Stevenson v QBE Insurance (Australia) Limited
[2024] NSWPICMP 341
•27 May 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Stevenson v QBE Insurance (Australia) Limited [2024] NSWPICMP 341 |
| CLAIMANT: | Kymberley Stevenson |
| INSURER: | QBE |
| REVIEW PANEL | |
| MEMBER: | Gary Victor Patterson |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 27 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant was a paramedic travelling in the front passenger seat of an ambulance with sirens and lights activated; as the ambulance was traversing an intersection, it was struck on the driver’s side, by a 58-tonne truck and trailer; the ambulance was flipped onto the claimant’s passenger side; claimant had to be cut from the vehicle by other emergency service personnel; claimant sustained multiple injuries; whole person impairment dispute; Held – Review Panel satisfied that lumbar spine asymptomatic prior to motor accident; Review Panel finds significant restriction in range of motion of right shoulder; claimant accepted as genuine; Review Panel finds more than 10% whole person impairment; certificate of Medical Assessor McGrath revoked. |
| DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 63 of the Motor Accidents Compensation Act 1999 (the MAC Act) 1. The Review Panel revokes the certificate of Medical Assessor David McGrath dated 16 August 2023 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment of 16% and is greater than 10%: (a) cervical spine – soft tissue injury; (b) lumbar spine – aggravated pathology; (c) right shoulder – soft tissue injury, and (d) right elbow – soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
Kymberley Stevenson (the claimant) was injured in a motor accident on 7 October 2012 (the accident). The claimant was a paramedic travelling in the front passenger seat of an ambulance, on the way to a job, with sirens and lights activated. The claimant was wearing a seatbelt. As the ambulance attempted to traverse an intersection, it was struck on the driver’s side, by a 58-tonne truck and trailer. The ambulance was flipped onto the claimant’s passenger side. The claimant had to be cut from the vehicle by other emergency service personnel. Her seatbelt broke. She was transferred by helicopter to Westmead Hospital where she was admitted for treatment of numerous injuries. The claimant was off work for 12 months due to her physical impairments and trauma-related symptoms. The claimant returned to work on restricted administrative duties and eventually was medically discharged.
The claimant continues to complain of right-sided neck pain and lower back pain which radiates into her right leg. Her neck pain is associated with an increase in migraine attacks. The claimant has secondary problems about the right shoulder and possibly the right elbow.
There is a dispute between the claimant and the insurer about the degree of permanent impairment, under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (the MAC Act), arising from the claimant’s physical injuries.
ASSESSMENT UNDER REVIEW
The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor David McGrath for assessment:
(a) cervical spine – soft tissue injury;
(b) right elbow – soft tissue injury;
(c) lumbar spine – L5/S1 and L4/L5 Facet Joint and Degenerative Disc Disease, and
(d) left (right) shoulder – Tendinosis and Bursitis/soft tissue injury.
The claimant was seen by Medical Assessor McGrath on 9 August 2023 who certified as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 6% WPI and IS NOT GREATER THAN 10%:
- Cervical spine – soft tissue injury
- Lumbar spine – aggravated pathology
- Right shoulder – soft tissue injuries
- Right elbow – soft tissue injury
Medical Assessor McGrath ascribed 5% whole person impairment (WPI) to the lumbar spine and 1% WPI to the right shoulder and elbow. He made no adjustments for pre-existing/subsequent impairment, apportionment or treatment effects.
THE REVIEW
The claimant sought a review of Medical Assessor McGrath’s certificate on the basis that the medical assessment was incorrect in a material respect. The claimant submitted that the lumbar spine should have been assessed as Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DRE) III (10% WPI) and that the cervical spine should have been assessed as DRE II (5% WPI).
The claimant submitted that Medical Assessor McGrath failed to explain his determination that there were non-verifiable radicular complaints, as a result of the injury to the cervical spine, in circumstances where he made findings that there were sensory disturbances.
The claimant further submitted that Medical Assessor McGrath should have found radiculopathy in the lumbar spine, instead of non-verifiable radicular complaints, in circumstances where the claimant was assessed as having sensory loss in her foot.
The claimant’s application for review was opposed by the insurer. The insurer refers to cl 6.138 of the Motor Accident Guidelines which describes radiculopathy as the presence of two or more of the prescribed signs. The insurer correctly submits that complaints of pain or sensory features do not by themselves constitute radiculopathy and are properly described as non-verifiable radicular complaints. The insurer submitted that Medical Assessor McGrath correctly diagnosed non-verifiable radicular complaints in the lumbar spine and correctly determined there was no evidence of non-verifiable radicular complaints in relation to the cervical spine. The insurer submitted that the claimant had not established there is reasonable cause to suspect Medical Assessor McGrath’s assessment of the cervical spine and/or the lumbar spine is incorrect, nor any material error, in relation to either assessment.
President’s delegate Jeremy Lum issued a Determination of an Application for Review of a Medical Assessment on 1 November 2023 which stated the satisfaction of the President’s delegate that the medical assessment was incorrect in a material respect. The basis of that decision was said to be the unease of the President’s delegate arising from the Medical Assessor’s failure to provide any further explanation regarding the affected nerve roots (if any) that are likely causing sensory disturbance in the 4th and 5th fingers of the right hand, or why ulnar disruption cannot be interpreted as constituting non-verifiable radicular complaints, as defined in Table 8 in the Guidelines. The President’s delegate was satisfied there is reasonable cause to suspect that the medical assessment of the cervical spine is incorrect. The President’s delegate observed that any change from DRE I (0% WPI) to DRE II (5% WPI) is considered significant and therefore material. The President’s delegate was not satisfied of reasonable cause to suspect that the Medical Assessor failed to diagnose lumbar spine radiculopathy. That was because the claimant identified only one diagnostic sign, namely sensory loss.
Accordingly, the review application was accepted and referred to the Review Panel which is to assess the injuries that were referred to Medical Assessor McGrath initially. The Review Panel notes that there is some reference to migraine and right foot drop in the material. However, neither of those conditions has been included in the referral for assessment.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Motor Accidents Injury Act 2017 (MAI Act). The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the MAI Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
[1] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]
[2] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
[3] Section 7.26(6) of the MAI Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION
Sections 5D and 5E of the Civil Liability Act2002 apply to the Act.[4] Section 5D deals with the general principles of causation and s 5E prescribes the balance of probabilities as the onus of proof which the claimant always bears in relation to any fact relevant to the issue of causation.
[4] Section 3(B)(2) of the Civil Liability Act 2002.
In Briggs v IAG Limited t/a NRMA Insurance[5] his Honour Justice Wright stated at [35]:
[5] [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination’.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause, as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
OTHER ASSESSMENT
The Review Panel notes that Medical Assessor Alexey Sidorov assessed 7% WPI arising from post-traumatic stress disorder caused by the motor accident. That is not relevant for matters before the Review Panel for determination.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material:
(a) claimant’s submissions to the Commission on WPI dispute dated 2 August 2022.
(b) Claimant's review submissions dated 4 October 2023.
The claimant submitted that her physical and psychological injuries exceed the non-economic loss threshold of greater than 10% WPI. Dr Roger Pillemer, orthopaedic surgeon, assessed the claimant at 24% WPI opining that the subject accident was the substantial contributing factor towards her permanent impairment. Dr John Davis, occupational medicine specialist, opined that the claimant is significantly impaired as a result of the motor accident. By way of contrast, the insurer’s qualified specialist, Dr John Cummine, opines that the physical injuries sustained in the subject accident were a temporary aggravation of “underlying, pre-existing, symptomatic minor generate disc disease…..” and have since resolved.
(c) Certificate and reasons of Medical Assessor David McGrath dated 16 August 2023 (previously summarised).
(d) Decision of President’s Delegate Lum dated 1 November 2023 (previously summarised).
(e) Ambulance report and incident detail report dated 7 October 2012.
Diagnostic scans
(f) Multiplanar and multi-echo MRI cervical spine report dated 19 October 2012.
Comment: hypertrophic degenerative change at the uncovertebral process C5/C6 causes marked foraminal stenosis on the right. Minimal degenerative changes at C6/C7 extending into the foramina on the right. Otherwise, open 0.3 – Tesla MRI of the cervical spine is unremarkable.
(g) Report of MRI scan of the right elbow dated 24 October 2012.
Findings: There is a small amount of soft tissue oedema within the subcutaneous fat overlaying the olecranon process and posterior aspect of the ulnar extending slightly medially overlaying the path of the ulnar nerve without there being distinct abnormality within the nerve identifiable. The underlying bone delineates normally. There is no joint effusion. No other significant changes are seen.
(h) MRI scan of lumbosacral spine reported by Dr Andew Robinson on 18 March 2015.
Comment: There is posterior disc bulging with annular tears at L4/L5 and L5/S1 causing mild narrowing of the spinal canal. The appearances have not changed substantially compared to the prior study.
(i) MRI right shoulder reported on 21 March 2018 by Dr Ahmed Mayat.
Comment: Supraspinatus tendinosis. Subacromial subdeltoid bursitis. Other findings normal.
(j) CT lumbar spine reported on 6 April 2018 by Dr Jan Masesa.
Comment: Degenerative disc space loss is noted at L5/S1 associated with a postero-central disc protrusion which abuts the traversing S1 nerve roots.
Qualified expert’s reports
(k) Occupational therapy care report dated 11 January 2022 by Myfanwy Bryant, occupational therapist, for the claimant’s solicitors.
At this assessment, the claimant described constant pain in her lower back, her neck, right shoulder and arm, her right leg and into her groin. Sitting and standing tolerances were reduced. She had reduced ability to bend and to reach above shoulder height with her dominant right arm. Her ability to perform tasks requiring a push/pull motion was restricted by pain and reduced movement. Ms Bryant’s recommendations are not relevant for the Review Panel’s consideration.
(l) Report dated 14 May 2015 by Dr Michael Fearnside, neurological surgeon, to the claimant’s solicitors.
Dr Fearnside opined that the claimant sustained soft tissue injuries to her neck, low back and right shoulder, as a result of the motor accident. He found a loss of range of motion of the right shoulder, either due to a direct trauma, or as a secondary injury, because of referred pain from the neck. Dr Fearnside was not sure if the claimant had a non-verifiable right upper limb radiculopathy. There was no loss of range of motion in the right shoulder nor any objective evidence of a vascular or neurological injury. The symptoms in the right elbow largely had resolved with no impairment rating.
(m) Whole person impairment assessments dated 22 June 2015 by Dr Fearnside.
Dr Fearnside assessed 5% WPI for the cervical spine, 5% WPI for the lumbar spine and 4% WPI for the right upper limb – right shoulder, giving a total 14% WPI combined.
(n) Report by Dr Roger Pillemer, orthopaedic surgeon, to the claimant’s lawyers.
Dr Pillemer took a history of injuries to the claimant’s neck and back in the motor accident. Dr Pillemer records that the claimant was aware of pain in her neck and low back, sustained multiple bruises and abrasions and also had problems with her right elbow, right shin and left shoulder. Her main concern at that time was ongoing back problems with symptoms radiating down her right lower limb and into her right foot. She also had ongoing discomfort in her neck. Dr Pillemer notes the history of previous problems with her back, after which she always was able to return to her normal duties as a paramedic. Dr Pillemer thought there was evidence of an S1 nerve root lesion on the right side but nothing in the investigations to suggest any S1 nerve root irritation in the lumbar spine. He found significant hyper-reflexia in her lower limbs. Dr Pillemer did not think the claimant had a mechanical lumbar spine problem to account for her symptoms. He suggested there would appear to be an underlaying more generalised neurological condition, as evidenced by the sensory loss in the S1 distribution, and marked hyper-reflexia. Dr Pillemer was cautious about attributing the claimant’s symptoms to the motor accident on a purely orthopaedic basis. He did not think that the claimant’s condition had stabilised.
(o) Report dated 27 October 2015 by Dr John Davis, occupational medicine, to the claimant’s lawyers.
Dr Davis reviewed the diagnostic investigations. MRI of the cervical spine in October 2012 reported degenerative changes at C5/C6 and minimal degenerative changes at C6/C7. Earlier investigations indicated disc injury at the lumbosacral level with a contained annular tear and small protrusion to the left. Subsequent investigations following the subject accident indicate that there is a disc injury at both levels and a postero-central bulge at the L4/L5 level, in contrast to the earlier investigations of difficulties at the L5/S1 level. MRI of the cervical spine performed in July 2013 and July 2014 revealed small postero-central disc bulge with minimal effacement of the anterior sac. Dr Davis said that the claimant presents with having suffered multi-factorial trauma in the upper and lower spine involving discs, facet joints and surrounding joint capsules and soft tissues. Also, probable long-standing EMG changes in the right lower limb, confirmed by nerve conduction studies. He noted that, prior to the subject accident, the claimant was capable of performing all unrestricted duties as a paramedic, but now was quite significantly impaired, as a result of the motor accident.
(p) Report dated 30 November 2015 by Gill Stewart, physiotherapist, and Elizabeth Carter, registered psychologist, of the Occupational Health Assessment Centre, to the claimant’s lawyer.
This report is not relevant for the Review Panel’s consideration.
(q) Report of Dr Pillemer dated 27 September 2016 to the claimant’s lawyers.
Dr Pillemer recorded that the claimant felt worst than when he originally saw her some 11 months previously. She continued to complain of significant discomfort in her low back and right lower limb, and also had problems with her neck and right upper limb. He noted that the claimant had been seen by Dr Levy (neurologist) mainly for complex migraine headaches. Neurological examination in Campbelltown Hospital, following an acute confusional episode, was normal. The claimant also was seen by Dr Choong, neurologist and neurophysiologist, who carried out nerve conduction studies which were unremarkable. An EMG of the right lower limb showed chronic neurogenic changes at L5/S1. There was no electrophysiological evidence to suggest active denervation. Dr Pillemer remained of the opinion expressed in his original report. That is, the claimant has evidence of an S1 nerve root lesion on the right side and now also has evidence of an L5 nerve root lesion. Dr Pillemer remained unable to explain the claimant’s condition on the basis of a mechanical orthopaedic problem. He noted her past history of problems with her back, referred into her right lower limb for some time, which had always settled. He opined this is very unlike a mechanical back problem. Dr Pillemer remained of the opinion that the claimant has a more generalised underlaying neurological condition. Dr Pillemer noted that the claimant remained under the care of her treating neurosurgeon, Dr Ranata Bazina.
(r) Report dated 25 July 2022 by Dr Pillemer to the claimant’s lawyers.
The claimant informed Dr Pillemer that, since last seen, she had been diagnosed as having post-traumatic stress disorder, anxiety and depression, and was under psychiatric care. Dr Pillemer noted that the claimant ceased work in 2015 and had not since returned to work. She had a number of nerve ablations which gave only temporary relief. She had physiotherapy, was taking pain relief medication, seeing an exercise physiologist and having remedial massage. Dr Pillemer concluded that the claimant had ongoing problems with her back and right lower limb, and also her neck, since the motor accident, with the back being an aggravation of a long-standing condition. Dr Pillemer opined that the claimant has evidence of S1 nerve root involvement on the right side (that is, radiculopathy), although this is not confirmed on the MRI. In addition, Dr Pillemer says the claimant has evidence of C8 nerve root involvement in relation to her cervical spine, as evidenced by distinct sensory loss, as well as weakness of flexion of the wrist and fingers. Dr Pillemer says that, once again, this is not reflected in her MRI. Dr Pillemer states that the claimant’s condition has stabilised. He assesses 15% whole person impairment for the cervical spine and 10% WPI for the lumbar spine (combined 24% WPI).
Clinical records
(s) Clinical records of Dr Bazina. (This material did not correspond with the designated page numbers in the claimant review bundle).
There are 16 reports from Dr Bazina spanning the period August 2013 to May 2020. They are addressed variously to Professor Mark Sheridan (from whom there is no report) and Dr Odette Abdelsayed (treating general practitioner (GP)). Copies were sent to the workers compensation insurer. Dr Bazina is a neurosurgeon/pain specialist. Dr Bazina notes the history of back injuries prior to the motor accident which caused the claimant to experience aggravation. Dr Bazina thought that the claimant was suffering facet joint pain in the context of lumbar pain. Dr Bazina also thought that the pain was multifactorial. Contribution from the facet joints may be in the order of 25% to 50% from her history. Dr Bazina recommended lumbar facet joint medial branch blocks. These were administered on a number of occasions with the approval of the workers compensation insurer. Dr Bazina also recommended radio frequency ablation/denervation for further pain management of the right lumbar facet joints from L2 to L5. The possibility of similar treatment for her neck pain and migrainous headaches was discussed. Dr Bazina examined the imaging from 2007 and opined that a CT scan of the lumbar spine performed in 2012, after the motor accident, shows a new L4/L5 disc prolapse, assumed to be a consequence of the accident. Dr Bazina also said that a MRI of the cervical spine at that time showed no significant discopathy nor degenerative disease. Dr Bazina said that persistent annular fissuring at L4/L5 and L5/S1 was shown on a 2014 lumbar MRI, a minor change compared to previous imaging in 2013. Dr Bazina noted a previous injury to the cervical spine following a motor accident 16 years ago in which the claimant suffered a whiplash injury. The claimant denied any injury to her back at that time. As at March 2015, Dr Bazina thought the claimant was suffering from a facet joint syndrome, as her low back pain was mechanical and reproduced with extension. Dr Bazina arranged a bone scan which showed no evidence of discovertebral arthritis, no evidence of active facet joint arthritis and very mind tracer uptake in both sacroiliac joints. Dr Bazina thought that the claimant’s condition had plateaued and stabilised in April 2015, recommending no further treatment, as there is no curative approach for disc pain. Low back pain continued. Treatment focus was redirected to white matter lesions in the claimant’s brain causing right sided weakness in the upper and lower limbs. A CT scan of the lumbar spine performed in 2018 was unremarkable. Dr Bazina thought that the differential diagnosis is a neurological condition. Medical retirement was discussed. The claimant returned to Dr Bazina in March 2020 requesting a clearance for returning to the gym and horse-riding. That clearance was provided. The claimant had an exacerbation of her chronic low back pain shortly thereafter causing her to limp with her right leg. Dr Bazina said that her L4/L5 disc had further degenerated compared to the 2018 imaging.
(t) Clinical records of KONEKT.
(u) Clinical records of Primary Medical Centre Narellan.
(v) Clinical notes of Westmead Hospital.
The insurer relied upon the following material:
(a) Insurer’s Medical Assessment Service (MAS) submissions dated 16 September 2022.
The insurer submitted that the claimant had a lengthy history of injuries to her spine, commencing in 1998, and continuing throughout her employment with NSW Ambulance as a paramedic. The insurer says that the medical records confirmed a significant history of degenerative change in the spine which predates the motor accident. It summarises the claimant’s pre-accident history of physical injuries. That includes a motor accident on 29 May 1998 for which the claimant received a compensation lump sum. Additionally, the insurer lists nine separate work injuries, most of which involve her low back. The insurer refers to an unrelated neurological condition and to its medico-legal evidence. In conclusion, the insurer disputes the claimant’s alleged physical symptoms and disabilities are causally related to the subject accident. The insurer disputes the claimant’s whole person impairment exceeds the 10% threshold. The insurer further submits that any physical injury sustained as a result of the accident was at worst transient in nature, and the claimant’s current presentation is entirely as a result of the natural history of pre-existing degenerative conditions.
Insurer’s medico-legal evidence
(b) Report dated 14 December 2015 by Dr John Cummine, orthopaedic surgeon, to the insurer.
Dr Cummine took a history of the claimant’s past health, conducted at physical examination and examined imaging studies undertaken since the motor accident. He referred to medical reports arising from the claimant’s previous accidents. He opined that the claimant may have sustained minor soft tissue injuries to the neck and back in the subject motor accident. He accepted there may have been a temporary aggravation of underlaying pre-existing symptomatic minor degenerate disc disease in the cervical and lumbosacral spine. Dr Cummine thought that any such temporary aggravation would have resolved entirely within a matter of months after the subject accident. He thought that the claimant’s symptomatology and associated reported disability was most likely due to abnormal illness behaviour as part of a chronic pain syndrome. He referenced a report by Dr John Ireland dated 24 March 1999 which supported a possible diagnosis of reflex sympathetic diascopy syndrome.
(c) Supplementary report dated 10 March 2022 by Dr Cummine to the insurer’s lawyers.
Upon examination, Dr Cummine felt that the significant measured restriction to range of motion in several arcs was better explained by decreased patient effort, rather than organic pathology. In regard to the lumbosacral spine, Dr Cummine records that the claimant was able to rise onto tiptoe with no complaints of discomfort, and also rock back onto her heels. Dr Cummine records that the claimant could only execute less than half the decent phase of squatting before she said a combination of disturbed balance and pain in her right knee prevented further excursion. Dr Cummine described MRI scans performed in May 2017 of the brain and full spine. He reviewed the report of Dr John Davis dated 27 October 2015 and disagreed with his conclusion. He agreed with the content of a report dated 22 May 2015 by Dr Michael Coroneos, neurosurgeon, prepared for the workers compensation insurer. He reviewed the history of previous accidents and injuries. He re-stated the conclusions set out in his previous report. Dr Cummine thought there have been multiple temporary aggravations of underlaying, pre-existing, in situ degenerate disc disease, particularly in the lumbar spine, but also in the cervical spine. His diagnosis was unchanged. Dr Cummine did not consider the disc bulge at L4/L5, shown on the CT scan of 8 May 2020 is due to the subject accident, nor the cause of the claimant’s lower limb symptoms. He noted that the disc bulge was pre-existent as it was referred to by Dr Coroneos in his report dated 22 May 2015. Dr Cummine does not consider whether or not the disc bulge at L4/L5 could have been aggravated or worsened as a result of the subject accident.
(d) Functional capacity evaluation summary report by Dr Inez Farag, physiotherapist, of the Vocational Capacity Centre, prepared for the insurer’s lawyers.
This report is not relevant for the Review Panel’s consideration.
(e) Vocational Assessment Report dated 15 March 2022 by John Raue, vocational psychologist, of the Vocational Capacity Centre, prepared for the insurer’s lawyers.
The contents of this report are not relevant for the Review Panel’s consideration.
(f) Job match report dated 17 March 2022 by Dr Farag.
The contents of this report are not relevant for the Review Panel’s consideration.
(g) Occupational Therapy Assessment report dated 19 June 2022 by Yvonne Barela, consultant occupational therapist.
The contents of this report are not relevant for the Review Panel’s consideration.
Workers compensation insurer’s medico-legal evidence
(h) Report dated 22 May 2015 by Dr Michael Coroneos, neurosurgeon, to QBE Workers Compensation.
Dr Coroneos opines that all the changes seen on MRI, CT, nuclear bone scan and SPECT imaging are normal changes of age-related degeneration and her examination will be regarded as normal. Dr Coroneos also opines there is no evidence of any spinal trauma such as fracture, dislocation, subluxation, focal disc prolapse, focal disc herniation, spinal cord or nerve root injury. MRI examinations of the soft tissues being normal and whole body nuclear bone scan and lumbar SPECT also being normal. He disagrees with Dr Bazina’s diagnosis of facet joint disease and says there is no abnormality in the facet joints. Dr Coroneos further opines there is no evidence of any aggravation caused by the motor accident with all the radiological changes showing age-related, non-traumatic. Minor spondylosis. Clinical, musculoskeletal and neurological examinations performed by Dr Coroneos are described as normal.
(i) Independent physiotherapy review prepared on 4 March 2015 by Dr Rob Bolland, physiotherapist, for Treasury Managed Fund.
Dr Bolland states that the claimant presented with a chronic pain syndrome affecting her cervical and lumbar spine. He said there was no evidence to support diagnosis of lumbar spine radiculopathy or cervical spine radiculopathy. He found that none of the treatments recommended for the claimant were reasonably necessary.
(j) Report dated 1 February 2018 by Dr Robert Breit, orthopaedic surgeon, to Turks Legal for the workers compensation insurer.
Dr Breit stated that the claimant’s:
“…physical findings are of gross inconsistency with pain behaviours that are inexplicable on the basis of organic pathology and the available investigations…… In my opinion, she suffered some soft tissue injuries as a result of the motor vehicle accident but they have long since ceased”.
Dr Breit allowed that there may be some accident-related problem in the claimant’s right shoulder. He found that the claimant’s prognosis was extremely poor and that there was no assessable impairment of the spine.
(k) Supplementary report dated 21 June 2018 by Dr Breit.
Dr Breit reviewed a MRI report of the right shoulder dated 21 March 2018 at the request of the lawyers for the workers compensation insurer. He found the report to be unsatisfactory and said that the changes shown on MRI “have to be classified as trivial and would be commonly seen in a lot of people as incidental finding”. Dr Breit went on to say as follows:
“When the MRI is combined with her extraordinary presentation and the level of inconsistency, I would have to indicate there is no musculoskeletal basis for the claims of pain and disability. There is no permanent impairment of the shoulder as a result of the motor accident. There was no nexus between the complaints in other areas and the accident. This means there is no impairment, as a result of this motor vehicle accident, on the basis of musculoskeletal pathology”.
It is to be observed that Dr Breit is trenchantly dismissive of the claimant. His attitude is to be compared with that of Dr Coroneous who found the claimant to be genuine and consistent in her presentation.
RE-EXAMINATION
The report of Medical Assessor Drew Dixon as follows:
“PIC Panel Examination
Kymberley Stevenson (R-M10526692/22-53-2)
MVA Date: 7 October 2012
16 April 2024
Drew Dixon
Accident Details
The claimant was employed as a paramedic sitting in the front seat of an ambulance. The Mercedes ambulance was t-boned at Narellan at the intersection of Narellan Road and Mt Annan Drive when a truck struck the driver’s side and the ambulance was tipped over onto its left side, trapping the claimant in the ambulance. She sustained injuries to her neck and lower back and right elbow and at the time did not self-extricate from the vehicle as she had no sensation in her legs but was extracted by emergency services and taken by helicopter to Westmead Hospital. There was no head injury or loss of consciousness and she has no amnesia for the accident details.
After CT scans, she was admitted overnight and discharged the following day with analgesia and referral to her local doctor, Dr Odette Abdel Sayed of Narellan.
She complained of neck pain radiating to the right shoulder and pain at the medial epicondyle of her right elbow and some intermittent paraesthesia of her right hand, mainly in the little finger and occipito frontal headaches.
She had pain in her lower back with radiation to the right buttock and thigh and at times extending through the right leg with paraesthesia in the sole of her right foot. Her neck pain became constant and was associated with crepitus on rotation and extension. She subsequently attended Professor Mark Sheridan, neurosurgeon, who did not advise operative intervention. He then referred her to Dr Renata Bazina a neurosurgeon and pain management specialist and she had multiple blocks in her lower back without sustained benefit.
She required ongoing regular analgesia including Panadeine Forte and took Gabapentin for neuropathic pain and then subsequently saw another pain management specialist, Dr Steven Ng in Wollongong and was given Palexia (Tapentadol) twice a day. She had nerve conduction studies of her upper limbs which showed no abnormality.
At work she subsequently developed post-traumatic stress disorder and has had psychological counselling and review by a consultant psychiatrist and has been given an assistant dog called Harvey.
Work History
At the time of the accident she worked in the South West region of Sydney as a paramedic for NSW Ambulance Service and had been employed from 2004 to 2017. She also did volunteer fire fighting. After the accident she was off work for six months and then worked at the headquarters at Rozelle but because of the long journey from her home at Elderslie, she transferred to Fairfield Ambulance doing admin and driving vehicles to various ambulance stations. She worked for a short time in the Accident and Emergency Department at Campbelltown Hospital in admin but did no lifting. She was moved back to the Camden sector doing admin duties but has not worked with NSW Ambulance Service since 2017.
Her current work restrictions are a 5kg lifting limit and to avoid repetitive bending, stooping and prolonged sitting, standing and driving.
Current Treatment
She takes Gabapentin, Metoprolol, Melatonin, Clonidine, Magnesium, Nexium, Sumatriptan, Nurofen, Panadol and Panadeine Forte as required and very occasionally Endone and Diazepam and Evening Primrose oil, Riboflavin and CoQ10. She has had no further lumbar blocks proposed or operative intervention suggested.
She did have review by a neurologist and neurophysiologist, Dr H Choong, on 19 October 2015 who noted there was patchy reaction with light touch and cold temperate sensation of the right leg and reflexes were symmetrical and brisk and nerve conductions studies were unremarkable but EMG studies suggested chronic neurogenic changes to L5 and S1 and to a lesser extent, the innervated muscles but his overall comment was there no electrophysiological evidence of active denervation.
Current Symptoms
She reports pain and stiffness in her neck with right shoulder brachalgia with trapezial muscle pain and has radicular complaint with occipito frontal headaches. There is occasional pain radiating to her right upper arm. She reports her neck pain disturbs her sleep and her neck pain and stiffness impacts on her ability to drive, reverse park, change lanes and c heck the blind spots.
She reports pain and stiffness in her right shoulder with pain in the trapezius muscle and anterolateral deltoid muscle with difficulty elevating the arm above shoulder height and difficulty reaching objects on high shelves and doing overhead work at home. She has difficulty with heavy lifting and carrying due to right shoulder brachalgia (she is right handed) and low back pain. She tends to do heavy lifting with her left arm.
She reports pain posteromedially at her right elbow without stiffness but pain behind the medial epicondyle which is painful if bumped and has intermittent paraesthesia to the ulnar three digits of the right hand, usually the little finger.
She reports pain in her lower back with lumbar stiffness with some radiation at times to the right buttock and thigh with sensory alteration at the sole of her foot and lateral leg on the right. She reports her back pain disturbs her sleep and repetitive bending and stooping aggravate her back pain. She has difficulty with prolonged sitting and standing and walks with a limp on the right due to referred pain in her right thigh. She has a sitting tolerance of 30 minutes and a driving tolerance of 20 minutes and a standing and walking tolerance of 20 minutes. She has difficulty doing household chores particularly heavy cleaning.
Social History
She lives with her husband and daughter in a one level house. Her husband has had pneumonectomy for CA and also has an assistance dog. Her daughter is 21 years old and sometimes assists with the lighter household chores. She has a commercial cleaner three hours a week to assist with mopping, vacuuming, cleaning the bathroom, spring cleaning, high dusting, sweeping and cleaning windows. She has difficulty lifting and carrying heavy groceries and laundry and is reliant on her daughter for help and has difficulty with repetitive tasks such as meal preparation, cooking, washing up and bed making.
She is unable to clean the car nor do the garden and has difficulty with prolonged driving and does not play sport. Her only recreation is walking her assistant dog. She used to be quite active before the accident doing abseiling, caving and bush walking. She was an instructor in these areas and was a volunteer fire fighter at well, as noted above.
Examination
On examination on 16 April 2024 she was 171cm tall and weighed 78kg. The claimant presented in a straightforward manner without embellishment and was consistent on range of motion testing of her right shoulder.
There was stiffness of her cervical spine with flexion decreased by one quarter with pain on neck extension which was decreased by one half and associated with crepitus as was lateral rotation to the right which was decreased by one third and that to the left by one quarter. Lateral flexion was decreased by one third bilaterally. Her foraminal compression test was positive and her brachial plexus stretch test was negative and there was no tenderness of the supraclavicular brachial plexus. Her upper extremity reflexes were brisk. There was no wasting of her right upper extremity. There was no altered sensation on the radial border of her right arm nor in the ulnar digits. There was however tenderness of the ulnar nerve behind the medial epicondyle.
Her grip strength, intrinsic power and thenar power were grade 5 out of 5 in her right hand as were those in her left hand. There was no spasm of the trapezius muscle.
There was restricted range of motion of her right shoulder with forward flexion 120 degrees, active abduction 100 degrees, adduction 40 degrees, extension 30 degrees, external rotation 80 degrees and internal rotation 50 degrees. There was tenderness of the trapezius muscle and of the anterolateral deltoid. There was mild impingement on abduction. There was no winging of the scapula and there was no gross wasting of the shoulder girdle. These findings were consistent on repetitive testing and I was satisfied the claimant made maximum effort.
There was a full range of motion of her left shoulder.
There was stiffness of her lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm with pain on back extension which was decreased by one half. Straight leg raise on the right was 50 degrees and associated with right thigh pain. Her reflexes were brisk in both lower extremities and symmetrical. Her Babinski signs were negative. Power was grade 5 out of 5. There was sensory alteration in an S1 distribution of her lateral right leg and sole of her right foot. There were negative sciatic nerve root stretches on the left. There was no wasting of her right thigh or right leg below the knee.
Her normal gait showed a limp on the right and she was unsteady on toe walking and heel walking and her squat test was associated with low back pain on arising from the squat test.
Investigations
An MRI of the lumbar spine on 10 May 2018 showed peripheral annular tearing of L4/5 and L5/S1 discs without thecal sac or nerve root compression at any level but no evidence of demyelination of the visualised lower spinal cord.
MRI of the whole spine on 5 July 2013 showed a small posterocentral disc bulge with bony spurring at C6/7 with minimal effacement of the anterior sac.
MRI of the lumbar spine showed posterior disc bulge with annular tears at L4/5 and L5/S1.
CT of the lumbar spine on 6 April 2018 showed degenerative disc space loss at L5/S1 with posterocentral disc protrusion which abuts the traversing S1 nerve roots and a mild disc bulge at L4/5.
CT on 8 May 2020 showed mild discogenic encroachment of the right lateral recess at the L4/5 level and small posterocentral disc osteophyte protrusion at L5/S1 abutting the thecal sac and the traversing S1 nerve roots.
CT of the lumbar spine on 13 September 2023 showed L4/5 degenerative disc disease with potential impingement on the descending right L5 nerve root in the subarticular recess due to mild disc bulge and at L5/S1 there was mild broad based disc bulge without signficiant central canal or neural exit foraminal stenosis nor neural impingement.
Summary
This claimant was involved in a severe MVA when she was a front seat passenger in an ambulance that was t-boned by a very large truck on the right side and rolled onto the passenger’s side.
Her diagnoses are:1.Whiplash injury to her neck with post traumatic dysmetria and disc bulges at C6/7;
2.Post traumatic stiffness of the right shoulder with right trapezial muscle pain an where MRI of the right shoulder reported on 21 March 2018 as showing supraspinatus tendonosis with subacromial bursitis;
3.Ulnar neuritis at the right elbow without neurological deficit;
4.Low back strain injury with post traumatic stiffness with dysmetria, erector spinae muscle spasm with sensory alteration on the lateral leg into the sole of the foot and negative sciatic nerve root stretch test with post traumatic annular tears at L4/5 and L5/S1 without wasting or loss of reflex
WPI
That for the cervical spine where she has had a known whiplash injury with post traumatic stiffness with shoulder brachalgia with trapezial muscle spasm and radicular complaint with occipitofrontal headaches is from Table 73, Page 110, AMA IV, DRE II, 5% WPI.
That for the post traumatic stiffness of the right shoulder is from Pie Charts 38, 41 and 44, Pages 43-45, AMA IV, 11% upper extremity impairment which equates to 7% WPI.
That for the active range of motion of the right shoulder are similar to those found in the occupational therapy report dated 11 January 2022 after assessment of the claimant at home on 6 December 2021 on pages 8 and 9.
There is no assessable impairment for the right elbow. She has ulnar neuritis clinically without neurological deficit.
That for the lumbar spine was DRE II 5% whole person impairment.
This gives a total from the Combined Values Chart of 16% whole person impairment.
There were no symptomatic pre-existing conditions as although the claimant had prior back complaints, she was asymptomatic at the time of the subject motor vehicle accident. She had been able to return to work full time as a paramedic without restriction but after the major motor vehicle accident, in which she was injured, this rendered her lumbar spine symptomatic with facet arthralgia and L4/5 disc lesion, noting that there was also reported annular tears at both L4/5 and L5/S1 on MRI of the lumbar spine on 5 July 2013. The further CT of the lumbar spine on 6 April 2018 showing a posterocentral disc protrusion at L5S1 abutting the traversing S1 nerve roots, as well as residual disc bulge at L4/5.
CT on 8 May 2020 further reinforced that with showing discogenic encroachment of the right lateral recess at L4/5 level and a small posterolateral disc osteophyte protrusion at L5/S1 abutting the thecal sac and the traversing S1 nerve roots, which is consistent with her clinical findings of loss of sensation in an S1 distribution of her right lower leg and foot.
While she had sensory loss in an S1 distribution, there was no asymmetry of reflexes, positive sciatic nerve tension signs nor muscle atrophy or weakness found and did not have sufficient signs to give radiculopathy. Dr Renata Bazina, the neurosurgeon and pain specialist, was of the opinion when she saw the claimant that there had been a significant low back injury and arranged for multiple blocks to the lower back without sustained benefit. When she compared the imaging from 2007 and opined that the CT scan of the lumbar spine performed in 2012, after the subject motor vehicle accident, showed a new L4/5 disc prolapse which she assumed to be a consequence of the subject motor vehicle accident. She did aim her treatment of frequency ablation and denervation for further pain management at the right lumbar facet joints from L2 to L5.
The assessment today is at variance with the MAC of David McGrath dated 16 August 2023 where he found a much greater range of motion of the right shoulder.
My findings for the cervical spine and right elbow are consistent with those found by Dr Michael Fearnside on 22 June 2015 but there appears to have been some deterioration in the right shoulder since his assessment back then.
In the MAC dated 18 August 2023 the Assessor correctly points out there was no non verifiable radicular complaint in relation to the cervical spine which was found today and no asymmetry or loss of reflexes and apart from pain due to shoulder brachalgia, there was no distal weakness or wasting of either upper extremity.
The previous IME reports of Dr John Cummine dated 14 December 2015 noted a disc bulge at C6/7 on MRI and he felt he was not able to identify any whole person impairment of any body part. In his later report dated 10 March 2022 he found there was stiffness of the right shoulder and he noted dysmetria in the cervical spine. He noted that the claimant had been involved in previous work place incidents and that she had a transient back strain injury on 14 June 2006 which settled with physiotherapy and she was able to return to work and on 14 March 2007 she was carrying a patient down stairs when she felt low back pain and it settled with physiotherapy for six months and she returned to full duties.
Dr Cummine noted, in his report dated 10 March 2022, that on 23 September 2008 the claimant was trying to steady a stretcher, which was carrying a large lady with severe chest pain, when the stretcher began to tip over and she felt pain in her back. She was reviewed at the Accident Emergency at Liverpool Hospital and then her GP. This settled with physiotherapy and analgesia and she returned to full duties after a short period of time.
Dr Cummine also reported there was an incident back on 23 September 2011 when she was dropping a patient off in the Emergency Department of Liverpool Hospital in the back of the ambulance when her partner pulled the stretcher out and as she did this, the second set of legs from the stretcher did not drop, the stretcher overbalanced and the claimant reached down to grab the stretcher and experienced low back pain. She was seen in the Emergency Department and took time off work. She took analgesia and had physiotherapy and was able to return to full duties. It was not until 7 October 2012 that she injured her back again but she reports today her back was asymptomatic at the time of the subject accident.
He also alluded to the opinions of Dr Roger Pillemer, in his reports dated 14 October 2015 and 27 September 2016, that he did not find S1 nerve root lesion on the right and he referred to a neurologist, Dr Levy, who felt the neurological examination was normal. Dr Cummine felt that the disc bulge at L4/5 on the CT of the lumbar spine on 8 May 2020 was not due to the subject accident nor the cause of the claimant’s lower limb symptoms. He felt the disc bulge was pre-existing, noting Dr Coroneos, in his report dated 20 January 2012, noted the MRI of the lumbar spine showed desiccation at L4/5 and L5/S1 with minor annular bulging at L4/5 and L5/S1 with central annular tears at L4/5 and L5/S1 with no neural compression and no focal disc prolapse or herniation and normal spine alignment. The soft tissues were normal.”
FINDINGS
The Review Panel has conducted a new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 63(3A) of the MAC Act.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7] The medical assessors have explained the basis of their assessment which are different to those provided by other medical specialists. The medical assessment of permanent impairment is undertaken at the time of examination. In that respect, previous assessments are outdated, and do not reflect current symptomatology.
[7] Insurance Australia Group Limited v Keen [2021] NSWCA 287.
The Review Panel notes that, despite a history of recurrent back injuries suffered at work, the claimant was able to perform all of the onerous duties of a paramedic, on an unrestricted basis, prior to the subject accident. The Review Panel is satisfied that previous back strains had settled prior to the subject accident. The Review Panel notes that Dr Davis expressed a similar view.
The Review Panel is satisfied that the motor accident caused injury to the claimant’s cervical spine, lumbar spine and right shoulder, as a matter of medical determination, and as a matter of factual non-medical determination. In relation to the lumbar spine, the Review Panel notes that the treating neurosurgeon/pain specialist, Dr Renata Bazina is of the same opinion.
The Review Panel has explained its reasons for not accepting the opinions expressed by Dr Breit and Dr Coroneos, which have been summarised. As to the right shoulder, the Review Panel bases its findings upon the measurements obtained by Medical Assessor Dixon, on the day of his assessment, which he has checked and verified.
CONCLUSIONS
For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor McGrath on 9 August 2023 should be revoked. The new certificate appears at the commencement of these reasons.
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