)    Bleeding / rectum, constipation, no abdominal pain, no loss of weight, history of haemorrhoids when gave birth. On examination the claimant was said to have a “big anal skin tag” which the Panel notes is not the same as a haemorrhoid;
(jj)    27 January 2017 – back pain leg pains, not motivated to do anything, no energy to do anything – depressed but not suicidal – request for Panadeine Forte, needs to see physio and psychologist “letter to Liverpool hospital gastroenterology dept”. Referral for “bleeding PR history of haemorrhoids”. Panadeine Forte prescribed;
(kk)     7 February 2017 – claims ongoing pain neck, back, lower limbs, knees, shoulders, every day, not sleeping well. Also feeling stress from chronic pain, depression from unable to return to work, doing housework (Somac 40mg ceased). Referral to Southern Cross Counselling and psychological services;
(ll)    3 March 2017 – motor vehicle accident on Sunday – hit by another car – afebrile, generalised pain in neck, shoulder and lower back, referral for physio, advised, motor accident claim form – Panadeine Forte prescribed, letter to Liverpool Hospital gastroenterology department printed referral for lupus review;
(mm) 20 March 2017 – complains of feeling tired, neck muscle strain, says has past history of motor accident denies specific symptoms. On examination mild tender paracervical muscle normal neck range of motion. Looks ok not in pain or distress. Reason for visit tiredness and bloods requested, Norgesic prescribed. Letter to gastroenterology dept printed. Asked whether any insurance companies chasing her up. Referral to Dr Graham ongoing management of generalised joint pain and stiffness in her neck, lower back and knees possibly related to lupus;
(nn)    29 March 2017 – results and scripts for Celebrex, Cymbalta, Panadeine Forte, Plaquenil;
(oo)    13 June 2017 – vomiting, diarrhoea, lower abdominal pain, off appetite – appendicitis. Letter to Liverpool Hospital;
(pp)    14 June 2017 – lost her license due to traffic offences. Says that she is fit to do any work, very keen to do anything to get back to work – license form filled in for Liverpool Community Corrections office;
(qq)    27 June 2017 – regular medications except antidepressant, Plaquenil for lupus etc no known allergy. Diarrhoea since last night – watery and soft, blood on paper, feels weak, vomiting several times – thinks food related. Tummy pain, central, nil radiation, previous referral to the emergency department, did not attend – abdo soft, tender across over the lower tummy ? appendicitis – refer to emergency likely gastro once appendicitis excluded;
(rr)   3 August 2017 – came back from Samoa diarrhoea – not tenderness;
(ss)     22 September 2017 – vomiting and diarrhoea since eating mussels – no bleeding abdomen soft and tender;
(tt)    24 October 2017 – recent flu, body ache, abdominal pain, viral illness gastritis – Lyrica ceased, Somac prescribed, and
(uu)    1 November 2017 – epigastric pain, on Celebrex and Somac every day. Gastritis diagnosed - Movicol prescribed.
The updated records from Prestons indicate a variety of related and unrelated visits as follows:
(a)    24 January 2019 – gastroenteritis and a referral to Dr Turner was written;
(b)    February 2019 – haemorrhoids and rectal bleeding along with headache and left shoulder pain;
(c)    March 2019 – lower abdominal pain with constipation and bleeding. Ms Slocombe had been to the hospital but did not bring the referral letter or discharge summary;
(d)    26 March 2019 – abdominal bloating and small external anal tags were seen but no haematomas or anal tears;
(e)    3 January 2020 – the claimant complained of constipation and diarrhoea and a referral was written for Dr Turner;
(f)    22 January 2020 – Dr Hoang noted the claimant was on multiple similar medications and she was requested to stop the codeine based medicines due to her haemorrhoids. Cymbalta, Celebrex and Panadeine Forte were ceased;
(g)    11 March 2020 – a further referral to Dr Turner was given;
(h)    23 April 2020 – Dr Nguyen records “on and off [diarrhoea] from [medications]”;
(i)    16 June 2020 – another referral was written to Dr Turner, and
(j)    5 August 2020 the diagnosis was made of gastro-oesophageal reflux disease (GORD) and scripts were provided including Somac.
There were further attendances for bowel problems (October 2020) a flare up of haemorrhoids and diverticulitis (November 2020), painful haemorrhoids in May and haemorrhoids again in August 2021 and April 2022 with another referral to Dr Turner provided in May 2022 and again in July 2022. The claimant complained of constipation in August 2022.

Blacktown Doctors and Medical Centre

The claimant first attended Dr Patu on 28 February 2017 and completed a new patient registration on that date (page 241) which gave no past medical history, family history or medication history.
Of relevance are these notes
(a)    28 February 2017 – MVA 26 February 2017 – passenger front seat – post-traumatic stress disorder. Moderate, acute right shoulder pain, back pain – left knee pain, neck pain and headaches. Requested Panadol and Nurofen, CXR, right shoulder and C/s front seat passenger whiplash.
(b)    24 August 2017 – bilateral shoulder pain, bilateral knee pain, neck pain complete injury form.
(c)    11 September 2017 – lower back pain, shoulder and knee pain. X-ray L/S physio and Panadol osteo.
(d)    10 October 2017 – current complains whiplash neck, shoulder and arm pains, lower back and knee pains, bilateral thumb. Panadeine Forte.
(e)    23 January 2018 – knee pains – shoulder and lower back pains especially with prolonged sitting and standing, having physio and massage – stress with adjustment disorder? Depression Voltaren, Osteomol. Letter to Belal Ali and Associates (psychologists).
(f)    8 March 2018 – depression and anxiety getting more depressed. Lower back pain leg pain bilateral shoulder and neck headaches bilateral knee pain. Weight 103.4kg.
(g)    14 May 2018 – lower back, leg pain, bilateral knee pain, adjustment disorder. Osteomol, Zoloft.
(h)    8 June 2018 – bilateral shoulder and neck headaches, adjustment disorder. Referral Dr Liew rheumatologist. Osteomol and Zoloft prescribed.
(i)    10 July 2018 – review and assessment bilateral shoulder and neck – headaches, lower back pain – leg pain right shoulder pain.
(j)    30 July 2018 – depression anxiety, bilateral shoulder and neck headaches, lower back pain – leg pain seen by Dr Mark Liew today neuropathic pain. Lyrica prescribed.
(k)    31 August 2018 – neuropathic pain and anxiety.
(l)    14 September 2018 – depression anxiety having counselling anger agitation poor sleep due to back pain – taking Zoloft 50mg daily. Neuropathic pain lower back and leg pain.
(m)     18 October 2018 – lower back and leg pain bilateral shoulder and neck headaches having physio and counselling depression and counselling.
(n)    28 February 2019 – bilateral shoulder and neck – headaches anxiety depression. Zoloft 50mg changed to sertraline 100mg, Lyrica 25mg twice a day Osteomol.
(o)    24 May 2019 – depression anxiety disturbed sleep, anger, impatient, taking it out on husband and children – anxiety. Seeing psychiatrist, still sore back and shoulders and hips. Having home-based exercises and massage and medications – Lyrica ceased – not taking anymore, Osteomol, Sertraline.
(p)    10 September 2019 – adjustment disorder, depression anxiety, chronic neck and bilateral shoulder and low back pain.
(q)    31 January 2020 – bloated abdomen, nausea, constipation, past history of PR bleeding haemorrhoids, patient has another GP who sees and investigates her and has referred to gastroenterologist – weight 105.2kg.
In all of the referrals and the notes there is no reference to the fall or any previous history of musculo-skeletal issues.

Claimant’s medico-legal

Dr Vickers provided a report to the claimant’s solicitors dated 29 August 2020 in relation to Ms Slocombe’s gastrointestinal issues[14].
[14] Page 23 of the claimant’s bundle.
The claimant gave a history of being in the front passenger seat with her husband driving and two of their children in the car (the Panel notes there is no mention of the claimant’s brother and sister in law who were said to be in the car according to her statement), an impact from the driver’s side and the airbags deploying. She was in shock, not physically injured and did not go to hospital. Pain was said to develop over the next few days, “The seat belt at the time also caused a punched feeling in the abdomen and stabbing pains in the stomach”.
He has a history of:
(a)    irritable bowel syndrome – constipation, diarrhoea and sudden bowel urgency, strong medication use causing “drug induced spastic colon syndrome” requiring laxatives with rectal bleeding probably from congested piles;
(b)    gastro-oesophageal reflux disorder – heartburn due to pain medication, “mild pre-existing gastric reflux” and now Somac twice daily. Reflux events due to Voltaren and Celebrex. Claimant is overweight which would aggravate it;
(c)    abdominal pain and gas, causing embarrassment likely caused by seat belt injury;
(d)    change in diet – loves food but has to be careful and is on a restricted diet;
(e)    weight gain – has gained several kilograms due to an inability to exercise properly. Acknowledges she has always been overweight since her children, and
(f)    anal seepage – she says she has unpredictable powers with uncontrolled faecal discharges sometimes with gas and sometimes without changing her underpants several times a day and wears black slacks.
Dr Vickers has a list of current medications including:
(a)    Celebrex (one daily), Panadeine Forte (two daily), Voltaren (four daily);
(b)    Cymbalta (anti-depressant), Lamictal (mood disorder), and
(c)    Proctosedyl cream, Movicol 3 daily, Coloxyl two to four daily (Laxatives and haemorrhoid cream).
Dr Vickers considers:
(a)    causation is clear between the accident, the need for pain killing medication and anti-inflammatory drugs and the gastrointestinal injuries;
(b)    there is a probable connection between the abdominal pain and the seat belt injury producing a “neuro-motility disorder of the gut”;
(c)    there was a minor and irrelevant symptom of transient constipation about two years before the accident which has not affected the current issues, and
(d)    physical injuries have caused physical inactivity which has contributed to the severity of the reflux symptoms and stool urgency.
He notes the claimant was to have investigative gastroscopy and colonoscopy and she was to see a gastroenterologist and a pelvic floor physiotherapist with ongoing medication.
Dr Vickers does have a history of pre-existing mild gastric reflux during her pregnancies and constipation two years before the accident.
He says she is extremely restricted in domestic and social activities and reliant on her children. He says before the accident Ms Slocombe was looking for work “she did casual job of domestic cleaning of three houses for three morning per week”.
The claimant attended the examination with her daughter, walked slowly but with “no obvious physical disability of stance or gait” and there was no walking stick. The claimant weighed 113.4kg.
In a supplementary report he assessed the claimant’s WPI at 2% being made up of:
(a) gastric reflux requiring continuance twice normal antacid PPI drug therapy – 2% less 1% for pre-existing disorder, and
(b) rectal haemorrhages and anal seepage due to drug therapy causing constipation and anal sphincter dysfunction 1%.
The Panel considers it significant that Dr Vickers has no history of the 2014 accident or the claimant’s pre-accident consumption of pain killers, the pre-accident script for Somac and he has only one of the two versions of the mechanics of the accident. The Panel is of the view this therefore suggests it should not give any great weight to the opinions of Dr Vickers.

Insurer’s medico-legal

Dr Pascall

Dr Pascall is an occupational physician who examined the claimant at the request of the insurer on 25 June 2020.
Dr Pascall has a history of the claimant being a front seat passenger in a car with a green light which collided (on the passenger side) with a car which turned right in front of them. The claimant says the airbag went off and her body went forwards into the airbag (the Panel notes there is no mention of her chest or head hitting the dashboard as suggested in her statement). The claimant said she was unconscious for a minute, ambulance came and then her son and a friend came to get her and drover her home. Dr Pascall says the claimant went to Prestons and saw one of the doctors there then went to Dr Patu. The Panel notes the records do not suggest the claimant went to Prestons before the claimant first saw Dr Patu.
Dr Pascall has a history of persistent and worse neck pain than a year ago and it is worse than her lower back pain. Both hands are weak, and she has headaches. She has pins and needles in both hands. Her arms feel heavy and stiff, and her daughter does her hair.
She cannot wipe her bottom on the toilet because of lower back pain and her daughter has to get her up and off the toilet.
The claimant says she was an active mother and sports person before the accident.
She does not go out much but still goes to church.
Dr Pascall reviewed the radiology and notes the treatment provided and medication prescribed. The claimant said she had massage which is of no benefit.
She confirmed the diagnosis of Lupus but the claimant was confused about the date it was diagnosed. She said he had no joint pain just a rash on her face.
The claimant told Dr Pascall about the 2014 fall and said she fell back but did not hit her head. She had lower back and neck pain and that pain in her back went up the neck. The claimant said she could still play volleyball and do all her housework and was sleeping well after this accident. The pain after the 2014 accident was not as bad as this pain.
The claimant complained of diarrhoea, chronic abdominal pain, rectal bleeding and says she has been referred to a specialist but had not seen them.
The claimant said her weight had been up and down as low as 79kg but in the three years since the accident has increased to 100-105kg.
The claimant said she gave up work in 2015 or 2016 to care for her father but at the time of her accident had been for some job interviews. She has been on Centrelink benefits since the accident.
Shannon is the claimant’s carer and helps her mother with showering and dressing, she does the cooking and the washing and helps her mother take her tablets. She provides massages and drivers her mother wherever she goes.
Dr Pascall notes that the claimant complains of pain in most parts of her body and considered that her complaints are “a combination of somatisation, symptom magnification and deconditioning”.
The claimant was not using a walking stick at this assessment but walked with an antalgic gait (favouring one leg and then the other).
Dr Pascall was of the view that the Prestons’ notes did not support the claimant’s present symptoms as being caused by the accident.
“Her complaints may be reasonable with respect to there being medical conditions. The lupus can contribute, if not cause, the generalised muscular aching, the feeling of stiff and swollen joints, the pain within the joints. Her morning stiffness is consistent with an autoimmune rheumatological condition.”
Dr Pascall also noted the presence of degenerative changes in the cervical and to a lesser extent lumbar spine which could also cause pain and stiffness.
Dr Pascall suggested the claimant was either forgetful or being dishonest in her statements that before the accident she was fit and healthy and playing sport and doing her housework.

Ms Miazczuk – occupational therapist

Ms Miazczuk examined the claimant on 23 February 2021 for a period of three hours at her own home.
The claimant was at home in bed and her daughter Shannon helped her mother out of bed. She walked with a walking stick (at page 68 point ‘n’ the claimant says she purchased this the week after the accident when she first went to the doctor).
At page 39 of the bundle there is a history that the claimant was working as a housekeeper for cash in hand whilst receiving New Start payments and looking for work. The Panel notes this is contrary to the 27 January 2017 note in the records and 7 February 2017 where the claimant said she was unable to return to work or perform her own housecleaning duties.
In various appendices, Ms Miazczuk summarises the various medical and other records. At page 67 (point h) the claimant said she twisted her right ankle in the fall in 2014 and had a back problem “but nothing else”.
The claimant says she had a disability parking permit.

Dr Sethi

Dr Sethi did not examine the claimant but prepared a report at the request of the insurer’s solicitor based on a file review and dated 3 July 2021. He adopts the history of the claimant being a rear seat passenger behind the driver and that the claimant developed back, neck, shoulder and knee pain which has become “widespread, intense and incapacitating”.
He records that Ms Slocombe being prescribed Panadeine Forte, Nurofen and Celebrex and that she has had physiotherapy and hydrotherapy.
Dr Sethi considered the claimant has a past history of reflux, cigarette smoking and severe obesity. He accepts her history that since the accident “she has developed worsening reflux, gas, flatulence and faecal discharge”.
He says:
“In my opinion, Ms Slocombe has developed gastro-oesophageal reflux disease (GORD), irritable bowel syndrome (IBS) and anal sphincter laxity causing faecal incontinence. These conditions have developed independently of her accident and the medications that she was prescribed afterwards. They have occurred regardless of her accident and the accident did not play any causative role.”
His reasons are as follows:
(a)    the claimant did not go to hospital or immediately seek medical attention which suggests no significant abdominal trauma;
(b)    her complaint of retrosternal burning radiating upwards is consistent with GORD[15] which is a common condition caused by laxity of the gastro-oesophageal sphincter valve;
(c)    Panadeine, Nurofen and Celebrex do not usually cause GORD;
(d)    cigarette smoking contributes to the development of GORD as does obesity;
(e)    Ms Slocombe was prescribed Somac (a treatment for GORD) in November 2015 which suggests she had pre-existing GORD;
(f)    the symptoms of excess gas, flatulence and tension in the abdomen is suggestive of irritable bowel syndrome (IBS) which is caused by hypersensitivity of the gastrointestinal tract. Medications do not usually cause IBS, and
(g)    the description of uncontrolled faecal discharge suggests anal sphincter laxity which is unrelated to her accident.
[15] The Panel notes his report was based on a file review which included the claimant’s GP records but not the recent records which included a diagnosis of GORD.

EXAMINATION FINDINGS

A medical examination with Medical Assessors Berry and Oates was scheduled for 10 October 2022 however the claimant arrived at 11.15am and the examination could not proceed. A second medical examination was arranged as expeditiously as possible with Medical Assessor Berry but without Medical Assessor Oates.
Medical Assessor Berry explained to the claimant the purpose of the assessment, his specialty and the areas of her body to be examined.
Ms Lisa Slocombe attended on 25 October 2022 with her daughter, Shannon, and said she was 51 years of age and dominantly right-handed. She came to Australia from Samoa at the age of 16 years and completed her schooling to Year 12.
She currently has a nurse (Chrystel Orca) looking after her, two days a week and her daughter looks after her the remaining time. Her daughter also works for the Commonwealth Bank.

History of accident

Ms Slocombe said she was involved in a motor accident on 26 February 2017 and gave the following history:
(a)    she was a front seat passenger in a Toyota Kluger driven by her husband. Her brother-in-law and her eldest son were back seat passengers. Their car was t-boned by the at fault vehicle coming through a red light and the airbags deployed;
(b)    they were travelling home from a Sunday lunch with friends;
(c)    Ms Slocombe’s memories of the accident are vague as she says she was knocked unconscious in the accident;
(d)    the accident occurred at the light controlled intersection of Camden Valley Way and Gellibrand Street in Edmonson Park;
(e)    police and ambulance attended the scene, and her son was transported to Liverpool Hospital, Emergency Department and discharged after evaluation;
(f)    Ms Slocombe and the other passengers were assessed at the scene and then taken home by friends who came to the accident scene;
(g)    she was immediately aware of pain in her chest, right leg and thigh and her low back as well as pain in her right shoulder and her left hip (the Panel notes the claimant did not complaint of immediate pain in her abdomen);
(h)    Ms Slocombe attended Dr Patu at Blacktown, three days later. She told Medical Assessor Berry that while she normally went to a doctor at the Prestons Medical Practice, her husband attended Dr Patu because he was Samoan and her husband spoke little English. She thought it was better for both of them to see Dr Patu together after the accident, and
(i)    Ms Slocombe said that, at the time of the accident, she was looking for work in customer service but could not remember the names of any potential employers she had tried to find work with. She then admitted that she had been housecleaning four days a week for about five to six hours a day and had been doing this for some time. The Panel notes that elsewhere the claimant has indicated she has been paid cash in hand for this work.
The claimant was asked by Medical Assessor Berry again where she was seated in the motor vehicle at the time of the accident, and she was adamant she was seated at the front. When the other histories were put to her, she said that she could not recall what she had told the various doctors because her memories of the accident were vague.

Social history

The claimant said she has been separated from her husband for the last two years. She is living with the four children in a rented two storey house, the same home she living in at the time of the accident.

Work history

When the claimant came to Australia from Samoa at the age of 16 in 1986 she completed high school. At that stage, the family was living in Perth and she undertook clerical work for a time before travelling to America to see family members.
The claimant came back and then settled in Sydney and did a variety of work including working for a short time as a receptionist for a law firm but she could not remember the names of who she had worked with and when.

Past history

Ms Slocombe told Medical Assessor Berry that she was diagnosed with discoid lupus in 2011 and this showed up with a rash and pimples on her skin, particularly on her face and chest. She denied any joint pain related to this condition.
Ms Slocombe was involved in a fall at the Macarthur Square shopping centre in 2014. She told Medical Assessor Berry that she only injured her low back in that accident and a claim was settled in 2016. The Panel notes that the statement of particulars filed on 20 May 2015 suggests more widespread injuries including the neck, back, left wrist, left upper extremity, left side of hip, left leg, left knee, left shoulder and a psychiatric injury developed. This was put to the claimant.
Ms Slocombe said she applied for a total permanent disability payout because of her injuries sustained in the fall but it was not granted. The Panel notes elsewhere the claimant says this was granted.
Ms Slocombe then conceded, when challenged, that over time she had developed neck pain. She said she had also had in the past haemorrhoids with rectal bleeding. Her GP sent her to Liverpool Hospital before the accident where she was assessed and referred to a gastroenterologist but the referral did not go ahead and she told me that her symptoms settled.
Ms Slocombe said that after the motor accident she developed worse abdominal pain and more severe reflux and she also developed worse rectal bleeding and was subsequently referred to Dr Catherine Turner who performed a gastroscopy and colonoscopy.

Sporting history

In terms of her sporting history, she told me that she played volleyball with a Samoan girls’ team which was on a social basis and occurred most weekends. She was a keen bike rider with the children and she also played cricket with the children.

Physical examination

Ms Slocombe moved with normal posture and gait. She was noted to be 170cm in height and 107kgs in weight. This indicates she has a body mass index of 37 which places her in the obese range.
At all times during the course of the assessment, Ms Slocombe’s daughter was massaging various parts of the claimant’s body including her back and her hips. She had to be assisted by her daughter to get onto the examination couch.
The physical examination was confined to the abdomen. Ms Slocombe was diffusely tender with no guarding, rigidity or rebound and there were no palpable masses. Auscultation was normal. There was no sign of hernias and there was a transverse scar in the lower abdomen consistent with a caesarean section.
In accordance with medical assessment protocols an internal anal examination was not carried out. The claimant has had a colonoscopy which supplements the visual examination. With the claimant in the left lateral position, she was noted to have one prolapsed haemorrhoid at the seven o’clock position.
The claimant confirmed her symptoms of greater abdominal pain than before the accident, worse reflux and that she has developed rectal bleeding since the accident.
At the conclusion of the assessment, Medical Assessor Berry asked the claimant whether there was anything else she (or her daughter) wished to add concerning any matters relevant to the motor accident or the medical assessment but there were no other matters. The panel notes the claimant did not mention anal seepage and Medical Assessor Berry did not observe the claimant to be wearing an incontinence pad at the time of the visual examination and there was no sign of faecal matter on her person.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

The claimant has signed a statement which says she was in the back seat with her sister-in-law and son and that her brother-in law and husband were in the front seat. She told Dr Assem she was a passenger in the back seat and hit her head on the seat in front. She told Dr Vickers, Medical Assessor Truskett and Medical Assessor Berry that she was sitting in the front seat. She did not mention her sister-in-law at all to Dr Berry saying her recollection of the accident was vague. Ms Pascall told Dr Pascall she was in the car with children and therefore without her brother-in-law and sister-in-law.
The claimant told Medical Assessor Truskett she was knocked out in the accident, she says in her statement she blacked out after the accident for a few minutes and she told Medical Assessor Berry she lost consciousness in the accident. The claimant says ambulance personnel came to the accident scene, assessed her but did not take her to hospital. The medical members of the Panel consider it very unlikely that a person involved in a car accident would not be taken to hospital if they complained of being knocked out, blacking out or have had a period of unconsciousness.
The claimant says in her statement she followed her son to the hospital as she was concerned for him however, she informed Medical Assessor Berry she was driven home after the accident while her son went to hospital.
The claimant says in her statement that she was 80kg before the accident and has gained 20kg since the accident due to inactivity. The Panel notes that the records from the claimant’s GP suggest that in 2013 she weighed 93kg, 96kg in April 2015, 101kg in September 2015, 103.4kg in March 2018 and 105.2kg in January 2020. The evidence does not support the claimant’s assertion that she has put on 20kg since the motor accident.
Ms Slocombe admits in her statement that her memory is poor. Her carer Chrystel also remarks on the claimant’s poor memory. The claimant told Medical Assessor Berry she does not remember many things.
It is now more than five and a half years since the accident and the Panel does not expect the claimant to remember everything that has happened before or since the accident. The Panel has concerns about the claimant’s ability to recall details from before and after the accident. Bearing in mind these concerns and noting the claimant’s own assessment of her ability to recall details, the Panel will look to the medical records for corroboration of the claimant’s evidence.

Did the claimant injure her abdomen in the accident?

The claimant told Dr Vickers she felt like she had been punched in the stomach. She said to Medical Assessor Truskett that her abdominal issues commenced the year before she saw him (that is in 2020).
The claimant attended Dr Patu on 28 February 2017 and complained of moderate acute right shoulder pain, back pain, left knee pain, neck pain and headaches. The claimant then attended her usual GP on 3 March 2017, informed her of the car accident and complained of pain in the neck, shoulder and back.
There is no complaint recorded at that point in time in either GP’s notes of pain in the abdomen and no record of any bruising to the abdomen. The medical members of the Panel would expect there to be external signs of a seat belt injury, such as a bruise or mark and then a record in the notes, if there was injury to the abdomen significant enough to cause internal damage.
The claimant said during the course of the re-examination by Medical Assessor Truskett that her abdominal issues commenced at least three years after the accident. The Panel notes the first mention of abdominal issues to Dr Patu was on 31 January 2020 when she reported a bloated abdomen, nausea, constipation, rectal bleeding which would be consistent with this history.
The claimant did attend her usual GP for vomiting, diarrhoea lower abdominal pain and reduced appetite on 13 June 2017 and appendicitis was considered. Further attendances later in 2017 all appear to be travel or food related. In October and November 2017, there were two attendances suggesting gastritis. The GPs who examined the claimant on those occasions did not record any details of the accident which suggests to the Panel that the claimant did not mention the accident.
The Panel is not satisfied that the claimant sustained a frank or specific injury to her abdomen in the accident and therefore disagrees with Dr Vickers diagnosis of a neuro motility gut issue which would in any event require evidence of damage to the nerves or muscle of the gut and there is no such evidence.

Does the claimant have GORD?

The medical members of the Panel note that the claimant has been diagnosed by her treating doctors as having GORD. The claimant complains of reflux and her carer suggests the claimant burps and breaks wind frequently. GORD can cause reflux, feeling or being sick (vomiting), bloating and belching. It is caused by a weakness in the lower oesophageal sphincter and can happen in people who are obese, who have a poor diet, who smoke, and those who take certain medicines including pain relief. GORD can be treated by medication and a controlled diet. Surgery can be offered to address the weakened sphincter.
The claimant has been over-weight since long before the accident and her weight has been increasing since 2013 (when she was 93kg to 2022 when she was weighed by Dr Vickers at 113kg). She is also a smoker.
The claimant has a long term, pre-accident history of physical complaints and medication use. While she says her lupus only caused issued with her skin and hair, the records of her GP suggest she had joint aches and pains for which medication was prescribed. Since the claimant’s 2014 fall she has also been prescribed pain killers including strong painkillers such as Panadeine Forte which can cause digestive tract irritation. The claimant saw her usual GP on 7 February 2017 complaining of ongoing pain in the neck, back, lower limbs, knees and shoulders every day. She has lupus which is also a chronic illness causing aches and pains in the joints requiring pain killers.
The claimant reports and the records suggest symptoms of reflux before the accident, and the Panel notes she was prescribed Somac before the accident which is a common treatment for reflux and GORD.
Therefore it is the clinical judgment of the Medical Assessors of the Panel that the claimant’s oesophageal sphincter was weakened before the accident and there is no additional impairment caused by the accident.
The Panel also notes that while the claimant was prescribed medication that might cause the symptoms of GORD (Celebrex) soon after the accident, the symptoms of GORD did not present until eight months after the accident suggesting there is no causal link between the medication use and the GORD and that there may be other causes such as the claimant’s weight, diet and smoking status.
The medical members of the Panel note that symptoms of GORD can vary in intensity.
Assessment of GORD requires consideration of cl 1.247 of the Guidelines which says:
(a)    there is an upper digestive tract disease (Ms Slocombe has GORD);
(b)    which is caused by the commencement and ongoing use of anti-inflammatory medications (the Panel is not of the view the commencement of anti-inflammatory medication was caused by the accident – the claimant had already been taking anti-inflammatory medication before the accident), in which case,
(c)    a WPI of between 0% and 2% must be assessed.
If the claimant is suffering from worsening reflux due to the accident which attracts an impairment or if the claimant falls within cl 1.247(b), then the Panel is of the view that any such impairment would be rated at 0% on the basis that
(a)    there are symptoms of GORD;
(b)    the symptoms are not constant and could be managed by diet and medication when symptoms are present;
(c)    the claimant has gained weight since the accident, which is not a feature of GORD, and
(d)    there has been no surgery.

Does the claimant have rectal haemorrhage and anal seepage?

On 9 November 2016 the claimant first reported to Prestons rectal bleeding with a history of haemorrhoids since the birth of her children. On 27 January 2017 less than a month before the accident the claimant was referred to the Liverpool Hospital gastroenterology department. Since 2019 there have certainly been multiple attendances for rectal bleeding associated with haemorrhoids. Ms Slocombe was examined on 26 March 2019 with anal skin tags but not haemorrhoids.
The Panel notes the result of the colonoscopy in November 2020 was the discovery of a grade four haemorrhoid which was said to have explained the claimant’s rectal bleeding. Medical Assessor Berry noted the haemorrhoid visible to him during the course of his examination was prolapsing so reducible but not prolapsed.
The medical members of the Panel note that haemorrhoids usually develop with increased pressure due to pregnancy or obesity or straining during bowel movements. Haemorrhoids are very common particularly in people over the age of 50. A sole haemorrhoid could appear due to a single event of straining or multiple haemorrhoids could present due to the presence of a condition, for example during pregnancy. There are four grades of haemorrhoids with grade four being most severe.
There were no haemorrhoids visible on 26 March 2019 when the claimant was examined at Prestons but a grade four haemorrhoid identified on colonoscopy in November 2020. Therefore at least one haemorrhoid has developed after the car accident.
The medical members of the Panel are also of the view that haemorrhoids can be aggravated by medication, particularly codeine-based medication which can cause constipation (and therefore straining during bowel motions). The Panel notes that during 2019 the claimant was taking multiple pain killing medications which may have led to bowel issues and therefore the development of the haemorrhoid seen by Dr Turner and the haemorrhoid viewed by Medical Assessor Berry. Medical Assessor Assem found permanent impairments in the claimant’s neck, shoulders and arms due to continuing symptoms including pain for which the claimant is taking medication including medication that can lead to constipation.
The Panel notes that cl 1.248 of the Guidelines provides a 0% WPI for constipation however the development of one or more haemorrhoids must be assessed in accordance with Table 4 found at page 10/243 of the AMA 4 Guides.
It is the Panel’s view that the claimant’s impairment falls within class 1 which provides a range of 0% - 9%. The claimant has a single Grade 4 haemorrhoid with no tenderness, no inflammation or any other signs at the time of examination by Medical Assessor Berry. The haemorrhoid was not strangulated or thrombosed and has been treated with various creams and the medical members of the Panel are of the view it can also be ameliorated by diet.
The Panel is of the view that the claimant has a 1% WPI in respect of her haemorrhoid.
The claimant was asked to list her injuries and symptoms. She did not complain about anal seepage. She was asked if she had anything further to add at the conclusion of the assessment but she did not do so. Medical Assessor Berry notes that the claimant was wearing loose trousers and underpaints. There was no evidence of incontinence on examination (no faecal matter) and the claimant did not appear to be wearing incontinence pads.
The Panel is not satisfied that the claimant does have anal seepage. If she did the medical members of the Panel would not consider this to be caused by the accident as anal seepage is suggestive of anal sphincter laxity which is likely to be pre-existing and related to the claimant’s poor diet and obesity.

CONCLUSION

The Panel was asked to assess the following conditions:
(a) gastric reflux – the Panel is not satisfied there is any accident-related impairment, and
(b) rectal haemorrhage and seepage – the Panel is satisfied the claimant has a 1% WPI due to rectal haemorrhage caused by one or more haemorrhoids however the Panel is not satisfied that the claimant is experiencing anal seepage.
It therefore follows that the assessment of Medical Assessor Truskett should be revoked and a new certificate (combining the above 1% with Medical Assessor Assem’s previous 9%).

[2022] NSWPICMP 491

1 December 2022